Research › Search › Judgment

Uttarakhand High Court · body

2007 DIGILAW 571 (UTT)

The National Insurance Co v. Col. . N. Khanna

2007-11-23

RAJESH TANDON

body2007
Judgment Heard Shri D.S. Patni, counsel for the review applicant. 2. Present review application has been filed for reviewing the judgment and order dated 16-7-2007. The review applicant has prayed to the following effect: "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present review application and to review the judgment and order dated 16-7~2007 passed by this Hon'ble Court and to reduce the interest from 12% per annum to 7.5 per cent per annum, otherwise the appellant Insurance Company shall suffer irreparable loss and injury." 3. Earlier the appeal was dismissed by me on 16-7-2007 on the ground that no permission under Section 170 of the Motor Vehicles Act has been obtained challenging the quantum of compensation as held in Apex Court in National Insurance Co. Ltd. v. Nicolletta Rohtagi, (2002) 7 SCC 456. The Apex Court in Nicoletta Rohtagi's case has held as under: "In Shankarayya v. United India Insurance Co. Ltd. (1998) 3 SCC 140, it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to an appeal on merits questioning the quantum of compensation." 4. In view of the aforesaid, the appeal preferred by the National Insurance Co. Ltd. was dismissed on 16-7-2007. 5. So far as the merit of the present review petition is concerned, it is well-settled that the review petition can be filed only for consideration of important matters or evidence which, by mistake or error on the face of the record could not be considered when the order was passed. A review petition cannot be filed for re-hearing of the entire matter by changing the counsel as well. 6. The Hon'ble Apex Court in the case MIS Northern India eateres (India) Ltd. vs. Lt. A review petition cannot be filed for re-hearing of the entire matter by changing the counsel as well. 6. The Hon'ble Apex Court in the case MIS Northern India eateres (India) Ltd. vs. Lt. Governor of Delhi, (1978) 4 see 36 has observed as under: "It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle IS justified only when circumstances of a substantial and compelling character make it necessary to do so Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta15. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has . crept in earlier by judicial fallibility" : Sow Chandra Kante v. Sheikh Habib (1975) 3 SCR 935.... 7. crept in earlier by judicial fallibility" : Sow Chandra Kante v. Sheikh Habib (1975) 3 SCR 935.... 7. In the case Parison Devi v. Sumitri Devi, (1997) 8 see 715 Hon'ble Supreme Court has held that while exercising power under Order XLVII Rule 1 of the Code of Civil Procedure it is not permissible for erroneous decision to be re-heard and corrected and the power of review cannot be exercised to be an appeal in disguise. Hon'ble Supreme has observed as under: "It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p. 186) this Court opined: "What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." "A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise." 8. In the case Union of India v. Paul Manicram AIR 2003 SC 4622 the preposition of law discussed as above has been consistently upheld by the Apex Court. "As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamii Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual aspects which were not disclosed or were concealed in the writ petition. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the court has to take serious note of unclean approach. Whenever a representation is made to the President and the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically, and not in the manner done in the case at hand. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but the dayto-day administration at respective levels is carried on by the Heads of the Departments/Ministries concerned and the designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or was interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly immediately concerned with such consideration." 9. In view of the aforesaid principles laid down by the Apex Court from time to time, I do not find any merit in the review application. Review application, therefore, lacks merit and is liable to be dismissed. 10. Consequently, appeal is dismissed with costs.