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2010 DIGILAW 2046 (MAD)

P. Palani v. New India Assurance Company Ltd.

2010-04-30

S.MANIKUMAR

body2010
Judgment 1. In anaccident, which occurred on 06.09.2007, the Review Petitioner/claimant sustained injuries. He made a claim in M.C.O.P. No.3297 of 2007, before the MACT (IIIrd Small Causes Court), Chennai, for Rs.6,00,000/-. The Appellant-Insurance Company, First Respondent herein, with the leave of the Tribunal, disputed the manner of accident and further submitted that the drier of the vehicle, bearing Registration TN-09-AF 7890, insured with the Appellant, did not posses a valid and effective licence. Without prejudice to the above, they also disputed the quantum of compensation claimed under various heads. However the Tribunal, on evaluation of pleadings and evidence, held that the driver of the above said vehicle, was responsible for the accident and quantified the compensation of Rs.2,96,000/- with interest. For sake of convenience, the parties hereinafter are described in the manner stated before the Civil Miscellaneous Appeal. 2. Aggrieved by the award, the Appellant-Insurance Company has filed the present Civil Miscellaneous Appeal, contending inter alia that the Tribunal ought to have held that the Respondent/claimant was solely responsible for the accident. It is further contended that the Tribunal ought to have disbelieved the evidence let in PWs.2 and 3, Doctors. The quantum of compensation is also disputed. Along with an Appeal, the Appellant has filed M.P. No.1 of 2010, to dispense with the production of the copy of the judgment and decree, made in M.C.O.P. No. 3297 of 2007, dated 11.09.2009, on the file of the Claims Tribunal, contending inter alia that,--- “5. I submit the judgment in M.CO.P. No. 3297 of 2009 was pronounced on 11.09.2009, but the original judgment and decree was misplaced and the same could not be traced despite best efforts. Hence, the Appeal was filed using Xerox copy of the judgment and decree. The non-production of original copy of the order is not a wanton one and it was for bona fide reasons only. 6. I submit since the original order could not be traced the Appeal filed was belatedly sent to the Regional office with an opinion to prefer Appeal only on 14.01.2010. Hence, the Appeal was filed on 01.02.2010 with delay of 54 days due to the delay on the part of the counsel appeared in the Lower Court and also for administrative reasons.” 3. Hence, the Appeal was filed on 01.02.2010 with delay of 54 days due to the delay on the part of the counsel appeared in the Lower Court and also for administrative reasons.” 3. The Appellant/Insurance Company has further submitted that due to coercion, the entire award amount has been deposited in the Claims Tribunal and that the Petition to withdraw the amount was pending for orders. In those circumstances, they have prayed for a direction to dispense with the production of original certified copy of the judgment and decree made in M.C.O.P. No. 3297 of 2007, dated 11.09.2009, on the file of the Claims Tribunal. On the basis of the above said averments, this Court has passed an order, dated 09.02.2007, dispensing with the production of the copy of the judgment and decree. Thereafter, an Application in M.P.No. 2 of 2010 to condone the delay of 54 days, in filing the Appeal came up for hearing on 23.03.2010. On the basis of the averments in the supporting Affidavit, this Court passed the following order. “This Petition is to condone the delay of 54 days in filing the C.M.A.Sr.No.10216 of 2010. The Appeal is challenging the quantum of the award of Rs.2,96,000/- for the injuries sustained by the Respondent. According to the deponent, the judgment in M.C.O.P. No. 3297 of 2007 was pronounced on 11.09.2009. But the judgment and decree were misplaced. However, the Court by order dated 09.02.2010 in M.P. No.1 of 2010, granted leave to prefer the Civil Miscellaneous Appeal, without production of the original copy of the decree. It is further stated that there was some delay in seeking opinion from the learned counsel, who was appearing in the lower Court. As the quantum of compensation is said to be exorbitant, this Court. deems fit, that the matter has to be adjudicated on merits. Delay in filing is explained and I am satisfied with the reasons stated in the accompanying Affidavit. The delay is condoned. Hence, the present Miscellaneous Petition is ordered. Registry is directed to number the Civil Miscellaneous Appeal, if it is in order.” 4. After numbering, the Civil Miscellaneous Appeal came up for admission on 05.04.2010. On that day, the Court as on boycott. However, the learned counsel for the Appellant appeared before this Court and submitted that in the Execution proceedings, attachment has been ordered and payment out petition was posted for orders. After numbering, the Civil Miscellaneous Appeal came up for admission on 05.04.2010. On that day, the Court as on boycott. However, the learned counsel for the Appellant appeared before this Court and submitted that in the Execution proceedings, attachment has been ordered and payment out petition was posted for orders. In view of the urgency expressed by the learned counsel for the Appellant-Insurance Company, interim stay was granted for a period of four weeks, though on that day, the caveator was on record. Later on, based on the representation made by the learned counsel appearing for the caveator, the matter was order to be posted on 12.04.2010. 5. When the matter came up for hearing on 12.04.2010, pointing out that the Memorandum of Appeal itself has been filed, suppressing the fact that the Copy Application filed by the Appellant-Insurance Company has already been struck off on 010. 2009; that no fresh Copy Application has produced a Xerox copy of the decree field by the Respondent/claimant in the Execution proceedings; and that the averments made in both M.P.Nos. 1 and 2 of 2010, filed to dispense with the certified copy of the judgment and decree and to condone the delay in filing the Appeal respectively are false, amounting to suppress on the materials facts, learned counsel for the Respondent/claimant submitted that an Application for Review of the order made in M.P. No.2 of 2010 has already been filed and sought time to bring the same for admission. Accordingly, time was granted. 6. When the matter came up on 22.04.2010, learned counsel appearing for the Respondent/claimant took this Court through the endorsements made in the Copy Application in C.A. No.9791 of 2009, dated 17.09.2009, filed by the Appellant-Insurance Company before the Court of Small Causes and further submitted that due to non-deposit of stamps, the Copy Application filed by the Insurance Company has already been struck off on 010. 2009 itself and therefore, the Appeal ought not to have been entertained. 7. 2009 itself and therefore, the Appeal ought not to have been entertained. 7. Again, by inviting the attention of this Court to the Xerox copy of the Copy Application, enclosed at Page Nos.17 and 18 of the typed set of papers, filed by the Appellant-Insurance Company, learned counsel for the Respondents/claimants submitted that the Appellants has illegally removed the copy of a Copy Application filed by the Respondent/claimant in the Execution petition and made it to appear, as if, the Appellant-Insurance Company has received the copy of the judgment and decree from the Registry, Small Causes Court. He further submitted that when this Court, by order, dated 09.02.2010, has dispensed with the production of the judgment and decree, on the basis of the false averments that the copy received was misplaced, the Respondent/claimant was not aware of the same and therefore he could not bring it to the notice of this Court that the said plea has been made falsely and contrary to records. Even when the delay Excuse Petition was listed on 23.04.2010. Counter Affidavit to the said Petition could not be filed for want of signature of the Respondent/claimant. Since orders in Miscellaneous Petitions have been obtained by suppression of material facts with false averments made in the supporting Affidavits, learned counsel for the Respondent/claimant prayed for review of the orders, passed in both the Miscellaneous Petitions. 8. Learned counsel appearing for the Appellant-Insurance, Company submitted that after the award was passed by the Claims Tribunal, a Xerox copy of the judgment and decree was furnished to the Office of the learned counsel for the Appellant-Insurance Company, with a request to settle the matter. As the quantum of compensation awarded by the Tribunal, was on the higher side, the Appellant-Insurance Company decided to file an Appeal. As the certified copy of the judgment and decree were bona fidely believed to have been misplaced and since the Execution proceedings were pending, the Appellant-Insurance Company was constrained to deposit the award amount with interest and a supporting common. Affidavit with the averments stated supra, was prepared. M.P.Nos.1 and 2 of 2010 were filed for dispensing with the production of the certified copy of the judgment and decree with a Petition for condonation of 54 days in filing the Appeal respectively. He therefore submitted that there was no wilful or deliberate intention by the deponent of the supporting. Affidavit with the averments stated supra, was prepared. M.P.Nos.1 and 2 of 2010 were filed for dispensing with the production of the certified copy of the judgment and decree with a Petition for condonation of 54 days in filing the Appeal respectively. He therefore submitted that there was no wilful or deliberate intention by the deponent of the supporting. Affidavit to make use of the Xerox copy of the judgment and decree, said to have been produced-by the Respondent/claimant. He also submitted that the copy of the decree filed along with the Execution Petition, was not used for filing an Appeal. However, the Appellant-Insurance Company has not chosen to file any Counter Affidavit to the Review Petition. Heard the learned counsel for the parties and perused the materials available on record. 9. In order to consider as to whether there was any wilful suppression of material facts and as to whether the present Civil Miscellaneous Appeal has been filed with a stolen official copy of the Decree, file along with the Execution proceedings by the Respondent/claimant, it is necessary to have a scrutiny of the Xerox copy of the judgment and decree filed in the typed set of papers, along with Memorandum of Grounds. The Xerox copy of the decree filed by the Appellant-Insurance Company along with the Appeal papers is enclosed at Pages 17 and 18 of the typed set of papers. As per the endorsement made by the Superintendent, Court of Small Causes, a Copy Application has been filed by the lower Court counsel for the claimant on 210. 2009 and that a certified copy of the decree has been delivered on 111. 2009. The copy Application Number is 11285 of 2009 and that it has been made in the name of Mr. Balaji, learned counsel appearing for the Respondent/claimant before the Claims Tribunal. 10. The Copy Application No. 11285/09 made by the Appellant-Insurance Company for issuance of a certified copy of the judgment and decree, made in M.C.O.P. No.3297 of 2007, has been produced. Perusal of the same shows that the said Copy Application has been filed on 17th September 2009. The Application number 9791 of 2009. But the Application filed on behalf of the Appellant-Insurance Company has been struck off on 010. 2009. Perusal of the same shows that the said Copy Application has been filed on 17th September 2009. The Application number 9791 of 2009. But the Application filed on behalf of the Appellant-Insurance Company has been struck off on 010. 2009. Therefore, it is evident that the present Appeal has been filed with a Xerox copy of the certified copy of the decree issued to the Respondent/claimant, because their Copy Application itself has been struck off on 010. 2009 and certified copy of the judgment and decree would not have been issued to the Insurance Company by the Registry, Small Causes Court. It could be further noticed that the Respondent/claimant has filed a Copy Application only on 210. 2009, which was made ready on 111. 2009 and delivered on 111. 2009, whereas, the Copy Application of the Appellant-Insurance Company has been made on 17.09.2009 with C.A. No.9791 of 2009 and that the same has been struck off on 010. 2009 itself. 11. It is the contention of the learned counsel for the Appellant-Insurance Company that there was a request to settle the matter and that it was bona fidely believed that the certified copy of the decree obtained by the Company, was misplaced and could not be traced immediately It is also contended that as the Execution Petition filed by the Respondent/claimant was pending, there was an apprehension of withdrawal of award amount and therefore, filed the present Appeal, with the above said Xerox copy. 12. The contention of the Respondent/claimant that he could not bring to the notice of this Court about the incorrect averments made in the Miscellaneous Petition in M.P. No.1 of 2010, filed to dispense with the production of the Certified copy of decree, at the time of hearing and disposal of the same, is acceptable, for the reason that normally, when such application is heard, no notice is required to be served on the other side, inasmuch as, it is for the Court to consider, as to whether the reasons stated in the supporting. Affidavit, are sufficient for dispensing with the production of the documents. 13. Affidavit, are sufficient for dispensing with the production of the documents. 13. Section 173(1) of the Motor Vehicles Act deals with Appeal and it reads follows: “Subject to the provision of sub-section (2), any person aggrieved by an award of the Claims Tribunal may, within 90 days from the date of award, prefer an Appeal to the High Court; Provided that no Appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it Rs.25,000 or 50% of the amount so award, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the Appeal after the expiry of the said period of 90 days, if it is satisfied that the Appellant was prevented by sufficient cause from preferring the Appeal in time.” 14. It is well known that every Appeal shall be preferred in the form of Memorandum signed by the Appellant and his pleader and presented before the Court or such other officer, appoints in this behalf. The Memorandum has to be accompanied with copies of decree and judgment. If these conditions are fulfilled, the Appeal preferred is valid. If the Memorandum of Appeal does not satisfy the requirements, on the day of which, it is presented, then the Appeal presented may be rejected or returned to the Appellant, for the purpose of being amended within the time to be fixed by the Court. 15. A Memorandum of Appeal is not valid, unless it is accompanied by certified copies of decree and judgment. Even after the Appeal is admitted, without a certified copy, accompanying it, it can still be rejected on the ground that certified copies were not filed with it or in a case, where an Application for dispensing with the judgment and decree has been filed, as if the copies of the same were issued to the Appellant, when the Copy Application itself has been struck off and in the absence of certificate copy of decree, the filing of the Appeal would be incomplete and ineffective. 16. In the case on hand, an Affidavit has been filed, as if Registry of Small Causes Court had issued certified copies of judgment and decree. 16. In the case on hand, an Affidavit has been filed, as if Registry of Small Causes Court had issued certified copies of judgment and decree. Though the deponent has filed an Affidavit to the effect that the certified copies of the judgment and decree were already furnished and got misplaced, the question to be considered is whether the Appellant has willfully intended to make false averments. 17. Learned counsel for the Appellant-Insurance Company submitted that the supporting Affidavit was prepared under the bona fide belief that the copies of the judgment and decree were already furnished to them by the Registry of Court of Small Causes. But on the facts of the case, it is not correct because the Copy Application filed by the Appellant had already been struck off on 010. 2009. In these circumstances, there is every possibility to presume that in order to obtain an interim order and to prevent the Respondent/claimant from executing the decree, the deponent would have signed the supporting. Affidavit, without knowing that the Copy Application filed on behalf of the Insurance Company had already been struck off and without any serious intention of making false averments or willfully misrepresenting this Court. However, the fact remains that no certified copy of the decree has been issued to the Appellant-Insurance Company. In such circumstances, this Court is of the considered view that the supporting Affidavit filed to dispense with the production of the certified copy of the judgment and decree, does not reflect the true facts and therefore, the Appellant has not come to this Court with clean hands. 18. In these circumstances, this Court deems it fit that it is not necessary to conduct any roving enquiry as to whether the Xerox copy of the certified copy of the decree filed along with memorandum of grounds is a stolen and unofficial copy. No materials have been placed before this Court, at the time of hearing of the dispense with petition, to ascertain as to whether, the copy annexed at pages 17 and 18 in the typed set of papers, filed along with the memorandum of Appeal, is a certified copy of the decree issued to the Appellant-Insurance Company and whether the Copy Application made by the Appellant-Insurance Company in C.A. 9791 of 2009, was struck off on 010. 2009 itself. 2009 itself. When the discretion to condone the delay has been exercised by this Court only with reference to the cause shown, there was no occasion to verify the truth or otherwise of the averments made in the supporting Affidavit. Further, no Counter Affidavit was filed in the delay Excuse Petition. In the absence of any Counter Affidavit or oral submissions, regarding the averments made in the supporting Affidavit filed by the Insurance Company, this Court had exercised the discretion in delay excuse Petition in the appellant-Insurance Company. Till the Review Petition is filed, there was no opportunity for this Court to verify the veracity of the averments made in the excuse delay Petition. Therefore, the contention of the Review Petitioner that the Court had failed to consider the above said aspects and erroneously exercised its discretion, cannot be countenanced. 19. This Court is of the view that the scope of Review need not be confined to, (i) discovery of new and important evidence, (ii) an error apparent on the face of the record, and (iii) on account of some mistakes or for any other sufficient reason. If there is an erroneous statement made by a party that can also constitute as one of the reasons to review the judgment or order of this Court. 20. In view of the above, this Court is of the considered view that presentation of the Appeal, with a Xerox copy of the decree furnished to the Respondent/claimant itself is not proper. The discretion exercised by this Court in condoning the delay, was only on the basis of the averments, which are now found to be incorrect. Therefore, this Court is of the view that the Appellant – Insurance Company has not approached this Court with clean hands. In these circumstances, the orders passed in the delay excuse Petition requires to be reviewed and accordingly, the order, dated 23.03.2010, condoning the delay of 54 days in filing the Appeal is set aside. In view of the dismissal of the delay excuse Petition, the Appeal is directed to rejected and accordingly, rejected. 21. In the result, the Review Application is allowed. No costs.