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Allahabad High Court · body

2010 DIGILAW 745 (ALL)

Sandhya Vaish v. New India Insurance Company Ltd.

2010-02-26

S.S.CHAUHAN

body2010
JUDGMENT 1. Since the common question of facts and law are involved in both the revisions, therefore, they are being heard together and decided by a common judgement. 2. These revisions have been filed challenging the orders dated 01.03.2008 and 19.04.2008 whereby Applications No.22C of 2003 and 23C of 2003 for reviewing the awards dated 06.03.2003 passed in Motor Accident Claim Petitions No.135 of 1994 and 136 of 1994 have been rejected. 3. The facts in nutshell are that Vinod Kumar Vaish, husband of revisionist no.1 and father of revisionist no.2 of civil revision no.40/08 and Arun Kumar Vaish, husband of revisionist no.1 and father of revisionists no.2 to 4 of civil revision no.70/08, met with an accident while travelling in Maruti Van No.DDD-3903 which collided with Truck No.URA-4735 coming from opposite direction. Three persons including Vinod Kumar Vaish and Arun Kumar Vaish died on the spot and four persons received injuries. FIR of the said occurrence was lodged at Police Station-Malihabad by Parmeshwar, Gram Pradhan of the village. Thereafter claim petitions were preferred before the Motor Accidents Claims Tribunal, which were registered as Claim Petitions No.135 of 1994 and 136 of 1994. The matter was adjudicated by the Tribunal and an award of Rs.2,00,000/-was made in favour of revisionist no.2 and Rs.1,50,000/- in favour of revisionist no.1 of civil revision no.40/08 and Rs.1,00,000/- to revisionist no.1 and Rs.1,40,000/- to each of the revisionists no.2 to 4 with interest at the rate of 9% p.a. but no interest was awarded from the date of filing of the claim petition till pronouncement of the judgment. 4. The revisionists moved applications under Section 174 of the Motor Vehicle Act (for short "the Act") for payment of interest from the date of filing of the claim petitions till pronouncement of the judgments. The revisionists also filed better affidavits alongwith applications as desired by the Court and the Insurance Company filed objections to the same and thereafter the said applications moved under Section 174 of the Act were treated as review applications by the Tribunal and the review applications were rejected. Hence these revisions. 5. Submission of learned counsel for the revisionists is that the Tribunal was having inherent jurisdiction to review its order if any illegality was committed due to oversight or inadvertence. It is also submitted that interest should have been awarded from the date of filing of the claim petitions. Hence these revisions. 5. Submission of learned counsel for the revisionists is that the Tribunal was having inherent jurisdiction to review its order if any illegality was committed due to oversight or inadvertence. It is also submitted that interest should have been awarded from the date of filing of the claim petitions. The Tribunal while awarding the interest @ 9%, due to oversight and inadvertence, could not specify the period from which date to which date it was to be awarded although the Tribunal did not award the interest for the period the claim petition was dismissed in default. Submission is that any error of minor nature can be corrected in the review application which seems to be justified and demanding in the existing facts and circumstances of the case. Revision against the order rejecting the review application is fully maintainable and the Tribunal has erred in holding that review application was not maintainable before the Tribunal. In support of his submission, learned counsel for the revisionists has relied upon the judgments rendered in the cases of Pranab Dhar Vs. Rajesh Deb & Anr., National Insurance Company Ltd. Jabalpur Vs. Lachhibai Urf Laxmibai and others, New India Assurance Co. Ltd. Vs. Samar Roy and another, and Kamla Yadav Vs. Smt. Shushma Devi and others. 6. Learned counsel for the opposite parties, on the other hand, has submitted that against the original order passed by the Tribunal in the proceedings under the Motor Vehicle Act an appeal would be maintainable and review would not be maintainable before the Tribunal. Submission is that no application under Section 174 of the Act could have been moved or entertained as the said provisions relate to recovery of amount and, therefore, it was correct exercise of jurisdiction by the Tribunal while rejecting the review applications. 7. I have heard learned counsel for the parties and gone through the record. 8. Vinod Kumar Vaish and Arun Kumar Vaish, husbands of revisionists no.1 of civil revisions no.40/08 & 70/08, met with an accident on 25.11.1993, as a result of which three persons including Vinod Kumar Vaish and Arun Kumar Vaish died on the spot and four other persons received injuries when Maruti Van No.DDD-3903 collided with Truck No.URA-4735 while returning from Neemsar. The claim petitions were filed and finally allowed. The claim petitions were filed and finally allowed. The Tribunal awarded Rs.2,00,000/-to revisionist no.2 and Rs.1,50,000/- to revisionist no.1 of civil revision no.40/08 and Rs.1,00,000/- to revisionist no.1 and Rs.1,40,000/- to each of the revisionists no.2 to 4 of civil revision no.70/08 with 9% interest but failed to point out the period from which the interest was to be awarded. Applications were moved under Section 174 of the Act which were treated as review applications and the revisionists were directed by the Tribunal to file better affidavits alongwith the applications. The said affidavits alongwith the applications were filed. The Insurance Company also filed objections to the same and thereafter the review applications were rejected holding therein that it was the discretion of the Tribunal to award interest. It was also held that there was no provision under the Motor Vehicle Act for award of interest. The question of maintainability of the revision has been seriously disputed by the counsel for the Insurance Company and it has also been submitted that the review was not maintainable before the Tribunal. Consequently, the revision would also not be maintainable. 9. In order to appreciate the controversy and the law propounded by the various High Courts as well as by the the Apex Court, the following cases are necessary to be appreciated for resolving the controversy:- 10. In the case of Pranab Dhar (supra), Gauhati High Court has held as under:- "5. Mr. Chakraborty, learned counsel for the petitioner would contend that though the provisions of review have not been incorporated in the Motor Vehicles Act, 1988 (for short 'the Act') as has been provided under the Code, yet the learned Claims Tribunal has the power to review its own judgment and award, if it is satisfied that the judgment and award has been passed due to the mistake of the counsel of the petitioner and not for the mistake of the petitioner herein. He also contended that the power of review is implicit in every Court of civil nature even if the said power is not expressly provided under the statute like the Act. In support of his aforesaid contention he relied upon a decision of this Court in the case of New India Assurance Co. Ltd. v. Samar Roy & Anr.. He further contends that the Apex Court in a recent decision in Sunita Devi Singhania Hospital Trust & Anr. In support of his aforesaid contention he relied upon a decision of this Court in the case of New India Assurance Co. Ltd. v. Samar Roy & Anr.. He further contends that the Apex Court in a recent decision in Sunita Devi Singhania Hospital Trust & Anr. v. Union of India and Anr., held that every Tribunal has inherent power to recall its order for the interest of justice. 23. Having heard the learned counsel for the rival parties and after going through the law reports as referred to above and also taking note of the facts of the case in hand and keeping in view the object of the provisions of Section 169 of the Act, it can be easily said that the claims Tribunal is constituted by the State in view of the provisions of the Act, for the purpose of accidents involving the death of/ or bodily injury to persons arising out of the use of motor vehicles and damage to any property so arising and both, and these disputes have been divested and take away from the jurisdiction of ordinary Courts of civil judicature but that does not mean that due to inclusion of sub-section (2) of Section 169 excluded the power of review of claims Tribunal of its own order specially to achieve the object and purposes for which the claims Tribunal is established. Now the question arises, for what purpose the claims Tribunal have been established by the State, for doing injustice or to do justice in the real sense forbidding the technical tyrannies. Procedural hurdle should not be a bar in the way of substantive justice, as justice is the prime consideration. The Court should take note of the intent of the legislature while interpreting the provisions of the statute. Procedural hurdle should not be a bar in the way of substantive justice, as justice is the prime consideration. The Court should take note of the intent of the legislature while interpreting the provisions of the statute. In the instant case by way of incorporating sub-section (2) of Section 169, the legislature vested some specific power of Civil Court to a Tribunal for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the claims Tribunal deems to be a Civil Court for all purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 meaning thereby the legislature in sub-section (2) of Section 169, speaks only about the power of the Tribunal, not regarding procedure, hence not prohibited the Tribunal to apply the general procedure as stated in the provisions of the Code like Order 47, Rule 1, as the legislature has empowered the claims Tribunal with wide power of discretion to follow such a summary procedure as it thinks fit, for holding of inquiry under Section 168 of the Act subject to any rules that may be made in this behalf. As it is stated from the Bar that in the State of Tripura the Government did not make any rules as authorised by Section 176 of the Act, the claims Tribunal is free from any obstacle to take the aid of provisions of the Code which prescribe the general procedure for the interest of justice and equity. As it is stated from the Bar that in the State of Tripura the Government did not make any rules as authorised by Section 176 of the Act, the claims Tribunal is free from any obstacle to take the aid of provisions of the Code which prescribe the general procedure for the interest of justice and equity. Even if for the argument sake we consider that claims Tribunal are not empowered to exercise all the powers of established Civil Courts except under certain provisions of the Code as mentioned in sub-section (2) of Section 169, then also it cannot be ruled out that the legislature did not specifically prohibit the claims Tribunal to follow the general procedure prescribed in the Code and when there is no specific prohibition for following the general procedure in an inquiry under Section 168 of the Act and more so, when the wide discretion is vested in the claims Tribunals under sub-section (1) of Section 169 this Court has no hesitation to hold that the claims Tribunal failed to exercise the jurisdiction vested in it while rejecting the application for review filed by the petitioner, a poor owner of the offending vehicle (Auto Rickshaw) even when the valid permit covering the relevant period of accident was placed before it and the offending vehicle was insured with the Insurance Company-respondent No.2 herein. It also appears from the application for review filed by the petitioner that due to mistake of his learned counsel the valid permit could not be placed before the claims Tribunal and instead of placing such valid permit, another permit not covering the period of accident was placed, and sufficient reasons were shown by the petitioner for non-submission of the valid permit before the claims Tribunal at the time of trial. Mistake and/ or error cannot be ruled out completely from any human endeavour, much less in matters of pleadings as well as submission of documents. Tribunals or other professional advisors like learned lawyers are by no means to be regarded as a perfectionist, nor their pleadings and acts are always error proof. The review of an order for doing substantive justice cannot be avoided always. Therefore, if necessary, the same should be allowed, even when the provisions of statute do not either expressly or by necessary implication exclude the applicability of those provisions of general procedure. The review of an order for doing substantive justice cannot be avoided always. Therefore, if necessary, the same should be allowed, even when the provisions of statute do not either expressly or by necessary implication exclude the applicability of those provisions of general procedure. It is also settled by this time that for the fault of the lawyer the litigant should not suffer and in the instant case it appears that the petitioner, poor Auto-Rickshaw owner had/ has the valid permit for the period covering the accident, but then also the award was passed against him for the mistake committed by his lawyer though his vehicle was insured with the insurance company-respondent no.2 herein, which is unwarranted and for that also the impugned order is required to be interfered with. 24. In view of the decision of the Apex Court in Patel and Narshi Thakershi (supra) which is again followed by the Apex Court in Kewal Chand Mimani (D) by Lrs. power of review is not an inherent power unless the same is conferred either by law specifically or by necessary implication. But these cases are not much helpful for the case in hand as in the present case question arises whether sub-section (1) of Section 169 of the Act vests the power of review by necessary implication or not in the Tribunal. In view of the decision in Sunita Devi Singhania Hospital Trust and Anr. (supra) of the Apex Court and also the decision in Lachhibai Urf Laxmibai and Ors. (supra) as decided by the Madhya Pradesh High Court and the decision of this Court in Samar Roy & Anr. (supra), this Court has no hesitation to hold that the Tribunal has the power of review as the same is implicit in every Court of civil nature, even when the statute is expressly not armed with power of review, and also the Tribunal is free to follow the general procedure prescribed under Order 47, Rule 1, CPC as the legislature vested wide power to it under sub-section (1) of Section 169 regarding what should be the procedure for holding inquiry under Section 168 of the Act." In the case of National Insurance Company Ltd., Jabalpur vs. Lachhibai Urf Laxmibai and others (supra), Madhya Pradesh High Court has held as under:- "10. The procedure and powers of the Claims Tribunal are provided under Section 169 of the Motor Vehicle Act, 1988. Sub-section (1) of Section 169 provides that the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. Similar provision is provided under Section 11 of the Industrial Disputes Act. A Full Bench of the Punjab and Haryana High Court in Jai Singh v. N.A. Subramaniam, has considered the scope of Section 100-C of the Motor Vehicles Act of 1939. While considering the powers of the Claims Tribunal regarding the sentence "The Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit, the Court held that the Tribunal is at liberty to follow any procedure that it may chose to evolve itself so long as the said procedure is not arbitrary, is consistent with the rules of natural justice, and does not contravene the positive provisions of law. When such a wide power exists in the Tribunal, there will absolutely be no justification to reconstruct the exercise of that power on the ground that the legislature impliedly intended to do so by no applying all provisions of the Code of Civil Procedure. In order to do justice and to achieve the purpose for which it has been constituted, a Tribunal would have inherent power to apply all or any of the procedures of the C.P.C. on principles of justice, equity and good conscience. The Supreme Court while considering the scope of the similar provisions under Section 11 of Industrial Disputes Act, held that the power of review is not inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act - while the procedure is left to be derived by the Tribunal to suit carrying out of its functions under the Act, the powers of the Civil Court conferred upon it are clearly defined. 11. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act - while the procedure is left to be derived by the Tribunal to suit carrying out of its functions under the Act, the powers of the Civil Court conferred upon it are clearly defined. 11. The expression 'review' is used in two distinct senses, namely (i) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it and (ii) review on merits when the error sought to be corrected is one of law and is apparent on the face of record. In the case of Narshi Thakershi's case it is held that no review lies on merits unless the statute specifically provides for it. Obviously, when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process and such power inheres in every Court or Tribunal. The Hon'ble Supreme Court has given a limited power of review to the Tribunal and while considering the scope of sub-sections (1) and (3) of Section 11, it was held that the review is maintainable. Similarly, in Satnam Verma's case (supra) considering the scope of powers of the Tribunal under Section 11 of the Industrial Disputes Act, it was held that the Tribunal is endowed with such ancillary or incidental power as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. The jurisdiction vested in the Tribunal under the wide powers cannot be denied by the Tribunal itself." In the case of New India Assurance Co. Ltd Vs. Samar Roy and another (supra), Gauhati High Court has held as under:- "Though the provisions of review as has been contemplated under the Code of Civil Procedure, has not been incorporated in the M.V. Act, yet being a Presiding Officer of Civil Tribunal constituted under the M.V. Act, obviously for limited purpose the learned Member Tribunal has to power to review his own order if he is satisfied that the order is passed contrary to the provision of law or passed inadvertently having by-passed any law and that is apparent on the fact of record without taking further evidence. That power of review is implicit in every court of civil nature regardless of the power expressly provided under the Code of Civil Procedure, of course in exercising such implicit power of review, the court/Tribunal is supposed to follow the procedure prescribed under O.47, R.1, C.P.C. Under Motor Vehicles Act, 1988 in respect of damage to any property of third party, the insurer's liability is statutorily limited to Rs.6,000/- only. Award of a compensation of Rs.20,000/- contrary to the higher limit proscribed by the statute, is an omission apparent on the face of the record. The learned Member Tribunal should have reviewed his earlier order allowing the maximum permissible amount at Rs.6,000/- to be paid by the Insurance Company and the balance amount is to be fastened upon the insured (owner of the vehicle)." In the case of Sunita Devi Singhania Hospital Trust & Anr. v. Union of India and Anr., the Apex Court has ruled as under:- "19. It is true that the period of limitation specified in terms of Sub-Section (2) of Section 129B of the Customs Act is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefor. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with. 24. Yet again in Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors., this Court held: "17. What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict." 25. This Court, however, in a slightly different context in Jet Ply Wood (P) Ltd. and Anr. vs. Madhukar Nowlakha & Ors, opined that even an order permitting withdrawal of a suit can be allowed to be recalled by a civil court in exercise of its inherent power." 10. This Court, however, in a slightly different context in Jet Ply Wood (P) Ltd. and Anr. vs. Madhukar Nowlakha & Ors, opined that even an order permitting withdrawal of a suit can be allowed to be recalled by a civil court in exercise of its inherent power." 10. Full Bench of this Court has also held that the orders of the District Judge/ Additional District Judge passed as Motor Accidents Claims Tribunal will be amenable to revisional jurisdiction of the High Court under Section 115 CPC. Contention of the counsel for the opposite parties could have been accepted provided the application moved by the revisionists would not have been treated as review application by the Tribunal. Once the application was treated as review, the parameters laid down in various judgments as indicated hereinabove would apply in the case of the revisionists as well. Full Bench of this Court in the case of Kamla Yadav (supra) has held as under:- "31. In view of the discussions held above, we are of the view that the orders of the District Judge/ Additional District Judge passed as Motor Accidents Claims Tribunal will be amenable to revisional jurisdiction of the High Court under Section 115 CPC." 11. The question in regard to award of interest being discretion of the Tribunal has not found favour by this Court as well as by the Apex Court in catena of decisions. This Court in the case of Durga Prasad Singh and another Vs. Bhola Singh and others, has held that interest is liable to be awarded from the date of making the claim. Paragraph-12 of the said judgment is reproduced hereunder:- "12. In the case of Union of India v. P.S. Mahal, it was held that the interest should be payable from the date of the presentation of the claim before the Tribunal interest has normally to be awarded from the date of making the claim unless there are good reasons for making a deviation, as per the ratio laid down in Sonoo Keki v. Bishwanath Singh. Thus, now it is well settled position that the interest cannot be awarded from the date of accident but it can be awarded from the date of making the claim. The liability to pay interest is an independent liability and excluded from the liability to pay compensation. Thus, now it is well settled position that the interest cannot be awarded from the date of accident but it can be awarded from the date of making the claim. The liability to pay interest is an independent liability and excluded from the liability to pay compensation. Payment of interest is allowable in view of Section 171 of the Act, if the Tribunal in its discretion so directs. Section 171 of the Motor Vehicles Act, 1988 subsequently empowers the Tribunal to award interest at such rate as it may specify in that behalf in the ward, it cannot be said that Section 34 of the Code of Civil Procedure would govern the award Section 171 gives discretion to the Tribunal to award reasonable amount of interest after taking into consideration the facts and circumstances of each case. There is no prohibition that it shall not award interest at a particular rate. In this view of the matter, it cannot be said that the order passed by the Tribunal awarding interest from the date of making the claim is illegal and erroneous as per the ratio laid down in the case of Abati Bezbaruah (supra) identical ratio was laid down in the case of Kaushnuma Begum (Smt.) and others v. New India Assurance Company Ltd.. The similar view was expressed by the Apex Court in the United India Insurance Co. Ltd. & others v. Patricia Jean Mahajan & others." Similar view has been expressed in the case of The New India Assurance Co. Ltd., Lucknow Vs. Indrapal Dixit and others. Paragraphs-20, 21 & 22 of the said judgment are reproduced hereunder:- "20. Learned counsel for the respondents has relied upon a case reported in Bijoy Kumar Dugal v. Bidyadhar Dutta and others, wherein the Hon'ble Supreme Court held that the claimant shall be entitled for the payment of interest from the date of filing of the Claim Petition. The contention of the insurance company was rejected by their Lordships of Hon'ble Supreme Court for payment of interest from the date of filing of the written statement. 21. In one another judgment relied upon by the learned counsel for the respondents in Mohinder Kaur and others v. Hira Nand Sindhi (Ghoriwala and another), the Hon'ble Supreme Court has allowed the interest from the date of filing of the claim petition. 22. 21. In one another judgment relied upon by the learned counsel for the respondents in Mohinder Kaur and others v. Hira Nand Sindhi (Ghoriwala and another), the Hon'ble Supreme Court has allowed the interest from the date of filing of the claim petition. 22. Keeping in view the fact that the claimants-respondents were not aware of the vehicle having been insured to the appellant prior to the filing of the written statement by the owner of the vehicle and also the statutory provisions contained in Section 171 of the Motor Vehicles Act, we are of the opinion that the impugned order does not call for any interference. The learned Tribunal has rightly granted the interest from the date of filing of the claim petition." 12. Therefore, the finding of the Tribunal that the interest could not have been awarded is devoid of merit and baseless and the Tribunal ought to have corrected the omission on its part in failing to award the interest from the date of filing of the claim petition and the interest should have been awarded from the date of filing of the claim petition. 13. The question of maintainability of the review application cannot be doubted on account of the fact that the Tribunal was not lacking in its power of reviewing its order which resulting into material injustice to the claimants, who happen to be widows, daughter and sons in these cases. The legislature has not specifically prohibited the Claims Tribunal to follow the general procedure prescribed in the Code and when there is no specific prohibition for following the general procedure in an inquiry under Section 168 of the Act and moreso, when the wide discretion is vested in the Claims Tribunals under sub-section (1) of Section 169 of the Act. Court has no hesitation in holding that the Claims Tribunal failed to exercise the jurisdiction vested in it while rejecting the applications for review filed by the revisionists. The Tribunal ought to have considered the settled law in regard to the award of the interest and further it was not deprived of the power to entertain the review as the legislature has empowered the Claims Tribunal with wide power of discretion to follow such procedure as it thinks fit for holding the enquiry under Section 168 of the Act. The view expressed in Sunita Devi Singhania Hospital Trust (supra) compels this Court to take a view that if any application was moved for rectification of mistake, then the same was within the province of the Tribunal to correct the same in order to discharge the function effectively for the purpose of doing justice between the parties. 14. The review applications, therefore, were very well maintainable before the Tribunal and the Tribunal failed to exercise the jurisdiction vested in it in accordance with law for correcting the said omission. 15. The revisions are accordingly allowed. The orders dated 01.03.2008 and 19.04.2008 rejecting the review applications are set aside. The revisionists shall be entitled for the interest at the rate of 9% from the date of filing of the claim petitions excluding the period for which the Tribunal had directed that the revisionists shall not be entitled for the interest.