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2017 DIGILAW 3551 (MAD)

Jayaram Roadways Proprietor, K. J. Shri Rengaperumal Rajapalayam v. National Insurance Company Limited, Rep. By its Branch Manager, Rajapalayam

2017-11-02

S.M.SUBRAMANIAM

body2017
ORDER : This batch of Review Applications on hand are filed on the grounds that the principle laid down by the Hon'ble Supreme Court of India in the case of Samir Chanda Vs. Managing Director, Assam State Transport Corporation, reported in [1998 ACJ 1351] has not been followed. In respect of the grounds stated supra, this Court has gone into the principles laid down by the Hon'ble Supreme Court of India in the case of Samir Chanda and the relevant paragraph 15 of the above said judgment cited supra are extracted hereunder: “15. After going through the judgment of the High Court, we are of the view that the High Court was not right on facts that there was no negligence on the part of the owner or the driver of the bus especially when the appellant has specifically pleaded about the negligence which was accepted by the Tribunal in the light of the pleadings and of the evidence produced before it. The explosion took place inside the bus is an admitted fact and the usual police escort was not there. The High Court, except observing that there was no negligence, has not upset the finding of the Tribunal that the atmosphere during the period of accident was so polluted requiring care on the part of the conductor and driver of the bus. There cannot be any doubt that the accident arose out of the use of the motor vehicle justifying the claim of the appellant. We are satisfied with the assessment of the Tribunal in quantifying the compensation in a sum of Rs.1,20,000/- with interest at the rate of 12 per cent.” 2. On a plain reading of the facts before the Hon'ble Apex Court, it is unambiguous that those facts are absolutely inapplicable to the facts and circumstances of the present case on hand. Further, in the case before the Hon'ble Supreme Court of India, there was no negligence on the part of the owner or the driver of the bus in the light of the pleadings and of the evidence produced before the Motor Accident Claims Tribunal therein. In other words, the negligence part had not been proved against the owner of the bus in the case before the Apex Court. 3. In other words, the negligence part had not been proved against the owner of the bus in the case before the Apex Court. 3. The learned counsel appearing on behalf of the Review petitioner has stated that the facts and circumstances of the present case on hand, are akin to that of the case decided by the Hon'ble Supreme Court of India in the case of Samir Chanda Vs. Managing Director, Assam State Transport Corporation, reported in [1998 ACJ 1351]. However, on reading of the facts and circumstances, this Court is of the opinion that the facts in the above said Samir Chand case is totally inapplicable to the facts of the case on hand. Thus, the decision taken by the Hon'ble Supreme Court of India, mainly on the ground that no negligence on the part of the owner or the driver of the bus has been proved, cannot be adopted in respect of the facts in the present case. In view of the depositions, evidences and the findings of the Tribunal in the present case, it is pleaded that Ex.B3, Ex.B4, Ex.B5 ought to have fastened the liability on the National Insurance Company. This apart, it is stated that the order of the State Consumer Forum viz., Ex.B3 was not considered. On the above stated grounds, the order passed by this Court on 18.11.2016 is sought to be reviewed by the petitioners herein. In respect of those documents and other factual aspects, this Court has came to the conclusion that the driver and the conductor of the bus is absolutely responsible for loading of the explosives inside the passenger bus. Further, it is proved beyond that the explosives were loaded in the passenger bus only with the consent of the bus driver and the conductor. This apart, the explosives were loaded nearby the driver seat, more specifically, with the knowledge and the consent of the bus driver. Thus, these grounds raised have no merit consideration. The learned counsel appearing for the review petitioner emphasized the grounds stated supra for reviewing the order passed by this Court on 18.11.2016.) 4. This apart, the explosives were loaded nearby the driver seat, more specifically, with the knowledge and the consent of the bus driver. Thus, these grounds raised have no merit consideration. The learned counsel appearing for the review petitioner emphasized the grounds stated supra for reviewing the order passed by this Court on 18.11.2016.) 4. The learned counsel appearing for the Respondent/National Insurance Company contended that the Review Applications are not maintainable either under Section 114 of CPC or under Order 47 Rule 1 of CPC for the reasons that Review Applications can be maintained under any of the ingredients of the Order 47 Rule 1 CPC and more importantly when there is a mistake or an error apparent on the face of the record. 5. The Review petitioners have not made out any single ground for reviewing the said judgment and there is no defect or error apparent on the face of the record. It is stated that the review petitioners did not made out any ground, so as to attract the ingredients of Order 47 Rule 1 CPC and the review petitioners have not made out or pointed out any error apparent on the face of the record. It is contended that the Hon'ble Supreme Court has held in Persion Devi and Ors v. Sumithra Devi & Ors [ 1997 (8) SCC 715 ], that reviewing a judgment on error apparent on the face of the record, is distinct from erroneous decisions. 6. The learned counsel appearing for the respondents urged this Court that an erroneous decision will not provide a cause for the petitioner to file the present Review Applications. Contrarily, order can be reviewed only if there is an error apparent on the face of the record. The Hon'ble Supreme Court has made out a distinction between the error apparent on the face of the record and erroneous decisions. But, the grounds raised in these Review Applications do not establish any error apparent on the face of the record and therefore, the present Review Applications are to be dismissed. 7. Further, the Hon'ble Supreme Court has held that the review jurisdiction cannot be used as an Appellate Jurisdiction and as defined, the word “mistake” or “error” apparent on the face of the record. 7. Further, the Hon'ble Supreme Court has held that the review jurisdiction cannot be used as an Appellate Jurisdiction and as defined, the word “mistake” or “error” apparent on the face of the record. As per Order 47 Rule 1 CPC, the judgment may be opened to review, inter alia, if there is a mistake or an error apparent on the face of the records. An error which is not self-evident and has to be detected by a process of reasoning can hardly said to be an error apparent on the face of the record justifying the Court to exercise its power of review in exercise of the jurisdiction under Order 47 Rule 1 CPC. It is impermissible for an erroneous decision to be “re-heard and corrected” and there is a clear distinction between an erroneous decision and an error apparent on the face of the record. 8. The learned counsel appearing for the respondent proceeded by contending that the Review Application has a limited purpose and cannot be allowed to be an Appeal in disguise. The case across the country held that where the grounds enumerated under Order 47 Rule 1 CPC is imminent and in the absence of satisfying the ingredients, no Review Application would lie. Further, it is stated that the Review Application is not a process of re-hearing of the whole matter, which had been earlier finally disposed of and the Review Application filed by the petitioners herein exactly attempts to do the same. The Review Application should be accepted or rejected has to be decided with reference to the grounds on which the review is permissible and not on the merits of the claim. The Hon'ble Supreme Court in the case of reported in AIR 2000 SC 1650 held that a Review Application is for a correction of mistake and not for substitution of views. A point which may be a good ground for an appeal need not be a good ground for an application for review. Thus, an erroneous view of evidence or of law is no ground for a review, though, it may be a good ground for an appeal. The grounds of Review Applications presently filed does not make out an evidence or error on the judgment of this Court. 9. There is no error apparent on the face of the record by this Court in the judgment and decree. The grounds of Review Applications presently filed does not make out an evidence or error on the judgment of this Court. 9. There is no error apparent on the face of the record by this Court in the judgment and decree. In the said appeal cases, the conductor and driver of the public transport passenger vehicle have got a duty to verify that inflammable or hazardous article or goods are not carried inside the passenger vehicle and the same amounts to violation of the Rules in force. 10. The learned counsel appearing for the review petitioners mainly relied upon the ground that the conductor and the driver of the bus are not responsible for loading the explosives inside the bus. 11. When a specific ground has been raised by the review petitioner that the driver and the conductor of the bus were not responsible for loading the explosives, this Court has to consider the evidences and the findings of the Tribunal. Even in the FIR itself it has been categorically stated that loading of the explosives were done, with the permission and consent of the driver and the conductor of the bus. The FIR itself states that near about 56 gunny bags of explosives were loaded with the permission of the driver and conductor of the vehicle. This apart, when the bus came through the old bus stand, another passenger got into the bus with kerosene tins. Those kerosene tins were also permitted to be loaded in the bus by the conductor and the driver. From the very complaint, it is clear that the conductor and driver are having the habit of loading those kinds of articles inside the bus frequently. 12. The Motor Accidents Claims Tribunal framed the Issue No.1 by stating that whether the accident took place on account of the negligence on the part of the driver and the conductor of the bus or not? 13. It was categorically considered that the bus driver and conductor without any authority permitted the explosives to be loaded in the bus and further the gelatins were also permitted to be loaded by the driver and conductor. The Tribunal has made a categorical finding by stating that Mr.Sivaganesan and Mr.Muruga Kani have loaded 5 gunny bags of gelatins and the same were kept near the driver seat and that was admitted in the cross-examination also. The Tribunal has made a categorical finding by stating that Mr.Sivaganesan and Mr.Muruga Kani have loaded 5 gunny bags of gelatins and the same were kept near the driver seat and that was admitted in the cross-examination also. Further, it was found that the driver and the conductor also assisted the said passengers to load the explosives. It is further found by the Tribunal that without the knowledge of the driver and conductor such a huge quantity of five loads of gunny bags containing gelatins could not be loaded in the bus and the driver and the conductor have knowledge of the nature of the goods loaded and the consequences. Thus, they are responsible for the accident. 14. When the passengers, who loaded the explosives in the bus were issued with the tickets by the conductor himself to be construed that the conductor and the driver were aware of the loading of this explosives. The conductor issued the tickets to the passengers who loaded the explosives, the driver kept all the gunny bags near the driver seat and on a perusal of the evidence recorded by the Motor Accident Claims Tribunal, it is clear that the loading of the explosives took place with the consent and permission of both the driver as well as the conductor. The conductor and the driver are very much aware that the loading of explosives in the passenger bus are prohibited under law and therefore, the act of the driver and the conductor are in violation of law and so also in violation of the conditions of the insurance policies. In view of this categorical finding that the contentions of the review petitioners that the driver and the conductor are not responsible, cannot be accepted. Further, the facts and circumstances of the case narrated by the learned counsel appearing for the review petitioner, and the decision of the Hon'ble Supreme Court of India, cited supra, are entirely different. In that case it was found that there was no negligence on the part of the owner or the driver of the bus, in the light of the pleadings and evidences produced before the Accidents Tribunal. In that case it was found that there was no negligence on the part of the owner or the driver of the bus, in the light of the pleadings and evidences produced before the Accidents Tribunal. However, in the present case on hand, the Accidents Claims Tribunal has categorically examined the witnesses and the witnesses also deposed that the loading of the explosives were done in the passenger bus with the consent of the driver and the conductor. This apart, those facts were not disputed by the Tribunal and even during the cross-examination, the witnesses were categorically enumerated that the loading of 5 gunny bags of explosives inside the bus was loaded only with the consent of the driver and the conductor. The conductor also issued passenger tickets to the passengers who loaded the explosives inside the bus. 15. This apart, Section 72 of the Motor Vehicles Act deals with grant of stage carriage permit. A bus is a public service vehicle meant for carriage of passenger and is stopped in various stages and is called as stage carriage. Section 72 (2) of the Act has got a lot of sub-rules and Rule (xii) assumes importance. Rule (xii) reads as follows:- Sec.“72(2). The Regional Transport Authority subject to any rules that may be made under this Act attach to the permit any one or more of the following conditions, namely, (xii) The conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers.” Rule 79 of Tamil Nadu Motor Vehicle Rules is the next rule to be considered. It deals with duty of the conductors towards passengers. The said Rule 79 imposes a duty on the conductor of a stage carriage in sub-rule (3) as follows:- “Sub Rule (3). The conductor of a stage carriage shall where the goods are carried in the vehicle in addition to passengers take all reasonable precautions to ensure that the passengers are not endangered or unduly inconvenienced by the presence of the goods.” Rule 172 of the Tamil Nadu Motor Vehicle Rules is also relevant. It speaks of permit conditions for transport vehicles carrying passengers. It speaks of permit conditions for transport vehicles carrying passengers. Sub Rule – 3 of Rule 172 speaks it shall be the condition of every permit to use a transport vehicle that there shall not be present in the vehicle even when it is stationary any class or description of goods, the convenience of which contravenes any law or any rule, by law or order made thereunder prohibiting or regulating the import, export or transport of such goods.” 16. Further it is stated that the submission of the review petitioners that the owners have got no responsibility to forbid or prevent carriage of such substances since they are not physically present in the vehicle at the time of occurrence, cannot be accepted and for the violation of the rules by the employees of the owner, the owner of the vehicle is vicariously liable and for the violation of the rules above said, the insurer had got every right to avoid their liability, since permit conditions have been openly violated and contravened by the owner of the vehicle and accordingly the driver and the conductor are solely responsible and consequently the owner is to be held vicariously liable for the illegal acts committed by the employees, none other than the Conductor and the Driver. 17. Apart from this, when the policy conditions were clearly violated, this Court is bound to consider the fact that the owner of the vehicle is responsible for the accident. Thus, this Court has rightly considered the factors and held that the Insurance Company has to pay the compensation to the victims and thereafter to recover the same from the owner of the vehicle. In respect of the grounds raised in this review petition, this Court is of the view, that those factors were considered by this Court at the time of passing the orders in the Civil Miscellaneous Appeals and the review petitioners have not made out any grounds of error apparent on the face of the record so as to correct the judgment. In respect of the illegality and violation of policy conditions committed by the driver and the conductor of the vehicle, it was made clear that the owner of the bus is vicariously liable and in respect of the violation of the policy conditions the Court thought it fit to order “pay and recovery”. In respect of the illegality and violation of policy conditions committed by the driver and the conductor of the vehicle, it was made clear that the owner of the bus is vicariously liable and in respect of the violation of the policy conditions the Court thought it fit to order “pay and recovery”. Thus, there is no error apparent on the face of the record on the judgment rendered in the Civil Miscellaneous Appeals. 18. The learned counsel filed this batch of Review petitions, was not the counsel appeared in the Civil Miscellaneous Appeals. In this regard, this Court has to consider the very fact that whether a different counsel shall be permitted to file Review petitions, when they have no knowledge about the arguments advanced by the counsel on record, appeared in the Civil Miscellaneous Appeals. The Hon'ble Supreme Court of India in the case of Tamil Nadu Electricity Board and another Vs. N.Raju Reddiar and another, reported in (1997) 9 SCC 736 is observed as follows: “1. It is a sad spectacle that a new practice unbecoming and not worthy of or conducive to the profession is cropping up. Mr.Mariaputham, Advocate-on-Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr.V.Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on 24-4-1996. Yet another advocate, Mr. S.U.K. Sagar, has now been engaged to file the present application styled as “application for clarification”, on the specious plea that the order is not clear and unambiguous. When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the Advocate-on-Record who neither appeared nor was party in the main case. It is salutary to note that the court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the Advocate-on-Record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the Advocate-on-Record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. In Review Petition No.2670 of 1996 in CA No.1867 of 1992, a Bench of three Judges to which one of us, K.Ramaswamy, J., was a member, had held as under: “The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-on-Record when the appeal was heard and decided on merits. The review petition has been filed by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the review petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would not be in the interest of the profession to permit such practice. That apart, he has not obtained 'No Objection Certificate' from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the 'No Objection Certificate' would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the 'No Objection Certificate' from the erstwhile counsel has disentitled him to file the review petition. Even otherwise, the review petition has no merits. It is an attempt to reargue the matter on merits.” 19. In the case of Kamlesh Verma Vs. Mayawati, reported in 2013 (8) SCC 320 , the Hon'ble Apex Court held that a repetition of old and over-ruled argument is not enough to reopen the concluded adjudications and that mere possibility of two view on the subject, cannot be a ground for Review. It is also observed therein that the appreciation of evidence on record is fully within the domain of the appellate Court and it cannot be permitted to be advanced in the Review Application. 20. In the case of Subramanian Swamy Vs. It is also observed therein that the appreciation of evidence on record is fully within the domain of the appellate Court and it cannot be permitted to be advanced in the Review Application. 20. In the case of Subramanian Swamy Vs. State of Tamil Nadu, reported in 2014 (5) SCC 75 , the Hon'ble Supreme Court reiterated that “Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed.” 21. In the case of Tamil Nadu Electricity Board and another Vs. N.Raju Reddiar and another, reported in (1997) 9 SCC 736 , the Hon'ble Supreme Court has again to the extent of dismissing the Review Application with an exemplary costs of Rs.20,000/- as it is an abuse of the process of Court in derogation of healthy practice. In the case on hand, also the learned counsel now appearing in the Review Application had not appeared in the Civil Miscellaneous Appeal, the Review petitioner filed these batch of Review Applications only by changing the counsel on record. 22. Thus, the learned senior counsel who filed this Review Applications ought to have refused to accept these cases. Contrarily, the learned counsel filed these batch of Review Applications and contested the same. Thus, this Court is certainly painful with regard to the act of the learned senior counsel appearing in this batch of Review Applications. Under these circumstances, this Court is not inclined to consider any of the grounds raised in this batch of Review Applications. 23. Accordingly, all the Review Applications are dismissed. However, there shall be no order as to costs.