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2018 DIGILAW 1031 (MP)

Usha v. United India Insurance Co. Ltd.

2018-12-17

SANJAY YADAV, VIVEK AGARWAL

body2018
JUDGMENT Agarwal, J. -- 1. This revision petition has been filed by the claimants being aggrieved by order dated 10.9.2013 passed in Miscellaneous Appeal No. 444/2012, whereby learned Single Judge has allowed the appeal filed by the Insurance Company, i.e., United India Insurance Co. Ltd. and has directed that in a matter where liability is fixed under section 140 of the Motor Vehicles Act, 1988 (hereinafter shall be referred to as the “Act of 1988”), then the onus is not on the Insurance Company to satisfy the interim award passed by the learned Tribunal. 2. Learned counsel for the revision petitioner on the other hand submits that as per the provisions contained in clause (c) of section 145 of the Act of 1988, liability has been defined as under: (c) “liability”, wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under section 140. 3. It is submitted that since liability includes liability in respect thereof under section 140, therefore, Insurance Company could not have been exonerated from its liability by the impugned order. It is also submitted that as per the judgment of Hon'ble Supreme Court in the case of Shivaji Dayanu Patil and another v. Vatschala Uttam More as reported in 1991 ACJ 777 , wherein it has been held that in a case of no fault liability, Claims Tribunal is not required to follow the normal procedure as prescribed with regard to adjudication of claims under section 110A for the purpose of making an order under section 92A of the repealed Act, otherwise the object of making available a certain sum to the victim or his heirs as expeditiously as possible would be defeated. It has been further held that rules 291A, 306A and 306B contain adequate provisions which would enable the Claims Tribunal to satisfy itself in respect of the matters necessary for awarding compensation under section 92A. 4. Similarly, reliance has been placed on the judgment of Full Bench of this High Court in the case of Oriental Insurance Co. Ltd. v. Annamma Abrahim and others as reported in 1995 ACJ 1189 , wherein it has been held that applicability of the conditions of the policy is foreign to the scope of enquiry in a claim under section 140 of the Act. 5. Ltd. v. Annamma Abrahim and others as reported in 1995 ACJ 1189 , wherein it has been held that applicability of the conditions of the policy is foreign to the scope of enquiry in a claim under section 140 of the Act. 5. Reliance has also been placed on the judgment of this High Court in the case of Anki and ors. v. Kallu and ors. as reported in 2008 ACJ 2543 , wherein it has been held that the insurer is duly protected, inasmuch as if ultimately in the final award the insurer is exonerated, then the tribunal can issue appropriate direction enabling the insurer to collect the same from the owner of the vehicle. It has been held that this could be the only legitimate conclusion to be drawn from the peremptory language of section 92A of the 1939 Act or section 140 of the 1988 Act. 6. On the other hand, learned counsel for the Insurance Company submits that in the light of law laid down by Hon'ble Supreme Court in the case of Yallwwa and Ors. v. National Insurance Co. Ltd. & Anr., as reported in III (2007) ACC 269 (SC), the ratio is that order passed under section 140 is appealable order and Claims Tribunal must be satisfied that condition precedent specified in section 140 substantiated basis for making award even when objections raised by Insurance Company in regard to liability, then Tribunal is required to render decision upon issue, which would attain finality, thus would be award under section 173 of the Motor Vehicles Act, 1988. 7. Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Sow. Chandra Kanta & Anr. v. Sheik Habib as reported in AIR 1975 SC 1500 , wherein scope of review has been discussed and it has been held that a review of judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. It is submitted that since there is no such exigency, therefore, review sought by the present petitioners should not be entertained. On similar line, reliance has been placed on the judgment of this High Court in the case of Dev Krishna & anr. It is submitted that since there is no such exigency, therefore, review sought by the present petitioners should not be entertained. On similar line, reliance has been placed on the judgment of this High Court in the case of Dev Krishna & anr. v. Dhani Ram Saligram as reported in AIR 1959 MP 217 , wherein it has been held that the review does not lie even if the decision of the Single Bench is erroneous, if that Bench is aware of what it was doing and what is the meaning of the mistake apparent or patent on face of it. 8. Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of M/s. Northern India Caterers (India) Ltd. v. Governor of Delhi as reported in AIR 1980 SC 674 to point out that there cannot be any review and 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'. 9. Learned counsel for the revision petitioners, on the other hand, submits that while deciding the appeal, learned Single Judge was not aware of the consequences and, therefore, her case is squarely covered by the judgment of Division Bench of this Court in case of Dev Krishna (supra). It is also submitted that even case of Sow. Chandra Kanta & Anr. (supra) is distinguishable because the rules of Hon'ble Supreme Court were the subject matter and subject to those rules, scope of review is to be determined but in the present case, scope is to be seen within the four corners of order 47 rule 1 of CPC. It is submitted that there is error apparent and recently vide order dated 17.11.2017 passed in M. A. No. 946/2017 (Smt. Somvati and ors. v. Santlal Kushwah and ors.) placing reliance on the judgment of this High Court in case of Smt. Geeta Devi Mishra and ors. v. Anil Kumar Tiwari as reported in 2004 (1) MPHT 82 , scope of section 140 has been considered and application preferred by the appellants/claimants under section 140 of the Act of 1988 was allowed. The issue before this Court is in two fold. 1. Whether there is any error on face of it in the impugned order dated 10.9.2013 necessitating review. 2. The issue before this Court is in two fold. 1. Whether there is any error on face of it in the impugned order dated 10.9.2013 necessitating review. 2. If review is permissible, then whether the Court was justified in exonerating the Insurance Company from satisfaction of interim award. 10. As far as scope of review is concerned, it is writ large that the mistake is apparent, inasmuch as learned Single Judge was probably not aware as to the settled principle of law. As a result whereof, apparent error on the face of record crept in. Therefore, this Court is of the opinion that review is maintainable. 11. As far as merits are concerned, it is apparent that learned Single Judge has erred in not reading the provision contained in clause (c) in section 145 of the Act of 1988, which defines liability and also the law laid down by the Hon'ble Supreme Court in the case of Shivaji Dayanu Patil & anr. (supra) so also the ratio of the judgment of this High Court in the case of Anki and Ors.(supra). Thus, learned Single judge has erred in exonerating the Insurance Company from discharging its duty to satisfy an interim award and frustrating the very purpose of making interim award under section 140, i.e., to provide immediate aid and assistance to the family of the deceased or to the injured victim. 12. As far as law laid down in the case of Yallwwa & Ors. (supra) is concerned, issue there was different and it was whether an order passed under section 140 of the Act of 1988 is an appealable one or not. In the present case, this is not the controversy but the controversy is in regard to liability of the Insurance Company as defined under section 145 (c) of the Act of 1988 to satisfy the interim award and, therefore, on facts, judgment of Hon'ble Supreme Court rendered in case of Yallwwa & ors. (supra) is distinguishable. 13. In view of such facts, this review petition deserves to be allowed and is allowed. Impugned order is set aside. It is directed that Insurance Company shall satisfy the impugned award if interim award has yet not been executed.