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2018 DIGILAW 1698 (HP)

Oriental Insurance Company v. Anju Kumari

2018-09-19

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J. - By way of this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs: "i) It is therefore, respectfully prayed that this petition may very kindly be allowed and the impugned order dated 25.05.2018 passed by Ld. Motor Accident Claims TribunalII Una, District Una, H.P. in Civil Misc. Application No. 382/2018 in main petition No. 107/2015 titled Anju Kumari & others Versus Pankaj Sharma and another filed by the petitioner for recalling the order dated 18.04.2018 may kindly be set aside and while allowing such application, the witnesses of the claimants who were earlier examined, may kindly be recalled for further crossexamination as well as the persons who were examined by the investigator may also be permitted to be examined as the witnesses of the petitioner and further the matter be referred to the Ld. Registrar, High Court of Himachal Pradesh at Shimla for S.I.T. as per guidelines issued by the Hon''ble Supreme Court in case titled ''Safiq Ahmad V/s ICICI Lombard General Insurance Company Ltd.'' SLP ( C) CC No. 23628/2016. (ii) Record of the case may kindly be summoned for the kind perusal of this Hon''ble Court. (iii) Such other or further order as may be deemed just and proper by this Hon''ble Court may also be passed in favour of the petitioner." 2. Vide impugned order, dated 25.05.2018, learned Motor Accident Claims Tribunal (I), Una has dismissed an application filed by the present petitioner for recalling/reviewing order, dated 18.04.2018, passed by the said Tribunal. Record demonstrates that on 18.04.2018, learned Tribunal passed the following two orders, which stand appended with the petition as Annexures P7 and P8, respectively: "Anju Kumar Vs. Pankaj Sharma etc. Application for placing on record investigation report dated 21.3.2018. Present: Sh. Raman Kant, Advocate, counsel for the petitioner. Sh. Vikas Kashyap, Advocate, counsel for the respondent No. 1. Sh. Ajay Thakur, Advocate, counsel for the respondent No. 2. Order This order shall dispose of an application filed by the Insurance Company to place on record a report prepared by Sh. Kashmir Singh allegedly an Investigator appointed by the company. It is alleged that at that time when the insurance company closed the evidence, it was not in possession of the said report and the report has been supplied to the counsel subsequently. Kashmir Singh allegedly an Investigator appointed by the company. It is alleged that at that time when the insurance company closed the evidence, it was not in possession of the said report and the report has been supplied to the counsel subsequently. According to the insurance company, said report is essential to show that the truck No. HP.674181 has been implicated. The insurance company has also been obtained permission under Section 170 of the Motor Vehicles Act, 1988. The application is opposed on the ground of belatedly filing and maintainability. It has been submitted that there is an admission of respondent No. 1 and this is not a fraudulent case, which has been proved by cogent evidence. Heard. No doubt the application is belatedly filed. However, it has been averred in the application by the counsel of insurance company that the report has been supplied to him subsequently and it was not available with him at the time when the evidence was closed, therefore, I find that if permission is granted to the insurance company to adduce evidence by examining the witness, compensating the claimants for belated filing, it will not cause any prejudice to the claimant. Consequently, the application is allowed with cost of Rs. 5,000/- Application stands disposed of. Be tagged. Sd/- Announced (Aman Sood) 18.04.2018 M.A.C.T.II, Una, Circuit Court at Amb, Distt. Una, H.P." "18.04.2018:Present: Sh. Raman Kant, Advocate, counsel for the petitioner. Sh. Vikas Kashyap, Advocate, counsel for the respondent No. 1. Sh. Ajay Thakur, Advocate, counsel for the respondent No. 2. Vide separate order of even date placed on record, the application filed by the insurance company to place on record report of its investigator is allowed. It be tagged. One R.W. Sh. Kashmir Singh is examined as RW2. The claim made in the application is as follows: "Application for placing on record the investigation report dated 21.3.2018 conducted by the Royal Associates and prove the same by examining the investigation officer namely Sh. Kashmir Singh, Prop. Of Royal Associates and refer the matter to Registrar, High Court Shimla for investigation through SIT (Special Investigation Team). Sh. Kashmir Singh is examined. Whether the matter is fraudulent or not, is to be decided on merits. For arguments, put up on 194.2018 sd/- (Aman Sood) M.A.C.T.II, Una, Circuit Court at Amb, District Una, H.P." 3. Kashmir Singh, Prop. Of Royal Associates and refer the matter to Registrar, High Court Shimla for investigation through SIT (Special Investigation Team). Sh. Kashmir Singh is examined. Whether the matter is fraudulent or not, is to be decided on merits. For arguments, put up on 194.2018 sd/- (Aman Sood) M.A.C.T.II, Una, Circuit Court at Amb, District Una, H.P." 3. After the passing of said two orders on 18.04.2018, an application was filed by the present petitioner before the learned Tribunal for recalling/reviewing order, dated 18.04.2018 and for permission to recall the witnesses already examined for crossexamination as well as for calling those persons for being examined as witnesses, who were examined by the Investigator and for further reference of matter to the Registrar, Himachal Pradesh High Court for the purpose of Special Investigation Team. Incidentally, the application so filed is not supported by any affidavit whatsoever. It stood mentioned in the application that the need for recalling/ reviewing the order passed by the learned Tribunal on 18.04.2018 was that in view of the report of the Investigator, the witnesses already examined needed to be reexamined and further the persons whose statements were recorded by the Investigator were required to be called and examined in the Court as witnesses. 4. This application was opposed by the claimants. Learned Tribunal vide impugned order, dated 25.05.2018, has dismissed this application by holding that the driver/respondent No. 1 before it, in his affidavit, had maintained that the deceased, i.e., motorcyclist was talking on his mobile phone and was not attentive on the road and on a turn, when he blew horn, the motorcyclist suddenly lost control and hit the same with the drum of the truck. Learned Tribunal further held that as per the version of the driver, it was not the truck, which struck the motorcycle, but the motorcycle struck the truck after skidding. It further held that in his crossexamination by the Insurance Company, he had admitted that on the relevant day, i.e., on the day when the accident took place, there was no valid permit. Learned Tribunal also observed that the driver was also facing prosecution after the accident. It further held that in his crossexamination by the Insurance Company, he had admitted that on the relevant day, i.e., on the day when the accident took place, there was no valid permit. Learned Tribunal also observed that the driver was also facing prosecution after the accident. It further held that perhaps the Insurance Company was misinterpreting order, dated 18.04.2018, vide which its application to place on record the report of the Investigator was allowed and the Insurance Company intended to recall the said order with the intent to also recall the entire evidence by seeking the examination of those persons who stood examined by the Investigator. Thus, learned Tribunal held that prayer made in the application was without indicating either any purpose or object behind it. On these basis, it was held by the learned Tribunal that no case for reviewing or recalling the order dated 18.04.2018 was made out. 5. Feeling aggrieved, the petitioner has filed the present petition. 6. I have heard the learned counsel for the parties and have also gone through the pleadings appended with the petition. 7. Before adverting to the factual matrix involved in the case, it is necessary to state at this point that in exercise of its supervisory jurisdiction so conferred under Article 227 of the Constitution of India, this Court is not to act as an Appellate Court. If the findings returned by the learned Court below are within its jurisdiction and further are one of the probable findings which could have been returned on the basis of the controversy involved in the case, then this Court in exercise of its supervisory jurisdiction is not to interfere with the said findings. 8. At the very out set, it may be pointed out that the learned counsel for the petitioner has not been able to make out a case that the order passed by the learned Tribunal was without jurisdiction. He has also not been able to demonstrate from the records that the findings returned by the learned Tribunal are either not borne out from the records or are perverse. He has also not been able to demonstrate from the records that the findings returned by the learned Tribunal are either not borne out from the records or are perverse. His only contention is that once the report of the Investigator was permitted to be placed on record, then the learned Tribunal ought to have had allowed the application for recalling of order dated 18.04.2018 and should have had permitted reexamination of all the witnesses earlier examined, as also fresh examination of those persons whose statements were recorded by the Investigator so appointed by the Insurance Company. Vide order dated 18.04.2018, the prayer made by the Insurance Company to place on record the report of the Investigator was allowed. On 18.04.2018, Shri Kashmir Singh was examined as RW2. This witness was the Investigation Officer, whose report was ordered to be taken on record. After recording the statement of the said witness, it stood recorded by the learned Tribunal in one of its orders dated 18.04.2018 that whether the matter is fraudulent or not, is to be decided on merits. Now, in this background, when one peruses the impugned order, one cannot find any infirmity with the same. The statements of the witnesses, who have deposed before the learned Tribunal, already stand recorded and they have also been crossexamined by the Insurance Company after opportunity in this regard was given to the said Company. The statement of the Investigation Officer, who has prepared the investigation report has also been recorded and learned Tribunal has already observed in its order dated 18.04.2018 that whether the matter is fraudulent or not shall be decided on merits. In these circumstances, it cannot be said that the learned Tribunal has erred in dismissing the application filed by the present petitioner for recalling order dated 18.04.2018. 9. Apparently, there is no perversity in either of the orders which were passed on 18.04.2018. In the guise of filing an application for recalling the said order(s), the petitionerInsurance Company cannot be permitted to fill up lacunae in its case. Learned Tribunal has rightly held that perusal of the application so filed for recalling the said orders does not specify the purpose and object as to why the said prayer was being made. 10. In the guise of filing an application for recalling the said order(s), the petitionerInsurance Company cannot be permitted to fill up lacunae in its case. Learned Tribunal has rightly held that perusal of the application so filed for recalling the said orders does not specify the purpose and object as to why the said prayer was being made. 10. As I have already held above, in exercise of its supervisory jurisdiction so conferred under Article 227 of the Constitution of India, this Court is not to sit as an Appellate Court over the orders passed by the learned Tribunal and interference is possible only if the order passed is either without jurisdiction or there is perversity on the face of the order. In the present case, in my considered view, neither the impugned order is without jurisdiction nor the same is perverse. Learned Tribunal, after appreciating the contentions of the rival parties and after applying its judicial mind, by a reasoned and speaking order, has dismissed the application so filed by the present petitioner. The reasons assigned by the learned Tribunal are duly borne out from the records of the case and this Court concurs with the said reasons. 11. In view of above, as there is no merit in the present petition, the same is dismissed, so also miscellaneous applications, if any. No order as to costs.