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2020 DIGILAW 2024 (KAR)

Anjanappa v. United India Insurance Company Ltd

2020-10-08

P.B.BAJANTHRI

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JUDGMENT P. B. Bajanthri, J. - In the instant petition, petitioners have sought for the following reliefs:- a) Issue a writ or order or direction in the nature of writ of certiorari by quashing the impugned order dated 10.09.2012 passed by the Additional Senior Civil Judge and JMFC., at Madhugiri in Miscellaneous No.20/2007 under Annexure-D as illegal, erroneous on the face of the record, b) to pass such other order or directions as this Hon ble Court deems fit to grant in the circumstances, including order for costs, in the interest of justice. 2. The challenge raised in this writ petition is to the order dated 10.09.2012 passed in Misc. No.20/2007 by Additional Senior Civil Judge and JMFC., at Madhugiri, in exercising of powers under Order XLVII Rule 1 of CPC. 3. Mvc No.1010/1998 was filed under Section 166 of Motor Vehicles, Act 1988 (for short, MV Act) on the file of the Senior Civil Judge and JMFC., Madhugiri (for short, MACT) claiming compensation for a sum of Rs.4,00,000/- on account of death of petitioners son Hanumaiah in the Road Traffic Accident. MVC No.1010/1998 was allowed on 19.07.2007 while awarding compensation for a sum of Rs.2,14,000/-. Thus, the judgment and decree was passed. The respondent No.1 herein preferred a miscellaneous petition and it was numbered as Misc.No.20/2007 before the Additional Senior Civil Judge and JMFC., Madhugiri (MACT) seeking review of the judgment and award passed in MVC No.1010/1998 dated 19.07.2007 under Order LXVII Rule 1 read with Section 151 of CPC. Misc. No.20/2007 was allowed on 10.09.2012. Feeling aggrieved and dissatisfied with the order dated 10.09.2012, petitioners have presented this petition. 4. Learned counsel for the petitioners vehemently contended that Tribunal has no power to review its own order and there are no provisions under MV Act and Rules. He is also relying on Rule 253 and 254 of the Karnataka Motor Vehicles Rules, 1989(for short, Rules, 1989) to demonstrate some of the provisions of Code of Civil Procedure are applicable and not Order XLVII Rule 1. He has cited decision in the case of Union of India Vs. Smt.Shamim and others,2009 4 ACJ 2785 and so also decision of Madhya Pradesh High Court in the case of Uttara Soni and others Vs. Oriental Insurance Co.Ltd., and others,2009 1 ACJ 276 . 5. He has cited decision in the case of Union of India Vs. Smt.Shamim and others,2009 4 ACJ 2785 and so also decision of Madhya Pradesh High Court in the case of Uttara Soni and others Vs. Oriental Insurance Co.Ltd., and others,2009 1 ACJ 276 . 5. Per contra learned counsel for the respondents resisted the contentions of the learned counsel for the petitioners while arguing that Misc.No.20/2007 has been rightly entertained and allowed, in view of Order XLVII Rule 1 read with Section 151 of CPC. Hence, there is no infirmity in the order passed in Misc.No.20/2007. 6. Heard the learned counsel for the parties. 7. Chapter XII of MV Act, 1988 deals with Claims Tribunals. Section 166 relates to Application for Compensation and Section 173 relates to Appeals. There is no provision of review. State of Karnataka by invoking Sections 28, 38, 65, 68, 95, 96, 107, 138, 174, 211 and all enabling powers read with Section 212 of MV Act, issued Rules called the Karnataka Motor Vehicles Rules, 1989. Rule 253 relates to vesting powers of the Civil Court to the MACT and Rule 254 relates to Procedure of Holding Enquiry. Even under the aforesaid Rule there is no power to review the award. Even though some of the provisions of the Code of Civil Procedure, 1908 is provided however, Order XLVII Rule 1 of CPC is not reflected in Rule 254. Therefore, one has to draw inference that MACT has no power to review its own order. 8. Crux of the matter in the present petition is Whether Tribunal could review its own order or not? 9. In the present case, MACT entertained Misc. No.20/2007 to review the judgment and award passed in MVC No.1010/1998 decided on 19.07.2007 on the score that MACT had not passed any order on pending I.A. which was filed under Order VI Rule 17 of CPC. MV Act is a special Act. In the special Act, there is no provision for review of order passed in MVC case. Having regard to Rules 253 and 254 of the Rules, 1989 read with the decision in Union of India Vs. Smt.Shamim and others,2009 4 ACJ 2785 and so also decision of Madhya Pradesh High Court reported in the case of Uttara Soni and others Vs. Oriental Insurance Co.Ltd., and others,2009 1 ACJ 276, the MACT has committed an error in entertaining Misc. No.20/2007. 10. Smt.Shamim and others,2009 4 ACJ 2785 and so also decision of Madhya Pradesh High Court reported in the case of Uttara Soni and others Vs. Oriental Insurance Co.Ltd., and others,2009 1 ACJ 276, the MACT has committed an error in entertaining Misc. No.20/2007. 10. This court in the case of D.P.Sharma Vs. State Transport Authority, (1987) ILR(Kar) 3255 in para 11 held as under:- 11. The STA could not itself undo the finality of the grant. STA has no power of review. There is no inherent power of review. The power must be conferred by the statute. Where the power in a Tribunal is one to decide questions affecting legal rights, the power is expended, once it is exercised. This is for reasons of imparting finality to the decision. The decision, so far the authority making it is concerned, becomes irrevocable, except where power of review is expressly conferred. Prof.Wade in his Administrative Law brings out the distinction between powers of a continuing character on the one hand and those that are finally expended: In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires . But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the Courts are strongly inclined to hold that the decision, once validily made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of Courts of law apply to the decisions of statutory tribunals, ministers and other authorities . For this purpose a distinction has to be drawn between powers of a continuing character and powers which, once exercised, are finally expended so far as concerns the particular case . In P.N. Thakershi vs Pradyumansingji, Supreme Court observed: 4.. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication The question whether the Government s order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence, the same cannot be ignored. It must be conferred by law either specifically or by necessary implication The question whether the Government s order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence, the same cannot be ignored. The Subordinate Tribunals have to carry out that order. We agree with Sri Datar, that having regard to the nature of the power exercised by the STA, it was not open it to undo the effect and finality of the earlier grant in the manner purported by it. The order dated 29.10.1983 cannot be said to be a dependant order wholly dependant on its validity, in turn, on the validity and existence of the order made in W.P No. 2052/83. There is concept of dependant-decrees as in the case of preliminary and final decrees- where the dependant decree does not survive after the setting-aside of the decree on which it is dependant. But in the present case even if the order in WP 2052/83 is reviewed or overruled, it will not, ipso-facto, have the effect of rendering the grant dated 29.10.1983. nonest. The STA has understood the pronouncement of the Supreme Court as having knocked-out the bottom of the grant. That might be so in a legal sense. But the grant itself has to be got rid of in a properly constituted proceeding brought against it. 11. Apex Court in the case of Naresh Kumar and Others Vs. Government (NCT of Delhi), (2019) 9 SCC 416 , in paragraphs 8 and 9, held as under:- 8. There is no provision under the Land Acquisition Act, 1894 for review of the award once passed under Section 11 of the Act and had attained finality. The only provision is for correction of clerical errors in the award which is provided for under Section 13-A of the Act, which was inserted with effect from 24.09.1984. There is no provision under the Land Acquisition Act, 1894 for review of the award once passed under Section 11 of the Act and had attained finality. The only provision is for correction of clerical errors in the award which is provided for under Section 13-A of the Act, which was inserted with effect from 24.09.1984. The relevant Section 13-A of the Act reads as under:- 13-A. Correction of clerical errors, etc.- (1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under Section 18 to make a reference to the court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority. Provided that no correction which is likely to effect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter. (2) The Collector shall give immediate notice of any correction made in the award to all the persons interested. (3) Where any excess amount is proved to have been paid to any person as a result of the correction made under subsection (1) the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue .(emphasis supplied). 9. A bare reading of the said Section 13-A would make it clear that the same is not a provision for review of the award but only for correction of clerical or arithmetical mistakes in the award. It is further provided in sub-section(1) of Section 13-A that the said correction can be made at any time, but not later than six months from the date of award. In the present case, the Land Acquisition Collector has actually not made any correction of clerical or arithmetical mistake, but has in fact reviewed the award dated 1-10-2003 by its Review Award No. 16/03-04 dated 14-7-2004, which was also clearly passed beyond such period of six months. 12. In the present case, the Land Acquisition Collector has actually not made any correction of clerical or arithmetical mistake, but has in fact reviewed the award dated 1-10-2003 by its Review Award No. 16/03-04 dated 14-7-2004, which was also clearly passed beyond such period of six months. 12. It is to be noted that when a Statute prescribes a particular manner for doing a particular act, that act must be done in the manner above as held by the Apex Court in the reported decision viz., in the case of Kunwar Pal Singh (Dead) BY LRs. v. State of U.P. and Others, (2007) 5 SCC 85 . Paragraph 16 reads as under:- 16. Section 6(2), on a plain reading, deals with the various modes of publication and they are: (a) publication in the Official Gazette, (b) publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and (c) causing public notice of the substance of such declaration to be given at convenient places in the said locality. There is no option left with anyone to give up or waive any mode and all such modes have to be strictly resorted to. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefore in the Act. Therefore in the absence of any provision to review judgment and award, MACT has erred in reviewing its own judgment and award. 13. For the forgoing reasons, I pass the following order:- (i) The order of Tribunal dated 10.09.2012 passed in Misc.No. 20/2007 in MVC No. 1010/1998, recalling the judgment and award dated 19.07.2007, is erroneous and not in accordance with law and hence, the same is set aside; (ii) Consequently, the question of law is answered in favour of Petitioners and against Insurance Company Limited; (iii) The Judgment and award dated 19.07.2007 passed by the Senior Civil Judge and JMFC., Madhugiri in MVC No.1010/1998 stands restored. (iv) The Respondents are, however, entitled to pursue the matter, if they are so advised, in accordance with law and the period during which the matter is pending before this court and before the Tribunal in the application filed for review, will be eschewed for the purpose of limitation. (iv) The Respondents are, however, entitled to pursue the matter, if they are so advised, in accordance with law and the period during which the matter is pending before this court and before the Tribunal in the application filed for review, will be eschewed for the purpose of limitation. In the result, the above Writ Petition stands allowed in the above terms leaving the parties to bear their respective costs.