Madhya Pradesh High Court
New India Assurance Company Ltd. vs Smt.Manju Doneria on 28 November, 2016
1 W. P. No. 1169/ 2014
(New India Assurance Co. Ltd. Vs. Smt. Manju Doneria & Others)
28.11.2016
Shri S. Gajendragadkar, learned counsel for the
petitioner.
Shri N.S. Tomar, learned counsel for respondents
No.1 to 4.
Shri Anand V. Bhardwaj, learned counsel for respondent No.5.
This writ petition has been filed by the petitioner- Insurance Company assailing the order dated 23.01.2014 passed by the Court of District Judge, Morena, in Miscellaneous Civil Case No.55/2013 dismissing the application for review under the provisions of Order 47 Rule 1 read with Section 114 of C.P.C.
Brief facts leading to the present petition are that one- Smt. Manju Doneria had filed a claim case No.97/2013, wherein award was passed on 15.05.2013. Against that award, no appeal was filed by the Insurance Company, but they had filed an application for review under the provisions of Order 47 Rule 1 read with Section 114 of C.P.C., claiming that they could not produce the certificate from the Licensing Authority/ Assistant Divisional Transport Officer (Admn.), Agra, wherein it is mentioned that the license held by the driver- Deepu was not issued by the said authority and it was found to be forged and fabricated. It is submitted that since they could not file copy of the report, in Form-54 under Rule 150(a) and (b), therefore, the order passed by the Claims Tribunal be reviewed. It is submitted that 2 W. P. No. 1169/ 2014 (New India Assurance Co. Ltd. Vs. Smt. Manju Doneria & Others) since fraud has been committed, therefore, review is maintainable and should have been allowed.
Learned counsel for the respondents have raised three objections: one, that review was not maintainable inasmuch discovery of a new fact will not give rise to review; second, that the writ petition is not maintainable and at best, Civil Revision could have been filed against the order rejecting the review; and thirdly, it is the contention of learned counsel for the petitioner that M.P. Motor Vehicle Rules, 1994, under Rule 240, specifically provides the extent to which the provisions of Civil Procedure Code are applicable and since provisions of Order 47 are not applicable under the rules, therefore, review was not maintainable.
Learned counsel for respondents No.1 to 4 in addition has also submitted that in fact appeal was not filed so to overcome the lacuna of not filing the application under Order 41 Rule 27 for bringing documents on record, on the basis of which, review has been sought and it is the basis for filing the writ petition inasmuch as said document which has been filed by the petitioner as Annexure-P/2 is dated 06.02.2012 and the Claims Tribunal had decided the claim on 15.05.2013, therefore, the Insurance Company was having copy of said documents for over 15 months in their possession and if the Insurance Company had failed to produce said documents before the Claims Tribunal, then it cannot be a ground to seek review of the award.
3 W. P. No. 1169/ 2014(New India Assurance Co. Ltd. Vs. Smt. Manju Doneria & Others) Learned counsel for the petitioner has placed reliance on the judgment of Supreme Court in the matter of United India Insurance Co. Ltd. Vs. Rajendra Singh & Others as reported in 2000(3) SCC 581, wherein the Supreme Court in Paras- 15 and 16 has held that-
"if the Insurance Company discovers a fraud at a later stage showing that such dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time, the award was already passed, it would not be possible for the Company to file a statutory appeal against the award, therefore, the remedy to move for recalling the order on the basis of newly discovered facts amounting to fraud of high decree, cannot be foreclosed in such a situation."
In respect of the aforesaid judgment of Supreme Court, it is apparent that the remedy of review could have been availed if the fact of fake licensing was not within the knowledge of the Insurance Company at the time of passing of the award. It is apparent from Annexure-P/2 issued by the concerning Licensing Authority on 06.02.2012 that they had knowledge of this document that the license held by the driver was not genuine, at least 15 months prior to the date of passing of the award. This judgment is of no help to the petitioner.
Learned counsel for the petitioner has also placed reliance on the judgment in the case of United India Insurance Co. Ltd. Vs. Ramdas Patil & Others as reported in AIR 2000 MP 63, wherein in Para-24 of the judgment, it has been held that-
4 W. P. No. 1169/ 2014(New India Assurance Co. Ltd. Vs. Smt. Manju Doneria & Others) "discovery of fraud or collusion between the claimants and insured after passing of award, can be a ground for approaching the Tribunal for review."
In the present case, facts are totally different; no fraud or collusion between the claimants and insured was disclosed and it was not submitted that there was any fraud or collusion between the claimants and insured. In fact, it was the Insurance Company who was sleeping over and for the negligence of it's own officials, it cannot take advantage. The fact as has been narrated above that the Insurance Company already had certificate issued by the Licensing Authority dated 06.02.2012 and that was never brought on record before the Claims Tribunal will not entitle the Insurance Company to say that they had discovered fraud or collusion between the parties after passing of the award necessitating to file a review. Thus, the ratio of said judgment is also not available in favour of the petitioner.
Learned counsel for the petitioner has also placed reliance on the decision of this Court rendered in the case of National Insurance Co. Ltd. Vs. Lachhibai @ Laxmibai & Others as reported in 1997(1) MPLJ 356, wherein in Para-12, this Court had held that-
"the power of review vests with the Tribunal in it's inherent powers under Section 169 of the Motor Vehicle Act, though Rule 240 of the M.P. Motor Vehicle Rules, 1994, has not expressly provided for application of Order 47 of Civil Procedure Code."
There is no quarrel about this proposition, yet the petitioner is required to demonstrate that his case 5 W. P. No. 1169/ 2014 (New India Assurance Co. Ltd. Vs. Smt. Manju Doneria & Others) is not hit by the provisions of Order 47 Rule 4(2)(b), wherein it is provided that no such application shall be granted on the ground of discovery of new matter or evidence, which the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.
In the present case, petitioner has failed to made any of the requirements as are mentioned in Order 47 Rule 1 regarding discovery of new and important matter. It is evident that the letter of Licensing Authority, Agra, was already in possession of the Insurance Company since 06.02.2012 and therefore, the application for review was hit by the provisions contained in Order 47 Rule 4(2)(b) of C.P.C.
Therefore, the judgment in the case of National Insurance Co. Ltd Vs. Lachhibai @ Laxmibai & Others (Supra) is also of no help to the petitioner.
Reliance has also been placed on the judgment of Supreme Court in the case of A.V. Papayya Sastry & Others Vs. Govt. of A.P. & Others as reported in 2007(4) SCC 221, wherein in Para-38 of the judgment, it deals with the extra ordinary jurisdiction of Supreme Court under Article 141 of the Constitution of India to do complete justice between the parties and is not available at the stage of writ petition, which has been filed by the petitioner- Insurance Company, therefore, this is also distinguishable and not applicable to the facts and circumstances of the 6 W. P. No. 1169/ 2014 (New India Assurance Co. Ltd. Vs. Smt. Manju Doneria & Others) present case.
In view of the aforesaid, it is apparent that the Insurance Company was prima-facie negligent in not producing the document which was in their possession and which was in their knowledge since 06.02.2012 for long 15 months when the award was passed. No party can be allowed to take advantage of it's own negligence and in fact Insurance Company being a State under Article 12 of the Constitution of India, should have been more responsible in taking up the litigation against poor claimants.
In the opinion of this Court, review has been rightly dismissed by the learned District Judge, Morena, and therefore, this writ petition also fails and is dismissed.
Insurance Company to bear cost which is quantified at Rs.25,000/-, as instead of taking-up in- house action, Insurance Company has caused avoidable hardship to the claimants. This amount of the cost will be payable to the claimants.
(Vivek Agarwal) Judge @PK