Gujarat High Court
Premjibhai Bhimjibhai Kerasia vs Ravji Jesang Kothivar on 31 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/12/2022 ORDER DATED: 31/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 12 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/FIRST APPEAL NO. 12 of 2022
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2022
In
R/FIRST APPEAL NO. 12 of 2022
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PREMJIBHAI BHIMJIBHAI KERASIA
Versus
RAVJI JESANG KOTHIVAR
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/01/2024
ORAL ORDER
1. The appellant challenges the judgment and award dated 9.3.2021 passed in Motor Accident Claim Petition No.370 of 2014 passed by the Motor Accident Claims Tribunal, Kachchh at Bhuj as well as the order dated 25.10.2021 passed on Review Application No.6 of 2021, wherein the Tribunal has rejected the review application on the ground that original opponent Nos.1 Page 1 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined and 2 did not remain present when the case was called out before the Tribunal.
2. Learned advocate Mr. Hiren M. Modi for the appellant submits that the appellant is the owner of the vehicle being Truck No. GJ-12-Z-2766 which was involved in the accident. Learned advocate submits that the review petition was filed to reconsider the order of pay and recover, wherein in the impugned judgment in MACP No.370 of 2014 in paragraph 2 of the operative order, the insurance company was given the liberty to recover the amount from the appellant after following due procedure according to law. Learned advocate submits that the observation of the insurance company was on the premise that no driving licence was produced by the driver on the involved truck. Learned advocate submits that the Tribunal could have called for the information under Form 54 of the Central Motor Vehicles Rules, 1989 and could have procured the copy of the licence. Learned advocate submits that opponent No.4 insurance company had moved an application Exh. 44 on 4.1.2021 with a prayer for direction against opponent No.1 driver calling upon to produce licence. Learned advocate Page 2 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined submits that on that application, the order was passed, inter alia, directing that the driver and the owner of the vehicle being Truck No. GJ-12-Z-2766 to produce the copies of the documents mentioned in the preferred application. Learned advocate submits that in spite of that order, no order for issuance of notice was prayed by the insurance company and therefore, though the order was passed below Exh. 44, it could not be served. Hence, there was no compliance and immediately after the order being passed on Exh. 44 on 22.1.2021, the insurance company passed a closing purshis and thus, learned advocate submits that though the licence was available with the driver, it could not be produced. Learned advocate submits that on very ground, the review petition was moved, but the Tribunal found that below Exh. 44 learned advocate had put an endorsement of 'seen' and thus, the Tribunal referred that such an endorsement would conclude that learned advocates were aware of the order below Exh. 44 and after the order below Exh. 44, the final award was passed on 9.3.2021, i.e. after almost one and half months and thus concluding that the original opponent Nos.1 and 2 were put to the notice by order below Exh. 44 to produce Page 3 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined valid and effecting driving licence, but opponent No.1 had failed to do so.
3. Countering the arguments of learned advocate Mr. Modi, learned advocate Ms. Karuna V. Rahevar for the insurance company submits that the burden of failure of opponent Nos.1 and 2 of MACP No.370 of 2014 cannot be laid down on the insurance company to consider any non-observance of the procedure where actually the insurance company had called upon opponent Nos.1 and 2 by way of moving Exh. 44 to produce the original licence and when the advocates were on record, there was no specific need for the issuance of notice to the party concerned. Learned advocate Ms. Rahevar submits that the review petition was rightly rejected and thus submits that one opportunity has been granted and when opponent Nos.1 and 2 failed to comply the order, that itself would be a ground for rejection of the present appeal.
4. MACP No.370 of 2014 was decided on 9.3.2021 exonerating the insurance company with the direction to pay and recover the said amount from opponent No.2, i.e. present Page 4 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined appellant after following due procedure according to law. The ground for exoneration is non-production of the valid and effecting licence on record. The Tribunal had observed that notice to opponent Nos.1 and 2 are duly served, had not contested the matter and have not produced the driving licence of the driver. Hence, it could not be decided as to whether opponent No.1 was having driving licence to drive the vehicle.
5. After having considered the submissions raised by both learned advocates on record and having considered the order below review application as well as the judgment of the Tribunal in MACP No.370 of 2014, it is required to be reminded to the concerned Tribunal the provisions of sub-section (4) of Section 166 of the Motor Vehicles Act, 1988 ('M.V. Act' for short) where the Tribunals are called upon to treat the report of accident forwarded to it under Section 159 of the M.V. Act as an application for compensation under the M.V. Act. Section 159 of the M.V. Act mandates the police officer, during the investigation, to prepare an accident information report to facilitate the settlement of claim in such form and manner, within three months, containing such particulars and submit the Page 5 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined same to the Claims Tribunal or such other agency as may be prescribed. Section 158 of the M.V. Act authorises a police officer in uniform to ask for production of documents referred therein from any person driving a vehicle in a public place. Thus, the documents referred in Section 158 include driving licence. The provision under sub-section (2) of Section 158 further clarifies that owing to the presence of a motor vehicle in a public place, an accident occurs involving death or bodily injury to another person, if the driver of the vehicle does not at that time produce the required certificate, driving licence and permit referred to in sub-section (1) to a police officer, he or the owner shall produce the said certificates, licence and permit at the police station at which the driver makes the report required by Section 134.
6. Section 134 of the M.V. Act lays down the duty of driver in case of accident and injury to a person. On demand by a police officer of any information required by him, sub-clause (c) clarifies that while giving information, driver is required to give information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, Page 6 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined namely - (i) insurance policy number and period of its validity;
(ii) date, time and place of accident; (iii) particulars of the persons injured or killed in the accident; and (iv) name of the driver and the particulars of his driving licence. It further clarifies through explanation that driver includes the owner of the vehicle. In view of these provisions, the driver and the owner of the vehicle would be obliged to produce the copy of the licence before the concerned Investigating Officer who deals with the motor accident case and, under Section 166(4) of the M.V. Act, such police officer has to forward a report to the concerned Tribunal under Section 159 of the M.V. Act. Section 166(4) of the M.V. Act mandates the Claims Tribunal to treat such report of accident forwarded to it as an application for compensation under the M.V. Act.
7. In view of the above provisions, it would be necessary to also reflect upon the provisions of Section 170 of the M.V. Act to consider the provisions, that during the course of inquiry before the Claims Tribunal and in case where it is found by the Claims Tribunal and is satisfied that the person against whom the claim is made has failed to contest the claim, then the Tribunal has to Page 7 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined direct, that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceedings and the insurer shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 150, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
8. It is also required to be specifically kept in mind the provisions under Section 169 of the M.V. Act that in the above procedure and powers of Claims Tribunal while summarily conducting the procedure, the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court.
9. On the failure of the person to contest against whom the claim is made would thereafter only give a right to the insurance company to defend and contest the claim on all Page 8 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined grounds that are available to the person against whom the claim has been made. In view of this fact and the provisions to the circumstances as has come before the Tribunal, non-presence of opponent Nos.1 and 2 as driver and owner though representative by advocate on record, would not be against the provisions of law, the Tribunal was also required to be mindful of the directions given by the Apex Court in the case of Jai Prakash vs. National Insurance Company Limited and others [(2010) 2 SCC 607], wherein the Apex Court had given suggestions for legislative / executive intervention which are given to draw the attention to several vexed issues which to improve the system of compensating the motor accident victims and such suggestions were with the intention, to properly and expeditiously addressing the same, so as to ensure that all the accident victims get compensation. The direction to the police authorities and to the Claims Tribunal is reproduced hereunder:
"Directions to Police Authorities
16. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be Page 9 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined taken by the Station House Officers of the jurisdictional police stations:
(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal: (i) The age of the victims at the time of accident;
(ii) The income of the victim;
(iii) The names and ages of the dependent family members.
(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased should also be furnished to the Tribunal.
(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.Page 10 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024
NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined
(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.
17. To avoid any administrative difficulties in immediate implementation of section 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158(6) of the Act.
18. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/-, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a Page 11 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.
19. The Transport Department, Health Department and other concerned departments shall extend necessary co- operation to the Director-Generals to give effect to Section 158(6).
Directions to the Claims Tribunals
20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents receive under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166(4) of the Act.
21. For complying with section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:
(a) The Tribunal shall maintain an Institution Register for recording the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. If any private claim Page 12 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined petitions are directly filed with reference to an AIR, they should also be recorded in the Register.
(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident.
Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any `Police Officer - Advocate - Doctor' nexus, which has come to light in several cases).
(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
(e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.
Page 13 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined (f) Wherever the insurer does not dispute the liability
under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Managar, KSRTC v. Susamma Thomas [1994 (2) SCC 176].
(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the victim/s under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.
22. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as Page 14 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation."
10. The appellant as an owner of the vehicle was made liable to pay the compensation amount, as insurance company was directed to pay the amount and recover from him. Hence, aggrieved by the same, he had moved the Tribunal for reviewing the order. Order XLVII Rule 1 of the Code of Civil Procedure, 1908 makes provisions for review in following terms:
"1. Application for review of judgment-- (1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, Page 15 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or
order may apply for a review of judgment
notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
Explanation--The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment."
11. In light of the provisions of M.V. Act, opponent Nos.1 and 2 of MACP No.370 of 2014 had sufficient reason to move the Tribunal to review the judgment and award as having not Page 16 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined contested the petition and the motor accident claim petition being defended by the insurance company. The law under the M.V. Act mandates driver and owner of the vehicle to produce the copy of the licence before the Investigating Officer and the police officer is required to produce the copy along with the report submitted by him to the Tribunal as laid down in the case of Jay Prakash (supra). The Tribunal was required to call upon the Investigating Officer under Form 54 of the Central Motor Vehicles Rules, 1989 to produce the same. Non-production of licence of the driver, by the driver or the owner, could not be made a ground for exonerating the insurance company where in fact law mandates them to produce before Investigating Officer.
12. In the case of Board of Control for Cricket, India and another vs. Netaji Cricket Club and others [AIR 2005 SC 592], the scope of review application has been dealt with in paragraphs 88 and 90. The relevant observations are referred hereinbelow:
"Section 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not Page 17 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".
13. In the referred judgment of Board of Control for Cricket, India (supra), it is clarified that the word 'sufficient reason' in Order XVII Rule 1 of CPC, is wide enough to include the misconception of fact or law by court or even an advocate. In Paragraph 92 of the said judgment, it has been observed as Page 18 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined under:
"92. Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms:
"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v.
Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error Page 19 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined ... ..." (Emphasis supplied)
14. The Tribunal had the authority under the statutory provisions of law to entertain the review application and correct the mistake occurred, but for the said mistake, the earlier judgment would not have been passed as was on erroneous assumption which in fact did not exist, as its perpetration would result in miscarriage of justice, thus nothing would preclude the Tribunal from rectifying the error.
15. The judgment impugned dated 9.3.2021 is on the erroneous belief of the burden to produce the licence to the Tribunal by the owner and driver. Though licence could have been produced by the insurance company as well as the Tribunal could have called for from Investigating Officer, unnecessary burden was laid on the owner / driver after the order under Section 170 of the M.V. Act. In view of the provisions of Section 149 prior to the Motor Vehicles (Amendment) Act, 2019 and now the corresponding Section 150 of the M.V. Act on being entitled to defend the action, the insurance company can defend on a condition excluding driving Page 20 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The appellant herein as owner of the involved vehicle has moved the appeal contending that the driver was having valid and effective driving licence on the date of accident. Along with the appeal, Civil Application No.1 of 2022 has been preferred for recording the additional evidence. This Court is of the view that directing in the appeal, if the document of licence is considered as valid and effective without providing opportunity to the insurance company to raise the defence if necessary, then that would be considered as breach of principle of natural justice, and such opportunity can be given only by remanding the matter to the concerned Tribunal, where evidence can be recorded to that aspect.
16. In view of the reasons given hereinabove, the appeal on this primary ground is allowed. The Tribunal is ordered to reconsider the judgment, permitting the owner and/or driver to produce the licence on record as they are willing to produce so and thereafter on re-examination and only on that issue of Page 21 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024 NEUTRAL CITATION C/FA/12/2022 ORDER DATED: 31/01/2024 undefined licence, if any examination of any witness by either of the parties to the lis is required, the Tribunal shall permit the same in this regard and the matter be heard on merits and it shall be decided within a reasonable period of time, preferably within a period of four months on the receipt of the order of this Court.
17. In view of the disposal of the appeal, Civil Application No.1 of 2021 stands disposed of.
18. Civil Application No.1 of 2022 stands allowed. The additional document is ordered to be produced before the concerned Tribunal, and MACP No.370 of 2014 is ordered to be restored on the original file of the concerned Tribunal.
(GITA GOPI,J) Bharat Page 22 of 22 Downloaded on : Fri Feb 02 21:22:30 IST 2024