Rajasthan High Court - Jodhpur
United India Insurance Company vs Smt. Jamna Devi And Ors on 11 July, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:28508]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 913/1999
United India Insurance Company, Udaipur Branch (Raj.)
----Appellant
Versus
1. Smt. Durga Devi, w/o Satya Narayan Singh Rajput,
resident of Kurabgarh, Tehsil Girwa, District Udaipur (Raj.)
2. Poonam Chand s/o Motilal Chaudhary, resident of
Kurabgarh, Tehsil Girwa, District Udaipur (Raj.)
3. Bhanwar lal s/o Anooplal Chaudhary, resident of
Savinakhera, District Udaipur (Raj.)
----Respondent/Non-Claimant
Connected With
S.B. Civil Misc. Appeal No. 915/1999
United India Insurance Company, Branch Udaipur (Raj.)
----Appellant
Versus
1. Smt. Jamna Devi, w/o Mangidas, son, Dhanram, resident of
Buthel, Tehsil Girwa, District Udaipur (Raj.)
2. Charandas s/o Mangidas, resident of Buthel, Tehsil Girwa,
District Udaipur (Raj.)
3. Poonam Chand s/o Motilal Chaudhary, resident of
Kurabgarh, Tehsil Girwa, District Udaipur (Raj.)
4. Bhanwar lal s/o Anooplal Chaudhary, resident of
Savinakhera, District Udaipur (Raj.)
----Respondent/Non-Claimant
For Appellant(s) : Mr. L.M. Lodha
Mr. Vishal Singhal
For Respondent(s) : Mr. Dilip Kawadia
Ms. Nidhi Singhvi
HON'BLE DR. JUSTICE NUPUR BHATI
Order Reportable Reserved on: 01/07/2024 Pronounced on: 11/07/2024 (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (2 of 15) [CMA-913/1999]
1. The present appeal has been filed by the appellant/insurance company under Section 173 of the Motor Vehicles Act, 1988 ('MV Act') assailing the validity of the judgment and award dated 16.09.1999 passed by the Motor Accident Claims Tribunal, Udaipur ('Tribunal')in Claim Petition Nos. 493/90 and 494/90, whereby the learned Tribunal had reviewed its own order and awarded compensation in favour of the respondent/non-claimants to the tune of Rs. 1,42,200/- each along with interest @ 8% per annum and an additional claim of Rupees 1,17,000 was passed in review petition to be paid within 2 months from the date of the award failing which the claimants will be entitled to get 12% interest per year till the payment of the award is made.
2. Briefly stated, the facts of the case are that claim petition nos. 493/90 and 494/90 were filed by claimant-respondent Durga Bai(mother of the deceased, Nathu Singh) and others and Jamna Bai (wife of the deceased, Mangidas) and others respectively, before the learned Tribunal, Udaipur in respect of the accident that took place on 23.05.1990 in which a bus no. RJS 7253 collided with a truck and Durga Devi's Son Nathu Singh along with Jamna Bai's husband died while travelling in the aforementioned bus. The learned Tribunal Udaipur decided aforementioned claim petition along with many other claim petitions vide order dated 08.02.1999 and the claimant was paid no fault claim of Rupees 25,000 along with interest.
3. Thereafter, the claimant filed a review petition under Order 47 Rule 1 CPC before the learned Tribunal Udaipur in Claim Petition No. 493/90 and claimed additional compensation in addition to the no fault claim of Rupees 25,000 that was paid in (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (3 of 15) [CMA-913/1999] the claim petition No. 493/90. In the review petition learned Tribunal issued notice to the United Insurance Company and the United Insurance Company submitted objections to the review petition on 14.09.1999 alleging therein that the review petition under Order 47 Rule 1 CPC is not maintainable for review of the order dated 08.02.1999 by which claim petition is finally adjudicated and the claimant cannot get more than 25000 rupees that was awarded as no fault claim. Thereafter the matter was placed for arguements on 15.09.1999 and the award of Rupees 1,42,000 was passed in favour of the claimant on 16.09.1999 and an additional claim of Rupees 1,17,000 was passed in review petition to be paid within 2 months from the date of the award failing which the claimants will be entitled to get 12% interest per year till the payment of the award is made. Thus the appellant being aggrieved of the judgment and award dated 16.09.1999, filed the present appeal.
4. Learned counsel for the appellant submitted that review petition filed by the claimant is not maintainable under the Motor Vehicles Act as it is a special Act and does not contain any provision for review of a decision or award passed by the Claims Tribunal and the provisions of CPC are not applicable to the award passed by the Claims Tribunal under Motor Vehicles Act and thus review is not maintainable under Order 47 Rule 1 CPC in an award passed under Motor Vehicles Act and such review petition is without jurisdiction and the Claims Tribunal becomes functus officio after it had passed the award.
5. Learned counsel for the appellant further submitted that review cannot be filed as there is no provision specifically (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (4 of 15) [CMA-913/1999] mentioned for the same in the statute and the learned Tribunal has committed an error in allowing the review of the claimants. He further submitted that the first award operates as res judicata and thus second award cannot be passed or adjudicated on the same facts and law. He also submitted that the claimant failed to produce any evidence or witness in support of the claim and thus the claimant could not be awarded additional compensation.
6. Per contra, learned counsel for the respondent submitted that there were a total of 18 claims which were decided by the learned Tribunal vide order dated 08.02.1999, and it has been observed that in all these claims, no evidence has been led, however, learned counsel for the resopondents submitted that the claims filed by them under Claim petition nos. 493/90 and 494/90, evidence has been led and therefore, the respondent/claimants filed an application for review of the award of the Tribunal.
7. Learned counsel for the respondents further submitted that even in the absence of a statutory provision, the Tribunal cannot be rendered powerless and that, the Tribunal holds an inherent power to review its own order by acting as a civil court as prescribed under Section 169 of the MV Act while deciding an application under Order 47 in cases where review is sought due to a procedural defect, or inadvertant error committed by the Tribunal, in order to prevent abuse of process. He also placed reliance upon the judgment passed by the Hon'ble Madhya Pradesh Court in the case of National Insurance Company Ltd. v. Lachhibai urf Laxmibai and Ors. reported in AIR 1997 MP
172. The relevant paras of the judgment is reproduced as under: (Downloaded on 18/07/2024 at 08:31:52 PM)
[2024:RJ-JD:28508] (5 of 15) [CMA-913/1999] "11. The expression 'review' is used in two distinct senses, namely (i) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it and
(ii) review on merits when the error sought to be corrected is one of law and is apparent on the face of record. In the case of Narshi Thakershi's case (AIR 1970 SC 1273) it is held that no review lies on merits unless the statute specifically provides for it. Obviously, when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex dcbito justitiac to prevent the abuse of its process and such power inheres in every Court or Tribunal. The Hon'ble Supreme Court has given a limited power of review to the Tribunal and while considering the scope of Sub-sections (1) and (3) of Section 11, it was held that the review is maintainable. Similarly, in Satnam Verma's case (AIR 1985 SC 294) (supra), considering the scope of powers of the Tribunal under Section 11 of the Industrial Disputes Act, it was held that the Tribunal is endowed with such ancillary or incidental power as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. The jurisdiction vested in the Tribunal under the wide powers cannot be denied by the Tribunal itself.
12. From the aforesaid discussion, it is clear that the power of review vests with the Tribunal in its inherent power under Section 169 of the Motor Vehicles Act though Rule 240 of the M.P. Motor Vehicles Rules, 1994 has not expressly provided for application of Order 47, C.P.C. A review application is maintainable when it is sought due to a procedural defect, or inadvertent error committed by the Tribunal, to prevent abuse of is process. Such power inheres in the Tribunal. The contention of the learned counsel for the non-applicant cannot be accepted that power of review is not provided by the statute, therefore, it cannot review its own order. As considered by me earlier, wide powers are vested with the Tribunal under Section (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (6 of 15) [CMA-913/1999] 169 of the Motor Vehicles Act. Therefore, review on limited grounds as mentioned above is permissible."
8. Learned counsel for the respondents further relied upon the judgment passed by the Hon'ble Kerala High Court in the case of Asmat Khan v Chandrahasa Bangara reported in 2007 ACJ 1071, wherein it has been observed that the Tribunal can review its own order, even when the Statute as well as the Rules do not provide for review in cases where there is an error apparent on the face of record. The relevant para of the judgment is reproduced as under:
"4. Even though there is power to review in appropriate circumstances in the interest of justice, if the circumstances mentioned under Order XLVII are existing, the Tribunal has no power to sit in appeal over his own award in the guise of review. As held by the Apex Court in Meera Bhanja v. Nirmalakumari Choudhary the review proceedings is not equivalent to an appeal or revision and review petition can be entertained only on the ground of error apparent on the face of record. See also the decision in Thungabhadra Industries Lid. v. Government of Andhra Pradesh . Here in this case, when petitions were filed, the Tribunal found that the original award contained error apparent on the face of the record which can be corrected without considering any additional material, but by merely looking at the record and would not require any long drawn process of reasoning on points where there may be conceivably of two opinions. Here, the appellant has also no case that any new document was considered by the Tribunal. Actually Tribunal corrected only apparent errors in the original award. Even otherwise when the appeal was heard, we have, as appellate court, considered the matter and came to the view that the review award requires no interference. The original award contained full of patent errors and hence the award was reviewed. Further, the (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (7 of 15) [CMA-913/1999] appellant-claimant was given more amounts than the original amount awarded and he cannot contend that error can be corrected only at the claimant's instance. Considering the total amount granted for a fracture of left leg below knee, the Tribunal awarded Rs. 2,49,520/- by the review award and the amount awarded is not inadequate in any view of the matter. The insurance company has not filed any appeal. The appellant is not at all aggrieved by the impugned award."
9. Learned counsel for the respondents further submitted that even when there has been no express provision granting the power of review to the Tribunal, nevertheless, Section 169 of the MV Act provides for the Tribunal to have the powers of a Civil Court and therefore, the learned Tribunal in the present case has rightly acted as a Civil Court under the CPC, while reviewing its own order under Order 47 Rule 1 of the CPC.
10. Learned counsel for the respondents also submitted that the award passed by the learned Tribunal in both the claim petition nos. 493/90 and 494/90 may be enhanced as per the judgment passed by the Hon'ble Apex Court in the case of NICL v. Pranay Sethi [Special Leave Petition (Civil) No. 25590 of 2014 decided on 31.10.2017], even in the absence of cross-appeal and objections filed by the respondents/claimants. He also relied upon the judgment passed by the Hon'ble Apex Court in the case of Ranjana Prakash v. Divisional Manager and Anr. reported in (2011) 14 SCC 639, to seek enhancement of the compensation.
11. Learned counsel for the respondents also submitted that the word 'review' had been used inadvertently instead of 'recalling', and that, the respondents filed the application under Order 47 (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (8 of 15) [CMA-913/1999] Rule 1 seeking recalling of the order passed by the learned Tribunal dated 08.02.1999 and thus, merely on the ground of stating the wrong provision, the respondents cannot be made to suffer.
12. Heard learned counsel for the parties, perused material available on record and judgments cited at the Bar.
13. This Court finds that the Motor Vehicles Act, 1988 as well as the Rajasthan Motor Vehicle Rules, 1990 does not contain any provision pertaining to review of the award passed by the Tribunal. It is also seen that review is the creation of a statute and in the absence of clear provision, the learned Claims Tribunal, being a Tribunal established by the statute, does not have the power to review its own order. For the purpose of the same, this Court takes into consideration the judgment passed by the Coordinate Bench of this Court in the case of Mithilesh Kumar v. Joga Ram [S.B. Civil Writ Petition No. 7985 of 2011 decided on 27.07.2017], wherein the judgement passed by the Coordinate Bench in the case of Smt. Imiya v. United India Insurance Co. Ltd. & Ors. [S.B. Civil Writ Petition No. 2404 of 2005 decided on 18.11.2008] has been considered and it has been categorically held that the powers of a Tribunal constituted under the Motor Vehicles Act, 1988 are limited to its statutory provisions and the rules framed thereunder. Thus, in the absence of provision providing the Tribunal the power to review its own award, the learned Tribunal could not have reviewed its own award by allowing the review application filed by the claimant/respondents. (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (9 of 15) [CMA-913/1999] The relevant paras of the judgment passed by the Coordinate Bench in the case of Mithilesh Kumar (supra.) are reproduced as under:
"9. Rule 10.27 of the Rules, makes provision that the power vested in the Civil Court under Sections 30, 32, 34, 35(a), 75(a) and (c), 76, 77, 94, 95, 132, 133, 144, 147, 148, 149, 151, 152 & 153 may be exercised by the Claims Tribunal so far as they may be applicable, subject to the provisions of Section 174 of the Act of 1988. By virtue of Rule 10.28, the provisions of Order 21 CPC, are also made applicable to the proceedings before the Claims Tribunal. But then, the provisions of Section 114 CPC or Order 47, Rule 1 CPC relating to the powers of review have not been made applicable to the proceedings before the Tribunal. This court had occasion to deal with the issue relating to power of the Tribunal to review the award in 'Smt. Imiya v. United India Insurance Co. Ltd. & Ors." (S.B. Civil Writ Petition No.2404/05), decided on 18.11.08. After consideration of the provisions of the Act of 1988 and the Rules, the court held:
"The Tribunal as constituted under the Motor Vehicles Act while dealing with the claim application even when having the trappings of the Civil Court, its jurisdiction is specifically denied by the statutory provisions and the rules framed thereunder. So far as the powers of the Civil Court that are vested in the Claims Tribunal and procedure to be followed by the Claims Tribunal are concerned, such aspects have specifically been delineated in Section 169 of the Act and Rule 10.27 and Rule 10.28 of the Rajasthan Motor Vehicles Rules, 1990. Significant it is to notice that the provisions of Section 114 CPC or Order 47, Rule 1 CPC, relating to powers of review have not, as such been made applicable to the proceedings before the Claims Tribunal. The Tribunal, in the opinion of this Court, had no jurisdiction to deal with a so- called review application moved under Order 47 CPC and the impugned order, passed on a so-called review application, cannot be upheld.""
14. This Court also observes that the argument of the respondent that the power of review can be invoked the Motor Accident Claims Tribunal by virtue of Section 169 which provides for Claims (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (10 of 15) [CMA-913/1999] Tribunal to have the powers of a Civil Court and thus, the Claims Tribunal can review its own order under Order 47 Rule 1 of the Code of Civil Procedure, 1908, is devoid of merits inasmuch as Section 169(2) of the MV Act clearly provides that the Claims Tribunal shall have powers of a civil court only for the purpose of taking oath and enforcing attendance of witnesses and compelling the discovery and production of documents as well as material objects. The provision also states that the Claims Tribunal shall have the powers of the Civil Court for such other purposes, only if it has been prescribed, and upon bare perusal of the statute, it becomes clear that there is no provision that prescribes the Claims Tribunal to act in the capacity of a Civil Court for the purpose of reviewing its own order. Section 169 of the Motor Vehicles Act, 1988 is reproduced as under:
"169. Procedure and powers of Claims Tribunals.
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) 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 for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry." In furtherance of the same, this Court takes into consideration the judgment passed by the Coordinate Bench of this Court in the (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (11 of 15) [CMA-913/1999] case of Hanuman Sahai v. Judge, Special Court (Communal Riots)/MACT, Jaipur, [S.B. Civil Writ Petition No. 7296 of 2011 decided on 15.09.2011]. The relevant para of the judgment is reproduced as under:
"4. A perusal of the MV Act does not indicate that the Motor Accident Claims Tribunal has the power to review its own order. Reference may be made to Section 169 of the MV Act which deals with the procedure and powers of the Claims Tribunal. A bare look at Section 169 of the MV Act shows that the Claims Tribunal has powers of a Civil Court only for the purposes 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 is deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure. There is no power under Order 47, Rule 1 CPC vested in the Tribunal. The Tribunal is a creature of statute with limited jurisdiction and unless power of review is conferred on the Tribunal, the Tribunal cannot invoke the said powers. Thus, in my considered opinion, the review petition before the Claims Tribunal against the Judgment/Award dated 18.4.2011 was not maintainable. The review petition ought to have been dismissed on this ground alone."
15. Moreover, this Court also observes that the submission of the respondents-claimants that the remedy of review availed by them cannot be fatal as it can be presumed that the word 'review' has been used inadvertently instead of 'recalling', however, admittedly the respondent, with open eyes have mentioned in the application that the said application had been filed under Order 47 Rule 1 of the CPC, which provides for application for review of the judgment. The said provision reads as under:
(Downloaded on 18/07/2024 at 08:31:52 PM)
[2024:RJ-JD:28508] (12 of 15) [CMA-913/1999] "ORDER XLVII
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, 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 to 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 applied 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.]
16. Furthermore, this Court finds that the claimant/respondents are not entitled to seek for enhancement of the compensation in the absence of filing a cross-appeal before this Court and for the purpose of the same, this Court takes into consideration the judgment passed by Hon'ble Apex Court in the case of Ranjana Prakash v. Divisional Manager and Ors. reported in (2011) 14 SCC 639, which has also been reiterated in the judgment passed by the Coordinate Bench of this Court in the case of National Insurance Co. Ltd. v. Bhagwati Devi [S.B. Civil (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (13 of 15) [CMA-913/1999] Appeal No. 542/2003 decided on 31.01.2024] wherein it has been observed that the appellate court, i.e. the High Court in the present case, can pass an order under Order 41 Rule 33 of the CPC, which ought to have been passed by the trial court in cases where respondents have not filed cross-appeal, however, the Hon'ble Apex Court in the case of Ranjana Prakash (supra.) simultaneously laid emphasis on the fact that in an appeal led by the owner/insurer, the claimant cannot lead a new ground without filing a cross-appeal, in order to enhance the award passed by the Claims Tribunal and also that, the power to pass the said order cannot be invoked under Order 41 Rule 33 to get a larger or higher relief. The relevant para of the judgment passed by the Hon'ble Apex Court in the case of Ranjana Prakash (supra.) is reproduced as under:
"6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income (Downloaded on 18/07/2024 at 08:31:52 PM) [2024:RJ-JD:28508] (14 of 15) [CMA-913/1999] for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross- objections.
7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may."
Thus, under the present circumstances, this Court deems it fit to not enhance the award and judgment passed by the learned Tribunal, Udaipur dated 16.09.1999 in the absence of cross-appeal filed by the respondents.
(Downloaded on 18/07/2024 at 08:31:52 PM)
[2024:RJ-JD:28508] (15 of 15) [CMA-913/1999]
17. Thus, it is observed that in the absence of a clear provision in the statute, i.e. the Motor Vehicles Act, 1988, the Tribunal is not empowered to review its own order. Also, the powers of a Civil Court are vested with the learned Tribunal, as per Section 169 of the MV Act, which clearly prescribes the matters where learned Tribunal can act as a Civil Court, however, in the said provision too, the power to review its own order has not been provided and in such circumstances, the learned Tribunal has erred in reviewing its own order.
18. Therefore, in light of aforequoted provisions and judgments, the present civil miscellaneous petition deserves to be allowed and it is hereby allowed and the impugned award and judgment dated 16.09.1999 is quashed and set aside. The claimants would be at liberty to avail the appropriate remedy for laying a challenge to the award and judgment dated 08.02.1999, within a period of 30 days from today.
19. Record be sent back forthwith.
(DR. NUPUR BHATI),J 49-Devesh/-
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