Gauhati High Court
State Of Nagaland And Anr. vs Smti. Berila on 5 February, 2008
Equivalent citations: 2008(1)GLT1061
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
JUDGMENT Hrishikesh Roy, J.
1. Heard Mr. B.N. Sarma, learned senior counsel representing the Petitioner State of Nagaland. None appears for the respondent/ claimant Smti Berila.
2. This review application has been filed seeking review of the judgment and order dated 12.4.2006, passed by this Court in MAC Appeal No. 19(K)/05, whereby this Court refused to interfere with the award granted by the Motor Accident Claims Tribunal, Dimapur in favour of the respondent/ claimant.
3. The facts necessary for consideration of this review petition may be noted as under:
(i) An accident took place on 17.12.1986 at village Lapa in Mon District of Nagaland, involving the vehicle No. NLP 1555 (Truck) belonging to the 6th NAP Battalion. Two constable namely Zungkum Yimchunger and Thsanso Yimchunger (misspelt as 'Throngsa' by the respondent/ claimant) both serving under the Nagaland Police died in the said accident.
(ii) On 26.2.2002 one Smti Berila claiming to be the wife of the deceased constable Zungkum Yimchunger filed a claim petition being MAC Case No. 152/02 seeking compensation for the death of her alleged husband Zungkum Yimchunger.
(iii) The Motor Accident Claims Tribunal, Dimapur passed an award on 22.06.2005 directing payment of the awarded amount within 30 days from the date of the order and in default the awarded amount was awarded to be paid with interest at the rate of 9% calculable from the date of filing of the claim before the MAC Tribunal.
(iv) The Special Secretary to the Government of Nagaland, Home Department and the Director General of Police, Nagaland filed MAC Appeal No. 19 (K) 2005, challenging the award dated 22.6.2005. But the said MAC Appeal No. 19(K) 2005 was dismissed by the Division Bench of this Court on 12.4.2006 and up held the award granted in favour of the claimant Smti Berila.
(v) The review of the aforesaid judgment and award is sought by the petitioners on the ground that the award and the appellate judgment have been obtained by impersonation and forgery and is therefore liable to be interfered with by exercise of Review jurisdiction.
4. The fresh facts which have come to light since the judgment of this Court on 12.4.2006, can be noticed for the purpose of considering the present Review Petition:
(i) There is no person by the name of Ms. Berila who made the claim before the Motor Accident Claims Tribunal, Dimapur by claiming to be the wife of late constable Zungkum Yimchunger. As such there is no question of Smti. Berila, who is anon-existent person, filing a claim before the Motor Accident Claims Tribunal, Dimapur.
(ii) The name of the actual wife of deceased constable Zungkum Yimchunger is Smti Angangla Konyak, who was shown as a nominee in the official records of the deceased constable Zungkum Yimchunger and the said wife Angangla Konyak is receiving the pensionary benefits on account of her deceased constable husband Zungkum Yimchunger.
(iii) The family of deceased constable Zungkum Yimchunger had not filed any claim petition before the MAC Tribunal nor any interim awarded amount has been received by the said family.
(iv) The signatures of claimant appearing in the vakalatnama, purportedly signed by Smti Berila in the claim petition and the signature in the vakalatnama filed in the High Court in the MAC Appeal are totally different and even on a prima facie examination do not tally with each other.
(v) The signatures appended by Smti Berila in her deposition before the Tribunal not only does not tally with the signatures in the vakalatnamas, but also vary in spelling.
5. Mr. B.N. Sarma, learned senior counsel appearing for the petitioners submits that information of the claimant being fictitious or a non-existent person came to light only after the judgment of this Court, whereby the award in favour of non-existing person has been upheld by the High Court by dismissing the MAC Appeal. He further submits that since such facts glaringly reflect the manner in which the Tribunal as well as the High Court has been persuaded to award compensation in favour of non-existent person at the behest of some unscrupulous persons, who used fraud and deceit to deceive the Tribunal and the High Court, this is eminently a fit case to be interfered with by this Court by way of Review.
6. Learned Counsel further submits that the awarded amount is to go out of the coffers of the Government fund and it would be in the public interest to ensure that the claimant, who secured compensation by employing fraudulent means, are not able to get their hands on public money by way of compensation for accidental death, when the family members of the deceased are not the beneficiary as they were not the claimants before the Tribunal.
7. It appears that although the claimant was represented by a counsel before the MAC Tribunal, Dimapur and also during the appellate proceeding before this Court, in so far as the Review proceeding is concerned, notice sent to the respondent/claimant came back un-served, possibly because no such claimant resides in the address given"?
8. Eventually on orders for substituted service of notice on the respondents/ claimants, a notice by way of advertisement was published in 'Nagaland Post' on 24.5.2007 directing the appearance of the respondents/claimants. But despite the publication of the aforesaid notice in the newspaper, the respondent/claimant have chosen to remain absent from participating in the present proceeding, giving further credence to the submissions made that the claimants are non-existent persons.
9. On orders of the Court, the counsels who represented the claimants were also served notice of the Review Proceeding, but the said counsels also choose not to participate in the present proceeding. Under the circumstances, this Court is left with no option but to rely upon the submissions made on behalf of the review petitioners.
10. Mr. B.N. Sarma, learned senior counsel appearing for the petitioners relies upon 3 decisions of the Hon'ble Supreme Court to submit that it would be appropriate for this Court to exercise it's review jurisdiction to interfere with the appellate judgment of this Court, which have upheld the award granted in favour of the respondent/claimant.
11. The first case cited by the learned Senior counsel is in the case of S.P. Chengalvaraya Naidu v. Jagannath and Ors. where the Supreme Court has declared as follows:
Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree-by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
12. The decision of the Supreme Court in the Indian Bank v. Satyam Fibres (India) Pvt. Limited has also been relied upon by the learned senior counsel to submit that in case of fraud and forgery, a review petition is maintainable.
13. The next decision relied upon by the learned Counsel for the petitioner is in the United India Insurance Co. Ltd. v. Rajendra Singh and Ors. where the Supreme Court quoted with approval the decision in S.P. Chengalvaraya Naidu (supra) and Indian Bank (supra). In this case the Supreme Court held that it was right for the Insurance Company to persistently pursue a matter since they are dealing with public money. If they discover that public fund, in a whopping measure, would be siphoned of fraudulently through a fake claim, the option before the Company cannot be foreclosed and the Court or the Tribunal cannot be regarded as powerless to recall it's own order, if a conclusion is reached that the Court's order was obtained through fraud 'or miss-representation of such dimension, as would affect the vary basis of the claim.
14. Above observation of the Supreme Court in United India Insurance Co. Ltd. (supra) was rendered in a similar case like the present one of a claim arising out of a motor accident.
15. In the instant cases we find that claims on behalf of non-existent person who claimed to be close relative of the deceased who died in motor accident, were entertained by the MAC Tribunal, Dimapur, without realizing that such claims have been conceived in fraud and deceit. Without knowing the fraudulent nature of the claim, the award came to be passed in favour of non-existent claimants. A portion of the interim award has also been withdrawn by the imposters who have filed the false claim.
16. The MAC Appeal challenging the award were dismissed by this Court without being aware of the fraud that was perpetrated on the Tribunal. Only after this Court dismissed the MAC Appeal, the facts noted above, regarding the fraudulent nature of the claim as well as the non-existence of the claimant and the fact that the claim had not been made by the actual family members of the deceased but by imposters have come to light, prompting the State to present this Review Petition.
17. It is clearly noticed in the three judgments cited, namely: S.P. Chengalvaraya Naidu (supra), Indian Bank (supra) and the United India Insurance Co. Ltd. (supra), that a judgment or decree obtained by playing fraud on the court is a nullity and non est and that such judgments are reviewable not only by the first court but also by the Appellate Court.
18. Having regard to the facts as noticed above and also the ratio of the cases cited before us, we are of the opinion that judicial process of this Court and of the MAC Tribunal cannot be permitted to be abused to secure unlawful gains which have been obtained through fraud and deceit by imposters for non-existent claimant. If such fraudulent claims are permitted to be entertained and money is permitted to be withdrawn, even after the discovery of the fraud, the cause of justice would definitely suffer
19. In view of the above discussion, we are of the view that the judgment dated 12.04.2006 in MAC Appeal No. 19(K)/05 is liable to be reviewed and a declaration be made that the award dated 22.06.2005 and the judgment of this Court dated 12.04.2006 are nullity. It is ordered accordingly.
20. We further indicate that the State Government is at liberty to secure return of the interim award, which have been withdrawn by impersonation on behalf of the fictitious claimants, from the MAC Tribunal, Dimapur and also from the Registry of this Court.
21. With the aforesaid direction, this Review Petition stands allowed.