Karnataka High Court
The New India Assurance Co.Ltd vs Smt. Pramila on 3 August, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 3RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
REVIEW PETITION NO.273/2018
C/W
REVIEW PETITION NOS.271/2018, 272/2018,
274/2018
IN R.P.NO.273/2018:
BETWEEN:
THE NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE, MAHALAKSHMI CHAMBERS,
M.G.ROAD, BENGALURU-560 001.
REP BY ITS DEPUTY MANAGER
SRI. B. R. RAVISHANKAR.
...PETITIONER
(BY SRI.SEETHA RAMA RAO B C, ADVOCATE)
AND:
1. SMT.PAPAMMA @ CHIKKA PAPAMMA,
@ CHIKKA PAPAMMA,
AGED ABOUT 48 YEARS,
W/O LATE VENAKTESHGOWDA,
NO.170, I CROSS, AND 177,
DR. B R AMBEDKAR NAGA,
VIJINAPURA, RAMAMURTHY NAGAR,
BANGALOER-560 016.
2. SRI SANJAN SHIVAJI KOLEKAR, MAJOR,
S/O SRI SHIVAJ KOLEKAR,
APT POST, ZEDKEY TALUK,
BHIWANDI DISTIRCT, THANE,
MAHAASHTRA-421 302.
2
(OWNER OF LORY NO.MH-04-EY-4452)
... RESPONDENTS
(BY SRI. SURSHA M, ADVOCATE FOR R1)
THIS REVIEW PETITION IS FILED ORDER 47 RULE 1
READ WITH SECTION 114 OF THE CPC, 1908, PRAYING TO
REVIEW THE ORDER DATED 24/07/2018 PASSED IN MFA
NO.3088/2015 ON THE FILE OF THE HON'BLE HIGH COURT
OF KARNATAKA, BENGALURU.
IN R.P.NO.271/2018:
BETWEEN:
THE NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE, MAHALAKSHMI CHAMBERS,
M.G.ROAD, BENGALURU-560 001.
REP BY ITS DEPUTY MANAGER
SRI. B. R. RAVISHANKAR.
...PETITIONER
(BY SRI.SEETHA RAMA RAO B C, ADVOCATE)
AND:
1. SMT. PRAMILA,
AGED ABOUT 28 YEARS,
W/O LATE SRINIVASA @ SEENAPPA,
2. MR.SHASHIKUMAR,
AGED ABOUT 17 YEARS,
S/O LATE SRINIVASA @ SEENAPPA,
3. MR.NAGARAJUNA
AGED ABOUT 16 YEARS,
S/O LATE SRINIVASA @ SEENAPPA,
4. SMT.RATNAMMA,
AGED ABOUT 63 YEARS,
W/O LATE MUNIVENKATAPPA,
RESPONDENTS NO.2 & 3 ARE MINORS
REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN, RESPONDENT NO.1,
3
ALL ARE RESIDING AT 4TH CROSS,
VIJINAPURA, SUBRAMANI LAYOUT,
BANGALORE-560016
5. SRI.SANJAY SHIVAJI KOLEKAR,
MAJOR, S/O SHIVAJ KOLEKAR,
RESIDING AT APT POST, ZEDKEY TALUK,
BHIWANDI DISTRICT, THANE,
MAHARASHTRA-421 202.
(OWNER OF LORRY BEARING NO.MH-04-EY-4452)
...RESPONDENTS
(BY SRI.SURESHA M, ADVOCATE FOR R2-R3)
THIS REVIEW PETITION IS FILED ORDER 47 RULE 1
READ WITH SECTION 151 OF THE CPC, 1908, PRAYING TO
REVIEW THE ORDER DATED 24/07/2018 PASSED IN MFA
NO.4355/2017 ON THE FILE OF THE HON'BLE HIGH COURT
OF KARNATAKA, BENGALURU.
IN R.P.NO.272/2018:
BETWEEN:
THE NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE, MAHALAKSHMI CHAMBERS,
M.G.ROAD, BENGALURU-560 001.
REP BY ITS DEPUTY MANAGER
SRI. B. R. RAVISHANKAR.
...PETITIONER
(BY SRI.SEETHA RAMA RAO B C, ADVOCATE)
AND:
1. SRI.KIRAN KUMAR @ KIRAN BABU,
AGED ABOUT 24 YEARS,
S/O LATE SRINIVAS V.
NO.2263, SUBRAMANYA LAYOUT,
RAMAMURTHY NAGAR,
BENGALURU-560 016.
4
2. SRI. SANJAN SHIVAJI KOLEKAR, MAJOR,
S/O SRI. SHIVAJ KOLEKAR,
APT POST, ZEDKEY TALUK,
BHIWANDI DISTRICT, THANE,
MAHARASTRA-421 302.
(OWNER OF LORRY NO.MH-04-EY-4452)
3. MRS. BERGGUREN CAR RENTALS PVT. LTD.,
NO. 16, GAJENDRA NAGAR, 18TH CROSS
ANEPALYA MAIN ROAD, BENGALURU - 560 030.
(OWNER OF CAR BEARING NO. KA-01-AA-7251)
4. M/S. ICICI LOMBOARD GENERAL INSURANCE CO., LTD.,
S.V.R. COMPLEX, NO. 89, II FLOOR,
HOSUR ROAD, BENGALURU - 560 068.
...RESPONDENTS
(BY SRI.B.PRADEEP ADVOCATE FOR R4;
R3 SERVED AND UNREPRESENTED)
THIS REVIEW PETITION IS FILED ORDER 47 RULE 1
READ WITH SECTION 114 OF THE CPC, 1908, PRAYING TO
REVIEW THE ORDER DATED 24/07/2018 PASSED IN MFA NO.
3862/2016 ON THE FILE OF THE HON'BLE HIGH COURT OF
KARNATAKA, BENGALURU.
IN R.P.NO.274/2018:
BETWEEN:
THE NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE, MAHALAKSHMI CHAMBERS,
M.G.ROAD, BENGALURU-560 001.
REP BY ITS DEPUTY MANAGER
SRI. B. R. RAVISHANKAR.
...PETITIONER
(BY SRI.SEETHA RAMA RAO B C, ADVOCATE)
AND:
1. SMT. RATHNAMMA,
AGED ABOUT 50 YEARS,
W/O LATE ESAIAH @ ANDRA PULLAIAH,
2. SANTHOSHI @ SANTHOSHAMMA,
AGED ABOUT 28 YEARS,
D/O LATE ESAIAH @ ANDRA PULLAIAH,
5
3. SWATHI,
AGED ABOUT 23 YEARS,
S/O LATE ESAIAH @ ANDRA PULLAIAH,
4. RAJESH,
AGED ABOUT 21 YEARS,
S/O LATE ESAIAH @ ANDRA PULLAIAH,
ALL ARER/AT NO.12/2,3RD CROSS,
VIJINAPURA, SUBRAMANI LAYOUT,
BANGALORE-560 016.
5. SRI. SANJAY SHIVAJI KOLEKAR,MAJOR
S/O SHIVAJ KOLEKAR,
R/AT APT POST, ZEDKEY TALUK,
BHIWANDI DISTRICT, THANE,
MAHARASTRA-421 202.
(OWNER OF LORRY BEARING
NO.MH-04-EY-4452)
...RESPONDENTS
(BY SRI.SUESHA M, ADVOCATE FOR R1-R4)
THIS REVIEW PETITION IS FILED ORDER 47 RULE 1
READ WITH SECTION 114 OF THE CPC, 1908, PRAYING TO
REVIEW THE ORDER DATED 24/07/2018 PASSED IN MFA NO.
4359/2017 ON THE FILE OF THE HON'BLE HIGH COURT OF
KARNATAKA, BENGALURU.
THESE REVIEW PETITIONS COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioners seek review of the common judgment dated 24.07.2018 whereby the subject appeals were disposed off. The grounds for review as stated in the review petition read as under:
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In R.P.No.273/2018:
"1. The judgment dated 24-07-2018 made in MFA No.3088/2015 has adversely affected the interest of the Petitioner as a connected appeal arising out the same accident is still pending before the Division bench of this Hon'ble. Since both the appeals arise out of a the same accident and the issue of negligence finding is the challenged in all the case, the Petitioner prays for reviewing Judgment dated 24-07-2018 and to restore the same for being decided along with the connected matters.
2. The petitioner submits that the Petitioner has filed an application under Section 170 of the Motor Vehicles Act in the MVC No.874/2014 and obtained leave of the Trial Court to take all defences available to the insured. This aspect had not been brought to the notice of this Hon'ble Court while arguing the present batch of cases before passing the Judgment dated 24-07- 2018 in MFA No.4359/2017.
3. The petitioner submits that, at the time of arguments, It was not brought to the notice of this Hon'ble Court with regard to the pendency of MFA No.3861/2016 before the Division bench of this Hon'ble Court. Since there are 5 claims petitions arising out of the same accident and the apportionment of negligence between the two offending vehicles is the primary ground of appeal in all the 5 appeals i.e., MFA No.3088/2015, MFA No.4355/2017, MFA No.3861/2016 and MFA No.3862/2016 all the appeals requires to be taken up for consideration at the same time.7
Since one of the appeals is still pending consideration and the fact that, there is a stay order in operation in the said appeal, it is just and necessary to review the judgment and to decide both the appeals together."
IN R.P.NO.271/2018:
1. The judgment dated 24-07-2018 made in MFA No.4355/2017 has adversely affected the interest of the petitioner as a connected appeal arising out of the same accident is till pending before the Division Bench of this Hon'ble Court. Since both the appeals arise out of the same accident and the issue of negligence finding is the challenge in all the cases, the petitioner prays for reviewing judgment dated 24-07-2018 and to restore the same for being decided along with the connected matters.
2. The petitioner submits that the petitioner has filed an application under Section 170 of the Motor Vehicles Act in MVC No.874/2014 and obtained leave of the Trial Court to take all defences available to the insured. This aspect had not been brought to the notice of this Hon'ble Court while arguing the present batch of cases before passing the Judgment dated 24-07-2018.
3. The petitioner submits that, at the time of arguments, it was not brought to the notice of this Hon'ble Court with regard to the pendency of MFA No.3861/2016 before the Division bench of this Hon'ble Court. Since there are 5 claim petitions arising out of the same accident and the apportionment of negligence between the two offending 8 vehicles is the primary ground of appeal in all the 5 appeals i.e., MFA No.3088/2015, MFA No.4355, MFA No.4359/2017,MFA No.3861/2016 and MFA No.3862/2016 all the appeals requires to be taken up for consideration at the same time. Since one of the appeals is still pending consideration and the fact that, there is a stay order in operation in the said appeal, it is just and necessary to review the judgment and to decide both the appeals together."
In R.P.No.272/2018:
"1. The judgment dated 24-07-2018 made in MFA No.3862/2016 has adversely affected the interest of the Petitioner as the appeal arising out of common Judgment made by the MACT at Bengaluru, SCCH-15 in MVC.Nos.873 & 874/2014 is till pending. The petitioner submits that MFA.No.3862/2016 A/o MVC.No.874/2014 and MFA.No.3861/2016 A/o MVC.No.873/2014 which is pending consideration. Since both the appeals arise out of a common Judgment, the Petitioner prays for reviewing Judgment dated 24-07-2018 and to restore the same for being decided along with the connected appeal.
2. The Petitioner submits that the petitioner has filed an application under Section 170 of the Motor Vehicles Act and obtain leave of the Trial Court to take all defences available to the insured. This aspect had not been brought to the notice of this Hon'ble Court while arguing the present batch of cases before passing the judgment dated 24-07-2018 in MFA.No.3862/2016.9
3. The Petitioner submits that, at the time of arguments, it was not brought to the notice of this Hon'ble Court with regard to the pendency of MFA.No.3861/2016 before the Division bench of this Hon'ble Court. Since there are 5 claims petitions arising out of the same accident and the apportionment of negligence between the two offending vehicles is the primary ground of appeal in all the 5 appeals i.e., MFA.No.3088/2015, MFA.No.4355/2017, MFA.No.4359/2017, MFA.No.3861/2016 and MFA.No.3862/2016 all the appeals requires to be taken up for consideration at the same time. Since one of the appeals is still pending consideration and the fact that, there is a stay order in operation in the said appeal, it is just and necessary to review the Judgment and to decide both the appeals together."
In R.P.NO.274/2018:
"1. The judgment dated 24-07-2018 made in MFA No.4359/2017 has adversely affected the interest of the Petitioner as a connected appeal arising out the same accident is still pending before the Division bench of this Hon'ble. Since both the appeals arise out of a the same accident and the issue of negligence finding is the challenged in all the cases, the Petitioner prays for reviewing Judgment dated 24-07-2018 and to restore the same for being decided along with the connected matters.
2. The Petitioner submits that the petitioner has filed an application under Section 170 of the Motor Vehicles Act in the MVC No.874/2014 and obtained leave of the 10 Trial Court to take all defences available to the insured. This aspect had not been brought to the notice of this Hon'ble Court while arguing the present batch of cases before passing the Judgment dated 24-07- 2018 in MFA.No.4359/2017.
3. The Petitioner submits that, at the time of arguments, it was not brought to the notice of this Hon'ble Court with regard to the pendency of MFA.No.3861/2016 before the Division bench of this Hon'ble Court. Since there are 5 claims petitions arising out of the same accident and the apportionment of negligence between the two offending vehicles is the primary ground of appeal in all the 5 appeals i.e., MFA.No.3088/2015, MFA.No.4355/2017, MFA.No.4359/2017, MFA.No.3861/2016 and MFA.No.3862/2016 all the appeals requires to be taken up for consideration at the same time. Since one of the appeals is still pending consideration and the fact that, there is a stay order in operation in the said appeal, it is just and necessary to review the Judgment and to decide both the appeals together."
2. This Court after hearing both the sides and after perusing the records at paragraph no.17 of the judgment now in review had observed as under:
17. Secondly, nowhere in the evidentiary material it is pointed out that the parked lorry had the parking lights/flickering lights put on, at the time of accident; not even a whisper is made with regard to the same by the Highway Patrolling Police when they filed the 11 F.I.R. Nor is there any other evidentiary material to draw any inference as to the parking lights being put on. The road in which the accident took place is NH- 4 and it is a 'Chatushpatha' ie., a four-lane road. The said road is barricaded on either side and no vehicle is supposed to be parked in any circumstances on the road which is marked for movement of heavy traffic. Therefore there is no sufficient substratum supportive of the contention of the insurer.
3. The pendency of appeal in MFA No.3851/2016 arising from the same accident, before the Division Bench and its disposal years after the judgment in review on a ground a bit in variance with what is observed in Paragraph No.17 reproduced supra does not constitute a ground for review in view of the Parliamentary Injunction enacted in the Explanation to Rule 2 of Order XLVIII CPC, 1908; although the Explanation mentions about change of law, this Court is of the view that it's principle extends to change of finding of fact as may be found in a latter judgment, to which unchanged law is applied as well.
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4. The vehement contention of learned Senior Panel Counsel for the review petitioners that the judgment in review is founded on a wrong finding that his client had not sought for leave of the MACT to adduce evidence when such a leave having been sought for, was granted pales into insignificance since this Court while recording the findings of facts after appreciating the evidentiary material after turning the pages of TCR/LCR. Nothing new emerges in support of the petitioners even by discovering the leave granted by the MACT.
In the above circumstances, no case is made out warranting review of the judgment and as a result the petitions are dismissed.
Sd/-
JUDGE Bsv