Kerala High Court
Managing Partner vs Pathumma on 10 October, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 111 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 28.05.2020 IN OPMV NO.1042
OF 2017 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/1ST RESPONDENT:
MANAGING PARTNER,
PRIME SANITARIES, 39/5778, AMBIKAPURAM CHURCH
ROAD, PANAMPILLY NAGAR, KOCHI-682036.
BY ADV P.M.MOHAMMED SHIRAZ
RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 3 IN OP(MV):
1 PATHUMMA,
AGED 71 YEARS
W/O.LATE BAKKAR, EDAPPARA HOUSE, CHARIS JUNCTION,
PEZHAKKAPILLY P.O., MULAVOOR VILLAGE, MUVATTUPUZHA
TALUK, ERNAKULAM DISTRICT-686673.
2 NIZAR T.A.,
AGED 54 YEARS
S/O.LATE BAKKAR, EDAPPARA HOUSE, CHARIS JUNCTION,
PEZHAKKAPILLY P.O., MULAVOOR VILLAGE,
MUVATTUPUZHA. (NOW RESIDING AT THAIPARAMBIL HOUSE,
PARATHODE KARA, KANJIRAPILLY TALUK, KOTTAYAM-
686512).
3 NISHAMOL E.B., .
AGED 48 YEARS
D/O.LATE BAKKAR, EDAPPARA HOUSE, PEZHAKKAPILLY
P.O., MULAVOOR VILLAGE, MUVATTUPUZHA-686673
(PRESENT ADDRESS-NISHAMOL E.B., W/O.IRSHAD,
KARAKKUNNEL HOUSE, CHARIS JN., PEZHAKKAPILLY P.O,
MUVATTUPUZHA-686673).
4 SAINA E.B.,
AGED 44 YEARS
D/O.LATE BAKKAR, EDAPPARA HOUSE, PEZHAKKAPILLY
P.O., MUVATTUPUZHA-686673, (PRESENT ADDRESS-SAINA
E.B., W/O.ALI, AIKKARAPARAMBIL HOUSE,
CHALIKKADAVU, RANDAR P.O., MUVATTUPUZHA-686673).
2024:KER:75318
MACA NO. 111 OF 2021 -2-
5 RAHMATH E.B.,
AGED 41 YEARS
D/O.LATE BAKKAR, EDAPPARA HOUSE, PEZHAKKAPILLY
P.O., MULAVOOR VILLAGE, MUVATTUPUZHA-686673
(PRESENT ADDRESS, RAHMATH E.B., W/O.PAREETH A.S.,
AMBATTUKUDY HOUSE, KOTHAMANGALAM P.O., PIN-
686691).
6 JYOTHISH V.V.,
S/O.VASUDEVAN, ARIMBORADITHARA HOUSE, NEAR
ALAKKAPARAMBU THENGATHRI TEMPLE, VALAMANGALAM
SOUTH P.O., THURAVOOR, CHERTHALA-688532.
7 NEW INDIA ASSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, 36/707, KOTTAKAL ARYA
VAIDYASALA BUILDING, M.G.ROAD, PB.NO.2451,
ERNAKULAM-682016, REP. BY MANAGER.
BY ADV SRI.VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 24.09.2024, THE COURT ON 10.10.2024 DELIVERED THE
FOLLOWING:
2024:KER:75318
MACA NO. 111 OF 2021 -3-
"C.R"
J U D G M E N T
Whether the Motor Accidents Claims Tribunal can exercise the power of review once the claim petition under Section 168 of Motor Vehicles Act, 1988 is ordered? The owner of the vehicle involved in the accident has come up before this Court in appeal raising this seminal question of law.
2. The facts for disposal of this appeal are as follows:
On 04.05.2017 at 12.05 p.m. one Mr.Bakkar, husband of the first claimant and father of claimants 2 to 5, was hit down by a Tata Ace Dicor bearing registration No.KL-7/CD-2149 which came through the Muvattupuzha - Pezhakkappilly M.C.Road.
The victim was taken to Sabine Hospital, Pezhakkappilly and then referred to MOSC Medical College Hospital, Kolenchery.
The Insurance Company filed a written statement, inter alia, contending that the deceased has crossed the road negligently and the accident was caused due to the negligence of the deceased. However, the policy was admitted but liability was 2024:KER:75318 MACA NO. 111 OF 2021 -4- denied. It was further contended that the vehicle was used without a Certificate of Fitness, which amounts to violation of the policy and therefore, if at all the claimants are found to be entitled to compensation, the Insurance Company has to be given the benefit of recovery from the owner. On behalf of the claimants, Exts.A1 to A14 were produced. Originally, the Insurance Company produced only the policy. Based on pleadings and evidence on record, the Tribunal framed the following issues:
"1. Whether the accident is the result of rash and negligent driving by the 2nd respondent?
2. Whether the petitioners are entitled to get any compensation from the respondents? If so, what is the quantum?
3. Relief and costs."
3. On 16.09.2019, the Tribunal allowed the claim and granted the compensation without reserving the right of the Insurance Company to recover the amount from the appellant. Aggrieved by the same, the Insurance Company filed an application, I.A.No.2771 of 2019 purportedly under Section 2024:KER:75318 MACA NO. 111 OF 2021 -5- 114 read with Section 151 of the Code of Civil Procedure, 1908. The Tribunal vide order dated 25.01.2020 recalled the award. Pertinently, the Insurance Company had produced Exts.B2 and B3 which were the information solicited from the transport authorities under the provisions of the Right to Information Act, 2005 along with the said application. With the additional materials on record, the Tribunal proceeded to consider the claim afresh and by the impugned award, the Tribunal concluded that since there was no Certificate of fitness on the date of the accident, the Insurance Company was entitled to an order of recovery from the owner. The said award is impugned in the appeal.
4. Heard Sri.P.M.Mohammad Shiraz, the learned counsel appearing for the appellant, and Sri.V.P.K.Panicker, learned Standing Counsel appearing for the Insurance Company.
5. Sri. P.M.Mohammed Shiraz, the learned counsel appearing for the appellant raised the following two contentions:
2024:KER:75318 MACA NO. 111 OF 2021 -6-
(i) The Tribunal could not have exercised the power of review and reviewed the earlier award dated 16.09.2019. The Tribunal ought to have noticed that an application for review, which was filed under Section 114 read with Section 151 of the Code of Civil Procedure, 1908, was not maintainable. The Tribunal, a creature of statute, namely the Motor Vehicles Act, 1988, has neither an inherent power to recall its order nor the power of review conferred on it under the statute.
(ii) In terms of Rule 62 of the Central Motor Vehicles Rules, a newly registered vehicle is deemed to be fit for two (2) years.
Therefore, in the light of the statutory protection given under Rule 62 of the Central Motor Vehicles Rules for a newly registered vehicle, no separate Fitness Certificate is required and therefore, the award of the Tribunal is unsustainable.
6. On the other hand, the learned Standing Counsel appearing for the Insurance Company, Sri.V.P.K.Panicker, submitted that the Tribunal has inherent power to recall its order in terms of the provisions contained under Section 169(2) of the Motor Vehicles Act, 1988. He pointed out that 2024:KER:75318 MACA NO. 111 OF 2021 -7- for each and every procedural error committed by the Tribunal in the procedure, the parties cannot be expected to seek rectification of the error by invoking the power of superintendence of the High Court under Article 227 of the Constitution of India. Therefore, according to Sri.V.P.K.Panicker, the Tribunal rightly entertained the application for review in order to render justice. In so far as the merits of the case is concerned, Sri.V.P.K.Panicker submitted that as per the records produced before the Tribunal which were obtained by the insurance company under the provisions of the Right to Information Act, revealed that the vehicle had no fitness.
7. In reply, the learned counsel for the appellant, Sri. P.M.Mohammad Shiraz, would point out that as per Ext.B3 dated 05.03.2019, it is specifically noticed by the authorities that on 07.05.2015 the Fitness Certificate in respect of the vehicle was issued. He further submitted that the initial Certificate of Fitness issued by the competent authority was valid for a period of two (2) years in terms of the provisions 2024:KER:75318 MACA NO. 111 OF 2021 -8- contained under Rule 62 of the Central Motor Vehicles Rules and thus the requirement to renew the fitness occurred only in the year 2017. Admittedly, the accident occurred on 04.05.2017, when the initial Fitness Certificate was in force and therefore, the contention of the insurance company cannot be sustained.
8. I have considered the rival submissions raised across the Bar.
9. For the consideration of this appeal, this Court deems it appropriate to deal with the following two questions:
"1. Whether the Tribunal has got a power of review either under Order 47 Rule 1 or under the provisions of the Motor Vehicles Act, 1988.
2. Whether the finding of the Tribunal that the vehicle did not have the Fitness Certificate on the date of the accident is correct or not."
10. Before venturing into answering the questions raised above, it would be apposite to extract the provisions dealing with the power of the Tribunal. Chapter-XII-Section 165 of the Motor Vehicles Act, 1988 deals with the establishment of the Tribunal. Section 165 is extracted as 2024:KER:75318 MACA NO. 111 OF 2021 -9- under:
"165. Claims Tribunals. -
(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claim Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
Explanation. - For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 and section 163-A. (2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.
(3)A person shall not be qualified for appointment as a member of a Claims Tribunal unless he -
2024:KER:75318 MACA NO. 111 OF 2021 -10-
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a High Court Judge or as a District Judge.
(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them."
11. The application for compensation has to be filed under Section 166 of the Motor Vehicles Act, 1988. The powers of the Tribunal to pass an award on an application under Section 166 are contained under Section 168. Sections 166 and 168 are extracted as under:
"166. Application for compensation. - (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made -
(a) by the person who has sustained the injury;
or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or 2024:KER:75318 MACA NO. 111 OF 2021 -11-
(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be :
PROVIDED that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides, or carries on business or within the local limits of whose jurisdiction the defendant resides, they shall be in such form and contain such particulars as may be prescribed:
PROVIDED that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(4) The Claims Tribunal shall treat any report of 2024:KER:75318 MACA NO. 111 OF 2021 -12- accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.
168. Award of the Claims Tribunal. -
(1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be :
PROVIDED that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in 2024:KER:75318 MACA NO. 111 OF 2021 -13- accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case with a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
The procedure and powers of the Tribunal are delineated under Section 169. Section 169 reads 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 procedures 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 2024:KER:75318 MACA NO. 111 OF 2021 -14- of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(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."
12. Having extracted the provisions dealing with the procedure and the powers of the Claims Tribunal being dealt with under Section 169, this Court feels it appropriate to deal with the said provision extensively, in order to find out as to whether the Tribunal has got an inherent power to recall its order or the power of review is imbibed under these provisions.
13. Section 169(1) deals with the procedure while holding any enquiry under the provisions of Section 168. It provides that the procedure may be summary as the tribunal deems fit. Sub-Section (2) provides that the Tribunal has all the powers of a Civil Court for the purpose of taking evidence 2024:KER:75318 MACA NO. 111 OF 2021 -15- on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents. Sub- Section (3) of Section 169 further provides that the Claims Tribunal, for the purpose of adjudicating upon the claim, may choose one or more persons possessing special knowledge to assist it. A plain reading of Section 169 shows that neither the Tribunal is vested with an inherent power nor the said provision could be construed as conferring the power on the Tribunal for review. Parliament while enacting the provisions contained under the Motor Vehicles Act was conscious not to confer any specific power on the Tribunals to exercise power of review nor any inherent power to rectify any errors or mistakes caused while rendering an award.
14. However, having said so, this Court may have to consider the most pivotal issue. Whether the Motor Accident Claims Tribunal can exercise its inherent power, though not conferred by the statute, and review its order. The answer perhaps would depend on how the status of the Tribunal is to be construed. No doubt, while trying an application the 2024:KER:75318 MACA NO. 111 OF 2021 -16- tribunal has the powers of a civil court. But the said power is limited and applies only while taking evidence and summoning the attendance of the witnesses. Could this provision be construed as conferring the trappings of a "court" on the Tribunal? The answer would depend on the analysis of various other provisions also. It would be advantageous to refer to the subordinate legislation framed by the State of Kerala under the provisions of the Kerala Motor Vehicles Rules, 1989, we could see Rule 395. Rule 395 of the Kerala Motor Vehicles Rules reads as under:
"395. Code of Civil Procedure to apply in certain cases.‐The provisions of Rules 9 to 13 and 15 to 30 of Order V, Rules 16 to 18 of Order VI, OrderIX, Rules3 to 10 of OrderXII, Rules 1 to 21 of Order XVI, Rules 1 to 3 of Order XXIII and Order XXVI of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to the proceedings before the Claims Tribunal."
15. A cumulative reading of Section 169 and Rule 395 of the Kerala Motor Vehicle Rules, 1989 shows that neither the Parliament nor the State Legislature intended to confer 2024:KER:75318 MACA NO. 111 OF 2021 -17- the power on the Tribunal to exercise the powers of the Court so as to automatically derive the power under Order 47 Rule 1 of the Code of Civil Procedure, 1908. Even when Rule 395 was framed, the State Legislature did not include Order 47 Rule 1 within its ambit.
16. Leaving aside this issue momentarily, the consideration of this Court would have to be bestowed on the various precedents on the points which have been cited across the Bar in order to support the contentions of the respective parties. The endeavor of this Court will be to find out as to whether by virtue of the precedents, it could be held that the Tribunal can exercise the power of review. In Asmath Khan v. Chandrahasa Bangara and Others (2006 (4) KLT 494) a Division Bench of this Court while considering the question as to whether the Tribunal has an implied vested power to review its own order to achieve the object of the Act and to avoid manifest justice held that if the circumstances under Order 47 Rule 1 exist, then the Tribunal could exercise the power of review. Paragraph Nos.3 and 4 of the judgment of 2024:KER:75318 MACA NO. 111 OF 2021 -18- the Division Bench in Asmath Khan (supra) are extracted for reference:
"3. The procedure to be followed and powers of the Motor Accidents Claims Tribunal are prescribed under S.169 of the Motor Vehicles Act 1988 (for short 'the Act') which reads as follows:
"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 materials 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) ...(Not applicable)".
Under Section 169(2), the Claims Tribunal is 2024:KER:75318 MACA NO. 111 OF 2021 -19- deemed to be a civil court. In Velunni v.
Vellakutty 1989 (2) KLT 227 and other various cases, this Court had consistently held that in order to do justice for which it has been constituted, the Tribunal would have power to apply the principles underlining the provisions of the Code of Civil Procedure, even though not rendered specifically applicable. The Court also considered the fact that the Claims Tribunal is having all attributes and trapping a civil court and it is deemed to a civil court as specifically mentioned in Section 169(2). The Tribunal has been impliedly vested with power to review its own order to achieve the object of the Act and to avoid manifest injustice if circumstances as mentioned in Order XLVII exists. Same view taken by the Division Bench in Rajan's case (supra) was earlier also expressed by this court, not only regarding the Motor Accidents Claims Tribunal, but also other similar Tribunals which has the trapping of civil court, as can be seen from the following decisions. K.V. Aboo v. Commissioner for Workmen's Compensation 1977 ACJ 446, Abdulla v. Rent Controller 1984 KLT 865 and United India Insurance Co. Ltd. v. George 1987 (2) KLT 776. Therefore there is no ground to refer the matter to the Full Bench decision in Rajan's case (supra) needs no reconsideration. The above decision of the 2024:KER:75318 MACA NO. 111 OF 2021 -20- Division Bench was not pointed out to the Single Bench. Hence decision in Abdul Majeed's case is overruled.
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 (1995) 1 SCC 170, 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 Ltd. v. Government of Andhra Pradesh, AIR 1964 SC 1372. 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 2024:KER:75318 MACA NO. 111 OF 2021 -21- 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 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."
17. While considering a pari materia provision under the Motor Vehicles Act, 1939, a Division Bench of this Court in Velunni v. Vellakutty (1989 KHC 396) held that the Tribunal is not a Court though it performs functions similar to a Court and it is free to follow any procedure which it considers expedient in the interest of justice so long as the procedure is not inconsistent with the rules of natural justice. It was further held that in order to do justice for which it has 2024:KER:75318 MACA NO. 111 OF 2021 -22- been constituted, the Tribunal would have the power to apply the principles underlying the provisions of the Code of Civil Procedure even though not rendered specifically applicable.
18. The question as to whether the Tribunal has got the power of review in terms of Section 168 of the Motor Vehicles Act, came up directly for consideration before the Supreme Court in United India Insurance Co. Ltd. Vs. Rajendra Singh and Others [(2000) 3 SCC 581]. The Supreme Court was called upon to decide this issue especially since the allegations of fraud and misrepresentation were raised which necessitated the Insurance Company to move an application for review before the Tribunal. Paragraph No.16 of the judgment of the Supreme Court reads as under:
"...16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the 2024:KER:75318 MACA NO. 111 OF 2021 -23- claim."
19. It may thus appear that the point raised in the appeal could be concluded based on the judgment of the Apex Court in Rajendra Singh (supra) and also in view of the judgment of the Division Bench of this Court in Asmath Khan (supra). However, this Court cannot remain oblivious of the factual situation which arose before the Supreme Court in Rajendra Singh (supra) as well as before this Court in Asmath Khan (supra) are not present here. In Asmath Khan (supra), the Division Bench proceeded to hold that the Tribunal could exercise the inherent power to recall an order where conditions stipulated under Order 47 Rule 1 exist and that the tribunal has all the trappings of the court under the Code of Civil Procedure, 1908. However, in ICICI Lombard General Insurance Company Vs. M.D.Davasia @ Jose and Another (2019 (4) KHC 157), a Full Bench of this Court had an occasion to decide the status of the Motor Accidents Claims Tribunal constituted under Section 165 read with Section 166 of the Motor Vehicles Act. Paragraph Nos.6 and 7 of the 2024:KER:75318 MACA NO. 111 OF 2021 -24- judgment of the Full Bench are extracted hereunder:
"...6. From the above decisions, it can be ordinarily understood that MACTs, though it has some trappings of a 'Court', is not a 'Court', and therefore, its constitution is not governed by any legislation applicable to Civil Courts. The intention behind the constitution of a separate Tribunal to adjudicate claims coming under the Motor Vehicles Act, 1988 which provides for the procedure is that, the Tribunal is entitled to follow such summary procedure as it may think fit, subject to the Rules that is prescribed.
7. S.158(6) of the Motor Vehicles Act, 1988, makes it incumbent on the part of a police officer to forward any information regarding any accident involving death or bodily injury of any person in the form of a report to the Claims Tribunal having jurisdiction within 30 days from the date of recording of such information and S.166(4) of the Motor Vehicles Act, 1988 directs the Claims Tribunal to treat such a report as an application for compensation under that Act. This provision would indicate that the claimant need not even file an application for the purpose of raising a claim under the Motor Vehicles Act, 1988. That is the reason why elaborate procedures as required in a civil suit is not necessary in adjudicating matters before a 2024:KER:75318 MACA NO. 111 OF 2021 -25- Claims Tribunal"
20. While answering the question raised before it, the Full Bench unequivocally held that the Tribunal constituted in terms of the provisions contained under Section 165 of the Motor Vehicles Act is not a 'Court'. Pertinently, the judgment of the Division Bench in Asmath Khan (supra) was also dealt with.
21. It is also brought to the notice of this Court that in Anjali Vs Ragesh [2020(5) KHC 392], a learned Single Judge of this Court following the dictum laid down in Asmath Khan (Supra) held that the Tribunal is having the trappings of a court and is deemed to be a civil court as mentioned in Section 169(2). Pertinently, the decision of the Full Bench was not taken notice by the learned Single Bench in the aforesaid decision.
22. Be that as it may, this Court has to deal with the important issue regarding the precedential value of the judgment of the Division Bench in Asmath Khan (supra) once the Full Bench had rendered the decision in M.D.Davasia 2024:KER:75318 MACA NO. 111 OF 2021 -26- (supra). It is pertinent to note that it is after referring to the judgment in Asmath Khan (supra), the Full Bench proceeded to hold that the Tribunal constituted under Section 165 of the Motor Vehicles Act while dealing with an application under Section 166 does not have the trappings of a court.
23. Going by the law of precedents, this Court is bound by the principles laid down in Asmath Khan (supra) by the Division Bench. However, this Court has an onerous task at hand while determining whether the decision of the Division Bench in Asmath Khan (Supra) has lost its precedential value once the Full Bench in M.D.Davasia (supra) had answered the reference.
24. Before proceeding further on this issue, this Court feels it appropriate to refer to a few of the precedents in order to find out the extent of power of review under Order 47 Rule 1 of the Code of Civil procedure qua the exercise of the power by the Tribunals. In State of West Bengal and Others Vs. Kamal Sengupta and Another [(2008) 8 SCC 612], the 2024:KER:75318 MACA NO. 111 OF 2021 -27- Hon'ble Supreme Court while dealing with the power of review conferred on the Administrative Tribunals under the Administrative Tribunals Act, 1985 held that the power under Section 22(3)(f) is akin to the power conferred on courts under Order 47 Rule 1 of the Code of Civil Procedure and can be used only if circumstances exits.
25. In Government of NCT of Delhi through its Secretary, Land and Building Department and Another Vs. K.L.Rathi Steels Ltd and Others [(2024) 7 SCC 315], it was held by the Supreme Court that when the power of review is conferred by a statute, then it would be inappropriate, nay incompetent for the court to travel beyond the contours of the provision conferring such power. It was further held that the power of review is not an inherent power.
26. The Hon'ble Supreme Court in K.L.Rathi Steels (supra) went to hold that when the power of the review is traceable to a statute then the exercise of inherent power to review is not permissible. However, the power of review should not be confused with that of the inherent power to 2024:KER:75318 MACA NO. 111 OF 2021 -28- recall any order. Such inherent power is imbibed in all courts or tribunals to correct any palpable error and to prevent miscarriage of justice in case of fraud or misrepresentation is made. The subtle difference between the exercise of the inherent power of the court under Section 151 and Order 47 Rule 1 of CPC is that the Court can exercise inherent power to correct any procedural irregularity while the power of review cannot be exercised unless otherwise the grounds under Order 47 Rule 1 are specifically made out. It must be borne in mind that when an alternative remedy is carved out by Order 47 Rule 1 of the Code of Civil Procedure, 1908, it would be wholly impermissible to exercise the inherent power to recall or review an order especially since the object of Section 151 of the Code of Civil Procedure is to supplement and not to replace the remedies provided under the Code of Civil Procedure.
27. Therefore, the inevitable conclusion would be that the tribunal cannot exercise the inherent power to recall or review an order when the power of review is separately 2024:KER:75318 MACA NO. 111 OF 2021 -29- conferred on the court. This leads us to the most important question. Whether the Tribunals can exercise the inherent power in the absence of a separate power under the concerned statute enabling them to exercise the power? This would depend upon the constitution of the tribunal under a particular statute. It may be possible to hold that for the tribunal(s) to exercise inherent power, there need not be a separate power conferred under the statute. However, that cannot be said so in case of review.
28. In Grindlays Bank v. Central Government Industrial Tribunal and Others [1980 (Supplement) SCC 420], the Honourable Supreme Court was called upon to consider the question as to whether an Industrial Tribunal constituted under the provisions of the Industrial Dispute Act, 1947, has got a power to set aside an ex parte award. The Supreme Court after analysing the scheme of the Industrial Disputes Act, 1947 held that the power of the Industrial Tribunal to set aside ex parte order, if it is shown that the party was prevented by sufficient cause from appearing before 2024:KER:75318 MACA NO. 111 OF 2021 -30- the Tribunal, is inherent. It was further held that the power to set aside an ex parte order is ancillary to the main power.
29. Rule 395 of the Kerala Motor Vehicles Rules, 1989 makes it clear that the provisions of Order 9 Rule 13 of the Code of Civil Procedure, 1908 are made specifically applicable to the proceedings before the Tribunal. However, this Court is not concerned with the exercise of the powers of the Tribunal for setting aside an ex parte order. Suffice to say that there is a sea of difference when the Tribunal exercises its power to set right a procedural irregularity and while exercising the power of review and substituting its views which were taken earlier.
30. Due to the rampant tribunalisation under the multifarious enactments, the issue regarding the exercise of inherent powers and also the power of review by the Tribunals became more prominent.
31. In Greater Noida Industrial Development Authority Vs Prabhjith Singh Soni and Another [(2024) 6 SCC 767], the Supreme Court was called upon to decide 2024:KER:75318 MACA NO. 111 OF 2021 -31- as to whether the National Company Law Tribunal while considering an application under the Insolvency and Bankruptcy Code, 2016 could exercise the inherent power conferred upon it under the National Company Law Tribunal Procedure Rules, 2016 and review an order. Interpreting Rule 11 of the NCLT (Procedure) Rules, 2016, the Apex Court cautioned that the said power is to be exercised sparingly, and not as a tool to re-hear the matter. It was further held by the Apex Court that "ordinarily, an application for recall of an order is maintainable on limited grounds inter alia where,
(a) the order is made without jurisdiction;
(b) the party aggrieved with the order is not served with a notice of proceedings in which the order under recall has been passed; and
(c) the order has been obtained by misrepresentation of facts or by playing fraud upon the court/tribunal resulting in gross failure of justice."
32. In the touchstone of the principles laid down by the Honourable Apex Court in the K.L.Rathi Steels (Supra) and 2024:KER:75318 MACA NO. 111 OF 2021 -32- Greater Noida Development Authority (supra) and also in the light of the decision of the Full Bench of this Court in M.A Davasia (supra), it becomes evident that views expressed by the Division Bench of this Court in Asmath Khan (supra) stand in direct conflict with the decisions rendered by the Hon'ble Supreme Court.
33. Once it is found that the decision of the Division Bench in Asmath Khan (supra) is directly in conflict with the decision of the Full Bench of this Court in M.A.Davasia (supra) and the principles laid down by the Supreme Court in Greater Noida Development Authority (supra), the inescapable conclusion is that the decision of the Division Bench in Asmath Khan (supra) stands impliedly overruled and that in the light of decisions of the Hon'ble Supreme Court in KL Rathi Steels (Supra) and Greater Noida Development Authority (supra), it can be no longer considered as a good law. Resultantly, it must be held that in the absence of any provision under the Motor Vehicles Act, 1988 conferring specific power on the Motor Accidents Claim 2024:KER:75318 MACA NO. 111 OF 2021 -33- Tribunal to review its order, the tribunal does not have the power to review its order.
34. It is pertinent to note that in the instant case, application for review was filed under Section 114 read with Section 151 of the Code of Civil Procedure, 1908. Thus, it is clear that the Insurance Company did not invoke the inherent power even if any, but wanted to invoke the powers of a Civil Court under Section 114 and read with Section 151 of the Code of Civil Procedure, 1908. Once the Full Bench of this Court in M.D.Davasia (supra) had held that the Motor Accidents Claims Tribunal is not a Court under the provisions of the Code of Civil Procedure, 1908, it has to be held that an application under Section 114 read with Section 151 of the Code of Civil Procedure,1908 is not maintainable.
35. Incidentally, this Court has to deal with the alternate submissions of Sri.V.P.K.Panicker, learned Standing Counsel appearing for the Insurance Company, pointing out that the Tribunal under Section 169 has got ample powers to regulate its procedure while dealing with an application under 2024:KER:75318 MACA NO. 111 OF 2021 -34- Section 168. No doubt, the learned counsel is right in contending that the Tribunal has got its own powers to regulate the procedure. However, the striking difference is that the power to regulate the procedure cannot be equated with the power to review an order passed. This is more so when, the power of review has to be conferred by the statute on the Court or Tribunal, except when the power is exercised by the High Court being the Court of record under Article 215 of the Constitution of India. Therefore, this Court has no hesitation to reject the aforesaid contention.
36. There is yet another reason as to why this Court should find that the exercise of the power of the Tribunal recalling its earlier award passed on 16.09.2019 is without jurisdiction. As pointed out by the learned Counsel Sri.P.M.Muhammed Shiraz for the appellant, the Insurance Company did not produce any documents except the policy while filing their written statement. Only along with the application for review, additional documents were filed. Therefore, it is evident that the Tribunal had a change of 2024:KER:75318 MACA NO. 111 OF 2021 -35- opinion after seeing the additional documents, which is impermissible. On this ground also, this Court has to find that the award impugned in this appeal was rendered without jurisdiction. Thus on analysing the points discussed above, this Court has to conclude that in the light of the principles carved out by the Hon'ble Supreme Court in K.L.Rathi Steels Ltd. (supra) read in cumulative with the judgment of the Full Bench of this Court in M.D.Davasia (supra), the Motor Accidents Claims Tribunal does not have the power to review its order except under the circumstances of fraud or misrepresentation as expounded by the Supreme Court in Rajendra Singh (supra). Similarly, in the absence of any specific power to review, the tribunal cannot exercise the inherent power unless the three conditions specified by the Supreme Court in K.L.Rathi Steels (supra) exist.
37. Coming to the second question posed by this Court "whether the Tribunal could have ordered recovery from the owner", it is to be noted that while considering the said issue, the Tribunal failed miserably to refer to Rule 62 of the Central 2024:KER:75318 MACA NO. 111 OF 2021 -36- Motor Vehicle Rules. The Tribunal failed to take notice of the basic principle enshrined under the provision of Rule 62 of the Central Motor Vehicle Rules.
38. When a new vehicle is registered, it is deemed that it has a fitness certificate for a period of two (2) years from the date of registration. There was impeachable evidence before the Tribunal to show that the vehicle was registered on or after 07.05.2017. Therefore, when the accident took place on 04.05.2017, the vehicle was having a valid Fitness Certificate and therefore the Tribunal could not have ordered recovery of the compensation from the owner. Hence, this Court has no iota of doubt in its mind to hold that the impugned award is required to be set aside.
As an upshot of these discussions, this Court holds that while exercising the powers under Sections 165, 168 and 169 of the Motor Vehicles Act, the Motor Accidents Claims Tribunal does not have a power of review nor it can exercise inherent powers to recall an award except on the procedural aspects and also in cases where fraud or misrepresentation is 2024:KER:75318 MACA NO. 111 OF 2021 -37- alleged. Resultantly, the appellant is entitled to succeed. The award dated 28.05.2020 in O.P.(M.V.)No.1042 of 2017 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha is set aside to the extent of ordering the Insurance Company to recover the compensation so paid from the appellant owner. Ordered accordingly. No order as to costs.
Sd/-
EASWARAN S. JUDGE vv