C. Ganeshan(Deceased) vs National Insurance Co. Ltd on 25 June, 2024

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Kerala High Court

C. Ganeshan(Deceased) vs National Insurance Co. Ltd on 25 June, 2024

This Review Petition is one filed invoking the provisions under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, seeking review of the judgment of a Division Bench of this Court dated 23.09.2011 in MACA No.1519 of 2008, arising out of the award passed by the Motor Accidents Claims Tribunal, Pala in OP(MV) No.242 of 2004. That claim petition filed under Section 166 of the Motor Vehicles Act, 1989 arises out of a motor accident which occurred on 24.10.2003, involving a jeep bearing Registration No.KRB-3076, which overturned at the place of accident. The injured was a passenger in that jeep, which was driven by the 2nd respondent herein and owned by the 4th respondent. The 1st respondent herein is the insurer of that vehicle. During the pendency of this review petition, the injured, namely, the original review petitioner, died and his legal representatives were impleaded as additional review petitioners 2 to 6, by the order dated 07.10.2022 in I.A.No.1 of 2022. By the order dated 25.07.2023 in I.A.No.1 of 2023, the 3rd respondent was deleted from the party array. 4 Review Petn. No.1228 of 2019

2. Heard the learned counsel for additional petitioners 2 to 6, learned Standing Counsel for the 1st respondent insurer, learned counsel for the 2nd respondent driver and also the learned counsel for the 4th respondent owner of the offending vehicle.

3. This review petition was filed along with C.M.Application No.1 of 2019 seeking condonation of delay of 2966 days in filing the same.

4. The learned Standing Counsel for the 1st respondent insurer raised an objection in condonation of delay, by contending that, the judgment sought to be reviewed is one rendered after serving notice on the original review petitioner. The learned Standing Counsel pointed out that, at the time of disposal of MACA No.1519 of 2008, the appeal filed by the injured claiming enhancement of the compensation awarded by the Tribunal was pending before this Court as MACA No.1658 of 2008.

5. On the above aspects, the learned counsel for additional review petitioners 2 to 6 would submit that the disposal of MACA No.1519 of 2008 was without notice to the injured, who was arrayed as the 1st respondent in that appeal. 5 Review Petn. No.1228 of 2019

6. We have perused the Judges' papers in MACA No.1519 of 2008. We notice that the notice issued to the injured, who was arrayed as the 1st respondent in that appeal, returned with an endorsement 'not known'. Therefore, at the time of disposal of MACA No.1519 of 2008, by the judgment sought to be reviewed, service of notice was not complete on the injured, viz., the 1st respondent therein. We also notice that the appeal filed by the injured, challenging the very same award, claiming enhanced compensation, was pending before this Court as MACA No.1658 of 2008, at the time of disposal of MACA No.1519 of 2008. In such circumstances, we find that the petitioner has shown sufficient cause for condonation of the delay of 2966 days in filing this review petition. Accordingly, C.M. Application No.1 of 2019 is allowed, condoning the delay in filing this review petition.

7. We notice that the question raised in this review petition is no more res integra in view of the decision of a Division Bench of this Court in Radhakrishna Panicker v. State of Kerala [2001 (3) KLT 631], which was one rendered taking note of the law laid down by the Apex Court in Bir Bajrang Kumar v. State of Bihar [AIR 1987 SC 1345]. 6 Review Petn. No.1228 of 2019

8. In Bir Bajrang Kumar v. State of Bihar [AIR 1987 SC 1345], the Apex Court took the view that if there are two writ petitions involving identical points and one writ petition is admitted, there is no justification for dismissing the other writ petition. The Apex Court, therefore, set aside the order of the High Court and remanded the matter to the High Court to be heard along with the pending matter. Paragraph 2 of the said decision reads thus;

"2. After going through the record of the case, it appears that one of the cases involving an identical point has already been admitted by the High Court, but another identical petition was dismissed by the same High Court. This, therefore, creates a very anomalous position and there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court. In these circumstances, we allow this appeal and set aside the order dismissing C.W.J.C. No. 163 of 1985. This appeal is remanded to the High Court to be heard along with C.W.J.C. No.5728 of 1984 which is pending hearing."

9. In Radhakrishna Panicker v. State of Kerala [2001 (3) KLT 631], a Division Bench of this Court held that, in case of writ petitions involving identical issues, it is not justifiable when certain original petitions are admitted, while some others are dismissed. To avoid the possibility of a 7 Review Petn. No.1228 of 2019 contradictory order, the court has to hear all matters together and pass a common order. If writ petitions raising the same issue are heard by different Judges on different occasions, there will be a possibility of contradictory judgments on the same issue. That may create an anomalous situation and create difficulties for the administration of justice. Paragraph 2 of that decision read thus;

'2. We are of the view that when a similar writ petition challenging the same order has already been admitted and pending consideration, the learned Single Judge was not justified in dismissing the present writ petition at the admission stage. The learned Judge ought to have heard all the matters together and passed a common order. We may, in this connection, refer to the decision of the Apex Court in Bir Bajrang Kumar v. State of Bihar [AIR 1987 SC 1345]. Apex Court took the view that if there are two petitions involving identical points and one is admitted there is no justification in dismissing the other writ petition. Apex Court, therefore, set aside the order of the High Court and remanded the matter to the High Court to be heard along with the pending matter. ....... We are of the view that if writ petitions raising the same issue are heard by different Judges on different occasions, there will be a possibility of contradictory judgments on the same issue. That may create an anomalous situation and create difficulties for the administration of justice. In 8 Review Petn. No.1228 of 2019 this connection, it is appropriate to refer to the principle laid down by this Court in Joy v. Regional Transport Authority [1998 (2) KLT 994], wherein this Court highlighted the necessity of consistency in rendering judgments. This Court held as follows:

"Judicial discipline demands consistency in rendering judgments. A Judicial Officer may hold different views on various aspects. A Judicial Officer may err and pass contradictory orders inadvertently. But once it is brought to the knowledge of the Judicial Officer, he is duty bound to keep track of consistency. Inconsistent orders passed by a judicial officer almost in the same fact situation, and that too on the same day, would give rise to complaint of discriminatory treatment, which will undermine the people's faith in judicial system and the rule of law. It will cause resentment and anguish and make an imprint in the mind of the litigant that he has been discriminated. A Judicial Officer may err and pass illegal orders, but he shall not err in consistency."

There may be a situation where the pendency of the original petition might not have been brought to the knowledge of the learned Single Judge inadvertently. It is for fitness of things that the parties in the litigation should bring to the notice of the Judge of the pendency of similar matters, and therefore contradictory judgments could be avoided, as we see in the present case. We are of the view that as and when the pendency of an original petition concerning the same issue is 9 Review Petn. No.1228 of 2019 brought to the knowledge of the Court, the Court shall post all the cases together and hear the matter. In this case, when an original petition concerning an identical issue has already been admitted and is pending consideration, the learned Judge was not justified in dismissing the original petition at the admission stage by a detailed order.'

10. Since the judgment dated 23.09.2011 in MACA No.1519 of 2008, which is sought to be reviewed in this Review Petition, is one rendered during the pendency of MACA No.1658 of 2008, arising out of the very same award dated 10.09.2007 of the Motor Accidents Claims Tribunal, Pala in OP(MV)No.242 of 2004, we find that there is an error apparent on the face of that judgment, warranting interference in exercise of the review jurisdiction of this Court under Order XLVII Rule 1 of the Code of Civil Procedure.

11. In the result, this Review Petition is allowed by recalling the judgment dated 23.09.2011 in MACA No.1519 of 2008.

12. The Registry is directed to list MACA No.1519 of 2008, along with the connected matter, i.e., MACA No.1658 of 2008, before the Bench as per roster.

Review Petn. No.1228 of 2019

We make it clear that we have not expressed anything on the merits of the matter and the judgment in MACA No.1519 of 2008 is recalled for the reason stated hereinbefore.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE Skk//29.06.--04.07.2024

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