Chattisgarh High Court
Smt. Lily Arora vs Atul Kumar Mishra on 7 October, 2016
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Page 1 of 17
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on: 23.9.2016
Order delivered on: 07.10.2016
Civil Revision No.73 of 2016
Atul Kumar Mishra S/o. Matacharan Mishra, aged about
38 years, R/o Chandani Chauk, Mayapur, Ambikapur,
P.S. & Post Ambikapur, Civil & Revenue District-Surguja
(CG)
----Applicant
Versus
1. Mohar Singh Chhabra (died and deleted)
2. Smt.Sheelavanti (died and deleted)
3. Smt.Lili Arora W/o. Late Daljeet Singh, aged about 45
years
4. Naveen Arora S/o. Late Daljeet Arora, aged about 25
years
5. Lavleen Arora D/o late Daljeet Singh, aged about 20
years
All R/o. Sheela Tent House, Mahamaya Road,
Ambikapur, P.S. & P.O. Ambikapur, Civil & Revenue
District Surguja (CG)
6. Lakhanram S/o. Nansai, aged about 50 years, R/o
Navagarh, P.S. & P.O. Ambikapur, Civil & Revenue
District Surguja (CG)
7. The Oriental Insurance Company through Branch
Manager, Oriental Insurance Company, Near State
Bank, Sadar Road, Ambikapur, P.S. & P.O. Ambikapur,
Civil & Revenue District Surguja (CG)
Page 2 of 17
---- Respondents
And
Order reserved on: 28.9.2016
Order passed on: 07.10.2016
Civil Revision No.135 of 2016
1. Smt.Lily Arora wife of late Daljeet Singh, aged about 34
years,
2. Naveen Arora son of late Daljeet Singh, aged about 14
years,
3. Lavleen Arora, son of late Daljeet Singh, aged about 9
years,
Applicant No.2 & 3 are minor through legal guardian
their mother Smt.Lily Aora (Applicant No.1),
All are R/o. Mahamaya Road, Sheela Tent House,
Ambikapur, District Surguja (CG)
(Note: Mohar Singh Chhabara & Smt.Sheelavanti who
were applicant No.1 & 2, respectively before the
claim tribunal are since dead, they have not been
impleaded as party)
----Applicants
Versus
1. Atul Kumar Mishra son of Matacharan Mishra,
Occupation Vehicle Owner, R/o. Chandani Chowk,
Raipur, Ambikapur, Tahsil Ambikapur, District Surguja
(CG)
2. Lakhan Ram son of Nansai, Occupation Driver, R/o.
Navagarh, P.S and Tahsil Ambikapur, District
Surguja (CG)
3. The Oriental Insurance Company, Through: the Branch
Manager, Oriental Insurance Company Limited, Near
Page 3 of 17
State Bank, Sadar Road, Ambikapur, District
Surguja (CG)
---- Respondents
-------------------------------------------------------------------------------------
For Applicant : Ms Priyanka Mehta, Advocate in C.R.No.73 of 2016 For Applicants : Ms Hamida Siddique & Mr. Raghvendra Verma, Advocate in C.R.No.135 of 2016.
For Oriental Insurance : Mr.Ratan Pusty, Advocate Company
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Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order
1. The short question that emanates for consideration in these revisions is whether the Claims Tribunal constituted under the provisions of the Motor Vehicles Act, 1989 has power and jurisdiction to review its award on merits.
2. In claim case filed by Shri Dinesh Kumar Prasad being Motor Accident Claim Case No.75/1999 and in Motor Accident Claim Case No.28/1999 filed by Mohar Singh Chhabda, learned Claims Tribunal by its award dated 2.1.2001 granted compensation to them, but fastened the liability to pay compensation upon owner and driver of the vehicle and exonerated the Insurance Company from its liability to make payment of amount of award. Page 4 of 17
3. Misc. Appeal filed by Atul Kumar Mishra (applicant in Civil Revision No.73/2016) came to be dismissed by a Division Bench of this Court by order dated 31.8.2006. However, liberty was granted to the applicant-Atul Kumar Mishra by this Court to work out his legal remedies, if any, if he is so advised before the MACT itself on the basis of additional documents filed against exoneration of the Insurance Company from liability to make payment of compensation.
4. Applicant-Atul Kumar Mishra filed an application under Section 114 read with Section 151 of the CPC for review of the award before the Claims Tribunal, which has been rejected by order dated 17.3.2016. Against which, Atul Kumar Mishra has filed Civil Revision No.73 of 2016, whereas claimants have also filed Civil Revision No.135 of 2016 against the order dated 17.3.2016.
5. Since common question of law is involved in these revisions, both the revisions are taken up and heard together and are being decided by this common order.
6. Ms Priyanka Mehta, learned counsel appearing for the applicant in Civil Revision No.73 of 2016, would submit that the Claims Tribunal is absolutely unjustified in rejecting the Page 5 of 17 application for review filed under Section 114 read with Section 151 of the CPC as the owner was not given sufficient opportunity to file the documents and prove those documents to demonstrate that on the date of incident, the vehicle in question was involved in the election duty as it was taken for the election purpose and therefore, the Division Bench of this Court while dismissing the appeal has given liberty to the applicant to work out his legal remedies before the MACT itself, as such the impugned order of the Claims Tribunal be set aside as there is an error apparent on the face of record and the revision petition be allowed.
7. Similar contention has been made by Ms Hamida Siddique, learned counsel appearing for the applicants in Civil Revision No.135 of 2016 while questioning the impugned order.
8. Mr.Ratan Pusty, learned counsel appearing for the Oriental Insurance Company, would submit that the Claims Tribunal has power of review when review is sought due to procedural defect or inadvertent error committed by Tribunal to prevent abuse of its process. He would further submit that Order 47 Rule 1 of the CPC has not been expressly made applicable to the Claims Tribunal. He would also submit that the review is permissible if some fraud is played or some Page 6 of 17 other special ground is made out in inherent jurisdiction when award passed is palpably wrong, but review on the ground of error in judgment or review on the ground of merit that there is an error apparent on the face of record is not permissible, therefore, the impugned order warrants no interference by this Court in revisional jurisdiction and both the revision petitions deserve to be dismissed.
9. I have heard learned counsel appearing for the parties, cautiously analyzed the submissions made by learned counsel for the parties herein and gone through the records extensively and thoroughly.
10. Section 169 of the Motor Vehicles Act provides for the power and jurisdiction of the Claims Tribunal and procedure to be followed by it. Section 169 of the Act 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 procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for 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 Page 7 of 17 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 Tribunals 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 enquiry."
11. The Madhya Pradesh Motor Vehicles Rules, 1994 is also applicable in the State of Chhattisgarh. Rule 240 provides for procedure to be followed by the Claims Tribunal in holding enquiries and provides as under:-
"240. Procedure to be followed by Claims Tribunal in holding enquiries- application of certain provisions of Code of Civil Procedure, 1908: Save as otherwise expressly provided in the Act or these rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) namely, those contained in Order V, Rules 9 to 13, and 15 to 20, Order IX, Order XVIII, Rule 3 to 10, Order XVI, Rule 2 to 21, Order XVII, Order XXI and Order XXIII, Rules 1 to 3 shall apply to proceedings before a Claims Tribunal in so far as they may be applicable thereto."
12. A careful reading of the provisions contained in Section 169 of the Motor Vehicles Act and Rule 240 of the Rules of 1994 would show that Order 47 of the Code of Civil Procedure which provides for review has not been made applicable expressly to the Claims Tribunal. Sub-section (1) of Section 169 provides that in holding enquiry under Page 8 of 17 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. Thus, the legislature in its wisdom has not expressly conferred any power of review to the Claims Tribunal constituted under the Motor Vehicles Act, 1989.
13. The question for consideration would be whether in absence of the express provision in the Motor Vehicle Act and rules made thereunder conferring power of review, such a power of review can be exercised by the Claims Tribunal to review its award on merits.
14. 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.
15. The Supreme Court in the matter of S. Nagraj & Ors vs. State of Karnataka & Anr. 1 has held that review literally and even judicially means reexamination or 1 1993 Supp (4) SCC 595 Page 9 of 17 reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility.
16. It is well settled law that the power of review is not inherent power it must be conferred either specifically or by necessary implication. The Supreme Court in the matter of Patel Narshi Thakershi v. Pradvuman Singhji Arjunsinghji2 has held that if the power of review is not provided under the statute or by necessary implication, power of review cannot be exercised. Their Lordships held as under:-
"4. .........It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order......."
17. Similar is the law laid down by the Supreme Court in the matter of Kapra Mazdoor Ekta Union vs. Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. & Anr.3 in which it has been held that where a court or quasi judicial authority having jurisdiction 2 AIR 1970 SC 1273 3 (2005) 13 SCC 777 Page 10 of 17 to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi- judicial authority is vested with power of review by express provision or by necessary implication. The power of review is not an inherent power and must be conferred by law either expressly or by necessary implication.
18. Recently, the Supreme Court in the matter of Kalabharati Advertising vs. Hemant Vimalnath Narichania and others4 while reiterating the law in this regard succinctly held that in absence of statutory provision of review, review application cannot be entertained and held as under:-
"12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. (vide: Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar5 and Harbhajan Singh v. Karam Singh6).4
(2010) 9 SCC 437 5 AIR 1965 SC 1457 6 AIR 1966 SC 641 Page 11 of 17
13. In Patel Narshi Thakershi & Ors. v. Shri Pradyuman Singhji Arjunsinghji7, Major Chandra Bhan Singh v. Latafat Ullah Khan 8, Kuntesh Gupta (Dr.) v. Management of Hindu Kanya Mahavidhyalaya9, State of Orissa v.
Commr. of Land Records and Settlement 10, and Sunita Jain v. Pawan Kumar Jain 11 this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction.
14. Therefore, in view of the above, the law on the point can be summarised to the effect that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/ modification/correction is not permissible."
19. Similarly, the Supreme Court while considering the question as to whether District Forum and State Commissions have power to set aside or recall their own ex 7 (1971) 3 SCC 844 8 (1979) 1 SCC 321 9 (1987) 4 SCC 525 10 (1998) 7 SCC 162 11 (2008) 2 SCC 705 Page 12 of 17 parte order in the matter of Rajeev Hitendra Pathak and others v. Achyut Kashinath Karekar and another 12 has held that the Tribunals are creatures of the statute and derive their power from express provision of the statute and in absence of power of review in the Consumer Protection Act, 1986, power of review cannot be exercised by the District Forums and the State Commissions and held as under:-
"34. On a careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which have not been expressly given by the statute cannot be exercised."
20. The Madhya Pradesh High Court in the matter of National Insurance Co. Ltd. v. Lachhibai @ Laxmibai and other13 while considering the issue has held that the Claims Tribunal constituted under the Motor Vehicle Act, 1988 has power of review, when the review is sought to correct the procedural defect or error committed by Tribunal to prevent the abuse of process but it has no power to review the award on merits and held as under:- 12
(2011) 9 SCC 541 13 1997(1) M.P.L.J. 356 Page 13 of 17 "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, Civil Procedure Code. 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 its 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 169 of the Motor Vehicles Act.
Therefore, review on limited grounds as mentioned above is permissible."
21. Subsequently, the Division Bench of the Madhya Pradesh High Court again in the matter of Uttara Soni v. Oriental Insurance Co. Ltd. and others 14 followed the principle of law laid down in Lachhibai (supra) with approval.
22. However the Supreme Court in the matter of United India Insurance Co. Ltd. v. Rajendra Singh and others15 has held that the Claims Tribunal has an inherent power to review its own award if it is obtained by fraud or misrepresentation. The relevant paragraph of the report states as under:-
14
2009 ACJ 276 15 (2000) 3 SCC 581 Page 14 of 17 "16. ............ 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 claim."
23. Thus, from the aforesaid analysis it is quite pellucid that the power of review has not been expressly conferred to the Claims Tribunal constituted under the provisions of Motor Vehicle Act, 1989 and Rule 240 of the Rules of 1994. Order 47 Rule 1 of the CPC providing for review has not been made expressly applicable to the Claims Tribunal. Therefore, in absence of statutory provision the power of review of the award cannot be exercised by the Claims Tribunal except in a case where the award has been obtained from the Claims Tribunal by practicing fraud or making misrepresentation. However, the power of review is inherent in the Claims Tribunal to rectify procedural, arithmetical, clerical error or defect made by the Tribunal to prevent abuse of its process and to make its record straight and to that extent, the review application would be maintainable to the Claims Tribunal to review its award.
Page 15 of 17
24. In the light of principle of law laid down in above-stated judgments, if the facts of the case are examined it is quite vivid that in the instant case Shri Atul Kumar Mishra- owner of the vehicle is seeking review of the award on the merits holding that the offending vehicle owned by him on the date of accident was involved in the election duty duly requisitioned by the Collector of the District for the purpose of election. It has already been held that no express power of review has been conferred by the Act of 1989 to the Claims Tribunal to review its award on merits, therefore the Claims Tribunal is absolutely justified in rejecting the application for review filed by the applicant - Shri Atul Kumar Mishra by the impugned order. I do not find any jurisdictional error in the order impugned.
25. Learned counsel for the applicant has submitted that in an appeal preferred by the applicant this Court in M.A.No.173/2001 granted liberty to the applicant to work out his legal remedy before the Claims Tribunal while dismissing the appeal therefore the review petition ought to have been entertained by the Claims Tribunal. It is needless to say that the appeal preferred by the appellant has been dismissed on merit. The applicant is entitled to invoke the remedy of Page 16 of 17 review only if such power of review is legally available and permissible under the provisions of the Act of 1989 and rules made thereunder. Since the remedy of review on merits of the award is not permissible in law, therefore, the Claims Tribunal is absolutely justified in rejecting the application for review filed by the applicant.
26. As a fallout and consequence of the aforesaid discussion, both the civil revisions deserve to be and are accordingly dismissed leaving the parties to bear their own cost(s).
Sd/-
Sanjay K. Agrawal Judge B/-
Page 17 of 17
HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision No.73 of 2016 Applicant Atul Kumar Mishra Versus Respondents Mohar Singh Chhabra and others And Civil Revision No.135 of 2016 Applicants Smt.Lily Arora and others Versus Respondents Atul Kumar Mishra and others HEAD-NOTE The Claims Tribunal constituted under the provisions of the Motor Vehicles Act, 1989 has no power and jurisdiction to review its award on merits, but the Tribunal can review its award to correct procedural as well as inadvertent mistake and in case of fraud. eksVj okgu vf/kfu;e] 1989 ds izko/kkuksa ds varxZr xfBr nkok vf/kdj.k dh xq.kkxq.k ij vius vf/kfu.kZ; dk iqufoZyksdu djus dh 'kfDr vkSj {ks=kf/kdkj ugha gS ijUrq vf/kdj.k }kjk izfdz;kRed rFkk vutkus esa dh xbZ xyrh vkSj /kks[kk/kMh ds ekeys esa viua vf/kfu.kZ; dk iqufoZyksdu fd;k tk ldrk gSA