Himachal Pradesh High Court
National Insurance Co. Ltd vs Smt. Sarita Devi & Ors on 21 November, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Review Petition No. 26 of 2017 .
Reserved on: 18.11.2019 Date of decision: 21.11 2019.
National Insurance Co. Ltd.
.....Petitioner Versus Smt. Sarita Devi & Ors.
..... Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Jagdish Thakur, Advocate.
For the Respondents : Mr. Ashwani Pathak, Sr. Advocate
with Mr. Sandeep Sharma,
Advocate, for respondents No. 1 to
5.
Ms. Anu Tuli Azta, Advocate, for
respondent No. 6.
Tarlok Singh Chauhan, Judge
By medium of this Civil Review Petition under Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, the petitioner has sought recalling and reviewing of the judgment passed by this Court on 17.06.2016 in FAO No. 448 of 2011, titled as Sarita Devi and others vs. Sh. Ashok Kumar Naggar and others.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 2
2. The respondents No. 1 to 5 being wife and children of deceased Mohinder Kumar filed a claim petition under Section .
166 of the Motor Vehicles Act, 1988 for grant of compensation on the premises that on 16.07.2005, the deceased boarded Vehicle No. HR-38-L-5668 from Mandi to Jaipur and when the vehicle reached at Panipat near Karnal Chungi at about 4:30 am, the vehicle hit a stationery vehicle, as a result of which deceased suffered injuries on his head and succumbed to the same. It was alleged that the accident had taken place due to rash and negligent driving of respondent No. 7.
3. The claim petition was contested by respondents No. 6 and 7 by filing reply wherein, they denied the allegations set out in the petition and it was denied that accident took place due to rash and negligent driving of respondent No. 7.
4. As regards the petitioner, it too contested the claim petition by filing reply wherein preliminary objections qua maintainability, vehicle being driven in violation of the terms and conditions of policy and the driver possessing an invalid and ineffective driving licence at the time of accident. On merits, the contents of claim petitions were denied.
5. On 16.10.2006, the learned Tribunal framed issues.
6. After recording evidence, the learned Tribunal allowed the claim petition vide award dated 31.08.2011 by ::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 3 awarding a compensation of Rs.15,50,000/- in favour of respondents No. 1 to 5 at the rate of 6% interest per annum from .
the date of filing of petition and the liability to pay the same was fastened upon respondents No. 6 and 7.
7. Respondents No. 1 to 5 aggrieved by the inadequacy of the compensation, preferred an appeal bearing registration No. FAO No. 448 of 2011 and vide judgment dated 17.06.2016, this Court allowed the appeal filed by the said respondents by enhancing the rate of interest from 6% to 7.5%, however, fastened the liability to pay the compensation upon the petitioner, even though there was no separate appeal filed by respondents No. 6 and 7 to this effect.
8. Aggrieved by the judgment passed by this Court, the petitioner approached the Hon'ble Supreme Court by filing SLP and the same was disposed of vide order dated 05.01.2017, which reads as under:-
"The learned counsel for the petitioner seeks permission to withdraw this petition so as to approach the High Court for filing a review petition.
Ordered accordingly.
In case the review petition is filed within thirty days from today, the said petition may not be dismissed on the ground of delay.
The special leave petition is dismissed as withdrawn. We make it clear that we have not expressed any opinion on the merits of the case."::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 4
9. Thereafter the present review petition has been filed questioning the findings recorded by this Court on Issue No. 4.
.
10. Section 114 read with Order 47 Rule 1 of the CPC reads as under:-
"Section 114. Review Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this code, or
(c) by a decision on a reference from a court of small causes, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
ORDER XLVII
1. Application for review of judgment (1) Any person considering himself aggrieved,-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a ::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 5 review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order .
may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the grounds of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation: The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.]
11. Review is permissible if there is an error apparent on the face of the record. However, an error apparent on the face of the record cannot be defined precisely or exhaustively. There being an element of indefiniteness inherent in its very nature and it should be left to be determined judicially on the facts of each case. Error contemplated under Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence.
12. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. The review can also be allowed for any other sufficient reason, which has to be analogus to the one specified in the rule. Any other attempt which except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47 would amount to abuse of the liberty given to the Court under the Act.
::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 613. Learned counsel for the respondents, at the out set has raised preliminary objections regarding the maintainability of .
this review petition and has relied upon the following judgments:-
1. Ganganath Jha and others vs. Shashi Nath Jaha and others AIR 1973 Patna 126.
2. Mahant Dhangir and another vs. Madan Mohan and others (1987 (Supp) SCC 528
3. Siri Nath and others vs. M/s Karam Singh Mehal Singh and others AIR 1995 P&H 84
4. K. Muthuswam Gounder vs. N. Palaniappa Gounder (1998) 7 SCC 327
5. State of Punjab and others vs. Bakshish Singh AIR 1999 SC 2625
6. Bajranglal Shivchandrai Ruia vs. Shashikant N. Ruia and others AIR 2004 SC 2546
14. I have gone through the judgments and found that most of the judgments relate to the powers of the Court under Order 41 Rule 33 CPC, which powers are not in question in the instant petition.
15. The basic philosophy inherent in the recognition of the doctrine of review is acceptance of human fallibility. It has been said that every man is likely to commit an error and a Judge is also a human being. It has also been said that a Judge is yet to be born who has never committed an error. If there is an error due to human failing, there is no reason why it should not be corrected. No error can be permitted to perpetuate injustice or to ::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 7 defeat justice. Every mistake or error must be corrected to do full and complete justice or to prevent miscarriage of justice. Justice .
is above all. It is a virtue which transcends all barriers. Neither rules of procedure nor technicalities of law can come in its way.
The law has to bend before justice. Justice is and must be above everything (Ref.:Code of Civil Procedure by Justice C. K. Thakker Ist Edition)
16. Bearing in mind the aforesaid exposition of law, it would be noticed that the learned Tribunal had framed Issue No. 4, which reads as under:-
"4.Whether driver was not having valid and effective driving license at the time of accident as alleged?
OPR-3"
17. For some strange reason, this issue was considered by the learned Tribunal as issue No. 3 and answered in para-34 of the award, which reads as under:-
"Issue No. 334. RW-2 Sanjeev Singh stated that license in favour of respondent No. 2 was issued for LMV non-transport on 17.06.2000. He admitted in cross-examination that the license was endorsed for LMV-Non Transport and HTV on 30.07.205. The accident had taken place on 17.07.2005.
Thus, the respondent No. 2 was not having a valid driving license on the date of accident. The license was valid for LMV non-transport on 17.07.2005 and it was endorsed for LMV and HTV after the accident. The RC of the vehicle has not been produced but insurance policy Ex. R-2 shows that ::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 8 it was issued in respect of goods public carrier. Therefore, the license to drive non-transport vehicle was not .
sufficient to entitle respondent No. 2 to drive the vehicle and the endorsement of the transport vehicle was necessary. In New India Assurance vs. Roshanben 2008 (8) SCC 253, the driver was holding a license to drive three-
wheeler. He was driving an auto rickshaw delivery van, which was a goods public carrier. It was held that the driver was not holding an effective license. In New India Assurance versus Prabhu Lal 2008 (1) SCC 696, the driver was having a license to drive LMV. He was driving a truck. It was laid down that a person driving a transport vehicle should have an endorsement on the license, which would entitle him to ply such vehicle. This question was also considered by the Hon'ble High Court in Saraswati Devi vs. Bimla Rani 2008 (2) Shim. L.C. 407. The driver was having a license to drive Motor Cycle and LMV. He was driving a jeep, which was a commercial/transport vehicle. It was held that since he was not having a valid license to drive transport. Therefore, the respondent No. 2 did not have a valid driving license to drive the vehicle. Hence, this issue is answered in affirmative and is decided in favour of the respondent No. 3.
18. This Court while adjudicating FAO No. 448 of 2011, noticed this discrepancy regarding issues and observed that the mentioning of this issue is suggestive of the cursory approach adopted by the Tribunal while deciding the claim petition.
However, the Court thereafter proceeded to record the following observations:-
::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 9"19. The issue is whether the driver of the offending vehicle was having a valid and effective driving license. To .
determine the said issue, I have gone through the licence proved on record as Ext.R-1, which does disclose that on the day of accident, the same was valid and effective. Moreover, it was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence, has not led any evidence.
19. In this background, in case the driving licence is perused, the same was only valid for LMV category of vehicle as defined in Section 2 (21) of the Act, which reads as under:-
"Light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms.
20. Admittedly the vehicle in question is not a LMV nor a heavy vehicle as its gross weight is 10,500 kgs as against the unladen weight of 7500 kgs prescribed for the LMV. In case the driving licence is seen the same had been endorsed for driving MTV only on 30.07.2006 whereas the accident in question had taken place more than one year earlier to the said endorsement on 17.07.2005. Meaning thereby the licence was valid only for the LMV vehicle as on the date of the accident.
21. A perusal of Ext. R-2 clearly shows that the vehicle in question is a goods carriage vehicle i.e. transport vehicle and the gross vehicle weight is 10500 kg whereas the driver i.e. ::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 10 respondent No. 7, who was driving the vehicle was having licence to drive light motor vehicle (non-transport) on the date of .
accident i.e. 17.07.2005 as the endorsement to drive the HMV/Transport was made more than a year later on 30.07.2005.
22. Additionally, it would be noticed that it is the specific case of the driver Kuldeep Singh while appearing as RW1 that the owner of the vehicle had engaged him only after satisfying himself regarding the licence possessed by him. Now, if that be so, then obviously both the driver and owner knew very well that the licence possessed by the driver was valid only qua the LMV category that means less than 7500 kgs of the unladen weight and not to drive any other category of vehicles of medium goods and medium passenger or heavy goods or heavy transport vehicles.
23. In such circumstances, the Court has clearly erred in making the aforesaid observations in para -19 of the award and on the basis of such observations exonerated the owner of his liability to satisfy the award amount.
24. In view of the aforesaid discussion, the judgment passed by this Court on 17.06.2016, more importantly, in para-
19 is ordered to be recalled and reviewed. Now it is established that the driver of the offending vehicle did not have a valid or effective driving licence to drive the vehicle in question on the ::: Downloaded on - 21/11/2019 20:24:51 :::HCHP 11 date of the accident, therefore, the liability to pay award amount cannot be fastened upon the petitioner and is essentially .
required to be borne by the owner of the vehicle. Consequently, the liability to pay the entire amount alongwith interest is fastened upon the owner of the vehicle and the Insurance Company is totally exonerated of its liability.
25. The petition is allowed in the aforesaid terms, leaving 21st November, 2019 the parties to bear their own costs.
r (Tarlok Singh Chauhan)
Judge
(sanjeev)
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