Naushad S/o Ammad v The New India Assurance Company Limited & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939** **RP.No. 487 of 2017 IN MACA. 1309/2008** **AGAINST THE ORDER/JUDGMENT IN MACA 1309/2008 of HIGH COURT OF KERALA DATED 3.2.2011** **REVIEW PETITIONER(S)/1ST RESPONDENT** **NAUSHAD S/O. AMMAD, PUTHIYOTTIL HOUSE, P.O. ORKKATTERI, VATAKAKARA - 673 501.** **BY ADVS.SRI.B.KRISHNAN** **SRI.R.PARTHASARATHY** **RESPONDENT(S)/APPELLANT & RESPONDENTS 3 & 2:** **1. THE NEW INDIA ASSURANCE COMPANY LIMITED REGIONAL TOWERS, KANDAMKULATHY TOWERS, M.G. ROAD, ERNAKULAM- 682 016. REPRESENTED BY ITS DULY AUTHORIZED OFFICER.** ## **2. ASHARAF** **S/O. LATE HYDER,** **PALLIKKALAKATH VALAPPIL HOUSE, VATAKARA – 1 (DELETED AS PER ORDER DATED 25.1.2018 IN I.A. 334/2018)** **3. PARAKKAL ABDULLA, S/O. ABOOBACKER, KASTHURI HOUSE, PANDIKASALA VALAPPIL BEACH ROAD, VATAKARA - 673 103.** **R3 BY ADV. SRI.T.G.RAJENDRAN R1 BY ADV. SRI.VPK.PANICKER R BY SRI.P.M.HABEEB** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 01-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & A.M.BABU, JJ.** **--------------------------R.P. No. 487 of 2017 in MACA No.1309 of 2008 --------------------------Dated this the 1[st] February, 2018.** ## **ORDER** ## **K.Harilal, J.** The review petitioner is the first respondent in the impugned judgement, which is sought to be reviewed in this review petition. The Motor Accidents Claims Tribunal, Vadakara allowed the petition filed by the petitioner claiming compensation, by awarding Rs 2,31,996/- with interest and cost and making the insurance company liable to pay compensation with a liberty to realise the said amount of compensation from the review petitioner and the third respondent herein. The review petitioner was the owner of the vehicle and the third respondent was the driver of the vehicle. After considering the entitlement of compensation, the tribunal held that the petitioner in the original petition was the owner of the goods carried in the vehicle, at the time of accident and thereby he is entitled to claim compensation for the injuries suffered in the accident under Sec.147 of the Motor Vehicles Act ( 'the M.V Act' for short). More particularly, it was held that the insurance company is 2 ## **R.P. No. 487 of 2017 in MACA No.1309 of 2008** liable to indemnify the owner of the vehicle by paying compensation to the claimant. 2. The insurance company preferred appeal against the said order contending that there was a violation of policy conditions as the petitioner in the original petition was a gratuitous passenger. When the appeal was taken for hearing, it was also contended that the question, whether a gratuitous passenger or owner of the goods, who was accompanying goods in a motor vehicle, which met with accident, is entitled to get compensation stood covered by the decision of the Supreme Court in **United India Insurance Company Ltd vs Manoj (2011 (1) KLT 502)** . The learned counsel for the insurance company brought the decision to the notice of this Court stating that the issue is squarely covered against the petitioner in the original petition by the above decision. After considering the aforesaid decisions, this Court allowed the appeal holding that in the said decision it has been held that claimant would be entitled to get compensation even assuming the vehicle was being driven in violation of the policy conditions and the Insurance Company shall be liable to pay compensation to the claimant, of course with 3 ## **R.P. No. 487 of 2017 in MACA No.1309 of 2008** liberty to recover the same from the owner and driver of the vehicle. That portion of the judgement which gives right of recovery of the amount of compensation from the owner and driver of the vehicle to the Insurance Company is sought to be reviewed in this review petition. 3. Heard the learned counsel for the review petitioner and the learned counsel for the respondents. 4. The sum and substance of the arguments advanced by the learned counsel for the review petitioner is that the tribunal considered the factual issue whether the petitioner was an owner accompanying goods in a motor vehicle falling under Sec.147 of the M.V Act and found in favour of the petitioner in the original petition. But, this court has not considered the legality and sustainability of that finding on the said factual issue, in the appeal. In other words, without considering the findings on that factual issue this Court erroneously applied the propositions laid down in the decision in **United India Insurance Company Ltd vs Manoj (2011 (1) KLT 502).** 5. On the other hand, the learned counsel for the respondent advanced arguments justifying the findings of the 4 ## **R.P. No. 487 of 2017 in MACA No.1309 of 2008** appellate court and contended that the absence of sufficient ground for arriving at a finding is not a sufficient ground to review the judgement passed earlier. To substantiate the said contention, the learned counsel cited the decision of this Court in **United India Insurance Company Ltd vs Manoj (2011 (1) KLT 502)** and **Ratanlal vs Bardi Bai (AIR 2003 MP 248)** . In short, it is contended that there is no error apparent on the face of the record so as to review the judgement which is sought to be reviewed in this review petition. 6. In view of the arguments at the bar, the sole question that arises for consideration is whether there is any error apparent on the face of the record or any other ground to review the impugned judgment. First of all we must remind ourselves that review is not an appeal in disguise whereby an erroneous decision can be rebuilt or corrected. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long time process of reasoning on the point. Bearing the above proposition in our mind, we have meticulously scrutinized the impugned judgment with the above parameter. 5 ## **R.P. No. 487 of 2017 in MACA No.1309 of 2008** 7. Apparently, the impugned judgment is a brief one and precisely written. On a reading of the impugned judgment it appears that the appeal has been disposed of on the basis of the decision laid down by the apex court in **United India Insurance Company Ltd vs Manoj (2011 (1) KLT 502)** , without looking into the factual findings on disputed factual issues before the tribunal and nothing stated in respect of the factual disputes involved in the original petition. Going by the judgment appealed against it could be seen that the factual issue which was considered by the tribunal was whether the petitioner was the owner who accompanied goods carried in the vehicle at the time of accident and thereby he is entitled to get compensation as provided under Sec.147 of the M.V Act. After considering the oral evidence of the driver of the vehicle and the pleadings of both parties the tribunal has arrived at a finding that the petitioner in the original petition was the owner accompanying his goods in the auto rickshaw and thereby his claim is covered under Sec.147 of the M.V.Act. 8. Going by the reported decision relied on by this Court, in the impugned judgment passed in appeal, it could be seen that 6 ## **R.P. No. 487 of 2017 in MACA No.1309 of 2008** this Court considered the scope and extent of Sec.147 of the M.V Act and laid down an exception stating that where a separate seat was not provided in the vehicle, for the owner who accompanied his goods and if he also shared the seat of the driver, he is not entitled to get statutory coverage under Sec.147 of the M.V Act. Therefore, actually the question in controversy involved in the appeal was, whether the petitioner in the original petition was an owner who accompanied his goods by sharing the seat of the driver of the vehicle. We further find that without considering the findings on the above factual issue in the award passed by the tribunal this Court applied the decision of this Court in **United India Insurance Company Ltd vs Manoj (2011 (1) KLT 502)** . 9. We are of the opinion that the said omission amounts to an error apparent on the face of the record. It is trite law that the decision cannot be applied without examining the facts and circumstances involved in the case in which the said decision was rendered and the facts and circumstances in the case at hand. In the instant case, the facts of this case as well as the facts in the reported decision were not analyzed before applying the proposition laid down in the reported decision to the instant case 7 ## **R.P. No. 487 of 2017 in MACA No.1309 of 2008** and this is a sufficient ground to review the impugned judgment under challenge in this review petition. Hence this review petition will stand allowed. The appeal will stand opened for hearing afresh. 10. The registry is directed to post MACA No.1309/2008 before the appropriate Bench, for hearing. sd/- **K.Harilal Judge** sd/- **A.M.Babu Judge** sks/2.2.2018