Shameer S/O Mammi Ayyattu v United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** **OP (MAC).No. 46 of 2019** **FOR DIRECTION IN I.A.NO. 7017/2018 IN O.P.(M.V.)NO. 18/2017 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **PETITIONER/RESPONDENT NO. 3:** **UNITED INDIA INSURANCE CO. LTD** **MYSORE ROAD,SULTHAN BATHERY,WAYANAD,NOW REPRESENTED BY AUTHORIZED SIGNATORY R.JAYASREE,MALABAR COURT BUILDINGS,PALAKKAD.** **BY ADV. SMT.BINDU GEORGE** ## **RESPONDENT/RESPONDENT NO. 1:** **SHAMEER S/O MAMMI AYYATTU,KAMBALAKKAD, PARLIKUNNE POST,WAYANAD – 673 122** **THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 03.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP (MAC).No. 46 of 2019 2 ## **JUDGMENT** The petitioner, who is the third respondent Insurer in O.P.(MV)No.18/2017 on the file of the Motor Accidents Claims Tribunal, Palakkad, has filed this Original Petition under Article 227 of the Constitution of India seeking an order to set aside Ext.P3 order in I.A.No.7017/2018 in O.P.(MV)No.18/2017 of the Tribunal, and allow the prayers advanced by the petitioner in that interlocutory application and direct the Tribunal, Palakkad to dispose I.A.No.7017/2018 afresh, after hearing necessary parties. 2. Heard the learned counsel for the petitioner. 3. The sole issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P3 order of the Tribunal in I.A.No.7071/2018 in O.P. (MV)No.18/2017, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. The petitioner is the 3[rd] respondent in O.P. (MV)No.18/2017 on the files of the Motor Accident Claims Tribunal, Palakkad, a claim petition filed by the legal representatives of one Moideen, who sustained fatal injuries in OP (MAC).No. 46 of 2019 3 a motor accident which occurred on 28.8.2016, while he was riding a motor cycle. At the place of accident, he was hit down by a motor cycle bearing registration No.KL-14/8781 owned by the 1[st] respondent herein and ridden by the 2[nd] respondent before the Tribunal. The petitioner herein is the insurer of that motor cycle. 5. Before the Tribunal, the 1[st] respondent herein, the owner of the motor cycle remained ex parte. The rider of the motor cycle and also the insurer filed written statement. In the written statement filed by the insurer it was stated that, at the time of accident, the 2[nd] respondent rider was holding a valid driving licence and the offending motor cycle was covered by a valid insurance policy. Though there was a charge under Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988, against the 2[nd] respondent rider, for riding motor cycle without holding a valid driving licence, in Ext.P1 award dated 4.9.2018, no recovery right was granted to the insurer, in the absence of a contention in the written statement that, at the time of accident, the 2[nd] respondent rider was riding the offending motor cycle without a valid driving licence and as such, there is violation of the policy conditions. A copy of the insurance policy with terms and OP (MAC).No. 46 of 2019 4 conditions was also not produced before the Tribunal. Therefore, the Tribunal in Ext.P1 award held that the insurer is not entitled for an order of pay and recovery. 6. As per the submission made by the learned counsel for the petitioner, after the award, the insurer filed a review petition seeking review of Ext.P1 award, which is now pending consideration before the Tribunal. During the pendency of that review petition, the insurer filed I.A.No.7017 of 2018 seeking an order to enable it to recover the amount already paid to the claimants in terms of Ext.P1 award, by proceeding against the 1[st] respondent, who is the registered owner of the offending motor cycle. A copy of that interlocutory application is placed on record as Ext.P2, which is one filed under Section 168 of the Motor Vehicles Act. The said application reads thus; “Application filed under Section 168 of the MV Act for deciding the recovery aspect in the case from the 1[st] respondent owner of the vehicle. For the reason stated in the accompanying affidavit it is respectfully prayed that the Honourable Court may be pleased to pass an order enabling R3 to recover the amount already paid by this respondent to the petitioner.” 7. The Tribunal by Ext.P3 order dated 30.11.2018 dismissed the said application. The said order reads thus; OP (MAC).No. 46 of 2019 5 “This is an application filed under Section 168 of the MV Act. No order for recovery in the award. For that purpose, a review filed by this petitioner is pending. So at this stage, this application will not lie. Hence dismissed.” 8. The learned counsel for the petitioner insurer would submit that the pendency of a review petition seeking review of Ext.P1 award in O.P.(MV)No.18/2017 is not a bar in the Tribunal entertaining I.A.No.7017/2018. 9. Ext.P1 is an award passed by the Tribunal under Section 168 of the Motor Vehicles Act, on a claim petition filed under Section 166 of the said Act. In the said award, the petitioner insurer is not granted with recovery right against the 1[st] respondent, who is the registered owner of the offending motor cycle, for the reasons stated in paragraph 18 of that award. 10. A person who is aggrieved by the award passed by the Tribunal, has to file an appeal under Section 173 of the Act, by approaching this Court. If there is an error apparent on the face of that award, a party feeling aggrieved can invoke the power of review under Order XLVII Rule I of the Code of Civil Procedure, 1908. However, as held by the Apex Court in **Thungabhadra Industries Ltd v. Government of Andhra Pradesh [AIR 1964 SC 1372]** , review is, by no OP (MAC).No. 46 of 2019 6 means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 11. Now the attempt made by the petitioner insurer by filing I.A.No.7017/2018 is to secure recovery right against the 1[st] respondent registered owner, which stands declined in Ext.P1 award for the reasons stated in paragraph 18 of that award. An interlocutory application for that purpose cannot be entertained under Section 168 of the Motor Vehicles Act, which was rightly rejected by the Tribunal by Ext.P3 order dated 30.11.2018. In the said order the Tribunal has also taken note of the pendency of the review petition filed by the petitioner insurer seeking review of Ext.P1 award, for the very same purpose. 12. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article OP (MAC).No. 46 of 2019 7 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 13. In **Sobhana Nair K.N. v. Shaji S.G.Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 14. Viewed in the light of the law laid down in the decisions referred to _supra,_ conclusion is irresistible that no interference is warranted on Ext.P3 order dated 30.11.2018 by invoking the supervisory jurisdiction of this Court under Article OP (MAC).No. 46 of 2019 8 227 of the Constitution of India, when it cannot be said that while passing such an order the Tribunal committed a manifest error or that the reasoning of the Tribunal in that order is palpably perverse or patently unreasonable. In the result, this original petition fails and the same is accordingly dismissed; however, without prejudice to the contentions raised by the petitioner insurer in the review petition pending before the Tribunal seeking review of Ext.P1 award. Sd/- ## **ANIL K.NARENDRAN** **JUDGE** DCS OP (MAC).No. 46 of 2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED OP(MV) NO. 18/2017 OF THE HON'BLE MOTOR ACCIDENT CLAIM TRIBUNAL PALAKKAD** **EXHIBIT P2 A TRUE COPY OF THE I.A. NO. 7017.18 FILED BEFORE THE HON'BLE MOTOR ACCIDENT CLAIM TRIBUNAL PALAKKAD** **EXHIBIT P3 A TRUE COPY OF THE ORDER IN I.A. NO. 7017/2018 IN O.P.NO. 18/2017 OF THE MOTOR ACCIDENT CLAIM TRIBUNAL, PALAKKAD**