The United India Insurance Co. Ltd. v. Reghunath and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939** **MACA.No. 709 of 2014 ()** **-----------------------AGAINST THE AWARD IN OPMV 1562/2000 of MACT ALAPPUZHA DATED 30-09-2006** **APPELLANT(S)/RESPONDENT NO.3:** **---------------------------THE UNITED INDIA INSURANCE CO.LTD REGIONAL OFFICE, ERNAKULAM, REP. BY ITS REGIONAL MANAGER.** **BY ADV. SRI.JOHN JOSEPH VETTIKAD** **RESPONDENT(S)/CLAIMANT/RESPONDENT 1 AND 2:** **------------------------------------------** **1. REGHUNATH, AGED 45 YEARS, AMBIKA SADANAM, MANNANCHERRY P.O., ALAPPUZHA.** **2. N.SATHIKUMAR, S/O.NARAYANA PANICKER, VARAVILA HOUSE, 559/111, MARANALLOOR, OOROOTTAMBALAM. * 3. N.RAJENDRAN, S/O.NARAYANAN, [EXPIRED] THEVIVILA, RAJEE BHAVANAM, WARD NO.XII, BALARAMAPURAM PANCHAYATH, THIRUVANANTHAPURAM DISTRICT.** *** ADDITIONAL RESPONDENTS 4 & 5 IMPLEADED.** *** Addl. 4. VASANTHA WIFE OF LATE N.RAJENDRAN, PRESENTLY RESIDING AT MALEKUNCHUVILA VEEDU, POONKODE, VEDIVACHANCOIL, BHAGAVATHI NADA PO, PALLICHAL, THIRUVANANTHAPURAM DISTRICT-695501.** *** Addl. 5. RAKHI DAUGHTER OF LATE N.RAJENDRAN, PRESENTLY RESIDING AT MALEKUNCHUVILA VEEDU, POONKODE, VEDIVACHANCOIL, BHAGAVATHI NADA PO, PALLICHAL, THIRUVANANTHAPURAM DISTRICT-695501. * THE LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5 AS PER ORDER DATED 15/03/17 IN MACA NO.709/2014.** **R1 BY ADV. SRI.M.DINESH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D.RAJAN, J.** ---------------------------------- M.A.C.A.No.709 of 2014 ---------------------------------Dated this the 15[th] day of September, 2017 ## **JUDGMENT** This appeal is preferred against the award in O.P.(MV) No.1562/2000 of Motor Accidents Claims Tribunal, Alappuzha (for short 'tribunal') by the Regional Manager, United India Insurance Company . One Reghunath sustained injuries in a motor accident on 6.5.2000 at about 4.30 p.m, while he was riding a scooter and the learned tribunal awarded a sum of 25,000/- with interest and costs and the₹ appellant was directed to satisfy the award. Being aggrieved by that, the insurer preferred this appeal. 2. The claimant's case in the tribunal was that on 6.5.2000 at about 4.30 p.m., while he was riding a scooter KL-4/C-7946 through Alappuzha-thanneermukkam public road, another vehicle KL-01/D 790 driven in a rash and negligent manner dashed against claimant's scooter, as a result he fell down and sustained serious injuries. M.A.C.A.No.709/2014 2 Immediately, he was removed to Medical College Hospital, Alappuzha. The driver and owner of the vehicle KL 01/D 790 did not contest the case. The appellant insurer filed written statement and contended that the accident was due to the negligence of the injured, but he admitted the insurance of the vehicle. The injured did not adduce any oral evidence, but his documents were marked as Exts.A1 to A8. 3. After passing the award, the appellant preferred review petition I.A.No.3664/2007 before MACT, Alappuzha and contended that the vehicle KL 01/D 790 was not having valid insurance policy at the time of accident, by mistake a wrong admission was made in the written statement. The vehicle was having valid driving licence and hence the award is to be set aside. The learned tribunal dismissed the I.A on the ground that an inconsistent plea of admission and denial of the insurance coverage cannot be taken by the insurer in a written statement, such pleas are mutually destructive. Accordingly, the review petition was M.A.C.A.No.709/2014 3 dismissed. 4. The learned counsel appearing for the appellant contended that the mistake committed in the lower court has to be rectified by this appellate Court and review petition has to be considered. There was no insurance coverage to the offending vehicle KL 01/D 790 at the time of accident, which was detected by the officers of the insurance company after the award. 5. In this context, I have examined the pleas in the written statement, in paragraph 2 of which it is specifically admitted that the policy is valid from 17.5.1999 to 16.5.2000 and policy number is also mentioned in the written statement. The learned counsel for the appellant relied the decision reported in _**Asmath Khan**_ v. _**Chadrahasa Bangara and Others**_ [2006 KHC 1494], _**National Insurance Company Ltd, Jabalpur**_ v. _**Lachhibai Urf Laxmibai and others**_ [1997 KHC 2297], _**National Insurance Company Ltd, Bangalore**_ v. _**Annapoorna and others**_ [2015 KHC2014]. M.A.C.A.No.709/2014 4 6. The learned counsel appearing for the first respondent contended that there was no amendment application filed by the insurer in the lower Court after detecting the mistake. No oral or documentary evidence had been produced in the trial court to substantiate the nonexistence of the policy, but admission made in the written statement or pleadings cannot be permitted to be withdrawn at any stage by an amendment. If such inconsistent pleadings are made in the written statement, it will affect the right of the parties. The learned counsel relied the decision reported in _**Ram Niranjan Kajaria and others**_ v. _**Sheo Prakash**_ v. _**Kajaria and others**_ [(2015) 10 SCC 203], _**Union of India Sandur Manganese and Iron Ores Limited and others**_ [(2013) 8 SCC 337] and _**Simi Salim and another**_ v. _**M/s. Tip Top Furniture Industries and Others**_ [ 2016 (1) KHC 643]. 7. Having considered the argument made by both counsel and the decisions cited by them, it is true that no amendment application was filed by the appellant in the M.A.C.A.No.709/2014 5 court below, instead of that, after passing the award, a review petition had been preferred in the Court below, which was dismissed by that Court. Since no amendment application was filed in the trial court, no further discussion on that point is warranted. The question is whether the review petition is maintainable on the ground of subsequent finding. 8. The scope of review petition u/s.114 of CPC 1908 and Order XLVII Rule 1 CPC was considered by the Apex Court in _**Rajendrakumar and Ors**_ v. _**Rambhai and Ors**_ . [2002 ACJ 1822]. Order XLVII Rule 1 of CPC reads as follows: “ **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 allosed, or © by a decision on a reference from a Court exercising Small Cause Jurisdiction 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 M.A.C.A.No.709/2014 6 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 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 for a review of may apply judgment notwithstanding the pendency of an appeal by some other party except where the ground 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 The section and rule provide that review of judgment is very limited only on three grounds. First discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant 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, which has been interpreted to be an M.A.C.A.No.709/2014 7 analogue to the other reason, specify the above order. A reading of the above Section shows that the scope of review is limited. If any party is aggrieved by any judgment that it has not been decided as per law, such arguments may be agitated by the applicant before proper forum and not by a review petition before the the same Court. 9. Section 169 of the Motor Vehicles Act reads as follows: “ **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 the purpose of taking evidence on oath and 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 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 Tribunal may,, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possession special knowledge of any matter relevant to the inquiry to assist it in holding he inquiry.” Section 395 of the Kerala Motor Vehicles Rules 1989 reads as M.A.C.A.No.709/2014 8 follows: “ **395. Code of Civil Procedure to apply in certain cases.** - The provisions of Rules 9 to 13 and 15 to 30 of Order V, Rules 16 to 18 of Order VI, Order IX, Rules 3 to 10 of Order XII, Rules 1 to 21 of Order XVI, Rules 1 to 3 of Order XXII and Order XXVI of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to the proceedings before the Claims Tribunal.” 10. In this case, the learned counsel for the appellant submitted that there is a mistake apparent on the face of the record. It is true that specific admission was made in the written statement admitting the insurance of the vehicle. Subsequently, after passing the award they found that no policy was in existence at the time of accident. This inconsistent plea is not a ground for review of its judgment rendered by the court below. If that be the position, the decision rendered by the Apex Court in _**Rajendrakumar's case (supra)**_ is squarely applicable in this case. There is no merit in this appeal and it is dismissed accordingly. ## **P.D.RAJAN, JUDGE.** acd