Allowed

Avtar Singh v. United India Insu. and Ors.

J&K HC1 Dec 2021RPC/9/2013

Case brief

AI extract

What is this about?

One judge at the High Court of Jammu & Kashmir dismissed review petitions filed against a judgment dated 05.11.2013, allowing a review on the ground that the insurance opponent had withheld information about a parallel judgment from the Jammu wing of the same court, causing contradictory outcomes regarding vehicle owner liability.

What did the court decide?

The judgment dated 05.11.2013 is reviewed and set aside to the extent it allowed the insurance company to recover compensation from the petitioner; the earlier Jammu judgment is now made applicable.

Avtar Singh Vs United India Insu. and Ors. — Motor Accident Claims | J&K HC (2021)

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Supp List

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

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Reserved on : 09.11.2021

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Pronounced on: 01.12.2021

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RPC No 09/2013 c/w RPC No 10/2013 RPC No 11/2013 RPC No 12/2013 RPC No 13/2013 RPC No 14/2013 RPC No 15/2013

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Avtar Singh

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Petitioner(s)/ Appellant(s)

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Through: - Mr Z. A. Shah, Sr. Advocate with Mr A. Hanan, Advocate V/s

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United India Insurance and Others

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…..Respondent(s)

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Through: -

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Ms Rifat Khalida, Advocate.

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CORAM:

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Hon’ble Mr. Justice Javed Iqbal Wani, Judge. JUDGEMENT

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This common order shall dispose of the instant review petitions filed against the judgement dated 05.11.2013 passed by this Court in Civil appeal Nos. 119/2012, 120/2012, 121/2012, 122/2012, 123/2012, 124/2012, 125/2012 and cross appeal No. 56/2013.

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Before adverting to the grounds urged in the instant petitions, it would be appropriate to give a brief background of the case as stated in the petitions hereunder: -

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i) According to the petitioner, his vehicle bearing No. JK02P-5325, met with an accident on 18.06.2006 at 157^th KM on Jammu-Srinagar Highway, as a result of which 26 passengers lost their lives including the driver of the vehicle namely Ved Prakash. An FIR being FIR No. 73/2006 is stated to have been registered with Police Station, Ramban in this regard.

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ii) It is being stated that claim petitions under Section 166 of the Motor Vehicles Act, 1988, (for short the Act) came to be filed before various Motor Accident Claim Tribunals (for short the

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Tribunal) out of which seven came to be filed at Jammu, seven at Srinagar, eight at Pulwama and one at Rajouri.

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iii) It is being further stated that out of the total claim petitions filed, first batch of claim petitions filed before Jammu Tribunal came to be decided by a common judgement/order on 26.02.2010 and second batch of petitions filed before Srinagar Tribunal also came to be decided by a common order/judgement on 25.11.2011.

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iv) It is being further stated that offending vehicle was insured with respondent No.1/Insurance Company (for short the Company)

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v) It is being next stated that Company filed appeals against the judgement/order passed by Jammu Tribunal before the Jammu wing of this Court being CIMA Nos. 718/2010, 556/2010, 557/2010, 558/2010, 653/2013, 559/2010, 560/2010 and 561/2010 and the said appeals are stated to have been decided by the Jammu wing of this Court vide judgement dated 01.11.2013.

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vi) It is being further stated that judgement/order passed by the Srinagar Tribunal in the claim petitions also came to be appealed against by the Company being CIMA Nos. 119/2012, 120/2012, 121/2012, 122/2012, 123/2012, 124/2012 and 125/2012 and the said appeals are stated to have been decided by Srinagar wing of this Court vide judgement dated 05.11.2013.

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vii) It is being next stated that the petitioner being owner of the offending vehicle had appeared before the Jammu Tribunal as a witness and successfully proved that the driver of the vehicle had got license validly renewed from the office of Regional Transport Officer, Jammu, who had verified the said fact and, as such, could not be saddled with the liability, though, the license otherwise had been issued by licensing authority, Shimla.

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viii) It is being further stated that in the claim petitions at Jammu, petitioner had maintained that the driver of the vehicle was holding a valid license and since had appeared as a witness before Jammu Tribunal and deposed that the license of the driver

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had been renewed validly by the competent authority, as such, the petitioner upon receiving advice did not appear in the claim petitions before the Srinagar Tribunal believing that Srinagar Tribunal could not arrive at different conclusions so far as the petitioner is concerned.

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ix) It is being next stated that when the appeals were considered by the Jammu wing of this Court it recorded an express finding that petitioner-owner could not be saddled with the liability as the material on record had established that the petitioner-owner had acted as a man of ordinary prudence and therefore, liability could not be passed on, from the insurance company to him and insurance company could not be granted liberty to recover amount compensation awarded to the claimants from the petitioner owner.

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x) It is being further stated that the appeals preferred by the Company before Srinagar wing of the Court against the judgements/orders passed by Srinagar Tribunal came to be decided on 01.11.2013 after the decision of the appeals passed by the Jammu wing of this Court on 25.11.2011.

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xi) It is being next stated that while deciding the said appeals by Srinagar wing of this Court, the Company, which had preferred the appeals before the Jammu wing of this Court, did not inform this wing of the Court about the decision delivered in the appeals filed by it in Jammu wing of this Court.

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xii) It is further stated that non-furnishing of the said information by the Company to the Srinagar wing of this Court, resulted into passing of the contrary judgement though fastening liability on the Company to pay compensation to the claimants yet allowed a right of recovery to the Company from the petitioner owner.

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xiii) The petitioner thus, in this view of the matter seeks review of the judgement dated 05.11.2013 passed by this wing of the Court on the following grounds: -

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a) That the failure of the respondent No. 1 to bring to the notice of the Hon’ble Court the judgement dated 1.11.2013 passed by the bench of the Hon’ble Court at Jammu in respect of the same matter, constitutes error apparent on the face of record.

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b) That respondent No. 1 was required to produce the judgement passed by the Jammu wing of the Hon’ble Court in the same matter and it was within their knowledge that the amount is not required to be recovered from the petitioner herein. The judgement at Jammu is dated 1.11.20213, therefore, was required to be produced before the bench at Srinagar which delivered the judgement latter in point of time.

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c) That the judgement delivered at Jammu was an important matter and cold not have been suppressed from the bench at Srinagar by respondent No. 1. It appears to the petitioner that respondent No. 1 deliberately did not bring it to the notice of the bench at Srinagar because all along the respondent No. 1 was making efforts of absolving itself from the liability and that is why they filed appeals before the Hon’ble Court.

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d) That in respect of the same matter, two contradictory judgements cannot simultaneously operate. Mistake and error has occurred in the records.

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e) That there are sufficient reasons/grounds for review of the judgement/order.

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f) That under no circumstance the petitioner can be saddled with the liability, as he has acted as a man of prudence, in the facts and circumstances of the case as ruled by Motor Accidents Claims Tribunal, Jammu and the Hon’ble High Court.

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Objections have been filed by the Company, wherein it is being stated that the petitions are misconceived and not maintainable in the present

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form, in that, during the course of trial, petitioner was represented in the claim petitions filed before the Srinagar Tribunal by Mr A. R. Keng, Advocate, who had filed response on 18.10.2006 and that later on the petitioner had been proceeded ex-parte on account of his absence and that issues were framed in the claim petitions including issue No. 2 i.e. “As to whether the driver of the offending vehicle was not holding valid driving license but was possessing a fake license on the date of accident” and that the Company proved the said issue upon leading evidence proving that the license in question bearing No. 68/SML/82 had not been issued in the name of deceased driver and thus, in this view of the matter the judgement passed by Jammu wing dated 01.11.2013 of this Court in the appeals filed by Company had no relevance in so far as appeals filed by the Company before this wing of this Court is concerned, which decided the said appeals in terms of the judgement under review dated 05.11.2013

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To sum up, the respondents in the objections controvert and resist the contentions raised and ground surged in the instant review petitions and seek dismissal of the review petitions.

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Heard learned counsel for the parties and perused the record .

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It is pertinent to mention here that Rule 65 and 66 (4) of the Jammu & Kashmir High Court Rules, 1999 deals with the provision of review and the same is reproduced hereunder:-

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65. Application for review of Judgement .

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The Court may review its judgement or order but no application for review shall be entertained except on the ground mentioned in order XLVII Rule I of the Code.

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66(4) The application for review shall be disposed of by the Court in accordance with the provisions of Order XLVII of the Code.”

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A bare perusal of the aforesaid Rules postulates that the Court may review its judgement or order upon an application which has to be entertained only and exclusively on the grounds mentioned in Order 47 Rule 1 CPC.

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Before proceeding further in the matter, it would be appropriate and advantageous to refer to the law on the subject of review laid down by the Apex Court in case titled as Inderchand Jain Vs. Motilal reported in 2009 (14) SCC 663 , wherein at paragraphs 7 to10,it has been provided as under:-

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“7. Section 114 of the Code of Civil Procedure (for short “theCode”) provides for a substantive power of review by a civil court and consequently by the appellate courts. The words “subject as aforesaid” occurring in Section 114 of the Code means subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under:

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“17. The power of a civil court to review its judgement/ decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads asunder:

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Application for review of judgement (1) Any person considering himself aggrieved-

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(a) by adecree or order from which an appeal is allowed, but from which no appeal has been preferred,

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(b) by a decree or order from which no appeal is allowed, or

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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 review of judgement of the court which passed the decree or made the order.”

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An application for review would lie, inter-alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar V. Rambai this court held:(SCCP.514, para 6)

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“6. The limitation on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/order cannot be disturbed.”

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The power of review can also be exercised by the Court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason.

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Keeping in mind the aforesaid position of law, the instant review petitions can be considered.

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Perusal of the record indisputably tends to show that the claim petitions filed at Jammu Tribunal and Srinagar Tribunal have had arisen from one and the same vehicular accident qua vehicle No. JK02P-5325 belonging to the petitioner involving one Insurance Company.

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Perusal of the record would reveal that admittedly the claim petitions filed under Section 166 of the Act, in Jammu Tribunal came to be decided by a common order on 26.02.2010 earlier to the claim petitions decided by the Srinagar Tribunal on 25.11.2011.

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It is not also in dispute that appeals preferred against the order of Jammu Tribunal by the Company before Jammu wing of this Court came to be decided on 01.11.2013 earlier to the appeals filed by the

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Company before Srinagar wing of this Court which came to be decided on 05.11.2013.

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Perusal of the record would further reveal that Jammu Tribunal had framed various issues inter-alia following issue No. 3.

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“Whether the driver of the offending vehicle was not holding a valid and effective driving license and it was being driven in violation of the terms and conditions of the insurance policy at the time of accident, as such, the insured is not liable to indemnify the insured owner of the offending vehicle? OPR-3

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While deliberating upon the said issue in the appeals filed by the Company, the Jammu wing of this Court in clear cut and explicit terms ruled that in the face of evidence on record the issue had been sufficiently proved before the Tribunal that owner of the offending vehicle had taken adequate and reasonable steps and acted like a person of ordinary prudence while employing driver to the offending vehicle and that in the fact of evidence on record cannot be held guilty for breach of the insurance contract and thus, held that the Tribunal was right in concluding that the insurance company could not be in the facts and circumstances of the case wriggle out of the liability to indemnify the owner.

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Perusal of the order under review dated 05.11.2013 passed by this wing of the Court would reveal that Company has withheld the information of passing of the order by Jammu wing of this Court earlier on 01.11.2013 in appeals filed by the Company wherein the conclusion drawn by the Tribunal was upheld that insurance company could not in the facts and circumstances of the case wriggle out of its liability to indemnify the owner as has been noticed in the preceding paras.

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The position would have been different, had the Company informed this wing of the Court while hearing the appeals of the Company about the judgement passed by the Jammu wing of this Court in the appeals of the Company. There would have been no reason for this wing of the Court not to follow the findings recorded by the Jammu

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wing of this Court in its judgement dated 01.11.2013 qua the stand and consequent liability of the petitioner herein on the celebrated principle of consistency in judicial pronouncements based upon public policy. The said failure and omission on the part of the Company perse would constitute a sufficient reason as appearing in Order 47 CPC for review of the judgement under review on this ground alone. Even otherwise as well record tends to show the petitioner herein did not produce or bring into the notice of the Srinagar Tribunal or this wing of the Court the said fact determined by Jammu wing of this Court in view of his having being proceeded ex-parte resulting into passing of ex-parte award against him, as also on account of his contention believing bonafidely about the following of the findings by the Jammu Tribunal qua his liability by the Srinagar Tribunal as well and that the said ground constitutes a ground for review of the judgement under review.

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Here a reference to the judgement of the Apex Court passed in case titled as “Board of Control for Cricket, India and another Vs. Netaji Cricket Club and Others, reported in AIR 2005 SC 592”, would be relevant and germanewherein at Para 88, 89, 90, 91 and 92 following has been laid down: -

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“88 . We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a Court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in S. 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.

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89 . Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

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90 . Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in O. 47, R. 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit."

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91 . It is true that in Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others ((1955) 1 SCR 520), this Court made observations as regard limitations in the application of review of its order stating :

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"Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms of Order XLVII, Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words "any other sufficient reason" must mean a reason sufficient on grounds, at least analogous to those specified in the rule.", but the said rule is not universal.

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92 . Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms :

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"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC

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1273, held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error........... "

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Having regard to the aforesaid facts and circumstances and what has been observed, considered and analyzed hereinabove, the instant review petitions deserve to be accepted and are accordingly allowed, by providing that the judgement passed by the Jammu wing of this Court in case tiled as “United India Insurance Company Ltd”. Vs. Smt. Makhna Devi and Ors”., in CIMA No 718/2010, (accompanying with CIMA Nos. 556/2010, 557/2010, 558/2010, 559/2010, 560/2010, 561/2010 and 653/2013) shall govern the judgments under review passed in case titled as “United India Insurance vs. Smt. Renu Devi and Ors”, being CIMA No. 119/2012 ( accompanied with CIMA Nos. 120/2012 121/2012, 122/2012, 123/2012, 124/2012, 125/2012 and cross appeal No. 56/2013 ) in so far as the owner of the offending vehicle/petitioner herein is concerned.

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(Javed Iqbal Wani) Judge Srinagar 01.12.2021 “ Ishaq ” Whether the order is speaking: Yes/ No. Whether the order is reportable: Yes/No

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ISAQ HAMEED BHAT 2021.12.01 14:29 I attest to the accuracy and integrity of this document

Avtar Singh v. United India Insu. and Ors.

Case brief

What is this about?

What did the court decide?

Avtar Singh v. United India Insu. and Ors.

Case brief

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