Appellant filed CMA to set aside TI review order dismissing claim due to alleged fraud. Court held review maintainable for fraud but found alleged discrepancies (injury cause, employer name, FIR delay) did not prove fraud. Award confirmed.
Review order set aside; original award confirmed; domain of Insurance Co-in six weeks to deposit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.08.2013
CORAM :
THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI
Civil Miscellaneous Appeal No.2065 of 2012
and M.P.No.1 of 2012
Baskar ... Appellant/1st Respondent/ Claimant
vs 1. The National Insurance Co Ltd II floor, 81-D, Chetty Street, Opp. Bus Stand, Tiruchengode Taluk Namakkal District ... 1st Respondent/Petitioner/ 2nd Respondent 2. R. Chandramohan ... 2nd Repondent/2nd Respondent/1st Respondent
Civil Miscellaneous Appeal under Section 173 of Motor Vehicles Act, filed to set aside the order dated 20.4.2012 in I.A.No.871/2011 in MCOP No.153 of 2008 on the file of the Motor Accidents Claims Tribunal/Chief Judicial Magistrate, Namakkal.
For Appellant : MrAR.L. Sundaresan, Senior Counsel for Mr.P. Paramasiva doss For R.1 : Mr.S. Arun Kumar For R.2 : No appearance
Civil Miscellaneous Appeal filed to set aside the order dated 20.4.2012 in I.A.No.871/2011 in MCOP No.153 of 2008 on the file of Motor Accidents Claims Tribunal/Chief Judicial Magistrate, Namakkal.
grounds to review and recall the judgment were as follows:
i) During an investigation of the accident by the Insurance Company, it was found to be a false claim and the owner as well as the claimant have colluded with each other as if the accident had occurred involving the insured vehicle.
ii) there are discrepancies in reporting the accident dated 4.4.2006
iii) FIR was registered only on 24.4.2006
iv) the hospital intimation would show that the injuries were caused by hard blunt object.
v) while the second respondent is said to be the employer, another person was examined as if he was employer to prove the income of the injured.
vi) though a counter was filed on behalf of the second respondent, he has not participated in the proceedings. Therefore, there is collusion between the insured and the claimant and therefore, the Insurance Company has to be exonerated.
(i) Tribunal has no power to review or recall its own award. The decision reported in 2000 ACJ 1032 (United India Insurance Co Ltd vs Rajendra Singh and Others) is not applicable to the present case.
(ii) In the counter, the second respondent has neither denied the accident nor stated that it is a false claim,
iii) the earliest accident intimation by the hospital would show that it is a case of road accident.
(iv) Accident Register Copy would show that it is a case of Road Traffic accident at Baramkela Road and only in the opinion, it is stated that the
injury was caused by a hard blunt object.
v) it is the case of the claimant that he was thrown out from the motorcycle and sustained such blunt injuries on its back which caused internal fractures. Therefore, the opinion about the injury has no relevancy and it would only strengthen the case of the claimant.
vi) there is no collusion between the claimant and the employer.
“15. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wrangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
in the claim petitions, can not be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the insurance company. If we fail to afford to the insurance company an opportunity to substantiate its contentions it might certainly lead to serious miscarriage of justice.”
(i) 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,
(ii) on account of some mistake or error apparent on the face of the record, and
iii) for any other sufficient reason for a review.
"12. In order to appreciate the scope of a review, Section 114 of the C.P.C has to be read, but this Section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 of the C.P.C and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order 47 which states that 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 entire records. The structure of a judicial system is more or less akin to pyramid. The initial stage – for example, the trial stage is similar to the base of the pyramid where the scope for taking a decision, of course within the parameters of law, is as broad based as the base of the pyramid. The higher one goes up in appeals, further appeals and revisions or reviews, the scope for interference becomes increasingly narrower like the pyramid. The power of review where available can be compared only to the top-most portion of the pyramid with very limited scope for interference.
“4. We are of the view that the scope of exercising the review power is very limited. The power of review may be exercised on the discovery of new and important matter or evidence which, after exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits and the review petitioners have not been properly represented at that time of arguing the case or the counsel who argued on behalf of the review petitioners has not placed any relevant materials before the Court. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate Court or crept in the judgment and decree which is appealed again.
be regarded as powerless to recall its own order if it is convinced that the order was wrangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
One Rajendra Singh and his son Sanjay Singh filed two separate petitions before the Motor Accidents Claims Tribunal, Bulandshahr (the Tribunal) in 1994, claiming compensation in respect of an accident which happened on 9.11.1993. According to the claimants, Rajendra Singh was travelling as a pillion rider and the motorcycle was driven by his son Sanjay Singh. An ambassador car, bearing registration No. DL-2C-9793, driven by one Jai Prakash, collided with the motorcycle and the claimants sustained injuries. The Ambassador car was covered by valid insurance policy.
The claim was resisted by the owner as well as the insurance company. However, the liability was fastened on the Insurance Company and compensation was granted. The Award became final and neither the owner of the Ambassador car nor the insurance company preferred any appeal.
Hardly four months thereafter, a gentleman visited the Divisional Office of the Insurance Company at Ghaziabad and delivered the photocopy of a report prepared by the Assistant Sub Inspector of Police, Subzi Mandi Police Station, Delhi dated 9.11.1993. It contained a narration that Sanjay Singh and Rajendra Singh received the injuries in different circumstances at a different place while they were operating their own tractor.
The Insurance company made frantic enquiries and a statement of the Sub Inspector of Police was obtained and they moved an application under Secs.151,152 and 153 of Code of Civil Procedure in which they prayed for recall of the award on the revelation of new facts regarding the manner of accident and the injuries sustained by the claimants.
The said application was resisted by the claimant stating that Tribunal has no power to review or recall. The Tribunal accepted such plea and dismissed the application. A writ petition was filed before the High Court of Allahabad. The High Court of Allahabad had
also dismissed the application stating that there is no power of review in the statute. Against which, appeal was preferred before the Hon'ble Supreme Court and the Hon'ble Supreme Court wondered:
“10. Thus, the Tribunal refused to open the door to the appellant company and the High Court declined to exercise its writ jurisdiction which is almost plenary for which no statutory constrictions could possibly imposed. If a party complaining of fraud having been practised on him as well as on the court by another party resulting in a decree, cannot avail himself of the remedy of review or even the writ jurisdiction of the High Court, what else is the alternative remedy for him? Is he to surrender to the product of the fraud and thereby become a conduit to enrich the imposter unjustly?.....”
Registration TN 34 B 6816, in Cr.No.42 of 2006 by the Inspector of Police, Baramkela.
“From all witness reports it was found that on 4/4/06, Saravanan was driving along with Bhaskar, by TVS No.TN-34B6816, when he lost control and Bhaskar fell down and was injured. Due to Saravanan's negligence, accident occurred, challan was issued against him, case registered and investigation was done, case is presented in court.
Sd/-27/4/06 I. Purre, Police Station Officer, Baramkela.
“Opinion”: Injury caused by hard blunt object. Duration within 6 hrs.”.
of the parts of the offending motorcycle. The learned counsel pointed out that a road traffic accident is proved under Ex.P.14, as happened on 4.4.2006 and the same is strengthened by the present wound certificate marked as Ex.P.1 by the Insurance Company and also the delay in registering the First Information Report is properly explained. The counsel contended that the court should have to come to the conclusion that there is no fraud played on the court. The learned counsel pointed out that there is no discovery of any new material or evidence and therefore, the review itself is not maintainable.
The nearest police station was intimated to do the needful.
agitated at this stage.
Sd/
Asst.Registrar
//True Copy//
Sub.Asst.Registrar
To
The Motor Accidents Claims Tribunal/
Chief Judicial Magistrate, Namakkal.
1 CC to Mr..P. Paramasiva doss Advocate, S.R.No.42760
1 CC to Mr.S. Arun Kumar Advocate, S.R.No.42886
CMA No.2065 of 2012
GR(CO)
JJM 10.09.2013
3 issues framed by the court
Whether the Tribunal has power to recall its award based on fraud upon court.
Whether newly discovered evidence regarding nature of injury proves fraud in this case.
Whether discrepancies regarding employer name vitiate the claim.
Colour shows how this judgement treated each authority
United India Insurance Co Ltd vs Rajendra Singh and OthersFollowed¶15
2000 3 SCC 581, 2000 ACJ 1032 · Who else cites this
Haridas Das vs Smt.Usha Rani Banik and othersFollowed¶12
2006 2 CTC 321
J. Alliammal vs The Special Tahsildar, Adi Dravida Welfare Department, TirupatturFollowed¶8
2008 2 LW 156
P. Samiappa Gounder vs The Regional Transport Authority, Collectorate, ErodeFollowed¶8
2008 2 LW 165
3 provisions across 3 enactments
Baskar
The National Insurance Co Ltd
R. Chandramohan
G.M. Akbar Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
