Allowed

Bharati Jena v. R.M.,U.I.I.Co.Ltd.

Orissa HC3 May 2023RVWPET/237/2012

Case brief

AI extract

What is this about?

Review petition challenging High Court order reducing motor accident compensation settled at Lok Adalat. Court condoned delay, found single judge erred by accepting counsel's concession without claimants' consent, and restored original settlement amount.

What did the court decide?

Review petition allowed; Insurance Company ordered to pay Rs. 5,00,000/- plus 12% interest up to 19.08.2011 (with 18% thereafter if not paid within two months).

Bharati Jena Vs R.M.,U.I.I.Co.Ltd. — Motor Accident Claims | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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RVWPET No.237 of 2012

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Smt. Bharati Jena and others

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…. Petitioners Mr. B.N. Mohanty, Advocate

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-versus-

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…. Regional Manager, United India Opp. Parties Insurance Co. Ltd., Bhubaneswar and another

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Mr. Mahitosh Sinha, Advocate (For O.P. No.1)

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Order No.

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CORAM: JUSTICE A.K. MOHAPATRA ORDER 03.05.2023

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1. By filing the present review petition, the Review Petitioners, who were Opposite Parties in O.J.C. No.2082 of 2002 and Claimants before the Motor Accident Claim Tribunal, have sought for review of order dated 19.8.2011 passed by the learned Single Bench disposing of the writ petition with the consent of the parties by awarding a compensation of Rs.2,20,000/-.

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2. The factual background of the case as has been narrated in the writ petition filed by the Insurance Company, in a nutshell, is

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that the present Review Petitioners, who were Opposite Parties No.1 to 4 in the writ petition as Claimants filed a claim case bearing Misc. Case No.290/1999 claiming compensation for the death of one Rabindranath Rout in a motor vehicle accident. On

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being noticed by the Motor Accident Claim Tribunal, the Petitioner Insurance Company entered appearance and thereafter the case was posed for hearing. In the meantime, the Petitioner-

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Insurance Company filed its written statement before the Motor Accident Claim Tribunal. While the matter stood thus, a State Level Lok Adalat took place on 29.10.2000. In the said Lok Adalat, the claim case bearing Misc. Case No.290/1999 was compromised on 29.10.1999 subject to certain conditions based on such compromise. Learned Motor Accident Claim Tribunal passed its final order on 29.10.2000.

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3. The pleadings in the writ petition also reveal that the Writ Petitioner-Insurance Company deputed its investigator to verify the genuineness of the case and to verify the G.R. Case record.

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On verification of the records, it was ascertained by the investigator that the salary of the deceased was much lower than

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that has been stated in the claim petition. Although the

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Claimants claimed Rs.4,200/- per month as last salary drawn by

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the deceased, but the certificate issued by the Principal, Kushaleswar Anchalika Mahavidyalaya, Rekutia, Keonjhar indicating the last pay drawn by him was Rs.1,055/- only. A copy of such verification report submitted by the investigator vide letter dated 4.11.2000 of the Principal, Kushaleswar

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Anchalika Mahavidyalaya, Rekutia, Keonjhar who has filed as Annexure-3 Series to the writ petition.

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4. On 24.1.2001, the Petitioner-Company after receiving

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verification report filed before the Court praying therein that since the Claimants have suppressed the material information by

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producing a fake salary certificate, the compromised order may be cancelled and the case may be placed for regular hearing. It

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has also been stated in the writ petition that since the compromise was subject to verification of salary certificate and after verification of the salary particulars of the deceased, the

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Writ Petitioner-Insurance Company was of the view that material information has been suppressed and, accordingly, a

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petition was filed before the Court seeking withdrawal of the compromise. However, the learned Tribunal vide order dated 19.10.2001 rejected the petition filed by the Petitioner-Insurance Company from withdrawing the compromise and directed the Insurance Company to pay the compensation amount as per the final order.

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5. Challenging the rejection order dated 19.10.2001 passed by the 1^st Motor Accident Claim Tribunal, Keonjhar in M.A.C. No.290/99, the Insurance Company as Petitioner filed a writ petition bearing O.J.C. No.2082 of 2002. On perusal of the order No.4 dated 19.08.2011, it is revealed that the learned Single Judge disposed of the writ petition by the following order:- “Heard the learned counsel for the parties. Both the parties agree to settle the compensation at Rs.2,20,000/- (Rupees two lakhs and twenty thousand). The cheque be drawn in favour of the claimants and be deposited before the Registrar (Judicial) of this Court within two months from today for disbursement on proper identification failing which it shall carry interest @ 6% per annum.

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The writ application is disposed of accordingly.

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A copy of this order be handed over to the learned counsel for the Insurance Company for compliance.”

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6. Being aggrieved by the order dated 19.08.2011 passed in

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O.J.C. No.2082 of 2002, the Claimants-Opposite Parties No.1 to

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4 as Review Petitioners have filed the present review petition. On perusal of record, it is seen that there is delay of 338 days in filing the review petition. For condonation of delay in filing the review petition, the Petitioners have also filed a Misc. Case No.257 of 2012 for condonation of such delay. On perusal of the records of the review petition, it is observed that vide order

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dated 12.5.2014, a Single Judge Bench after considering the factual background of the present case was inclined to issue notice to the Opposite Parties. Thereafter, the matter was being adjourned from time to time for filing of requisites for issuance of notice. Despite service of notice, the Opposite Party No.2, i.e., the owner of the vehicle did not appear before this Court. On perusal of the records of the writ petition, it is also seen that the owner of the vehicle did not appear before the Single Judge Bench that was deciding the writ petition and the writ petition was disposed of without any representation of Opposite Party No.2 despite valid service of notice vide order dated 19.8.2011.

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Therefore, this Court is of the considered view that since notices have been issued and delivered to the Opposite Party No.2 and

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the Opposite Party No.2 after received such notice has preferred not to participate in the hearing of the review petition, this Court, therefore, deems it proper to proceed with the hearing of the review petition in the absence of the Opposite Party No.2 by setting him ex parte.

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7. So far condonation of delay is concerned, It also appears

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from the record that no order has been passed on the same and

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the Misc. Case No.257 of 2012 filed for condonation of delay is still lying on the record. Therefore, this Court is of the considered view that while taking up the review petition for final hearing, the condonation of delay application shall also be taken up together with the review petition for disposal.

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8. Heard Sri B.N. Mohanty, learned counsel appearing for the Petitioner and Mr. Mahitosh Sinha, learned counsel appearing for the Opposite Party No.1-Insurance Company. Perused the records.

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Misc. Case No.257 of 2012

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9. This application has been filed under Section 5 of the Limitation Act for condonatino of delay in filing the review

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petition.

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10. On perusal of the record, it appears that there is a delay of about 338 days.

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11. Learned counsel for the Petitioners submitted that at the

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time of disposal of the matter in the Lok Adalat, the Petitioners were not having the copy of the appointment order dated 21.03.1995 issued in favour of the deceased and, as such, the relevant information regarding the salary particulars of deceased Rabindranath Rout, who was working as a Lecturer, was not for with them. It was also submitted by the learned counsel for the Petitioner that in the absence of the aforesaid appointment letter dated 21.03.1995, the Petitioner could not filed the review petition in time. After obtaining a copy of the appointment letter on 21.08.2002, the Petitioner has filed the review application.

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12. On perusal of the limitation petition, this Court is of the considered view that the Petitioner has failed to make out a case for condonation of delay by providing the relevant information that has caused delayed in preferring the review petition.

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13. Mr. M. Sinha, learned counsel appearing for the Opposite

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Party No.1-Insurance Company also opposed the condonation of delay in filing the review petition on the ground that the Review Petitioners have failed to make out the case in the above noted application for condonation of delay. Accordingly, Mr. Sinha further submitted that since no ground has been made out in the condonation of delay application, the application filed by the Review Petitioners is devoid of merit and the same should be

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dismissed in limine.

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14. However, this Court on a perusal of the entire record and further taking into consideration the fact that the poor Claimants, who were in helpless, were completely dependent on the lawyer for presentation of the review petition and unless the

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delay is condoned and review petition is considered on merits, the same would cause grave injustice to the Petitioners. This is

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more so, when this Court observed that the matter was initially compromised in Lok Adalat. Thereafter, the learned Single Judge has interfered with the order passed by the Motor

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Accident Claims Tribunal basing on such compromise and reducing the amount of compensation to almost 50% was settled

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in the Lok Adalat. Therefore, in the larger interest of justice, this Court deems it proper to condone the delay and to consider the review petition on its own merit after hearing the learned counsels for both the sides. Accordingly, the delay in filing the review petition is hereby condoned.

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15. Mr. B.N. Mohanty, learned counsel appearing for the Claimants-Petitioners, at the outset, submitted that the impugned

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order deserves to be interfered with by this Court on the sole ground that there is error apparent on the face of the record. While saying so, Mr. Mohanty had drawn the attention of this Court to the records of the Misc. Case No.290 of 1999 and submitted that the matter was compromised on 29.10.2000 in the State Level Lok Adalat held at Keonjhar in presence of Justice C.R. Pal and, accordingly, with the consent of the

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parties, the said M.A.C.T. case was compromised and settled for a sum of Rs.5,00,000/- towards full and final settlement of the claim amount. Moreover, such settlement was subject to certain terms and conditions. On perusal of the compromise petition under Annexure-2 Series reveals that one such condition is that

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the settlement so arrived is subject to verification of salary certificate of the deceased and that the said compromise has been duly singed by the representative of the Insurance Company as well as by the Advocate of the Insurance Company. Accordingly, learned 1^st M.A.C.T., Keonjhar vide order dated 29.10.2000 disposed of the matter by awarding a compensation of Rs.5,00,000/- to the Claimants.

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16. Mr. B.N. Mohanty, learned counsel appearing for the Petitioners further submitted that challenging the aforesaid order of the 1^st M.A.C.T., Keonjhar disposing of the M.A.C.T. Case by awarding a compensation of Rs.5,00,000/- vide order dated 29.10.2000, the Insurance Company filed a writ petition before this Court. He further submitted that in view of the provisions contained in Legal Services Authorities Act, any order passed in

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the Lok Adalat is not appealable. Therefore, by invoking the jurisdiction of this Court under Article 226/227 of the Constitution of India, the Insurance Company had assailed the order dated 29.10.2000 on the principal ground that the Claimants had suppressed the information with regard to the

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salary of the deceased and, accordingly, the learned M.A.C.T. relying upon such information has passed an erroneous award thereby awarding a sum of Rs.5,00,000/- to the Petitioners, who are the legal heirs of the deceased who died in the motor vehicle accident.

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17. Learned counsel appearing for the Petitioners further referring to the letter dated 21.03.1995 under Annexure-A to the

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review petition, which is a letter issued by the Principal-cumSecretary of Kushaleswar Anchalika Mahavidyalaya, Rekutia, Keonjhar, submitted that the Petitioner was appointed as a Commerce Lecturer in Kushaleswar Anchalika Mahavidyalaya, Rekutia, Keonjhar for a period of 89 days in the approved Scale of Pay and D.A. of the above noted College on the relevant point of time was Rs.4,200/- per month. Accordingly, it was submitted that the deceased was receiving a salary of Rs.4,200/per month in the year 1998, i.e., the year in which the deceased died in motor accident. He further contended that the assertion

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of Opposite Party No.1-Insurance Company that on inquiry, the investigator found from the Principal of College that the last pay

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drawn by the deceased was Rs.1,055/- is absolutely baseless and vogue. Moreover, he further submitted that such inquiry report which was prepared behind the back of the Petitioners cannot be used against the Petitioners at later stage when the proceeding has already been concluded and final award has been passed basing upon the settlement arrived at in the Lok Adalat. Therefore, it was also contended that once the award was passed

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basing on the compromise made at the State Level Lok Adalat, the same is no more open to challenge.

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18. Additionally Mr. Mohanty also contended that the Petitioners-Claimants have never given their consent before the learned Single Judge in O.J.C. No.2082 of 2002 and, accordingly, he submitted that the order dated 19.08.2011 recording the concession given by the counsel appearing for the Opposite Parties-Claimants in the writ petition is not binding on the present Petitioners. Moreover, he also submitted that the learned Single Judge while disposing of the matter vide order dated 19.08.2011 has nowhere discussed about the compromise arrived at in the State Level Lok Adalat and the order passed by

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the 1^st M.A.C.T., Keonjhar pursuant to the aforesaid settlement on 29.10.2000. He also submitted that the Writ PetitionerInsurance Company has failed to make out any ground in the writ petition calling for interference by the learned Single Judge while disposing of the writ petition and reducing the amount of compensation to Rs.2,20,000/-.

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19. Mr. M. Sinha, learned counsel appearing for the Opposite

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Party No.1-Insurance Company, on the other hand, emphatically submitted that the settlement in the State Level Lok Adalat held at Keonjhar on 29.10.2000 was subject to verification of salary certificate of the deceased. Therefore, the Opposite Party No.1 being engaged its investigator to conduct an inquiry and to find out the exact salary the deceased was getting at the time of death. He further submitted that upon inquiry from the Principal

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of College in question, the investigator could come to know that the Petitioner was drawing a sum of Rs.1,055/- as his monthly salary at the time of his death. Therefore, after getting such information, the Insurance Company approached this Court by filing writ petition and challenging the settlement in the Lok

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Adalat as well as the consequential order dated 29.10.2000 passed by the 1^st M.A.C.T., Keonjhar. He also submitted that at

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the time of final disposal of the writ petition, the counsel appearing for the Petitioner had agreed for settlement of the claim amount at Rs.2,20,000/-. Accordingly, the learned Single Judge vide order dated 19.08.2011 after recording the agreement of both the sides with regard to the quantum of compensation,

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i.e., Rs.2,20,000/- has finally disposed of the writ petition. In such view of the matter, Mr. Sinha, learned counsel appearing for the Opposite Party No.1-Insurance Company submitted that the learned Single Judge while disposing of the writ petition on 19.08.2011 has not committed any illegality at all and, accordingly, submitted that the present review petition is devoid of merit and, as such, the same should be dismissed.

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20. Having heard the learned counsels appearing for the respective parties and upon a careful examination of the entire record, this Court is of the view that to interfere with the order

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dated 19.08.2011 in the present review petition, this Court must be convinced about the fact that there is error apparent on the

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face of the record or there are certain material particulars which

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has not been taking into consideration by the learned Single Judge Bench while disposing of the writ petition. With regard to scope and ambit of interference of this Court while exercising the power of review, in a catena of judgments rendered by the Hon’ble Supreme Court as well as this Court, the scope and jurisdiction in interfering with the order while exercising the

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power of review has been clearly delineated. Therefore, to avoid repetition, this Court is not referring to such judgments as the legal position in the aforesaid context is well established.

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21. To succeed in the review petition, the Petitioner has to demonstrate before this Court that their exists an error apparent on the face of record while passing the order dated 19.8.2011.

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22. This Court after considering the contentions raised by the

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learned counsels of the respective parties and upon a careful examination of the records found that the matter was initially settled in the State Lok Level Lok Adalat. A copy of the such settlement had already been filed under Annexure-2 Series to the writ petition and the same clearly reveals that the matter was

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settled with the consent of the Opposite Party No.1-Insurance

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Company for a sum of Rs.5,00,000/-. Further, this Court is also of the view that in the event it was found by the investigator of the Insurance Company that certain material information have been suppressed or certain wrong information have been provided deliberately to obtain a favourable award, in that case

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the same should have been brought to the notice of the Court as

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well as the party that is likely to suffer adversely. In the instant case, on perusal of the writ court record, it is found that the order dated 19.8.2011 passed by the learned Single Judge without considering the ground on which the order dated 29.10.2000 passed by the 1^st M.A.C.T., Keonjhar on the basis of the compromise in the State Level Lok Adalat, had been pleased to disposed of the writ petition by recording the consent of the counsels appearing for both the sides and settled the compensation amount at Rs.2,20,000/-. On perusal of the said order, this Court was unable to trace out anything on record or in the said order dated 19.8.2011 with regard to the consent of

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the Claimants-Review Petitioners. On the contrary, it is seen that the writ petition has been disposed of by recording the

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concession of the Advocates and without referring to the factual background as well as the defect, if any, in the order passed by the learned 1^st M.A.C.T., Keonjhar on 29.10.2000.

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23. On a careful analysis of the aforesaid facts as well as the settle legal position, this Court with great respect to the learned Single Judge is of the considered view that the learned Single Judge should have either held that the order dated 29.10.2000 is

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vitiated due to suppression of material information or while disposing of the writ petition finally with consent of the parties should have insisted for the consent of the Claimants, who are the real beneficiaries, instead of recording the concession of the counsel representing the Claimants-Petitioners in the writ petition. Therefore, in my humble view the order dated 19.8.2011 passed by the learned Single Judge in the above noted

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writ petition is hit by principle of error apparent on the face of the record as because the parties who had settled the matter

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before the learned 1^st M.A.C.T., Keonjhar for a sum of Rs.5,00,000/- could not have settled the same claim for a much lesser amount of Rs.2,20,000/- at the High Court Level.

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Accordingly, this Court has no hesitation for setting aside the order dated 19.8.2011 passed by this Court in O.J.C. No.2082 of 2002.

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24. However, keeping in view the fact that the matter is pending since the year 2000, this Court deems it proper to dispose of the review petition without remanding the same back to the learned Single Judge Bench to adjudicate the writ petition

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afresh, by directing the Opposite Party No.1-Insurance Company to pay the awarded amount of Rs.5,00,000/- (Rupees five lakhs) as ordered by the learned 1^st M.A.C.T., Keonjhar vide order dated 29.10.2000 and, accordingly, a total compensation of Rs.5,00,000/- as agreed by the parties in the

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State Level Lok Adalat held on 29.10.2000. Further, taking into consideration the fact that the delay in preferring the review

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petition has not been properly explained, the Opposite Party No.1-Insurance Company shall pay interest @ 12% as awarded by the Tribunal in its order dated 29.10.2000 upto disposal of

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the writ petition on 19.08.2011. Therefore, the Opposite Party No.1 is directed to pay a total compensation of Rs.5,00,000/-

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(Rupees five lakhs) along with 12% interest upto 19.08.2011 to the Claimants-Review Petitioners within a period of two months hence, failing which, the Opposite Party No.1 shall pay interest @ 18% till the actual payment is made to the Claimants-Review Petitioners.

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25. With the aforesaid observation and direction, this review

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petition stands allowed.

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( A.K. Mohapatra)
Judge
DEBASIS AECH Digitally signed by DEBASIS AECH Date: 2023.05.03 19:02:16 +05'30'

Bharati Jena v. R.M.,U.I.I.Co.Ltd.

Case brief

What is this about?

What did the court decide?

Bharati Jena v. R.M.,U.I.I.Co.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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