Review Petition No. 75 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE UMESH M ADIGA REVIEW PETITION NO. 75 OF 2024 IN MISCELLANEOUS FIRST APPEAL NO NO.8752 OF 2019(MV-D) BETWEEN: THE BRANCH MANAGER, HDFC GENERAL INSURANCE CO. LTD., NO.25/1, 2ND FLOOR, SHANKARNARAYANA BUILDING, NO.2, M.G.ROAD, BENGALURU - 560 001, REP. BY ITS SENIOR MANAGER-LEGAL, GROUND FLOOR, ACR TOWER, 32, RESIDENCY ROAD, OPPOSITE TO SBI BANK ASHOK NAGAR, BANGALORE - 560 025. (BY SRI. D VIJAYAKUMAR, ADVOCATE) AND: 1 . SMT. GANGAMMA, W/O. RAJASHEKAR, AGED ABOUT 49 YEARS, OCC. NIL. 2 . SRI. RAJASHEKAR, S/O. TOTAPPA, AGED ABOUT 58 YEARS, OCC. NIL. Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA …PETITIONER - 2 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 BOTH ARE R/AT. 2ND CROSS, SANJEEVINI NAGAR, NEAR CRACKERY FACTORY, HEGGANAHALLI, PEENYA, BENGALURU - 560 022. 3 . SRI. NARENDRA, S/O MARIYANNA ALIYAS MARIGOWDA, AGED ABOUT 55 YEARS, R/AT. KABBIKERE VILLAGE, BELLUR HOBALI, NAGAMANGALA TQ DIST: MANDYA - 571 401. (BY SRI. KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE FOR R1 AND R2, VIDE ORDER DATED 20.09.2024 NOTICE TO R3 IS DISPENSED WITH ) …RESPONDENTS THIS REVIEW PETITION FILED UNDER ORDER XLVII RULE 1 OF CPC, PRAYING TO CALL FOR RECORDS IN MFA NO. 8752/2019 ON THE FILE OF THE THIS HONBLE COURT. ALLOW THE REVIEW PETITION AND REVIEW THE JUDGMENT AND ORDER PASSED BY THIS HONBLE HIGH COURT BY ITS JUDGMENT DATED 10/08/2023, IN MFA NO. 8752/2019 AND ETC., THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 17.01.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, UMESH M. ADIGA J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 CAV JUDGMENT (PER: HON'BLE MR JUSTICE UMESH M ADIGA) This review petition is filed by the respondent No.2 in MFA 8752/2019 and award dated 10.08.2023 passed by this court to review the judgment in MFA.No.8752/2019 dated 10.08.2023 of this Court. 2. The contentions of review petitioner are that, the appellant No.1 and 2 in MFA.No.8752/2019 had filed MVC.No.1216/2014 on the file of I Additional Senior Civil Judge and JMFC., Nagamangala (for short 'the Tribunal') under Section 166 of the Indian Motor Vehicles Act claiming compensation for death of one Shivakumar in motor vehicle accident occurred on 15.11.2013 due to rash and negligent driving of the lorry bearing registration No.KA-54/2555 at Irubasnahalli Village on N.H.75. 3. It is further contended that insurer of the said vehicle was L&T General Insurance Company Ltd., Bengaluru who was respondent No.2 in MVC No.1216/2014. Respondent No.2 filed its written - 4 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 statement before Tribunal. The Tribunal after recording evidence and hearing both the parties, and its judgment and award dated 16.10.2018 partly allowed the petition MVC No.1216/2016 and the Tribunal awarded compensation of Rs.21,87,300/- to the claimants No.1 and 2 (appellants in MFA No.8752/2019). Tribunal assessed total compensation as Rs.72,36,000/-. The Tribunal has apportioned contributory negligence of rider of motor cycle and driver of the lorry in the ratio of 70:30 respectively. Accordingly, deducting 70% of contributory negligence of rider of the motor cycle i.e. Rs.51,03,700/-, the Tribunal directed owner and insurer of the lorry to pay Rs.21,87,300/- to the claim petitioners. 4. It is further contended by the review petitioner that insurer of the lorry on going through the award passed by the Tribunal, found that there were some mistakes in the award. Therefore, they intended to file appeal against the said judgment passed by the MACT, Nagamangala. At this juncture, HDFC Ergo General - 5 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 Insurance Co. Ltd. has taken over the entire assets and liabilities of L&T General Insurance Company Limited. The claimants approached HDFC Ergo General Insurance Co., Ltd., and requested insurer not to prefer any appeal and settle the matter out of the Court. After deliberations and discussions both claimants and insurer assessed compensation to be payable to claimants as Rs,24,75,000/-. Accordingly, both the claimants have filed an affidavit dated 14.02.2019 settling the said dispute for Rs.24,75,000/- and they also signed joint memo, agreeing to settle the dispute for Rs.24,75,000/-. It is further contended by the Insurance Company that as per the said settlement on 14.02.2019, the Insurance Company deposited Rs.24,75,000 through cheque bearing No.020731 dated 07.03.2019 before the MACT, Nagamangala in MVC.No.1216/2014. The review petitioner further contends that the claimants have withdrawn the said amount of Rs.24,75,000/-. - 6 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 5. It is the further contention of the review petitioner that suppressing all these facts, the claimants have filed MFA.No.8752/2019 before this Court claiming for enhancement of the compensation awarded by the Tribunal in MVC.No.1216/2014 dated 16.10.2018. By that time, L&T General Insurance Company Ltd. got merged with HDFC Ergo General Insurance Company Ltd, i.e., the present review petitioner, hence, in the process of transferring of all the accounts and other particulars, it was not noticed by the review petitioner regarding the settlement entered into between the insurer and the claimants. Unaware about the said facts, the review petitioner contested MFA.No.8752/2019. This Court by order dated 10.08.2023 awarded compensation payable to claimants Rs.27,55,850/- and enhanced compensation by Rs.5,68,550/-. It is further contended that when review petitioner - insurer intended to pay the said amount of enhanced amount of compensation, records revealed that claimants had settled the matter and as per the settlement, the amount of compensation had been - 7 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 deposited before the concerned MACT and in view of the said settlement, insurer did not file any appeal challenging the orders passed by MACT in MVC.No.1216/2014. It is further contended that the claimants playing fraud on the Court and suppressed entire fact of settlement and receipt of amount of compensation as per settlement, filed the present appeal MFA No.8752/2019. Even during the course of hearing also, this fact was completely suppressed by the appellant and took an order of enhancement of compensation by this Court. By playing fraud on the Court and suppressing material facts, claimants obtained the judgment and award dated
Legal Reasoning
10.08.2023 from this Court in MFA No.8752/2019. Hence prayed to recall the said order by allowing this petition and restore in MFA No.8752/2019. 6. Notice was sent to the claimants and they appeared through an advocate. Despite of giving sufficient opportunities, the claimants did not file objection to the review petition. - 8 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 7. We have heard the arguments. 8. The learned counsel appearing for review petitioner has vehemently contended that respondents herein have played fraud on the Court. They suppressed material particulars of settlement of dispute and receipt of compensation amount after passing of an award by the MACT in MVC.No.1216/2014, filed the appeal in MFA.No.8752/2019 and obtained an order by this Court dated 10.08.2023. In view of suppression of facts, this court confirmed in the findings of the Tribunal and compensation awarded by the Tribunal was enhanced. Respondent - review petitioner could not notice the said fraud played by the claimants since L&T General Insurance Company Limited was merged in HDFC Ergo General Insurance Company Limited and all the accounts were not transferred, when the orders were passed. This fact was noticed only at the time of preparing for payment of the enhanced amount of compensation by this Court. After - 9 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 coming to know about the fraud played on this Court as well as on the insurer, this review petition was filed. 9. It is further submitted that the person who approaches the Court for justice should come with clean hands; fraud and justice never dwell together. When the claimants have approached the insurer and settled the dispute after passing of the award and received the amount as per the compromise entered between claimants and the insurer, suppressing the same and approaching this Court for enhancement of compensation is nothing but playing fraud on the Court to get an order. Had appellant disclosed this fact before this court, certainly this court would have dismissed the appeal. Such an attempt should be curbed by this Court. Therefore orders obtained by the claimants for enhancement of the compensation from this Court is nothing but taking an order by playing fraud on the Court as well as the insurer. Therefore, prayed to allow the review petition and restore the - 10 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 MFA.No.8752/2019 by recalling the orders passed by this Court dated 10.08.2023. 10. The learned counsel appearing for respondents would submit that he had no idea of the said settlement between claimants as well as insurer and deposit of the amount by the insurer and withdrawal of the said amount by the claimants. After passing of the award by the Tribunal, the claimants approached him without informing these facts. Innocently he filed an appeal on behalf of claimants for enhancement of the compensation. On instruction he further submits that, claimants were said to have gone to the office of Insurance Company to receive compensation. The Insurance Company officers obtained signatures of the claimants on some documents with an information that to pay the amount they have to sign the document. The said documents were in English language and the claimants were illiterates. They had no knowledge about the contents of the said documents. Thereafter, they withdrew the money from the Court, believing that - 11 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 the amount paid to them was as per the award passed by the MACT. Since they are illiterates and rustic villagers they had no knowledge about all these formalities and they have not played fraud on the Court. 11. The learned counsel for the respondent fairly submitted that the claimants have received the amount of compensation of Rs.24,75,000/- from the Court. From the documents produced by the review petitioner, claimants came to know that their signatures were taken for the settlement and as per the said settlement, amount was deposited in the court. Therefore, deliberately they have not played fraud on the Court for obtaining the enhanced amount for compensation. The Learned Counsel further submitted to pass suitable orders. 12. Following questions arises for our determination: Whether claimant/appellant in MFA i. No.8752/2019 of enhancement of compensation by playing fraud on the court/suppressing material fact from the court? obtained
Decision
order ii. What order? - 12 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 13. Our findings on the above point is in the affirmative for the following reasons: 14. We have gone through the pleadings of the parties and materials placed before the Court by the learned counsel for the review petitioner. 15. Respondents have not filed objections to the review petition and they have not denied the contentions of review petitioner. The MACT, Nagamangala by its order dated 16.10.2018 in MVC.No.1216/2014 awarded total compensation of Rs.72,36,000/- and deducted 70% of the said compensation towards the contributory negligence of the rider of the motor cycle and directed insurer to pay Rs.21,87,300/- being liability of owner of the lorry for his contribution towards the accident. Accordingly, the Tribunal directed to pay compensation of Rs.21,87,300/-. Two affidavits of claimants i.e., Sri.Rajashekar and Smt.Gangamma (the photocopy has been produced by the insurer) wherein they have stated that they have settled the dispute for Rs.24,75,000/-. Both the claimants have - 13 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 signed on the joint memo; photo copy of the same is also placed on record, it also indicates that the matter was settled for Rs.24,75,000/-. In terms of the said settlement, respondent deposited Rs.24,75,000/- through cheque bearing No.020731 dated 07.03.2019 and the said copy of the memo dated 14.02.2019 is also placed on record. It is not disputed by the claimants that they have received Rs.24,75,000/-, from the insurer. 16. The claimants after receipt of the said amount, filed MFA.No.8752/2019 before this Court claiming for enhancement of compensation. The records reveal that they did suppress the facts of settlement of the dispute between them and receipt of compensation from the Insurance Company. The above said records reveal that, fraud was played on the Court by suppressing the real facts of settlement, with a greed to get enhanced amount of compensation. The submission of learned counsel appearing for respondents herein that their signatures were obtained in the office of the Insurance Company and - 14 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 they are unaware of the contents of documents and have signed, is not acceptable because they swore to an affidavit, they signed on the Joint Memo and whatever amount they received from the MACT was more than the amount award by the Tribunal. 17. The Hon’ble Apex Court recently in the case of Maxim India Integrated Circuit Design (P) Ltd., -vs- Andappa (D) by LRs. And others,1 has reiterated that if a litigant did not come to the Court with clean hands, he is not entitled to be heard and indeed such a person is not entitled to any relief from any judicial forum. In view of the facts and circumstances of the case, it is just and necessary to allow the review petition by recalling the order passed by this Court in MFA.No.8752/2019 dated 10.08.2023 and to restore MFA.No.8752/2019. 1 2025 SCC OnLine SC 6 - 15 - NC: 2025:KHC:3431-DB RP No. 75 of 2024 IN MFA NO.8752 OF 2019 18. Accordingly, we pass the following: ORDER (i) The Review Petition is allowed. (ii) The orders passed in MFA.No.8752/2019 dated 10.08.2023 is recalled and said MFA.No.8752/2019 is ordered to be restored. Since award passed in MFA No.8752/2019 is recalled IA No.2/2024 do not survive for consideration. Accordingly disposed of. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (UMESH M ADIGA) JUDGE AG List No.: 19 Sl No.: 1