High Court · 2025 on 09 May 2025

Judgment

1. Three separate civil revisions have been filed by Smt. Kalawati Devi who is the owner of an offending tractor bearing no.UP44B/6214, which was involved in an accident wherein three persons died and the Motor Accident Claims Tribunal (for short, 'MACT') awarded compensation to the claimant of the three claim petitions and the said award was to be indemnified by the owner of the tractor, hence, she moved an application for review which was rejected and being aggrieved, she filed these three civil revisions. Since the issue involved in all the three revisions is one and the same, accordingly, all the three civil revisions are being decided by this common judgment.

2. The proceedings commenced on account of the fact that the said offending tractor bearing no.UP44-B/6214 was being driven by Kamlesh 2 Kumar and it met with an accident, as a consequence, three persons of the

family of Sri Umesh Kumar died namely Smt. Raj Kumari (wife), Dharmendra Kumar (son) and Munna (son).

3. Three separate Claim Petitions came to be filed before MACT, Sultanpur by Sri Umesh Kumar for compensation for the death of his wife and two sons. His Claim Petitions after due contest came to be allowed by means of an award dated 18.01.2011 wherein in one case i.e. bearing Case No.16 of 2010, a sum of Rs.2,54,100/- along with 6% simple interest was awarded in favour of the claimant. The other Claim Petition bearing No. 17 of 2010 came to be allowed vide award dated 18.01.2011 wherein a sum of Rs.1,24,500/- along with 6 % interest was awarded in favour of the claimant. While the third claim petition bearing No.18 of 2010 was also allowed wherein a sum of Rs.50,000/- along with 6% was awarded in favour of the claimant. While allowing the Claim Petitions, the MACT held that the tractor was not insured and was being driven against policy conditions, hence, the awards were directed to be indemnified by the owner of the Tractor.

4. After the said awards were passed the present revisionist filed an application for review on the premise that though the tractor owner had filed both the cover note as well as the copy of the policy of insurance yet the Claim Tribunal merely noticed that the cover note had been filed and it was not signed by the agent accordingly it was found that the tractor was not insured, which was against the record. As per the revisionist, policy was on record which was not disputed by the insurance company and in such circumstances the findings recorded by the MACT that the tractor was not 3 insured, was patently erroneous. The Claims Tribunal by means of its order dated 20.09.2012 dismissed all the three review applications on the premise that the order/ the award dated 18.01.2011 was passed on merits and there was no reason why the said order required review. The revisionist being aggrieved challenged the said order dated 20.09.2012 and also the award passed by the M.A.C.T only to the extent that the amount awarded in favour of the claimant be recovered from the insurance company and not the revisionist.

5. Sri Dinesh Kumar, learned counsel for the Insurance Company has raised an objection that the instant revisions are not maintainable in as much as against an award the remedy lies by filing an appeal in terms of Section 173 of the Motor Vehicles Act, 1988. It is further urged that the Claims Tribunal does not have the power to review its order and having rejected the same there is no error which would entitle the revisionist to maintain the instant revisions.

6. It has further been urged by the counsel for the Insurance company that even otherwise if the said insurance policy could have been taken note of but the fact remains that the tractor was being used against the policy conditions, as the tractor was being utilized for commercial purposes and this fact has been noticed by the Claims Tribunal while passing the award and there is no challenge to the said finding, hence, on this count also the revisions would not be maintainable and the three revisions deserve to be dismissed.

7. Learned counsel for the revisionist refuting the aforesaid submissions has urged that once the award was passed and there was an error apparent 4 on the face of record in as much as despite insurance policy being available on record and there being no clear denial of the same it was always open for the Claims Tribunal to have corrected the mistake and in such circumstances where the Claim Tribunal did not rectify its own fault hence, the revisionist filed the instant civil revision which is maintainable and in support of his submissions he has relied upon the decision of the coordinate Bench of this Court in Sandhya Vaish and Another Vs. New India Insurance Company Ltd. and others; 2010 SCC Online All 405 wherein this Court had taken view that against the order which amounts to a procedural error review can be entertain and even otherwise the order which is passed by the Claim Tribunal rejecting such review can be assailed in a civil revision. Learned counsel for the revisionists also relies upon another decision of a coordinate Bench of this Court in Radhey Shyam Singh vs Nagina Devi and Ors. 2023 SCC OnLine All 5.

8. The Court has heard learned counsel for the parties and also perused the record.

9. At the outset it may be noticed that claim petition which were filed indicated that on 01.02.2009 the accident occurred wherein three persons lost their lives. Three Claim Petitions as already detailed above were filed and upon notices being issued, the tractor owner namely Kalawati and the driver Kamlesh filed a joint written statement. In para 26 of the said written statement it was clearly indicated that the tractor belonging to Kalawati was duly insured for the period 29.11.2009 to 26.11.2010 and since the accident occurred on 01.12.2009, which was within the period of insurance, hence liability if any would be that of insurance company. 5

10. This Court upon perusal of the record, which has been placed before this Court relating to a Claim Petition revealed that the insurer had filed its written statement and in para 3 it was stated that the tractor no.UP44-B/6214 was not insured with the company and this denial was for want of insurance policy and insurance details being not mentioned in the Claim Petition. No other averment was there in the written statement rather a general plea was taken that unless and until it is proved that the tractor was being utilized and driven in accordance with the policy conditions till then the liability would not rest on the Insurance company.

11. Upon perusal of the record of the claim petition it would further reveal that the cover note was placed on record which was bearing paper no.Ga 7. Another copy of the same cover note is bearing paper no.Ga 11 whereas the Insurance Policy placed on record is bearing paper no.Ga 11/5.

12. From a perusal of the aforesaid copy of the insurance policy, it is clear that it could not be said that the insurance company was not aware of the details of the insurance policy. Mere denial in the written statement that the insurance is denied for want of policy details could have been at best an initial plea taken by the insurance company but once the insurance policy was on record it was the duty of the insurer to verify the same and in case if the insurance policy was for whatever reason not genuine and did not cover the vehicle in question then it was the duty of the Insurance Company to have placed the fact on record either by amending its written statement or by placing a document to substantiate their plea. However, in the instant case no such course of action was adopted by the Insurance Company. The record further revealed that the Claims Tribunal had specifically framed 6 issue no.3, which was to the effect, that, whether offending tractor was insured with the respondent no.3-Insurance Company.

13. While recording its finding on issue no.3, the Tribunal noticed that the cover note was in the name of Shiv Shankar Upadhyay whereas the tractor was owned by Kalawati and as insurance was not in the name of Kalawati hence it was not valid. It further noticed that since the insurance company had denied the insurance and there was no further evidence led by the owner of the vehicle to prove the fact that the tractor was duly insured it presumed that the vehicle was not insured and therefore the issue no.3 was decided against the owner.

14. This Court further noticed that in para 26 of the award dated

18.01.2011 the tribunal inferred that since the tractor was being used for commercial purposes and mud was being transported which is proved from the statement of Kamlesh Kumar hence, it recorded that even if the insurance of the tractor was proved but still the tractor was being plied against the terms of insurance policy, hence, the insurer could not be made liable and thus for the said reasons it allowed the claim petition directing the award to be satisfied by the owner and not by the Insurance Company.

15. From a perusal of the record as noticed above there is no material which can throw light as to how the insurance policy, which was on record as paper no.Ga 11/5, was ignored and was not taken note of and this pase apparently amounts to an error apparent on the face of record.

16. The findings of the Claims Tribunal being contrary to the material on record was not valid and does not attract to reason. 7

17. In any case, the cover note which was placed on record had very limited purpose and a shelf life. The moment the policy is issued the cover note looses its significance. In the instant case, the insurance policy was on record and related to the vehicle in question and though the name of the insured was indicated as Sri Shiv Shankar Upadhayay [who is the husband of Kalawati] and the period of insurance was 29.11.2009 to 28.11.2010 while the accident occurred on 01.12.2009, hence, these facts clearly establish that the vehicle was duly insured.

18. The other ground taken by the Claims Tribunal treating that the vehicle i.e the tractor was being utilized for commercial purposes also does not appear to be correct for the reason that in the statement of Kamlesh Kumar who was examined as D.W.-1 at more that one place he was put with a suggestion, during his cross examination, and on two occasions he clearly stated that the tractor was being utilized for agricultural purposes and the suggestion given that it was utilized for transporting mud was clearly turned down by the witness. This shall be evident from the statement and the cross examination of the Kamlesh Kumar which is on record as paper no.Kha 28/4 which was recorded on 24.12.2010. In his examination in chief, needless to say, he clearly stated that vehicle was utilized only for agricultural purposes and since he had taken the same in the fields for the purposes of carrying agricultural produce hence it appears that the tribunal had misread the testimony and it also can be a case of ignoring the relevant statements and facts on record. The Tribunal has failed to notice the statement and clear averments made by the witness and it also ignored the copy of the insurance policy which was available on record. For the aforesaid reasons, this amounts to clear perversity as the findings have been recorded which are against the weight of the material on 8 record.

19. In such circumstances, where the tribunal has gravely erred and an application for review was moved which was based on the premise of being a procedural review, which in light of the decision of the Apex Court in Kapra Mazdoor Ekta Union vs Management of M/s Birla Cotton Spinning and Weaving Mills Ltd and Another (2005) 13 SCC 777, can be maintained. The relevant portion of the said opinion reads as under:- "17. The question still remains whether the Tribunal had jurisdiction to recall its earlier award dated 12-6-1987. The High Court was of the view that in the absence of an express provision in the Act conferring upon the Tribunal the power of review the Tribunal could not review its earlier award. The High Court has relied upon the judgments of this Court in Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya (1987) 4 SCC 525 and Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [(1971) 3 SCC 844] wherein this Court has clearly held that the power of review is not an inherent power and must be conferred by law either expressly or by necessary implication. The appellant sought to get over this legal hurdle by relying upon the judgment of this Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 ] . In that case the Tribunal made an ex parte award. The respondents applied for setting aside the ex parte award on the ground that they were prevented by sufficient cause from appearing when the reference was called on for hearing. The Tribunal set aside the ex parte award on being satisfied that there was sufficient cause within the meaning of Order 9 Rule 13 of the Code of Civil Procedure and accordingly set aside the ex parte award. That order was upheld by the High Court and thereafter in appeal by this Court.

18. It was, therefore, submitted before us, relying upon Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, clearly highlighted this distinction when it observed: (SCC p. 425, para 13). “ Furthermore, different considerations arise on review. The expression ‘review’ is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or 9 Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Patel Narshi Thakershi case [(1971) 3 SCC 844] held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.”

19. Applying these principles it is apparent that where a court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic ascertains whether it has committed) a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch as the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be reheard and decided again."

20. In the aforesaid circumstances where there was an error apparent on the face of the record and procedural review being permissible coupled with the fact that the Tribunal should have noticed that it was dealing with 10 the matter where compensation is to be granted to the claimants, who are the victims of a motor accident.

21. In the aforesaid background, even though, the claim petitions were allowed and the sum of compensation was awarded, but since the liability had been placed on the owner, who moved the application for review which got dismissed against which, these revisions were preferred and are pending since 2012 and this Court finds that the actual beneficiary of the award has been left out and though the accident took place in 2009 but till the year 2025, the claimants have not realized the fruits of the award inspite of passage of sixteen years.

22. In the given facts and circumstances, this Court is of the view that the order rejecting the review was not justified and an error which was borne out from the record should have been corrected by the Tribunal itself in order to do the substantial justice between the parties.

23. It is also relevant to point out that a Coordinate Bench of this Court in Sandhya Vaish and another v. New India Insurance Company Ltd., (supra) was faced with a similar situation and it considered various aspects including the issue relating to power of review being exercised by the Claims Tribunal and in Para-18, it held as under:- "18. The question of maintainability of the review application cannot be doubted on account of the fact that the Tribunal was not lacking in its power of reviewing its order which resulting into material injustice to the claimants, who happen to be widows, daughter and sons in these cases. The legislature has not specifically prohibited the Claims Tribunal to follow the general procedure prescribed in the Code and when there is no specific prohibition for following the general procedure in an inquiry under Section 168 of the Act and moreso, when the wide discretion is vested in the Claims Tribunals under sub-section (1) of Section 169 of the Act. Court has no hesitation in holding that the Claims Tribunal failed to exercise the 11 jurisdiction vested in it while rejecting the applications for review filed by the revisionists. The Tribunal ought to have considered the settled law in regard to the award of the interest and further it was not deprived of the power to entertain the review as the legislature has empowered the Claims Tribunal with wide power of discretion to follow such procedure as it thinks fit for holding the enquiry under Section 168 of the Act. The view expressed in Sunita Devi Singhania Hospital Trust (supra) compels this Court to take a view that if any application was moved for rectification of mistake, then the same was within the province of the Tribunal to correct the same in order to discharge the function effectively for the purpose of doing justice between the parties."

24. In the aforesaid backdrop, since the review was rejected and the revisionists have come up before this Court which in light of the decision rendered by a Coordiante Bench of this Court in Radhey Shyam Singh (supra), wherein it has been held that the revision against an order passed by the Claims Tribunal is maintainable, hence, taking aid of the aforesaid decisions, this Court in the given facts and circumstances finds that the order passed by the Claims Tribunal could be modified only to a limited extent that the award is to be satisfied by the Insurance Company and not by the owner as the Insurance Company could not substantiate that the Tractor was not insured with them.

25. This Court further finds that neither the claimants have filed an appeal for enhancement nor there has been any dispute raised by the Insurance Company in respect of the quantum or regarding the factum of the accident and its negligence, hence, all the aforesaid findings returned by the Claims Tribunal are upheld.

26. In facts and given circumstances of this case, the award dated

18.01.2011 passed in the Claim Petitions Nos.16, 17 and 18 of 2010 shall stand modified only to the extent that the award with interest will be made good and indemnified by the Insurance Company and not by the 12 revisionist.

27. This Court further provides that the Insurance Company will first pay the amount to the claimants, however, after the same is done, insofar as the interest component is concerned, the Insurance Company will be entitled to recover 25% of the same from the revisionist as per law.

28. With the aforesaid, all the three revisions are allowed in the above terms. The record of the claim petitions be sent back to the Tribunal concerned. Order Date :- 09.05.2025 Harsita/- HARSHITA High Court of Judicature at Allahabad, Lucknow Bench