Baskar vs The National Insurance Co. Ltd. and R. Chandramohan

G.M. Akbar Ali, J.—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. The claimant is the appellant. Claim petition was filed,

claiming compensation for the injuries sustained by him in a road accident, that happened on 4.4.2006 at Baramkela-Lodhia Road near

Kandapara, Raigarh District at Chattisgarh State.

The claimant, who was a permanent resident of Mayiladuthurai, was working at Namakkal and was employed as Manager-cum-Driller in

Nataraja Borewell, Tiruchengode. He used to go to other States for executing the borewell operations. Likewise he was engaged in borewell

operation at Chattisgarh State.

On 4.4.2006, around 4.00 a.m., he was proceeding as a pillion rider in TVS Suzuki Motorcylce, bearing registration No. TN-34-B-6816, from

his office on the Baramkela-Lodhia Main Road. The motorcycle was driven by one Saravanan and owned by the second respondent. As they

were negotiating a turn near Kanchanpur, the said Saravanan drove the vehicle in a rash and negligent manner and there was a sudden jerk and in

that jerk, the claimant was thrown out and sustained grievous injuries on the backbone. He was taken to nearby Government Hospital and later

shifted to Gokulam Hospital, Salem. The Baramkela police registered a case in Cr. No. 42 of 2006 against the rider of the motorcycle.

The claimant had undergone treatment for 25 days and there was a fracture in the spinal cord and his lower part of the body is affected. The

limbs cannot be moved and there is no control of his urinary bladder and rectum and he is bedridden. The disability was assessed at 100%. He has

claimed Rs. 10,00,000/- against the owner of the vehicle and the Insurance Company.

The owner of the vehicle filed a counter admitting the accident but denied negligence and would state that there is a valid coverage of Insurance

Policy.

The second respondent Insurance Company opposed the claim stating that they are not liable and according to them there is a collusion

between the owner and the injured and the vehicle was not involved in the accident. The Insurance company also took a plea that the pillion rider is

not covered under the policy.

On enquiry, the Motor Accidents Claims Tribunal, Chief judicial Magistrate, Namakkal found that the accident had occurred due to the rash

and negligent act of the driver of the motorcycle and also held, without any discussion, that the respondents 1 and 2 are jointly and severally liable

to pay the compensation.

As far as the quantum of compensation is concerned, the Tribunal has taken into consideration 100% disability and applied the multiplier and

arrived at Rs. 14,28,000/- for loss of earning capacity and along with other conventional heads of damages, a total sum of Rs. 17,44,238/- was

awarded. Both the owner and the insurance company jointly and severally were directed to pay the compensation amount.

The first respondent Insurance Company immediately filed a review petition before the same Court to review the award. The main 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.

The review was opposed by the claimant. However, the learned Tribunal reviewed its award and found that there were discrepancies about

the manner of accident and allowed the review and dismissed the claim petition on the ground of fraud and a false claim. Aggrieved by which, the

claimant is before this Court.

Mr. P. Paramasiva Das, the learned counsel for the claimant made the following submissions:

(i) Tribunal has no power to review or recall its own award. The decision reported in 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.

Reiterating the above submissions, the learned counsel pointed out that the scope of review under Order 47 Rule 1 of CPC is very limited and

the Tribunal has no power to entertain an application under the said provision. The learned counsel pointed out that the principle laid down in

United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, is not applicable to the case on hand.

The learned counsel also relied on a decision reported in 2008 2 LW 156 (J. Alliammal vs. The Special Tahsildar, Adi Dravida Welfare

Department, Tirupattur), where a Division Bench of this court has turned down the review petition arising out of a land acquisition matter. The

learned counsel also relied on a decision reported in P. Samiappa Gounder Vs. The Regional Transport Authority and The State Transport

Appellate Tribunal, wherein a learned Single Judge of this court has held that a court seized of the matter of review is not expected to sit as an

appellate authority over its previous decision.

On the other hand, Mr. S. Arun Kumar, learned counsel for the Insurance Company pointed out that the principle laid down in United India

Insurance Co. Ltd. Vs. Rajendra Singh and Others, : 2000 ACJ 1032 squarely applies to the facts on the case wherein the Apex court held that:

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.

The allegation made by the appellant insurance company, that claimants were not involved in the accident which they described 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.

The learned counsel further submitted that only after the award, investigation revealed that it is a false claim and therefore, as per the principles

laid down in the above case laws, review has been filed and allowed.

Heard and perused the materials available on record.

The following points have arisen for consideration in this appeal.

i) whether a review under Order 47 Rule 1 of CPC is maintainable and whether the Tribunal can recall its own award?

ii) whether the claimant has played a fraud on the court and made a false claim and obtained an award?

As far as the first point is concerned, it is well settled that the scope of review under Order 47 Rule 1 of CPC is very limited and applicable

only when,

(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.

The same has been reiterated in Haridas Das Vs. Smt. Usha Rani Banik and Others, wherein, the Apex Court has held as follows: ""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.

Similarly, in P. Samiappa Gounder Vs. The Regional Transport Authority and The State Transport Appellate Tribunal, a learned Single Judge

of this court had an occasion to consider a review petition arising out of an motor accident claims. The learned single Judge held as follows:

Even though on the face of it, the contention raised by the petitioner may sound attractive, I do not think there is any scope to review the order

passed earlier. Firstly, it has to be borne in mind that a court seized with a matter of review is not expected to sit as an appellate authority over its

previous decision and only where there is glaring error apparent on the face of record, a Court is expected to review. It cannot convert itself into

an appellate court in order to find out the errors by delving deep into 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.

In 2008 2 LW 156 (J. Alliammal vs. The Special Tahsildar, Adi Dravida Welfare Department, Tirupattur) the Division Bench of this court

held.

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.

However, the judgment reported United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, is a classic case of the power of the court

to review its own order when it is obtained by fraud. The Hon''ble Supreme court held

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.

The facts in the above said judgment is relevant which is as follows:

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 CPC 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:

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? .....

The Apex court has further held as stated supra and quashed the award passed by the Tribunal and directed the Tribunal to consider the claim

of the Insurance Company afresh.

Though the scope of review under Order 47 Rule 1 of CPC are well settled and limited, if an award is obtained by playing fraud upon the

Tribunal, the Tribunal has ample power to review its own award.

One of the conditions for review under Order 47 Rule 1 of CPC is 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.

If there is a discovery of new important matter or evidence disclosing a fraud and placed before a court or the Tribunal which passed such

award, the said court or Tribunal even after the passing of an award, has ample power to review its own award subject to the acceptance of the

newly discovered evidence disclosing such fraud thereby to prevent an imposter from unjustly enriching himself.

Now regarding the second point viz. whether the claimant has played a fraud on the court and made a false claim and obtained an award is

concerned the discovery of the new evidence has to be looked into.

The accident had occurred on 4.4.2006 at 4.00 a.m. Ex. P. 1 is the FIR in Gujarati and Ex. P. 2 is the English version. A case has been

registered against one Saravanan rider of Motorcycle, bearing Registration TN-34-B-6816, in Cr. No. 42 of 2006 by the Inspector of Police,

Baramkela.

However, the case was registered only on 26.4.2006. The explanation given by the claimants for the delay in FIR is that immediately after the

accident he was taken to the Government Hospital at Sarangarh and later he was shifted to Gokulam Hospital, Salem for further treatment.

Only thereafter, complaint was given and FIR was registered. An investigation was conducted and the investigating officer the SHO,

Bharamkela laid a charge sheet against the rider of the motorcycle Saravanan stating as follows:

From all witness reports it was found that on 4/4/06, Saravanan was driving along with Bhaskar, by TVS No. TN-34B-6816, 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.

Ex. P. 14 is the intimation received from the Primary Health Centre, Sarangarh by the Station Officer, Sarangarh Police Station. It is stated that

one patient Bhaskar (claimant) is admitted in the PHC Sarangrh at 6.00 a.m. on 4.4.2006. It is also endorsed therein as RTA Case (Road Traffic

Accident Case).

During the enquiry in the review application, three documents were filed by the Insurance Company. A copy of an intimation to the police from

the hospital dated 4.4.2006, the final report filed before the Judicial Magistrate First Class Sarangarh dated 26.4.2006, and an E-mail copy of a

letter dated 3.1.2012.

Much reliance was placed by the Insurance Company on the wound certificate issued by the Primary Health Centre, Sarangarh. After noting

the injuries an opinion was given as follows:

Opinion: Injury caused by hard blunt object. Duration within 6 hrs.

Further reliance were also placed on Exs. P. 19 to 21 which are Form 16 issued under the Income tax Rules. All these forms relate to the

salary of the injured and tax deducted at source for the years 2003 to 2006.

In all these forms, the name of the employer is shown as S. Gopal, Proprietor, Natarja Drillers. However, in the claim petition, in Column No.

5, name of the employer was shown as R. Chandramohan, S/o Rathine Sabapathi, who is the insured himself.

According to the Insurance Company, the claimant has suffered an injury by a hard and blunt object under a different circumstance and

therefore, it is not a road accident; though he has been initially taken treatment at Sarangarh, he was later referred to Government General Hospital

at Raigarh; no document has been produced to show such admission; he has taken treatment at Gokulam Hospital at Salem, from where on

7.4.2006 an accident intimation was given to Sarangarh Police Station, on which, a case was registered only on 26.4.2006 and the vehicle

belonged to the employer of the claimant was produced along with the driver, which was seized by the Station Housing Officer, Baramkela and a

case has been registered and the investigation reveals that the driver admitted the accident and therefore, a false and make belief story was

projected by the claimant to enrich unjustly with the connivance of the first respondent insured.

Reiterating the above stand, Mr. S. Arun Kumar, learned counsel for the Insurance company pointed out that the subsequent investigation by

the Insurance Company revealed the above facts and therefore, the Insurance Company has proved the discovery of new fact, disclosing a fraud

played on the court with the collusion of the insured. According to the learned counsel, it is a clear case of fraud.

On the other hand, Mr. P. Paramasiva Das, learned counsel for the claimant submitted that the wound certificate would also show that it is a

case of Road Traffic Accident, as endorsed by the duty doctor at PHC Sarangarh. The learned counsel pointed out that the newly discovered

evidence only strengthen the case of the claimant as there is an endorsement that the claimant was admitted in the hospital for an alleged case of

Road Traffic Accident and with an injury of bruise at Dorso Lumbar region and a complete paraplegia which denotes that he has sustained a blunt

injury on his back which caused internal fracture on spinal cord which resulted a paralysis condition.

The learned counsel further pointed out that as far as the opinion is concerned, the doctor opined that such bruise injury was caused by a hard

and blunt object. Since the claimant was thrown out from the motorcycle and landed on his back on a blunt object on the road, he sustained such

injury.

It is further contended that it is not the case of the claimant that he sustained such injury on coming into contact of any 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 learned counsel pointed out that the claim before the Tribunal is only a summary trial and the particulars furnished in col. 5 should not be

mistaken as there is a collusion between the owner and the insured.

The learned counsel pointed out that the Tribunal has not recalled the award on the basis of Exs. P. 19 to P. 21 but relied only on Ex. P. 1 the

wound certificate, produced by the Insurance Company to recall its award.

Heard and perused the materials available on record. The earliest document to prove the accident is Ex. P. 14, an intimation sent by PHC

Sarangarh to the Station House Officer, Sarangarh Police Station. As stated earlier, there is an endorsement of RTA Case intimating admission of

the claimant at 6.00 a.m. on 4.4.2006.

The present Ex. P. 1 is a wound certificate which is also issued by PHC Sarangarh. As rightly pointed out by the learned counsel for the

claimant, it would also reveal that a reference has been made as MLC/9.30AM/4/4/06. Whenever there is a medico legal case, which includes a

road traffic accident case, the hospital authorities has to inform the nearest police station, which has been done under Ex. P. 14.

The Duty Medical Officer has recorded that it is a history of (H/o) alleged case of RTA at Baramkela Road. He has further noted down two

injuries and advised for an X-ray on the Dorso Lumbar Vertebra and referred to KGH Raigarah. He has also given an opinion as stated above.

Much reliance was placed by the Insurance Company on the opinion furnished regarding the nature of the injury. According to the Insurance

Company, the claimant had received the injury in different circumstances at a different place and there is no accident injury.

This court is unable to accept the said contention. On 4.4.2006, the claimant has been admitted in the PHC Sarangarh at 6.00 a.m. on

4.4.2006. The PHC has endorsed that it is a case of RTA. The nearest police station was intimated to do the needful.

The reliance on the newly discovered piece of evidence viz., wound certificate Ex. P. 1, would also reveal that it is a medico legal case and it is

an alleged case of RTA and the claimant has suffered an injury on the Dorso Lumbar region and was in a state of complete paralysis and the

opinion would show that such injury was caused by hard blunt object.

Naturally, a bruise at Dorso Lumbar region could have been caused when the claimant was thrown out and landed on his back on a hard blunt

object. It is not a case of criminal assault to rely on such opinion as to whether it has been caused by the blunt object or sharp object. Both Ex. P.

14 and present Ex. P. 1 would show that it is a case of Road Traffic Accident.

The other arguments advanced by the Insurance company is that only after an intimation was given by the Gokulam Hospital, FIR was

registered belatedly and a vehicle, bearing Tamil Nadu Registration, has been produced before the SHO, Baramkela, who has seized the vehicle

and investigated and filed a final report.

The final report has been produced in the review proceedings. Again the investigation and the final report would only strengthen the case of the

claimant. Even according to him, he was initially treated at PHC Sarangarh and later shifted to a private Hospital at Salem and only thereafter, a

complaint has been lodged at Baramkela and he has not concealed this information.

Therefore, the alleged discovery of the wound certificate and the final report does not substantiate that a fraud has been played on the court

and there is no proof that the claimant has sustained injuries in different circumstances in different place contrary to what has been alleged by him.

As far as the discrepancies in the particulars furnished regarding the employer in column 5 of the claim petition and in Form 16 which shows a

different employer are concerned, this evidence was available with the Insurance company even in the first enquiry.

However, during the review the Tribunal has not relied on this contention. Even assuming that the insured is the employer, it would show that

his motorcycle has been used at Sarangarh where the accident had occurred.

As far as the genuineness of the Exs P. 19 to 21 are concerned, though all the Form 16 do not contain the seal of the income tax department, it

is to be noted that such Form 16 have to be issued only by the employer certifying that there is a deduction of tax at source. Therefore,

genuineness of Exs. P. 19 to 21 cannot be agitated at this stage.

Therefore, though the tribunal was right in entertaining the review petition, it committed an error in recalling the award. Consequently the review

order is set aside and civil miscellaneous appeal is allowed. The award dated 19.07.2010 passed by the Tribunal in confirmed. No costs. If the

insurance company has not deposited the award amount, six weeks time granted to deposit the amount and on such deposit, the claimant is

permitted to withdraw. No costs. Consequently, connected MP is closed.