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Judgment
S.K. Mishra, J
The Writ Petition has been preferred by the Petitioner-Insurance Company challenging the order dated 24.02.2020 (Annexure-9) vide which the 3rd Motor Accident Claims Tribunal-cum-Addl. District Judge, Bhanjanagar, Ganjam rejected its petition filed U/s 151 C.P.C. to revoke the Order/Award dated 14.09.2019 (Annexure-3), passed in M.A.C. Case No.200 of 2017 in the 3rd National Level Lok Adalat held at Civil Courts premises, Bhanjanagar.
The stand of the Petitioner-Insurance Company in the Writ Petition is that it was arrayed as Opposite Party No.4 in M.A.C. Case No.200 of 2017 without disclosing the Policy Number, vide which the offending vehicle i.e. OR-07-W-876, was allegedly insured with the said Company. But the Tribunal, without adhering to the mandatory requirement of law and without satisfying itself about the insurance coverage of the offending vehicle with the Petitioner Company, issued notice to it to show cause. Though the matter was adjourned to 24.09.2019 for appearance of the Respondent No.2, on which date the Presiding Officer was on leave. However, before the next date, the matter was taken up on 14.09.2019 in the 3rd National Level Lok Adalat held at Civil Courts premises, Bhanjanagar. On the basis of compromise made between the parties, the claim was settled in terms of order dated 14.09.2019.
It has further been stated that due to inadvertence and oversight, the concerned Officer of the Petitioner Company so also its Advocate became a party to the said settlement which is bona fide mistake on the part of both the learned Counsel so also the Officer, who signed the said Joint Petition of Compromise with a wrong impression that the offending vehicle was insured with the Petitioner Company, as the policy number had not been disclosed in the Claim Application. Mistakenly the Petitioner Company agreed to settle the matter in the Lok Adalat. However, after realizing the said mistake committed by the concerned officer so also learned Advocate of the Petitioner Company, on 18.12.2019 a petition was filed by the Petitioner Company under Section-151 C.P.C. to revoke the said Award. Ultimately, the said Petition filed U/s 151 C.P.C. was heard and rejected vide a common order dated 24.02.2020, as at Annexure-9, on the ground that mistake and oversight cannot under any circumstances be equated to pleading of fraud on the court to obtain the order .Hence, the present Writ Petition.
At this juncture, it is appropriate to extract below Paragraph Nos. 5 to 7 of the Writ Petition so also response of the present Opposite Party No.1 in Paragraph Nos.4 & 5 of the Counter Affidavit, which are germane to determine the present lis:-
EXTRACT FROM THE WRIT PETITION
“5. That when the matter stood thus, on 14.09.201 9 the aforesaid claim case was put up before the National Level Lok Adalat for amicable settlement and due to oversight, basing on a wrong Policy inadvertently the Petitioner agreed to settle the said case at Rs.4,30,000/- and by Order No.14 dated 14.09.2019 the Ld. Tribunal directed the Petitioner to deposit the said amount in favour of the Opp. Party No.1 within a period of two months, failing which interest shall be charged @ 6% per annum from the date of filing of the claim application. It will be not out place to mention here that the vehicles bearing Nos.OD-7-H-2565 and OD-7-H-2585 belonging to the Opp. Party Nos.2 to 4 were insured with the Petitioner covering the risk for the period from 29.05.2015 to 28.05.2016 under Policy Nos. 2602013115P102304961and 260203115P102304966 but due to oversight and hurriedness inadvertently the Petitioner presumed that the alleged offending vehicle bearing Regn. No.OR-7-W-8765 was insured with them under one of the said Policies. So the mistake committed by the Petitioner was a bona-fide mistake and occasionally this kind of mistake crept into due to busy schedule of the Petitioner during Lok Adalat. The certified copy of the said order dated 14.09.2019 is annexed herewith as ANNEXURE-3.
That on receipt of the order under Annexure-3, when the Petitioner processed the file it was revealed that the alleged offending Bus was not insured with the Petitioner covering the risk for the date of accident. So immediately by letter dated 09.10.2019 the Petitioner requested the Opp. Party No.4, the owner of the alleged offending Bus to confirm whether the Petitioner had issued any Policy in respect of the said Bus covering the risk for the date of accident and if, issued to provide a copy of the said Policy for enabling them to settle the claim and if, no answer is received within 7 days it will be contended before the Tribunal that the said Bus was not insured with the Petitioner and in that event the Opp. Party No.4 will be liable for the compensation. A copy of the said letter dated 09.10.2019 is annexed herewith as ANNEXURE-4.
That on receipt of the letter under Annexure-4 by letter dated 17.10.2019, the Opp. Party No.4 intimated the Petitioner that during the relevant period the alleged Bus was not insured with the Petitioner and the said Bus was plying on the strength of "Certificate of Exemption of Motor Vehicles from Insurance" issued by the Collector, Ganjam in terms of R.140 (1) of the Orissa Motor Vehicle Rules, 1989 and the said certificate was valid from 01.04.2016 to 31.03.2017. The copies of the said letter dated 17.10.2019 and the certificate issued by the Collector, Ganjam are annexed herewith as ANNEXURE-5 and ANNEXURE-6 respectively.
(Emphasis Supplied)
EXTRACT FROM COUNTER AFFIDVIT FILED ON BEHALF OF THE OPP. PARTY NO.1
That, so far as the averments of paragraphs- 4 and 5 of the writ application is concerned, it is submitted that, the petitioner being the Opp. Party No.4 in the court below, after due service of notice from the learned Tribunal, did not appear and was set ex-parte on order dated 21.09.2018 and compromise was signed by the Senior Manager of the Petitioner, namely Sri Sapani Sethy and it’s Advocate before the National Level Lok-Adalat on 14.09.2019 and after receipt of notice vide Memo No.1876 dated 14. 09.2019, the petitioner filed a petition on 18. 12.2019 under Order 9 Rule 7 C.P.C. and it’s written statement. So, the plea of hurriedness, inadvertence, bona fide mistake and oversight are flimsy grounds which are not acceptable on the facts of this case and rather it is a case of sheer negligence of the petitioner to harass the injured petitioner by causing delay in getting the compensation. The averments of paragraphs-4 and 5 of the writ application are replied and denied accordingly. The certified copy of the order dated 21.09.2018 is annexed here with and marked Annexure-C/1.
That, the averments of paragraphs-6, 7 and 8 of the writ application are all matters of record and the Opp. Party No.1 has already replied about the same in the preceding paragraphs of this Counter affidavit. Hence, in view of the above submissions, the averments made in paragraphs-6, 7 and 8 of the writ application are replied and denied accordingly.”
To justify the said bona fide mistake on the part of the concerned Officer of the Petitioner Company, the Memo No.1748 dated 17.10.19 from the District Transport Manager (A) I/C, OSRTC, Brahmapur addressed to the Legal Consultant, OSRTC, Bhubaneswar, a copy of which was also marked to the Senior Divisional Manager, United India Insurance Company Limited, has been appended to the Writ Petition as at Annexure-5. The contents of the same are extracted below:-
“Sir,
Enclosed please find a copy of letter bearing No.444 dated 09-10-2019 with enclosures, received from the Sr. Divisional Manger, United India Insurance Co. Ltd, Berhampur, seeking clarifications about validity of Insurance Policy of vehicle bearing No. OR-07W-8765 as on the date of accident on 17-04-2016.
Aforesaid case was entrusted to Biswanath Pattanaik, Advocate, Bhanjanagar to contest on behalf of OSRTC: This Office has no information regarding preparation & filing of Written Statement in the matter of MAC 200/2017.
During the year 2015-16 only other two vehicles (OD-07H-2565 & OD-07H-2585) of this unit were insured with M/S United India Insurance Company Ltd., Bhubaneswar as per Corporate Office lr. No. 6381 dt.04-06-2015. No insured policy records against vehicle No.OR-07W-8765 could be traced from the available records of this Office. However the vehicle was duly obtained with required ‘C’ Certificate from the Collector Ganjam during the period from 01-04-2016 to 31-03-2017.
The copies of Corporate Office Sanction Order No. 6139 dt.30-05-2015, Lr. No.6381 dt. 04-06-2015 & copy of ‘C’ Certificate of OR-07W-8765 for the period from 01-04-2016 to 31-03-2017 are enclosed herewith fro ready reference.”
(Emphasis Supplied)
Similarly, the Certificate in respect of exemption of Motor Vehicles from Insurance issued by the Collectorate, Ganjam , Chatrapur in Form No.53, under Rule 140(I) of the O.M.V. Rules, 1989, exempting the offending vehicle to be insured has also been annexed to the Writ Petition as Annexure-6 as detailed above. In the Counter Affidavit filed by the contesting Opposite Party No.1, the said averment made so also genuineness of the documents have not been disputed, as quoted above.
Though no Counter Affidavit has been filed by the Opposite Party Nos.2 to 4, who are represented by Mr. A. Tripathy, learned Counsel, also admits as to genuineness of those documents appended to the Writ Petition as at Annexure 4 & 5. He further submits, Owner of the vehicle i.e. OSRTC (Opposite -Party No-2 before the Court below), also filed a petition under Order-9 Rule-7 C.P.C. for setting aside the ex-parte order along with its Written Statement and list with documents, which was dealt with and rejected vide the common order, impugned in the Writ Petition.
Mr. Panigrahi , learned Counsel for the Opposite Party No. 1 (Claimant), relying on the Judgment reported in 2022 (4) T.A.C. 7 (S.C.) (Babu Khan v. National Insurance Co. Ltd and Others) submits, the Court below was justified to pass the impugned order as at Annexure-9 as no fraud was committed on the part of the Opposite Party No.1. However, a query being made, Mr. Panigrahi, learned Counsel is unable to explain before this Court as to what was the basis to implead the Petitioner Company as a party to M.A.C. Case No.200 of 2017. Further, on examination of the judgment cited by Mr. Panigrahi, it is found that the said case is not applicable to the facts and circumstances of the present case.
From the above, it is amply clear that the offending vehicle was exempted from the coverage of insurance and the offending vehicle was not at all insured with the Petitioner Company. Due to inadvertence/oversight, as detailed above, the Petitioner Company, by mistake, became a party to the said Award. Hence, this Court is of the view that the conduct of the Opposite Party No-1(Claimant before the court below) to array the Petitioner Company as Respondent No-4, being without any basis and in order to grab compensation amount from it, amounts to fraud. There is sufficient reason to interfere with the impugned orders and are liable to be set aside.
Accordingly, Order dated 24.02.2020, as at Annexure-9, so also the Award dated 14.09.2019 passed by the 3rd M.A.C.T.-Cum-A.D.J., Bhanjanagar, Ganjam , in M.A.C. Case No.200 of 2017 (Annexue-3) are set-aside. Matter is remitted back to the Court below for disposal of M.A.C. Case No.200 of 2017 in accordance with law. Since the Petitioner Company was admittedly not the Insurer of the offending vehicle and has been wrongly arrayed as Respondent No.4 to M.A.C. Case No.200 of 2017, it is to be deleted as a party from the said proceeding. As the matter is of the year 2017, to avoid further delay, this Court directs the Court below to proceed with the case expeditiously and conclude the same at the earliest, preferably within a period of six months from the date of production of the certified copy of this judgment.
The Writ Petition stands disposed of. No order as to cost.
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