IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15..09..2009
CORAM
THE HONOURABLE MR. JUSTICE S. PALANIVELU
C.R.P. (NPD) No.580 of 2009
and M.P.No.1 of 2007
Divisional Manager
The National Insurance Co. Ltd.,
Divisional Office,
Officers Lane, Vellore-1. ... Petitioner
Vs
1. Naseema
2. Minor Adaman Shariff
[rep. By his mother and
next friend R-1]
3. A.G. Viswanathan ... Respondents
Civil Revision Petitions filed under Article 227 of Constitution of India, against the order dated 2.5.2008 made in I.A.No.516 of 2006 against the award passed in M.C.O.P.No.672 of 2002 on the file of the Additional District and Sessions Court, FTC, Vellore.
For Petitioner : Mr. S. Arunkumar
For Respondent : Mr. V. Rajagopal [for R-1]
O R D E R
The petitioner is second respondent in M.C.O.P.No.672 of 2002 on the file of the Motor Accident Claims Tribunal (Fast Track Court), Vellore. The first respondent filed the claim petition claiming a sum of Rs.10 lakhs on the death of her husband Sultan Sheriff @ Babu in a road traffic accident reportedly happened on 27.4.2002 at 1.00 p.m. at Manickka Chettiar Street, Alamelurangapuram, Vellore. A case was registered in Cr.No.161 of 2002 under Section 279, 338 and 304(A) IPC on the file of the Sathuvachari Police Station. The said claim petition was resisted by the 2nd respondent/Insurance Company by filing counter and the Tribunal after enquiry, directed the Insurance Company to pay a sum of Rs.2,89,000/- as compensation to the claimant, on 23.7.2004. There had been no appeal from the said award.
2. After two years, the petitioner filed I.A.No.516 of 2006, before the said Tribunal to review its award dated 23.7.2004. The grounds adduced there on are that the deceased did not die due to road traffic accident, that he did not met with his death by means of hit by tanker lorry as alleged in the F.I.R., but he died due to fall of heavy object on his head as evident from the records issued by Christian Medical College Hospital, Vellore.
3. The petition was opposed by the other side viz., the claimant. The Tribunal has dismissed the application and hence the petitioner is before this Court.
4. Learned counsel for the petitioner would submit that as soon as the petitioner came to know about the fraud played by the respondents, they (Insurance Company) immediately rushed before the Court by filing the review application and that the Tribunal has not adverted to the factual situation as available in the medical records. It is his further contention that the Insurance Company is involved with public money, it has appointed an Investigator to probe into the matter in depth and finally unearth the truth by submitting his report.
5. Repelling the arguments, learned counsel for the respondents 1 and 2 would contend that the petitioner should have preferred appeal before the Court, but filing Review Application before the same Tribunal is not sustainable and that the request of the petitioner has no merits.
6. Learned counsel for the petitioner draws attention of this Court to the Investigation Report filed by the Investigator nominated by the Insurance Company, dated 26.10.2004, in which he has narrated the events and efforts he has taken to find out the truth. It is stated that when he enquired the claimant she was reluctant in producing material parts and finally he persuaded her to give the records and he was surprised to know that the injuries caused to her husband was due to fall of heavy object on his head and there is no reference in the medical records as to the road traffic accident. He has also produced the Death Summary dated 7.5.2002 and intimation letter to the Sub-Inspector of Police, North Police Station, Vellore by CMC Hospital, informing that the injured was admitted to the hospital on 29.4.2002.
7. In the Death Summary has been clearly mentioned that Mr. Sherif was brought to casualty on 29.4.2002 with history of alleged fall of a heavy object on his left leg on 27.4.2004 at 2.00 p.m. and in the intimation letter which was given to police station, it has stated that his death was unnatural and that the corpse was kept in mortuary.
8. Considering the particulars in the above said documents the learned counsel for the petitioner would contend that even these documents have been produced before the Tribunal, the Tribunal has not adverted to the same to come out with a finding. His further submission is that there is no legal embargo for the Tribunal to review its own order when the order passed by it was bristled with infirmities either factually or legally.
9. In support of his contention he placed much reliance of a decision of the Supreme Court in SC 2003 (3) SC 581 [United India Insurance Company Ltd., v. Rajendra Singh and Others] wherein Their Lordships have elaborately dealt with the matter of reviewing the award passed by the Tribunal when the allegations of fraud were placed before it and the remedies are open to the affected parties. The following are the operative portions of the judgment:-
“It is unrealistic to expect the appellant Company to resist a claim at the first instance on the basis of the fraud because the appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
Therefore, 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 wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
The allegations made by the Appellant Insurance Company, that the claimants were not involved in the accident which they described in the claim petitions, cannot 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. The claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If the Insurance Company is not afforded an opportunity to substantiate their contentions it might certainly lead to a serious miscarriage of justice.”
10. In 1999(1)M.L.J. 117 [The Oriental Insurance Company Ltd., v. R. Mani and another] this Court, following a decision of the Supreme Court in AIR 1996 SC 2592 [Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd.,] wherein it is held that the judiciary in India also possesses inherent power, specially under Section 151 C.P.C to recall its judgment or order if it is obtained by fraud on Court.
11. In the above judgment it is further observed that since the fraud affects the solemnity, regulatory and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order.
12. In yet another decision in 2008 ACJ 791 [National Insurance Co. Ltd., v. Rangasamy (dead) and others] the learned Judge after following the decisions of the Supreme court as well as various High Courts, has held that when the allegations of fraud is projected, then there is no embargo for the Court to order fresh enquiry in the matter after recalling the order. In para 19, this Court, after referring to the decision of Supreme court in Rajender Singh’s Case (Supra), has also observed as follows:-
“19. … … Therefore, 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 obtained by fraud or misrepresentation and especially when the insurance companies are dealing with the public money. Therefore, this Court is of the considered view that the appellant should be given an opportunity to establish the alleged fraud committed by the claimants by raising appropriate pleadings and adducing available evidence before the Tribunal.”
13. Even though the present factors were not brought before the Tribunal at the earlier point of time but later at the time of enquiry before it, as soon as it was brought to the knowledge of the petitioner necessary steps have been taken that adequate materials to review the matter and there is no difficult in directing the Tribunal to take up the matter again.
14. Following the principles and guidelines laid down by the Supreme Court as well as in view of the earlier opinions expressed by this Court, I am of the considered view that the award passed by the Tribunal dated 23.7.2004 has to be necessarily reviewed and the same has to be recalled. Hence the Order challenged before this Court has to be set aside and accordingly it is set aside.
15. In fine, the Civil Revision Petition is allowed directing the Tribunal to consider the claims put forth by this petitioner afresh and decide the matter after affording reasonable opportunities to both sides to establish their respective contentions. No costs. Connected M.P. is closed.
ggs
To
The Additional District and Sessions Judge,
Fast Track Court,
Vellore