The Oriental Insurance Company … vs Balaiah S/O Kallanna on 15 February, 2010

deceased Onkaraswamy @ Onkara filed claim petition

under Section 166 of the M.V. Act

compensation from the owner and insurer.of”the’—..lor::3f

bearing registration No. KA 2521_g3,0_ for_.ti1″e” of the ” it

said Onkarswarny in the motor

occurred at about 11.45

petition was contested ‘i-n_surer’-of the lony
interalia on the ground llthvecvideceased was a

gratutous passengerrfi travelling-.’_ir1V’ goods carriage,

therefore, not liable to indemnify the
insured respec-idof “claim arising out of the said

accident.

xThe””l’ri’b’unal by its judgment and award

dated while answering Point No.1 held that

the: Onkaraswarny was travelling as an

unatrthorised passenger in goods carriage. The

l’ –..Trihunal on the basis of evidence on record quantified

…..the compensation at Rs.2,25,000/– and in the light of

“‘i

§\ ‘

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the findings on Point No.1 held that, the insurer is not

liable to indemnify the insured, consequently, the claim
petition as against Respondent No.2–Insurance

Company came to be dismissed and the owner of» the

iorry was directed to pay the entire

amount. Subsequently, the claimants

under Order 47 Rules 1 and 2 of

the judgment and award passedllvbylithe ‘i’ri.bt1’nallV

far as it relates to dismissallo’f..:the c1aimp’etition against
the Insurance Company. Thei petition was

contested ‘appellantQlnlsurance Company inter
alia onthe petition is not rnaintajnable

in the _ light ..:lof”.thel” specific finding recorded by the

its jiidgment that the deceased was an

anaatho-risedgpassenger travelling in the goods carriage

and th-erefore, the petition was sought to be dismissed.

A. 4’)? The learned Member of the Tribunal,

however, by the order under appeal placing reliance on

several decisions éited, held that the insurance

Fa

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Company at the first instance should pay the award

amount and thereafter, the Insurance Company is at
liberty to recover the amount from the owner. In that
View of the matter, the Tribunal allowed the preview

petition and directed the appe11ant–Insnrancf’é..éonipany

to pay the award amount with liberty

same from the owner of the vehviciief ‘Being-:

the said order allowing _.the pe.t.itio’11°§V#,’=-4

Insurance Company has presented this. alia
on the ground that error in

aiiowingitthetiirevitéigg petition,..”VVthough in the light of the
specific’findings.Ai’ecordie’d« by the Tribunal in its original

judgment the,Vrevi’ew.”‘petition was not maintajnable, as it

fall any one of the grounds on which

review its judgment under Order 47

Rules ad: of C.P.C.

#5}: Upon service of notice of this appeal, the

A’ re»spxondents/claimants have appeared through their

é/at

learned counsel. I have heard the learned counsel on
both sides and perused the records.

6) As noticed above, in its judgment f¥dated

01.12.2004 while considering Point No.1,

recorded a definite finding that the

travelling in the lorry in question

transporting any goods at that time.._ ln other” the >

finding of the Tribunal was thatiatythe of accident,
the deceased was V “trayellin.g Aidan unauthorised
passenger in they goods”’»carri’age_._ 2′ is no dispute

that the —is a goods carriage VlZ., lorry

bearing reg.istration’No- 232130. It is in the evidence

onyrecolrd that*th_e..,.deceased was a student and was

said lorry at the time of the accident to

go Therefore, the Tribunal held that the

deceased was an unauthorised passenger travelling in

V~l,”_thel”goods carriage. In that View of the matter, the

Tribunal held that the insurer is not liable to indemnify

the insured. Consequently, the claim petition was

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dismissed against the Insurance Company. However,

strangely the Tribunal reviewed its own judgment on the
petition filed by the ciaimants and directs the Insurance
Company to pay the compensation amount the
claimants and then to recover the same
of the vehicle. it it

7] Under the
arises for my considerationyinflpthisappeal 1 V K V

1) ‘Whether the Trit5una1_ is “j1..1s”tii’ied’:§ in
reviewing its ownr-judgment ? ‘ ‘

‘A review’ sought would fail
1 = ‘vdthiri,_the”-an’;-bit’ of Order 47 Rule 1
” and..20.f

pt’-}_ As tv’totd.-£47 Rules 1 & 2 of cpc, ‘any

pe.r’sori””tfconsidering himself aggrieved by a decree or

an appeai is ailowed, but no appeal

has b<éer1.A§7pAreferred may apply for a review of the

jrcidgment, to the Court which passed the decree or

drndade the order. However, such a review can be sought

"only if the party applying for review satisfies the Court

that new and important matter or evidence has been

go»

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discovered which were not within his knowledge even
after exercise of due diligence as such, he could not
produce the same before the Court when the decre:e*.was

passed or order was made; or that therei*”‘are.__’_sor_ney

mistake or error apparent on the face ofrecord; oi’,

that there exists other sufficient reason for”-.reviewing

the judgment or order. The -r__eview.of the ;

not sought on the ground soine new. important
matter or evidence _disc-2:)vere.d-igsufosequent to the

judgment of Tribunal} :and._ifr,1__ ioffithe exercise of

due evidence was not within the
knowledge’ of nor it was their case that

they couldéunot’ produce any such evidence at the time

when :”the_”d.ecree was passed. It is neither the case of

the that there was a mistake or error

appare’n’t’oh the face of the record, which was required

. ‘tc-.__he ‘corrected by exercising the power of review. The
judgment of the Tribunal dismissing the ciaim petition

against Respondent No.2 was based on the definite

finding recorded by it on Point No.1 that the deceased

/}

%g;/_, ..,.z

/I

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was an unauthorised passenger in a goods carriage and
therefore, the insurer is not liable to indemnify the
insured in respect of such claims. Having rega_rd._to

such definite finding recorded by the

Tribunal in exercise of its power of revie’W’vu:nder. Order’*~ V

47 Rules 1 8: 2 could not have

directing the Insurance_'”–~CoInlpany.g

compensation amount determinegdiito the”‘cI,aj;ocfants and

then to recover the sanie «froxnVl’a-tlviel’o1éfVner._

9) It gnovvowellégsettiedllthat a policy of

insurance’ issuefdgéiri, of a goods carriage is not

statutorily..required._Vto.:_lcover the risk of any passenger

ca,rri.ed_gi’inV% a good_s_..carriage for hire or reward, unless

i there “contract to the contrary. In the case on hand,

th’e”j)olic3tfijssued was only an “Act Policy”. There was no

contract to the contrary by receiving additional

premium. Therefore, in the light of the finding on Point

“No.1, the Tribunal is not justified in reviewing its

judgment and directing the appeilant/Insurance

fit. _ ,,/’/
.5 ~. Hf”

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Company to pay the compensation amount to the

Claimants and then to recover the same from the owner.

Therefore, the order under appeal cannot be

10) Accordingly, the appeal is a1IoWe’c’i-a§”‘~ _

order dated 15.07.2005 passed 1;} Review”»i§et.iti0:g1fiieid »

in MVC No.’755/1998 is herebjr,’ aaasaeaaa

Review Petition is dismissed’, .

The amount in deposit anp-ea} ordered to
be returned to the app.eHan’–t_. ” ‘ ‘

Sci/=~
EUDQE