Petitioner Counsel:- Vinod Swarup Hon'ble Pradeep Kumar Singh Baghel, J This is writ petition under Article 226 of the Constitution by the New India Assurance Co. Ltd. against the order of the Motor Accident Claim Tribunal -Addl. District Judge, Meerut in Review Application, arising out of Motor Accident Claim Petition.
Shorn of unnecessary details the brief facts giving rise to the present petition are that on 29/30 June, 1993 at about 12 o'clock (night) an accident took place in which one Jarif was seriously injured by the Truck NO. DEL 876 owned by respondent no.1 herein and later on he succumbed to his injuries. On 30.6.93 the respondent no.1 herein Baljeet Singh got the aforesaid vehicle insured with the petitioner, New India Assurance Co. Ltd.
The father and the wife of the deceased jointly filed a Claim Petition under section 166 of the Motor Vehicles Act, 1988 for grant of compensation of Rs. 6 Lacs. Their case was that the deceased Jarif was a Mechanic of Buggi and tyres and he was also doing the business of Dairy earning Rs. 2,500/- per month. He left behind his wife Ruksana, father Saddik and mother Johra.
Before the Tribunal the respondent no.1, the owner of the vehicle appeared and he filed his written statement denying his liability inter alia on the ground that his vehicle was insured with the petitioner New India Assurance Co. Ltd. and as such it is the liability of the New India Assurance Co. Ltd. The New India Assurance Co. Ltd. took the stand in its written statement that although the offending Truck No. DEL 876 was insured by them but the Policy was obtained by non-disclosure of material facts and as such the said Policy is void. Their further stand was that the Policy was obtained after the alleged accident, therefore, there is no effective insurance policy.
Saddik the father of the deceased had given his statement and one Naresh Kumar was also produced as witness of the facts. The Tribunal by its order dated 20.5.2000 partly allowed the Claim Petition and the claimant were held entitled to get Rs. 1,81,500/- and interest @12 % per annum from the date of filing of the petitioner till the date of realization of amount of compensation. The amount of compensation was to be paid by the owner of the Truck who were given liberty to recover this amount from the New India Assurance Co. Ltd. by whom the Policy was issued to cover the liability prior to 30.6.93. The owner of the vehicle respondent no.1 herein filed Review Application before the Tribunal inter alia on the ground that the Tribunal has failed to notice the judgment of the Supreme Court in the case of New India Assurance Company vs. Ram Dayal and others 1990 ACC 545. The further stand of the respondent no.1 was that the vehicle was covered by the insurance and as such liability which ought to have been fasten on the insurer of the Truck, has wrongly been fasten on the owner of the Truck. The said Review Application has been allowed by the Tribunal on 29.5.2002 which is impugned order of the writ petition.
I have heard learned counsel fopr the petitioner Sri Vinod Swarup and Sri S.D. Ojha for the respondent. Learned counsel for the petitioner Sri Vinod Swarup has submitted that the accident took place on 29/30 June, 1993 at about 12 o'clock near Pilana Bhatta, Meerut. The day 29th June, 1993 will start from 00 hours 00 minutes and 01 seconds and will end on 24 hours 00 minutes and 00 seconds. The day 30th June, 1993 will then start from 00 hours 00 minutes and 01 seconds therefore the accident occurred on 29.6.1993. As the Policy of Insurance was taken on 30.6.1993 at 10.30 a.m. when office of the petitioner insurance company opened, therefore, the said Policy will not cover that accident. Sri Swarup further urged that there is no statutory provisions enabling the Motor Accident Claims Tribunal to review its order and the order passed on review is without jurisdiction and nullity. He submitted that inherent power of review can only be exercised where the orders are sought to be reviewed was obtained by practising fraud or was passed without following the principles of natural justice. He has also drawn attention of the Court to section 149 (2) (b) of the Motor Vehicle Act, 1988. He has relied on the following judgments: (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalay Sitapur,1987 (13) ALR 680 (SC) ; (Smt.) Shivraji vs. D.D.C. Allahabad, 1997 (88) R.D. 562 (FB); Laxman vs. State of Bomday, 1964 SC page 436 (paragraph 11); Harbhajan Singh v. Karam Singh, 966 SC page 641 (paragraph 6,7 and 8); P.N.Thakershi vs. Pradyuman Singhji, 1970 SC page 1273 (paragraph 4) and New India Assurance Co,. Ltd. vs. Bimla Devi, 1999 1 TAC 449 (Alld. DB).
Sri S.D.Ojha learned counsel for the respondent no.2 and 3 urged that remedy by way of appeal is available to the insurer against the award therefore the filing of the petition under Article 226 of the Constitution was mis-conceived and is not maintainable. He has further urged that every Court/Tribunal has power to recall its order if it is convince that there was some apparent error on the face of the record.
I have considered the respective submissions of the learned counsel for the parties. Indisputably Section 173 of the Motor Vehicles Act, 1988 provides Appellate forum against the order of the Tribunal. No appeal has been preferred by the petitioner treating the order of the Tribunal as nonest.
In the case of Harbajan Singh v. Karam Singh and others 966 SC 641 the dispute arose from the consolidation proceedings under the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (50 of 1948) (in short Act). In the consolidation proceedings the Scheme for consolidation was confirmed under section 20 of the Act and the Consolidation Officer accordingly allowed the lands of the appellants and respondents of the civil appeal of the Supreme Court. Some of the respondents who were aggrieved by the order of the Consolidation Officer preferred appeal to Settlement Officer. Their appeals were dismissed. Thereafter, the respondents preferred further appeal to Assistant Director of the Consolidation of Holdings under section 21 (4) of the said Act. The Assistant Director partially allowed the appeals of the respondent no.1 therein but dismissed the appeal of respondent no.8. Section 42 of the Act provides the revision of the order of the Assistant Director. The State Government had delegated its power to the Director of Consolidation to decide the revision. The Director in the revision found that the order of the Assistant Director dated 29.10.1957 was illegal. Accordingly the Director allowed the revision petition of Harbajan Singh, the appellant before the Supreme Court. Harbajan Singh the appellant had inadvertently filed the two copies of the application/revision. On one copy the Director of Consolidation passed an order on 17.2.1958 to put up the said application with previous papers. However, on the second copy of the application which came before the Director on 3rd April, 1958, he rejected the revision with a short order that the order of the Assistant Director Consolidation of Holdings need not be amended and he closed the matter. Thereafter, the Direction on 29th August, 1958 on the first application of Harbajan Singh which was filed on 17.2.1958 allowed the revision of Harbajan Singh and set aside the order of the Assistant Director of Consolidation. It is evident that the Director had passed two different contrary orders in the same matter against the same impugned orders , one on 3rd April, 1958 by which he has rejected the revision and in another on 29th August, 1958 whereby he allowed the revision.
The respondent no.1 filed a writ petition under Article 226 of the Constitution before the Punjab High Court for quashing the order of the Director of Consolidation of Holdings dated 29thAugust, 1958 by which he had allowed the revision of Harbajan Singh. The Punjab High Court allowed the writ petition on the short ground that the Director of Consolidation had no power to pass order dated 29th August, 1958 . Harbajan Singh filed the appeal under Letters Patent which came to be dismissed on 19th April, 1960. The issued raised was whether the order of the Director was illegally sustainable as under the Act there was no power of review was conferred on the Director of Consolidation. Thus the plea was raised that in the absence of express power of review the subsequent order of the Director of Consolidation was nonest and ultra vires as it was without jurisdiction.
The Supreme Court held that the Director of Consolidation had no power to review his previous order dated 3rd April, 1958 rejecting the application of Harbajan Singh under section 42 of the Act and as such the subsequent order of the Director of Consolidation dated 29th August, 1958 was ulta vires and illegal and the High Court had rightly quashed the order under Article 226 of the Constitution.
In the case of Shivraji vs. Deputy Director of Consolidation and others (supra) the issue before the full Bench was whether the Deputy Director of Consolidation while deciding a revision/appeal exercises its judicial or quasi judicial power and therefore the order is final subject to power of appeal or revision, after analysing the various provisions of the Consolidation Act and the Land Revenue Act. The Court held that the Deputy Director of Consolidation has no power of review.
The next case relied by Sri Vinod Swarup was Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalay, Sitapur (supra) in the said case Dr. Smt. Kuntesh Gupta was a Principal of a Degree College. The Authorised Controller by his order dated 27.1.86 suspended Dr. Gupta. The order of suspension was however stayed by the Vice Chancellor of the University. The Authorised Controller held an ex parte enquiry and Dr. Gupta was dismissed from service. The Vice Chancellor whose prior approval is necessary for the dismissal or any other major punishment, disapproved the order of dismissal of Dr. Gupta and reinstated her. However, he left it open to impose lesser punishment on her. The Authorised Controller modified the punishment and allowed her to function as Principal but imposed several constraints on her power and duties as a Principal. He further directed to vacate the government quarter in which she was residing. Dr. Gupta filed a writ petition before this Court which was allowed and a direction was issued to the Authorised Controller to allow her to function as full fledged Principal of the institution. In the meantime Vice Chancellor reviewed his order dated 7.3.1987 and approved the dismissal of Dr. Gupta from service. The said order was challenged on the ground that the Vice Chancellor has no power to review his decision. Her writ petition was dismissed on the ground of alternative remedy by filing a Reference under section 68 of the U.P. State Universities Act, 1973. Dr. Gupta challenged the order of the High Court in the Special Leave Petition. The Supreme Court held that the Vice Chancellor is a quasi judicial authority as such he cannot review its own order unless the power of review is expressly conferred on it by the State under which it derives its jurisdiction.
In the case of Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji (supra) the matter relates to power under order 47 Rule 1, in the said case the Supreme Court has held that under the provisions of Saurashtra Land Reforms Act (25 of 1951) the State Government has no power to review its own decision under section 63 of the Act. In the said case the order of the State Government was reviewed by Mr. Mankodi the then Commissioner of the Rajkot Division who set aside the order passed by the Saurashtra Government taking in view that the Government has no competence to make the order. The order of the Commissioner was challenged under Article 226 and 227 of the Constitution inter alia on the ground that the Commissioner has no competence to quash the order made by the Saurashtra Government. The Supreme Court found that the Commissioner was functioning as the delegate to the State Government and as such he had no authority to review the order made by the Saurashtra Government. In my view the judgment of the Supreme Court has no application in the facts of the present case.
New India Assurance Co. Ltd. v. Bimla Devi and others (supra) a Division Bench of this Court has held that the Motor Accident Claims Tribunal has no power to review. The attention of the Court was not invited to the judgment of Sadhana Lodh v. National Insurance Company Ltd. and another (supra).
In a recent judgment Supreme Court in CTO v. Makkad Plastic Agencies (2011) 4 SCC 750 observed as follows:
"Review is a creature of statute and such an order of review could be passed only when an express power of review is provided under statute. In the absence of any statutory provision for review, exercise of power of review under the garb of clarification/modification/correction is not permissible."
From the aforesaid s what emerges is that if Statutory Authority/Quasi Judicial Officer/Tribunal, does not have any express power of review under the Statutes the subsequent order passed by it recalling/modifying or reversing its earlier order is nullity, as such order is nonest and void.
For the reasons given herein above, arguments of learned counsel for the respondents that writ petition under Article 226 is not maintainable merit rejection. Thus, I am of the view, that Writ Petition is maintainable and the order of the Tribunal is without jurisdiction and its order is liable to be quashed.
In view of the aforesaid facts the subsequent order of the Tribunal dated 29.5.2002 is set aside. The writ petition is allowed.
Parties shall bear their own costs.
Order Date:-29th May,2012 ssm/31613/2002