IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No. 46673/2013 (GM–AC) BETWEEN:
K.B. THIPPESWAMY S/O. LATE. BANGARAIAH AGED ABOUT 46 YEARS RESIDING NEAR OVERHEAD TANK BOVI COLONY,GOPALAPURA CHITRADURGA-577 501.
(BY SRI. B. M. SIDDAPPA, ADV.) AND:
... PETITIONER THE DIVISIONAL MANAGER ORIENTAL INSRUACNE CO., LTD., DIVISIONAL OFFICE DAVANGERE-577 001. ... RESPONDENT (BY SRI.H. C. VRUSHABHENDRAIAH, ADV.) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE SR. CIVIL JUDGE, HIRIYUR IN MISC. 15/2010 DATED 21.8.2013 VIDE ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the order dated 21.08.2013, passed by the Court of the Senior Civil Judge, Hiriyur in Mis.15/2010 allowing the review petition filed by the Insurance Company.
2. Brief facts of the case:
On 29.06.2006, the petitioner and his wife were moving on a motorcycle to reach Chitradurga and the petitioner was riding the motorcycle and his wife was the pillion rider. At about 4.20 p.m., when the motorcycle was proceeding near Madakaripura Kanive, Challakere Road, Chitradurga, the rider of motorcycle bearing Reg. No.KA-15/K-1042 came from Chitradurga side in a rash and negligent manner and dashed to the motorcycle of the petitioner and caused the accident. As a result, the petitioner sustained injuries. He has been admitted to the Government Hospital, Chitradurga. After recovering from the injuries, the petitioner has filed MVC No. 310/2006 before the Court of Civil Judge (Sr. Dn.) and Additional MACT at Hiriyur. The Tribunal has awarded compensation of Rs.1,22,000/- with interest at 6% p.a., from the date of petition till the date of realization vide judgment and award dated 16.12.2009, and held that the Insurance Company is liable to pay the compensation. Subsequently, the Insurance Company came to know that the driver of the offending vehicle was not having valid licence. Hence, they have filed a petition for reviewing the judgment and award passed by the trial Court on 16.12.2009. Along with the petition the Insurance Company has filed an application for production of additional documents. The trial Court by order dated 24.11.2011 has allowed the application for additional documents.
3. Being aggrieved by the same, the petitioner has filed a writ petition before this Court in W.P. No.45878/2011. This Court by order dated 09.07.2012, directed the Tribunal to first adjudicate regarding maintainability of the review petition and then consider the application for production of additional documents. Pursuant to the order passed by this Court, the trial Court by order dated 21.08.2013 has allowed the petition filed by the Insurance Company for review and has held that application filed for review is maintainable. Being aggrieved by the same, the petitioner has filed the present writ petition.
4. Sri. B.M. Siddappa, learned counsel appearing for the petitioner submits that the petition filed by the Insurance Company for review of judgment and award dated 16.12.2009 is not maintainable as no case of fraud has been made out by the Insurance Company. Therefore, the application itself is not maintainable. The only ground urged is that the driver of offending vehicle was not having valid licence. The learned counsel has relied upon the judgment of Hon’ble Apex Court in the case of PAPPU AND OTHERS v. VINOD KUMAR LAMBA AND ANOTHER reported in AIR 2018 SC 592, wherein, the Hon’ble Apex Court has held that the Insurance Company has to pay the compensation amount to the claimant and reserved liberty to recover the same from the owner of the offending vehicle.
5. Per contra, learned counsel appearing for respondent – Insurance Company submits that at the time of filing the claim petition, the claimant has not produced the charge-sheet. In the charge-sheet, it is clear that the driver of the offending vehicle was not having valid licence. Therefore, he sought for dismissal of the writ petition.
6. Heard the learned counsel for both the parties and perused the records.
7. It is no doubt true that the petitioner met with an accident on 29.06.2006 and due to the accident, he has suffered severe injuries. After consideration of these aspects, the Tribunal by judgment and award dated 16.12.2009, has awarded compensation of Rs.1,22,000/- with interest at the rate of 6% p.a., and held that the Insurance Company is liable to pay the compensation. The only ground urged by the Insurance Company to file the review petition is that the driver of the offending vehicle was not having valid licence. In respect of Driving Licence is concerned, since there is no fraud played in obtaining the award, the Hon’ble Apex Court in the case of United India Insurance Co. Ltd., V/S Rajendra Singh & Others reported in 2000 ACJ 1032 has held in para 15 as under:
“15. 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.”
8. The Tribunal can review its judgment and award only on the ground that if the award is obtained by playing fraud or misrepresentation.
9. In this case the only dispute is that the driver of the offending vehicle was not having valid driving licence. The Hon’ble Supreme Court in the case of Pappu (Supra) has held that, even if the driver of the offending vehicle was not having valid driving licence, the Insurance Company has to pay compensation and can recover the same from the owner of the vehicle.
10. In view of the above, writ petition is allowed and the order passed by the Court of the Senior Civil Judge at Hiriyur in Mis.15/2010 dated 21.08.2013 is set aside.
VBS Sd/- JUDGE