1 This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner against the order dated 1.8.2011 passed by the Motor Accident Claims Tribunal [Aux.], Kheda at Nadiad, in Review Application No.8 of 2010, by which, the said review application was rejected on the ground that there was no error apparent on the face of the record.
2 Mr.
N.M. Kapadia, learned counsel for the petitioner, would submit that, in paragraphs 25 and 26 of the award dated 11.6.2009 passed by the Tribunal in MACP No.491 of 1994, the Tribunal has given a finding that the applicant was a pillion rider and it was 'only act policy' and, therefore, the Insurance Company was not liable to pay compensation and opponent Nos. 1 and 2, being driver and owner of motor-cycle, were held jointly and severally liable and the Insurance Company was exonerated from the liability. According to the learned counsel for the petitioner, the policy was not 'only act policy', and, in spite of the above, the Tribunal took into consideration such policy and exonerated the Insurance Company, which was nothing, but an error apparent on the face of the record and, therefore, the Tribunal ought to have exercised power under Order 47 Rule 1 of the Code of Civil Procedure, 1908. In support of the arguments, learned counsel for the petitioner placed reliance on the decision of the Apex Court in the case of Board of Control for Cricket, India vs. Netaji Cricket Club, reported in AIR 2005 SC 592, and submitted that the application for review is maintainable even on the ground of misconception of law or fact by the Court or an advocate and the mistake of such nature can be corrected and, further, in exercise of power under Article 226 of the Constitution of India of judicial review, the High Court has plenary jurisdiction to exercise such power to prevent miscarriage of justice and, in the present case, the claimants are sufferers on account of illegal finding of fact recorded by the Tribunal based on error apparent on the face of the record. It is, therefore, submitted that this is a fit case where this Court should quash and set aside the order impugned of the Tribunal of refusing to exercise power of review and allow this petition as prayed for.
3 Mr.
G.C. Majmudar, learned counsel appearing for the Insurance Company and Mr. Gautam Joshi, learned counsel appearing for the Tribunal, would submit that there was no error as such but, in view of Section 173 of the Motor Vehicles Act, 1988, an appeal is available and, in case if the Insurance Company is exonerated on a wrong premise or by relying on a document in a different manner or for any illegality, grievance can be remedied and such provision of appeal is efficacious and statutory and, in the above circumstances, in absence of any error in exercising jurisdiction by the Tribunal to refuse to review the order, no relief can be granted in favour of the petitioner in the present petition.
4 Having heard the learned counsels for the parties and on perusal of the record, in my view, no illegality is committed by the Tribunal in exercise of jurisdiction of review and, in the opinion of the Tribunal, there was no error on the face of the record and, if the Insurance Company is exonerated of its liability on a wrong premise or on the basis of incorrect interpretation of the policy, an appeal under Section 173 of the Motor Vehicles Act, 1988, is available and, in the above circumstances, it cannot be said that the Tribunal has committed any illegality warranting any interference by this Court. As regards the decision relied upon by the learned counsel for the petitioner in the case of Board of Control for Cricket, India vs. Netaji Cricket Club [supra] and the law laid down therein, I am in complete agreement therewith, but, the facts and circumstances of the case do not inspire this Court to exercise the power as prayed for. In absence of any merit, this petition is rejected. Notice is discharged with no order as to costs.
(ANANT S. DAVE, J.) (swamy) Top