# Hari Krishna Ojha Revisionist v. Smt. Leelawati and Ors

- **Citation:** (2013) 3 ILRA 1297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-27
- **Case number:** Civil Revision No. 111 of 2013
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-krishna-ojha-revisionist-v-smt-leelawati-and-ors-42692
- **Pages:** 8

## Headnote

C.P.C. Section-115--Civil Revision against
rejection of Review Application-as not
maintainable-by accident claim Tribunalprovisions of review contained in order 47
rule
5
not
applicable-by
review
the
revisionist sought review of award-fixing
liability upon the vehicle owner is in
correct-as at the time of accident-offending
vehicle
was
insured-which
was
not
available at that time-held-no procedural
irregularity-when
document
not
filed
inspite of opportunities can not be basis for
review-tribunal
rightly
rejected-revision
itself not maintainable.

Held: Para-29
Since I have come to conclusion that the
evidence relied by the revisionist while
filing the review petition would amount
to re-appreciation of evidence which will
touch the merit of the judgment and
award passed by the Tribunal, as such, I
am of the view that the review petition
filed
by
the
revisionist
was
not
maintainable. The learned Tribunal has
rightly rejected the review petition.

Case Law discussed:
2010 (28) LCD 689; 2010 AICC 465; 2009(27)
LCD 476

## Text

3 All] Hari Krishna Ojha Vs. Smt. Leelawati and Ors.
1297
wasted in dealing with such cases which
have been filed with inordinate delay. The
relevant paragraph 6 of the judgment on
reproduction reads as under:

"6. Previously Courts did show
lenience and latitude in dealing with
applications
for
adjournments
and
condonation of delay. It is high time a
changed perspective and attitude is
adopted, since the Courts are already
overburdened with cases resulting in
inordinate delay in disposal of cases.
Those days of condonation of dalliance
and delay should now be over and in
cases where no sufficient and proper
reason is assigned for delay, the Court
must adopt the stern attitude and refuse
relief. That will also help in transmitting a
message that the Court will no more be
indulgent and parties beware."

38. Considering the entire facts and
circumstances, I am of the considered
view that it is not a fit case where the
delay in filing the appeal is to be
condoned.

39. The second appeal as such is
dismissed on the ground of inordinate
delay.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2013

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.

Civil Revision No. 111 of 2013

Hari Krishna Ojha
 ...Revisionist
Versus
Smt. Leelawati and Ors.
...Opp. Party

Counsel for the Petitioner:
Sri Anil Kumar Srivastava
Counsel for the Respondents:
Sri Atul Mishra, Sri Umeshwar Pratap
Pandey
Sri Waqar Hashim

C.P.C. Section-115--Civil Revision against
rejection of Review Application-as not
maintainable-by accident claim Tribunalprovisions of review contained in order 47
rule
5
not
applicable-by
review
the
revisionist sought review of award-fixing
liability upon the vehicle owner is in
correct-as at the time of accident-offending
vehicle
was
insured-which
was
not
available at that time-held-no procedural
irregularity-when
document
not
filed
inspite of opportunities can not be basis for
review-tribunal
rightly
rejected-revision
itself not maintainable.

Held: Para-29
Since I have come to conclusion that the
evidence relied by the revisionist while
filing the review petition would amount
to re-appreciation of evidence which will
touch the merit of the judgment and
award passed by the Tribunal, as such, I
am of the view that the review petition
filed
by
the
revisionist
was
not
maintainable. The learned Tribunal has
rightly rejected the review petition.

Case Law discussed:
2010 (28) LCD 689; 2010 AICC 465; 2009(27)
LCD 476

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Vakalatnama filed today by Mr.
Waqar Hashim, Advocate on behalf of
respondent no. 8 in Court is taken on record.

2. Heard Mr. Anil Kumar Srivastava,
learned
counsel
for
revisionist,
Mr.
Umeshwar Pratap Pandey, learned counsel
for respondent-claimants, Mr. Atul Misra,
learned counsel for respondent-Driver as
well as Mr. Waqar Hashim, learned counsel
for respondent-Insurance Company and
perused the records.
1298 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The instant civil revision under
Section 115 Code of Civil Procedure,
1908 (for short the 'Code') has been filed
against the judgment and order dated
31.7.2013 passed by the Motor Accident
Claims Tribunal/Special Judge, SC/ST
Act, Gonda in Review Petition No. 31 of
2008 (Smt. Leelawati and Others Vs. Hari
Krishna Ojha) arising out of the Claim
Petition No. 109 of 1996 (Smt. Leelawati
Vs. Hari Krishan Ojha and Others).

4. Learned counsel for revisionist
submits that the learned Tribunal while
deciding the claim petition had wrongly
come to conclusion that the vehicle
involved in the accident i.e. UP 43/5376
was not insured with the respondentInsurance Company on the date of
occurrence of accident i.e. 18.10.1992.
The Tribunal has wrongly fastened the
liability to pay the compensation on the
revisionist being owner of the vehicle.

5. Submission is that the said
offending vehicle was duly insured with
the respondent-Insurance Company for
the period 07.09.1992 to 06.09.1993. The
vehicle was transferred in the name of one
Mohd. Sageer Ahmad on 28.4.1993, as
such, the insurance policy was issued
afresh for the remaining period i.e.
29.4.1993 to 06.09.1993.

6. The learned Tribunal did not take
care of the aforesaid fact and did not call
for the original records from the Insurance
Company to verify the aforesaid fact. The
revisionist after receiving the relevant
documents to show that the said vehicle
was duly insured at the time of occurrence
of accident had filed the review petition
before the learned Tribunal which was
registered as Misc. Case No. 26 of 2008.
The learned Tribunal by the impugned
order has rejected the review petition
holding that there is no error apparent on
the face of record and the Court cannot
appreciate any new evidence in the
review.

7. Submission is that it was the
specific case of the revisionist before the
Tribunal, while contesting the claim
petition, that the vehicle was duly insured
and the original policy was surrendered to
the Insurance Company after the transfer
of vehicle in the name of Mohd. Sageer
Ahamd. The burden to prove was on the
Insurance Company to show that the
vehicle was not insured at the time of
occurrence of accident. The Insurance
Company in spite of direction of the
learned Court below to verify the
aforesaid fact had failed to show that the
vehicle was not insured at the time of
occurrence of accident and, as such,
adverse inference was required to be
drawn against the Insurance Company,
however,
the
learned
Tribunal
has
committed gross illegality in rejecting the
review petition on the ground that since
no evidence was produced by the
claimants or the owner of the vehicle to
establish that the vehicle was duly insured
at the time of occurrence of accident, as
such, there is no error apparent on the
face of order of the award.

8. Learned counsel for the revisionist
relying on Order XLVII Rule 1 of the Code
submitted that it is the inherent power of the
Tribunal to make necessary correction in
the judgment and award, in case on the
basis of discovery of new fact or evidence
or matter the Court is of the opinion that an
error is apparent on record.

9. The revisionist through the review
petition had brought on record the cover
3 All] Hari Krishna Ojha Vs. Smt. Leelawati and Ors.
1299
note dated 07.09.1992 issued to the
revisionist under Right to Information Act
by respondent-Insurance Company which
clearly goes to establish that the offending
vehicle, at the time of occurrence of
accident, was duly insured. The learned
Tribunal as such was required to make
necessary correction in the judgment and
award dated 28.8.2008 by allowing the
review petition, however, the learned
Tribunal has committed gross illegality in
rejecting the review petition.

10. In support of his submissions,
learned counsel for revisionist relies on
the following judgments:

(i) Sandhya Vaish and another Vs.
The New India Insurance Company Ltd.
and Others; [2010 (28) LCD 689].

(ii)The Oriental Insurance Company
Limited Vs. Tasneem Arzoo and another;
[2010 AICC 465].

11. Mr. Waqar Hashim, learned
counsel
for
respondent-Insurance
Company, on the other hand, has raised
objection regarding maintainability of the
revision on the ground that there is no
statutory power of review provided under
the Motor Vehicles Act. The review
petition filed by the revisionist was itself
not maintainable and, as such, the revision
filed against the said order is also not
maintainable and is liable to be rejected.

12. It is submitted that in the claim
petition the present revisionist was
impleaded as one of the respondents being
the owner of vehicle. The burden of proof
was on the revisionist to establish before
the Tribunal that the vehicle was duly
insured at the time of occurrence of
accident. There was nothing on record
before the Tribunal, while deciding the
claim petition, that the vehicle was
insured at the time of occurrence of
accident.

13. The learned Tribunal while
deciding the claim petition had framed
certain issues including the issue as to
whether the vehicle, at the time of
occurrence of accident, was duly insured
with the respondent-Insurance Company
or not. The learned Tribunal while
deciding the said issue had come to
conclusion that the cover note no. 792009
indicates that the vehicle was insured for
the period 29.4.1993 to 06.09.1993 which
was issued in the name of Mohd. Sageer
Ahmad, s/o Abudl Salam. The accident
had taken place on 18.10.1992, as such,
the Tribunal had come to conclusion that
at the time of occurrence of accident the
vehicle was not duly insured as such had
held that the liability to pay compensation
is on the revisionist being owner of the
vehicle.

14. It is submitted by Mr. Waqar
Hashim, learned counsel for respondentInsurance Company that in absence of any
statutory power of review the learned
Tribunal was not competent to review the
judgment and award dated 28.8.2008 on
merit. The evidence produced by the
revisionist at the time of filing of the
review petition would amount to reappreciation of evidence which, first of
all, is not permissible under the power of
review and more-so when there is no such
statutory power was conferred on the
Tribunal.

15. Learned counsel for respondentInsurance Company also submitted that
the Insurance Company has denied the
cover note of the policy dated 07.09.1992
which was annexed with the review
petition.
1300 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In support of his submissions,
learned counsel for respondent-Insurance
Company relies on the Division Bench
judgment of this Court in the case of
National Insurance Company Ltd. Vs.
Smt. Jairani and Others; [2009 (27) LCD
476].

17. I have considered the submission
made by the parties' counsel and perused
the records.

18. The learned Tribunal vide
judgment and award dated 28.8.2008 had
allowed the Claim Petition No. 109 of
1996
whereby
an
amount
of
Rs.
2,29,500/- was awarded as compensation
to the claimants which was to be paid by
the present revisionist. The learned
Tribunal had held that the offending
vehicle at the time of occurrence of
accident was not duly insured with the
respondent-Insurance Company and the
issue in this regard is decided in favour of
respondent-Insurance Company.

19. It is the admitted position
between the parties that at the time of
deciding the claim petition the cover note
dated
07.09.1992
of
policy
no.
002P00719 was not before the Tribunal.
The cover note dated 29.4.1993 relating to
said policy was only on record.

20. The review petition was filed by
the revisionist claiming that the vehicle
was duly insured at the time of occurrence
of said accident and in this regard cover
note dated 07.09.1992 was brought on
record through the review petition. The
learned Tribunal while passing the
impugned order has held that the
judgment cannot be reviewed on merit,
only any error apparent on record can be
corrected. The evidence relied in the
review petition could have been submitted
before the Tribunal prior to passing of
award dated 28.8.2008, in absence of the
same, the award cannot be said to be bad,
there is no ground to review the award,
the application for review is rejected.

21. Learned counsel for revisionist
as well as learned counsel for respondentInsurance Company have argued at length
about the maintainability of review
petition in the proceedings under Motor
Vehicles Act.

22. The question of maintainability
of review has come before the Court on a
number of occasions. The Court has been
of the consistent view that in case there is
any procedural error apparent on the face
of record or there is any correction
relating to arithmetical calculation, typing
error or some small mistake occurred in
the order, the competent Court has
inherent power to correct the same
whether there is any statutory provision of
the review or not. However, the Court has
also been of the view that in absence of
any statutory provision of review, the
order cannot be reviewed on merit.

23. In the light of aforesaid legal
provision, the judgments cited by the
parties' counsel are required to be
considered.

24. In the case of Sandhya Vaish
and another (supra), this Court vide
judgment and order dated 26.2.2010 had
allowed the civil revision and order
passed rejecting the review petition was
set aside. In the said case, the learned
Tribunal while deciding the claim petition
had awarded interest at the rate of 9%,
however, the Tribunal had failed to
provide as to from which date the said
3 All] Hari Krishna Ojha Vs. Smt. Leelawati and Ors.
1301
interest was to be paid. The review
petition filed was rejected on the ground
that it is not maintainable. The matter
came up before the High Court in
revision. The High Court while allowing
the revision came to conclusion that it
was a procedural mistake in the award in
not providing the date from which the
awarded interest was to be paid which
could have been corrected by the Tribunal
itself. The relevant paragraphs of the
judgment are reproduced as below:

"Therefore,
the
finding
of
the
Tribunal that the interest could not have
been awarded is devoid of merit and
baseless and the Tribunal ought to have
corrected the omission on its part in
failing to award the interest from the date
of filing of the claim petition and the
interest should have been awarded from
the date of filing of the claim petition.

The question of maintainability of the
review application cannot be doubted on
account of the fact that the Tribunal was
not lacking in its power of reviewing its
order which resulting into material
injustice to the claimants, who happen to
be widows, daughter and sons in these
cases. The legislature has not specifically
prohibited the Claims Tribunal to follow
the general procedure prescribed in the
Code and when there is no specific
prohibition for following the general
procedure in an inquiry under Section
168 of the Act and moreso, when the wide
discretion is vested in the Claims
Tribunals under sub-section (1) of Section
169 of the Act. Court has no hesitation in
holding that the Claims Tribunal failed to
exercise the jurisdiction vested in it while
rejecting the applications for review filed
by the revisionists. The Tribunal ought to
have considered the settled law in regard
to the award of the interest and further it
was not deprived of the power to entertain
the
review
as
the
legislature
has
empowered the Claims Tribunal with
wide power of discretion to follow such
procedure as it thinks fit for holding the
enquiry under Section 168 of the Act. The
view expressed in Sunita Devi Singhania
Hospital Trust (supra) compels this Court
to take a view that if any application was
moved for rectification of mistake, then
the same was within the province of the
Tribunal to correct the same in order to
discharge the function effectively for the
purpose of doing justice between the
parties.

The review applications, therefore,
were very well maintainable before the
Tribunal and the Tribunal failed to
exercise the jurisdiction vested in it in
accordance with law for correcting the
said omission.

The
revisions
are
accordingly
allowed. The orders dated 01.03.2008 and
19.04.2008
rejecting
the
review
applications
are
set
aside.
The
revisionists shall be entitled for the
interest at the rate of 9% from the date of
filing of the claim petitions excluding the
period for which the Tribunal had
directed that the revisionists shall not be
entitled for the interest."

25. In the case of The Oriental
Insurance Company Limited Vs. Tasneem
Arzoo and another (supra) the Division
Bench has held that the Tribunal has not
committed any illegality or jurisdictional
error in rectifying the patent error or law
committed by it in applying the wrong
multiplier upon admitted facts. The Motor
Accident Claims Tribunal has all the
trappings of a Civil Court and has
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
inherent powers of review its own orders
like a civil Court to correct/rectify patent
error of fact or of law committed by itself.
The relevant paragraphs 6 & 7 of the
judgment on reproduction read as under:

"6. The submission of the learned
Counsel for the appellant that by allowing
the claimant's application, the claims
tribunal has illegally reviewed its earlier
judgment on merits without there being
any statutory provision of review under
the Motor Vehicles Act has no force and
is liable to be summarily rejected. Hence
the impugned award is not liable to be
interfered with on the aforesaid ground.
We are satisfied that the claims tribunal
has not committed any illegality or
jurisdictional error in rectifying the
patent error of law committed by it in
applying the wrong multiplier upon
admitted facts. It has been held by this
Court in 1995 (2) T.A.C. 664, Oriental
Insurance Company Ltd. V. Fida Ali and
others that a Motor Accident Claims
Tribunal has all the trappings of a civil
Court and has inherent powers of review
its own orders like a civil Court to
correct/rectify patent error of fact or of
law committed by itself.

7. In the instant case, we are
satisfied that the claims tribunal has not
reviewed its earlier judgment on merit but
has merely rectified a patent error of law
committed by itself by applying the wrong
multiplier
for
determining
the
compensation upon admitted facts and the
claims tribunal in the exercise of its
inherent power rightly corrected the
multiplier."

In the present case, the review
petition was filed annexing the documents
on the basis of which it was claimed that
the offending vehicle was insured at the
time of occurrence of accident and the
Tribunal
has
wrongly
fastened
the
liability to pay compensation on the
revisionist-owner of the vehicle. In case
the
Tribunal
had to
consider
the
contention raised by the revisionist, it has
to re-appreciate the evidence relied by the
revisionist which touches the very merit of
the case. As such, I am of the view that the
Motor Accident Claims Tribunal in
absence of any statutory power of review
is not competent to review its judgment on
merit.

26. In the case of Sandhya Vaish
and another (supra) as well as The
Oriental Insurance Company Limited Vs.
Tasneem Arzoo (supra), the Court has
come
to
conclusion
that
there
is
procedural error committed by the Court
and the same can be rectified by the
Tribunal in exercise of its inherent power.
In fact, in the case of Sandhya Vaish and
another (supra), the Tribunal had not
provided from which date the interest
awarded by it was to be paid whereas in
the case of The Oriental Insurance
Company Limited Vs. Tasneem Arzoo
(surpa), the Tribunal had wrongly applied
the
multiplier
for
determining
the
compensation on admitted facts.

27. The Tribunals in exercise of its
inherent power are competent to correct
the patent error committed by itself,
however, that is not the position in the
present case as observed above, as such, I
am of the view that the judgments cited
by the learned counsel for revisionist are
of not much help to him.

28. The Division Bench of this
Court in the case of National Insurance
Company Ltd. Vs. Smt. Jairani and
3 All] Hari Krishna Ojha Vs. Smt. Leelawati and Ors.
1303
Others (supra) has discussed in detail the
power of review in the proceedings under
Motor Vehicles Act and has held that
Section 114 as well as Order XLVII Rule
1 of the Code are not applicable to the
proceedings held under Motor Vehicles
Act. It has been observed by the Division
Bench in the said judgment that The Uttar
Pradesh Motor Vehicle Rules, 1998
applies only some of the provisions of the
Code to the summary proceedings before
the Motor Accident Claims Tribunal
which does not include Section 114 or
Order XLVII Rule 1 of the Code. The
relevant paragraphs 12, 13, 14 on
reproduction read as under:

"12. If an award is made without
deciding the application under Section
170 of the Act it may be bad for omission
to deny the right to contest to the insurer
which is a vital right. Section 170 of the
Act confers a right on the insurance
company to file an application if the
conditions mentioned in the section are
satisfied. It also casts a duty on the
tribunal to decide it in accordance with
law. If the tribunal has failed to perform
its legal duty, the insurance company
cannot be deprived of its right to contest
on merits. In law, the insurance company
cannot apply for review of the award as
under the Act power of review had not
been conferred on the tribunal. The Uttar
Pradesh Motor Vehicle Rules 1998 (in
brief the 'Rules') applies only some of the
provisions of the Code of Civil Procedure,
1908 to the summary proceedings before
the Motor Accident Claims Tribunal. The
provision of Rule 221 of the Rules 1998,
is extracted below:

221. Code of Civil Procedure to
apply in certain cases- The following
provisions of the First Schedule to the
Code of Civil Procedure, 1908, shall, so
far as may be, apply to proceedings
before the Claims Tribunal, namely, Rules
9 to 13 and 15 to 30 of Order V; Order
IX; Rules 3 to 10 of Order XII; Rules 2 to
21 of Order XVI; Order XVII; and Rules 1
to 3 of Order XXIII.

13. Order XLVII of the Code of Civil
Procedure 1908 has not been made
applicable to the proceedings before the
tribunal. The insurance company is
rendered remedy less if the application
under Section 170 of the Act is not
decided. Since review application is not
maintainable no other application with
whatsoever
nomenclature
would
be
maintainable. By Rule 221 of the Rules
only limited provisions of the Code of
Civil Procedure, 1908 have been applied
to the proceedings before the tribunal.
Section 114 or Order 47 of the Code of
Civil Procedure had not been made made
applicable to the proceedings before the
tribunal. It is well settled that the right of
appeal, revision or review are the
creations of statute and no litigant has got
an inherent right to prefer appeal,
revision or review except if wrangled
through fraud or misrepresentation [See
United India Insurance Co. Ltd. v.
Rajendra Singh and others; 2000 (2) TAC
613 (SC) and Rajendera Kumar and
Others v. Rambhai and Others, 2003 (1)
TAC 492 (SC)].

14.Therefore,
we
are
of
the
considered opinion that Section 170 being
mandatory and award made by the
tribunal without deciding the application
would be a nullity and review application
or any other application with whatsoever
nomenclature, except for correction of
clerical or arithmetical errors, would not
be maintainable before the tribunal."
1304 INDIAN LAW REPORTS ALLAHABAD SERIES

29. Since I have come to conclusion
that the evidence relied by the revisionist
while filing the review petition would
amount to re-appreciation of evidence
which will touch the merit of the
judgment and award passed by the
Tribunal, as such, I am of the view that
the review petition filed by the revisionist
was
not
maintainable.
The
learned
Tribunal has rightly rejected the review
petition.

30. The instant civil revision as such
having no force is dismissed.

31. However, the revisionist shall
have the right to challenge the judgment
and award dated 28.8.2008 passed in
Claim Petition No. 109 of 1996 by filing
First Appeal From Order before the High
Court.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2013

BEFORE
THE HON'BLE KALIMULLAH KHAN, J.

Criminal Misc. Transfer Application No.
117 of 2013.

Surendra Singh & Ors.
 Applicants
Versus
State of U.P. & Anr.
 ...Opp. Parties.

Counsel for the Petitioner:
Sri Ajay Kumar Pandey, Sri Satish Trivedi

Counsel for the Respondents:
A.G.A.,
Sri
K.P.S.
Yadav,
Sri
Rajul
Bhargava
Sri Yogesh Srivastava

Cr.P.C.-Section 407- Transfer application
by accused applicants-on ground in Distt.
Firozabad-no
counsel
of
their
choice
available-almost 5 time case has been
transferred from one court to other-lastly
transfer order passed by District Session
Judge-on behest of informant-although
recorded specific finding all the allegation
against presiding judge Court No. 9 are
vague-even then transferred the trail of
four cases from court no. 9 to court no. 1undisputed that pursuant to direction High
Court-all 23 witness of prosecution as well
as defence witness recorded by judge
Court No. 9 and the statement under
section 313 Cr.P.C. recorded who had
privilege
to
watch
the
demure
of
witnesses-considering
such
facts
and
circumstances-transfer
order
quashedJudge court No.9 shall try and decide the
cases within 30 days.

Held: Para-16, 17 & 18
16. To my mind, it would be a mockery
to the judicial system that a party is
given such a latitude to choose Presiding
Officer of his own choice and then allow
the trial court to proceed with the case.

17. In the totality of the facts and
circumstances of the case, this Court
appears to be under obligation, judicial
as well as supervisory, to see that the
session trials in question be disposed of
by
the
available
present
Presiding
Officer, who had got the opportunity of
recording the evidence of prosecution
and defence witnesses and to see their
demeanour. Once the allegations made
by
the
informant
in
the
transfer
application was found false, bearing no
substance at all, the learned Sessions
Judge was not supposed to allow his
transfer
application
and
recall
the
aforesaid session trials from the court of
the learned Additional Sessions Judge,
Court No. 9, Firozabad and transfer it to
the court of the learned Sessions Judge,
Court No. 1, Firozabad, who has neither
recorded the evidence of prosecution
and defence witnesses nor heard the
arguments so far.

18. In the result, the transfer order
dated 19.02.2013 passed by the learned