# The Oriental Insurance Co. Ltd v. Kalwe Ali & Anr

- **Citation:** (2022) 5 ILRA 812
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-15
- **Case number:** First Appeal From Order No. 2853 of 2005
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-co-ltd-v-kalwe-ali-anr-47611
- **Pages:** 4

## Headnote

Civil Law - Review - First Appeal From
Order summarily dismissed - Review
Application filed - Held - practice of
summarily
dismissing
appeal
without
assigning reasons, has been deprecated -
where the issues relates to the negligence
and the quantum, it cannot be dismissed
without discussing the same - review
application is allowed (Para 11, 13)

Allowed. (E-5)

List of Cases cited:

## Text

812 INDIAN LAW REPORTS ALLAHABAD SERIES
and which will be liable to indemnify. We
also direct the Insurance Companies
involved and directed to pay other
authorities
not
to
grant
stay
unto
themselves so that the claimants do not
suffer for the internal dispute between the
owner and the Insurance Company, where
award is passed against all.

21. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The
Oriental
Insurance
Company
Ltd.,
[2007(2) GLH 291] and this High Court in
total amount of interest, accrued on the
principal amount of compensation is to be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimants to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another) and
in First Appeal From Order No.2871 of
2016 (Tej Kumari Sharma v. Chola
Mandlam M.S. General Insurance Co. Ltd.)
decided on 19.3.2021 while disbursing the
amount.

22. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex
Court in Bajaj Allianz General Insurance
Company Pvt. Ltd. Vs. Union of India and
Others, vide order dated 27.01.2022, as the
purpose of keeping compensation is to
safeguard the interest of the claimants.
Since long time has elapsed, the amount be
deposited in the Saving Bank Account of
claimant(s) in a nationalized Bank without
F.D.R.
----------
(2022)05ILR A812
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 2853 of 2005

The Oriental Insurance Co. Ltd.
 ...Appellant
Versus
Kalwe Ali & Anr. ...Respondents

Counsel for the Appellant:
Sri Udai Shanker Mishra

Counsel for the Respondents:

Civil Law - Review - First Appeal From
Order summarily dismissed - Review
Application filed - Held - practice of
summarily
dismissing
appeal
without
assigning reasons, has been deprecated -
where the issues relates to the negligence
and the quantum, it cannot be dismissed
without discussing the same - review
application is allowed (Para 11, 13)

Allowed. (E-5)

List of Cases cited:

1. Thungabhadra Industries Ltd. Vs The
Government of A.P. AIR 1964 SC 1372

2. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma 1979 (4) SCC 389
5 All. The Oriental Insurance Co. Ltd. Vs. Kalwe Ali & Anr.
813
3. Meera Bhanja Vs Nirmala Kumari Choudhury
AIR 1995 SC 455

4. Parsion Devi & ors. Vs Sumitri Devi & ors.
1997 (8) SCC 715

5. Rajendra Kumar Vs Rambai, AIR 2003 SC
2095

6. Lily Thomas Vs U.O.I. AIR 2000 SC 1650

7. Inderchand Jain Vs Motilal (2009) 4 SCC 665

8. Kamlesh Verma Vs Mayawati & ors. 2013 (8)
SCC 320

9. U.P.S.R.T.C. Vs Km Mamta & ors. AIR 2016
SCC 948

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

In Ref: Review application

1. This review application is taken up
for hearing almost after 16 years. The
matter in between, was dismissed in default
and then restored.

2. The order of the Division Bench
comprising Hon'ble R.P. Mishra, J. and
Hon'ble Sanjay Mishra, J., which is brought
in review is as follows:-

"Heard Sri Vipin Chandra Dixit,
learned counsel for the appellant and
perused the record.

There is no force in this appeal. It
is dismissed summarily."

3. We now consider this review
whether the review is maintainable or not
on the principles laid down by various High
Courts and the Apex Court regarding
allowing review of order/judgement.

4. In Thungabhadra Industries Ltd.
Vs. The Government of Andhra Pradesh
AIR 1964 SC 1372 the Court said:

"A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies
only for patent error."

5. In Aribam Tuleshwar Sharma
Vs. Aribam Pishak Sharma 1979 (4)
SCC 389 the Court said:

"... there is nothing in Article 226
of the Constitution to preclude a High
Court from exercising the power of review
which inheres in every Court of plenary
jurisdiction to prevent miscarriage of
justice or to correct grave and palpable
errors committed by it. But, there are
definitive limits to the exercise of the power
of review. The power of review may be
exercised on the discovery of new and
important matter or evidence which, after
the exercise of due diligence was not within
the knowledge of the person seeking the
review or could not be produced by him at
the time when the order was made; it may
be exercised where some mistake or error
apparent on the face of the record is found;
it may also be exercised on any analogous
ground. But, it may not be exercised on the
ground that the decision was erroneous on
merits. That would be the province of a
Court of Appeal. A power of review is not
to be confused with appellate powers which
may enable an Appellate Court to correct
all manner of errors committed by the
Subordinate Court."

6. Again, in Meera Bhanja v.
Nirmala Kumari Choudhury AIR 1995
SC 455 while quoting with approval the
above passage from Abhiram Taleshwar
Sharma Vs. Abhiram Pishak Shartn
814 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra), the Court once again held that
review proceedings are not by way of an
appeal and have to be strictly confined to
the scope and ambit of Order 47 Rule 1
CPC.

7. In Parsion Devi and others Vs.
Sumitri Devi and others 1997 (8) SCC
715 it was held that an error, which is not
self evident and has to be detected by
process of reasoning, can hardly be said to
be error apparent on the face of the record
justifying the court to exercise powers of
review in exercise of review jurisdiction.

8. In Rajendra Kumar Vs. Rambai,
AIR 2003 SC 2095, the Apex Court has
observed about limited scope of judicial
intervention at the time of review of the
judgment and said:

"The limitations on exercise of
the power of review are well settled. The
first
and
foremost
requirement
of
entertaining a review petition is that the
order, review of which is sought, suffers
from any error apparent on the face of the
order and permitting the order to stand will
lead to failure of justice. In the absence of
any such error, finality attached to the
judgement/order cannot be disturbed."

9. Thus, Review is not an appeal in
disguise. Rehearing of the matter is
impermissible in the garb of review. It is an
exception to the general rule that once a
judgment is signed or pronounced, it should
not be altered. In Lily Thomas Vs. Union
of India AIR 2000 SC 1650, the Court said
that power of review can be exercised for
correction of a mistake and not to substitute
a new. Such powers can be exercised
within limits of the statute dealing with the
exercise of power. The aforesaid view is
reiterated in Inderchand Jain Vs. Motilal
(2009) 4 SCC 665.

10.

In
Kamlesh
Verma
Vs.
Mayawati and others 2013 (8) SCC 320,
the Court said:

"19. Review proceedings are not
by way of an appeal and have to be strictly
confined to the scope and ambit of Order
47 Rule 1 of CPC. In review jurisdiction,
mere disagreement with the view of the
judgment cannot be the ground for
invoking the same. As long as the point is
already dealt with and answered, the
parties are not entitled to challenge the
impugned judgment in the guise that an
alternative view is possible under the
review jurisdiction.

Summary of the Principles:

20. Thus, in view of the above, the
following
grounds
of
review
are
maintainable as stipulated by the statute:

20.1. When the review will be
maintainable:-

(i)
Discovery
of
new
and
important matter or evidence which, after
the exercise of due diligence, was not
within knowledge of the petitioner or could
not be produced by him;

(ii) Mistake or error apparent on
the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient
reason" has been interpreted in Chhajju
Ram vs. Neki, AIR 1922 PC 112 and
approved by this Court in Moran Mar
Basselios Catholicos vs. Most Rev. Mar
Poulose Athanasius & Ors., AIR 1954 SC
526, to mean "a reason sufficient on
grounds at least analogous to those
5 All. Smt. Malti Pandey & Ors. Vs. United India Insurance Co. Ltd. & Ors.
815
specified in the rule". The same principles
have been reiterated in Union of India vs.
Sandur Manganese & Iron Ores Ltd. &
Ors., 2013 (8) SCC 337.

22.2. When the review will not be
maintainable:-

(i) A repetition of old and
overruled argument is not enough to
reopen concluded adjudications.

(ii)
Minor
mistakes
of
inconsequential import.

(iii) Review proceedings cannot
be equated with the original hearing of the
case.

(iv) Review is not maintainable
unless the material error, manifest on the
face
of
the
order,
undermines
its
soundness or results in miscarriage of
justice.

(v) A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected but lies
only for patent error.

(vi) The mere possibility of two
views on the subject cannot be a ground
for review.

(vii) The error apparent on the
face of the record should not be an error
which has to be fished out and searched.

(viii)
The
appreciation
of
evidence on record is fully within the
domain of the appellate court, it cannot be
permitted to be advanced in the review
petition.

(ix) Review is not maintainable
when the same relief sought at the time of
arguing the main matter had been
negatived." (emphasis supplied)

11. The judgement of the Apex Court
in U.P.S.R.T.C. Vs. Km Mamta and
Others
AIR
2016
SCC
948
and
subsequent judgements of the Apex Court,
this practice of summarily dismissing the
appeal by Allahabad High Court, without
assigning reasons, has been deprecated.

12. The judgement of Apex in
U.P.S.R.T.C. Vs. Km Mamta and Others
AIR 2016 SCC 948 fully applies to the
facts of this case.

13. In view of the aforesaid datum
figure where the issues went by the
Insurance
Company
relates
to
the
negligence and the quantum, it cannot be
dismissed without discussing the same.

14. In that view of the matter, this
review application is allowed.

In Ref: Appeal

List the matter on 23rd December,
2021 for hearing.
----------
(2022)05ILR A815
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 2907 of 2015

Smt. Malti Pandey & Ors. ...Appellants
Versus
United India Insurance Co. Ltd. & Ors.
 ...Respondents