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Judgment
T. Mathivanan, J.—This review petition is directed against the order of this Court, dated 21.04.2007 and made in CMA No. 970 of 2006.
The facts which are absolutely necessary for the disposal of the review petition are as under:
That on 30.12.2001 at about 8.30 a.m., when the second Respondent herein was proceeding in a two wheeler from his house to Narikudu, a car owned by the review Petitioner herein and insured with the first Respondent herein had hit against the second Respondent and as a result of which, he had sustained fracture on his left leg. Hence, the 2nd Respondent in the claim petition had filed a claim petition in MCOP No. 270 of 2002, on the file of the Motor Accidents Claims Tribunal(Sub Court), Aruppukottai.
The review Petitioner herein, who is the first Respondent in the claim petition, had not chosen to resist the claim petition, despite service of notice on him.
On evaluation of the evidences available on record, the Motor Accidents Claims Tribunal had found that the Respondents 1 and 2 i.e. the review Petitioner and the first Respondent Insurance Company herein, alone had to pay a sum of Rs. 1,15,000/-to the 2nd Respondent/Claimant with interest @ 7.5% p.a. Being aggrieved by the impugned award, the 2nd Respondent Insurance Company therein, had preferred an appeal in CMA(MD) No. 970 of 2006 before this Court.
When the CMA(MD) No. 970 of 2006 came up for hearing, the review Petitioner herein, who is the 2nd Respondent in the appeal, had not chosen to appear either in person or through his counsel to put forth his contention. On the other hand, the learned Counsel appearing for the Appellant Insurance Company as well as the first Respondent/Claimant were present and they were heard at length by this Court and in consequence there-of, a judgment was delivered on 21.04.2007, after discussing the issues, both on facts and on law. Ultimately, after referring various decisions of the Apex Court as well as of this Court and on considering the submissions of both sides, this Court allowed the appeal on 21.04.2007, after setting aside the award passed by the Tribunal fastening the liability on the Insurance Company.
In this connection, this Court has held as follows:
Since there is no coverage at the time of accident, the 2nd Respondent-Insurer viz., the owner of the offending vehicle alone is liable to pay compensation to the first Respondent. Therefore, the award passed by the Tribunal, fastening the liability on the Insurance Company is set aside and the Civil Miscellaneous Appeal is allowed. No costs.
When the review application came up for hearing, the learned Counsel appearing for the review Petitioner/the owner of the vehicle has contended that:
(i) The fastening of the liability on the Petitioner herein, instated of the real owner, is an error apparent on the face of record.
(ii)The exoneration of the first Respondent from liability when they have admittedly received the insurance premium in cash on 11.01.2001 itself is not justified.
Excepting, those two grounds, no other reasons are assigned to review the judgment of this Court, dated 21.04.2007.
The learned Counsel appearing for the first Respondent/Appellant Insurance Company has submitted that this Court, after hearing the Appellant Insurance Company as well as the learned Counsel appearing for the second Respondent/Claimant, has passed an elaborate judgment and that since, the review Petitioner had miserably failed to take part in the appeal and put forth his contention, now it is not open for him to come forward with this review petition.
He has also submitted that even before the Tribunal also the review Petitioner had wantonly refrained from making his appearance either in person or through his counsel, despite service of summons and hence, the acquiescence on his part would clearly show his disinterestedness in participating in the proceedings. Therefore, the review petition is not maintainable, both on facts as well as on law.
In order to substantiate his arguments, the learned Counsel appearing for the first Respondent has placed reliance upon the decision in K. Anjaneyulu and Others Vs. The Collector, Excise, R.R. District at Hyderabad and Others, . In this case, it is held that from the order it is clear that "nobody appeared for the Petitioners either on the date of hearing of the matter finally or on the previous day. It was stated in that order that "There is no representation made on behalf of the Petitioner either yesterday or today". In this circumstance, the review petition was filed stating that the order was passed on a misrepresentation made by the learned Government Pleader.
In this circumstance, after hearing both sides, the learned single Judge of Andhra Pradesh High Court has held that "I do not think I will be justified in reviewing the order at the instance of a party who had not chosen to be present for two consecutive days. Entertaining this review application in these circumstances would mean diverting the scarce judicial resources from the honest litigant to a reckless litigant. Ultimately, the petition for review was dismissed."
On coming to the instant case on hand, it may be relevant to extract the proviso to Order 47 Rule 1(1)and (2):
Application for review of judgment:
(1)Any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Cause, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the court which passed the decree or made the order.
(2) A part who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the Appellant, or when, being Respondent, he can present to the Appellate Court the case on which he applies for the review.
It may also be relevant to extract the Section 114 of Code of Civil Procedure:
Review: Subject to as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this Court; or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
The scope of review on the language coined both in Order 47 Rule 1 and 2 and Section 114 of CPC that a review is maintainable only within the limits mentioned in Rule 1, that is only on the grounds of discovery of new important evidence, mistake or error apparent on the face of the record or any other sufficient reason, in only those case where no appeal lies or appeal is not preferred.
It is also clearly observed in Naresh Ch. Deb Barma (Dead) by L. Rs. Vs. Sri Gopal Chandra Banerjee and Another, , that a review of the judgment is permissible only if the error is patent and apparent on the face of record.
On coming to the instant case on hand, it is obvious to note here that the review Petitioner being the owner of the vehicle, had not chosen to appear either in person or through his counsel before the Tribunal as well as before this Court, it shows his negligence towards the Court and it also shows that he would have wantonly refrained from attending the Court as the Insurance Company with whom the vehicle was insured would be mulcted with the liability to pay the compensation to the claimants.
This Court has clearly observed, after referring various judicial pronouncements that the Insurance Company, the first Respondent herein, cannot fastening the liability of indemnifying the review Petitioner and therefore, this Court does not see any valid reason to review the judgment of this Court.
In the result, the review petition is dismissed with costs. Consequently, connected Miscellaneous Petition is closed.