Ram Singh vs SURJIT SINGH

THIS appeal has been directed against the impugned order dated 13.9.2002 whereby the D.F. has recalled and set aside the award dated 27.12.2001. Moreover execution proceedings has been declared as non est, original complaint file was restored to the original number for further proceedings.

MARTIX of the case from which the impugned order emanates is as follows. Present appellants/complainants filed the complaint, who were 10 in number against the respondents stating therein that the respondents started business of Carvan Finances as Corporation. Complainants also invested the money which was not returned to them on the maturity date. They prayed for the return of the money and the compensation. The D.F. issued notice to the respondents. Respondent No. 1 did not file objections despite service and he was put to ex parte. Other respondents filed objections and contested the case. The D.F. heard the arguments after recording the evidence and passed an award dated 27.12.2001. During the execution proceedings which were going on respondents came up with an application that the award already passed and under execution was against the facts and all the objections were not taken into consideration by the D.F. Moreover their Counsel did not argue the case well so the request was made that the award be recalled. This was contested by the complainants, present appellants on the ground that award once passed could not be recalled nor there is any provision of law in the Consumer Protection Act for recalling such an order. So the appeal was filed against this impugned order. We are of the view that the impugned order is without jurisdiction so we treat the impugned order as the revision petition because the jurisdiction of the Forum is involved whether it has jurisdiction to pass such an order.

Heard learned Counsel for the parties. Learned Counsel for the respondent has vehemently argued that the impugned order is in accordance with law. According to him Apex Court in United India Insurance Co. Ltd. v. Rajinder Singh & Ors., reported as III (2000) SLT 1=2000 (2) SCC 294, held that the Tribunal is not armless to recall the order original award if it is brought to their notice that the fraud has been committed. D.F. has passed the impugned order recalling the award on the basis of Supreme Court judgment supra. Learned Counsel for the petitioners has vehemently argued that the Supreme Court case supra, does not apply in this case and there is no provision for recalling the award.

WE have given thoughtful consideration to the arguments advanced before us and we have perused the Supreme Court judgment supra. The facts in the Supreme Court judgment are that the case related to the Motor Accident Claim. Appellant, one Ram Singh and his son Sanjay Singh filed two claims before the Motor Accident Claims Tribunal for getting compensation in respect of an accident which happened on 9.11.1993. They contended that Shri Rajinder Singh was travelling on the rear seat of Two Wheeler Motor Cycle which was then driven by his son Sanjay Singh. It collided with car which was driven by Jiya Prakash. Claim was given to both, father and son after passing the award. Insurance Company received a police report prepared by the Investigating Officer later on after the award was passed by the Tribunal which revealed that both Sanjay Singh and Rajinder Singh had received injuries in different incident and Rajinder Singh had received injuries in different incident at different place and on different date. According to the new facts it was revealed that both father and son were operating their own Tractor. It jutted into a ditch and the tractor slipped down and claimants sustained injuries. This was altogether a different incident on a different date and at a different place. Thereafter when the Company came to know, they also made enquiries and found that the award had fraudulently been sought and obtained by the complainants. They appealed against the award but both the Commission and the High Court expressed inability to recall the award and said that they were armless to do so. The case was heard by the Apex Court. Apex Court held that Tribunal or Commission are not armless to recall the award when it is obtained by fraud. New facts came to the knowledge of the aggrieved party after the award. The Apex Court said that fraud and justice will never go together. Here in the case in hand facts are quite distinguishable. There is no plea of fraud claimed by the respondents and no new facts have come to the knowledge after the award was passed. Award was passed by affording opportunity to both the parties and O.P. 1 did not contest the case. He was proceeded ex parte, other O.Ps. contested it. They were given opportunity to file evidence and case was argued through their Counsel and the award was passed. Now the respondent have come up with the allegations that the D.F. has not dealt with all points which were raised in objection No. 1, their Counsel could not argue the case well. No fraud has been pleaded and it has also not been pleaded that new facts came to their knowledge after the award was passed. This was a simple case for an appeal. Once the award is passed, appeal is provided in the Act. They should have filed the appeal before the Commission which they have not done. D.F. has no authority to recall the award already passed. It can only be reversed in appeal or in revision whatsoever. Award cannot be recalled on flimsy grounds. They ofcourse can recall the order only on the grounds perpetuated by the Apex Court in the judgment supra in which the Supreme Court has clearly stated, order can be recalled only when it is proved that the award was so obtained by big fraud and that could only be detected after the award was passed. Circumstances are not such in the present case. In the present case award has been passed on 27.12.2001. No fraud has been pleaded so the award was recalled by the impugned order without application of mind ignoring by the D.F. that they had no jurisdiction to recall the award on minor defects, if any. This view we are not taking for the first time but we have already taken this view earlier also in Smt. Janak Mehta Co. Finance Centre, City Chowk Jammu v. Allahabad Bank, 1995 KLJ 33. Applicants should have preferred an appeal and the Commission could have appreciated the points raised in appeal. But this is no way to recall the awards. Such action if upheld by us will open Pendora Box for all who are interested not to implement the award. For these reasons, therefore, we set aside the order of the Divisional Forum. Record received by the D.F. be sent back.

COPY of this order be given to the parties to be collected by them on their own in person or through their authorised agent. Appeal disposed of.