Oriental Insurance
Co.Ltd. Vs. Kalawati Devi & Ors. [2009] INSC 611 (24 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1824 OF 2009 (Arising
out of SLP (C) 1429/07) Oriental Insurance Co. Ltd. ...Appellant Versus
Kalawati Devi & Ors. ...Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this Appeal is to the order passed by a Division Bench of the Utrakhand High
Court in M.A. No.184 of 2002 dismissing the appeal filed by the appellant
(hereinafter referred to as the `insurer'). The High Court dismissed the appeal
primarily on the ground that in the proceedings under Section 166 of the Motor
Vehicles Act, 1988 (in short the `Act') when the owner of the vehicle did not
take interest after filing written statement, the insurer could have obtained
leave to contest as required under Section 170 of the Act and establish that
the Sheikh Akhtar, who was the driver responsible for the accident in question,
had no valid licence. But no such leave to contest was obtained. Accordingly,
appeal was dismissed. An application was filed before the High Court contending
that the conclusion that the insurer had not obtained leave to contest was not
factually correct.
In fact the leave to
contest the claim was granted by the MACT on 25.4.2001. The High Court rejected
the application for review primarily on the ground that the scope of review was
very limited under Order 47 Rule 1 of the Code of Civil Procedure, 1908 (in
short the `CPC') and this was not a case of the nature where action in terms of
Order 47 Rule 1, CPC could be taken.
3.
Learned
counsel for the appellant submitted that since the High Court at the first
instance proceeded on erroneous factual premises, it should have recalled the
earlier order and heard the matter afresh.
4.
Respondents
supported the orders of the High Court.
5.
Undisputedly
the leave to contest the claim was granted to the insurer on 25.4.2001. Those
aspects appear to have been overlooked by the High Court when the original
order dated 14.11.2003 was passed. That being so, we set aside the impugned
orders dated 14.11.2003 in MA No.184 of 2002 and dated 5.7.2006 in Civil Review
No.37 of 2004 stand quashed. Since the matter is pending since long we request
the High Court to dispose of the matter as early as practicable, preferably
within two months from the date of receipt of this order.
6.
The
Appeal is allowed.
............................................J.
(Dr. ARIJIT PASAYAT)
............................................J.
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