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[2008(8) ADJ 454]
ALLAHABAD HIGH COURT
BEFORE : BHARATI SAPRU, J.
M/s. ORIENTAL INSURANCE CO. LTD. ………..Petitioner
Versus
MOTOR ACCIDENT CLAIMS TRIBUNAL, BAGHPAT AND OTHERS ……….Respondents
(Civil Misc. Writ Petition No. 715 of 2008, decided on 6th August, 2008)
Key Points: - It is the bounden duty of the tribunal to reconsider and examine whether fraud was involved once an application is moved alleging fraud (!) (!) (!) . - The tribunal cannot simply reject the matter on the ground of delay if fraud is alleged; it must examine the merits (!) (!) . - An insurance company can move the High Court in writ jurisdiction to set aside an award obtained by fraud or misrepresentation (!) (!) (!) . - The High Court has the inherent power to review or recall an award that was obtained by fraud or misrepresentation (!) (!) . - The remedy under Section 173 of the Motor Vehicles Act does not bar the exercise of the High Court’s writ jurisdiction in a fraud case (!) (!) . - The court set aside the order dated 31.5.2008 and remanded the matter to the tribunal for fresh reconsideration (!) (!) . - The claimant-respondents must be given an opportunity to be heard in the reconsideration (!) (!) . - The amount deposited before the tribunal will not be released until the tribunal decides the recall application afresh (!) (!) . - The matter must be heard expeditiously, ideally within three months of receiving the certified copy of the order (!) (!) . - The writ petition is disposed of with the above directions (!) (!) .
Hon’ble Bharati Sapru, J.—Heard Sri Manish Goyal learned Counsel for the petitioner and Sri Santosh Kumar Singh, who has appeared on behalf of the respondents No. 2 to 4.
2. This petition has been filed by the petitioner Insurance Company seeking a direction to set aside the judgment and order dated 31.5.2008 passed by the respondent No. 1 in Misc. Case No. 5 of 2007 arising out of MAC No. 61 of 2004. The second prayer is that order or direction may also be issued setting aside the judgment and award dated 23.9.2006 passed by the respondent No. 1 in MAC No. 61 of 2004 and the third prayer is that the respondent No. 1 be restrained from releasing the amount of compensation along with interest in favour of the respondents No. 2 to 4 on the basis of the judgment and award dated 23.9.2006.
3. The facts of the case are that a claim petition was filed by the respondents alleging that an accident took place on 13.4.2004 when the deceased was going on a Motor Cycle No. UP 14J-8083 from Baghpat to his village along with Jai Pal Singh, the Motor Cycle was hit by car No. DL-1CF 2901 and on account of the accident, one person died and Jai Pal Singh received injuries.
4. A claim for compensation was made and an award was passed on 23.9.2006 finally by which Rs. 5,19,616/- was allowed in favour of the claimant-respondents along with interest at the rate of 6% p.a.
5. After the award was delivered, the petitioner Insurance Company received a complaint from one Har Pal Singh resident of the village Bamnoli P.S. Deoghat District Baghpat to the effect that claim petition had been filed fraudulently on the basis of false representation against the car in collusion with its owner and in fact no accident had taken place with the car that had been insured by the petitioner.
6. It is the petitioner’s case that upon receiving the complaint, the petitioner engaged an independent investigating agency, which submitted its report on 27.12.2006, which established that fraud was committed upon the petitioner by raising claim in collusion with the owner of the car.
7. In fact it was revealed from the charge-sheet filed by the police during the investigation that the car that was insured belonged to respondent No. 5, was not even involved in the accident, which took place on 13.4.2004.
8. Upon receiving the report from the investigating agency, the petitioner Insurance Company moved an application for recall of the award on the ground that the award had been obtained by the claimants on the basis of misrepresentation and fraud. The petitioner Insurance Company also filed an application for condonation of the delay along with the said application. It is this application, which had been rejected by the order dated 31.5.2008.
9. Learned Counsel for the respondents claimants has appeared and has opposed this writ petition saying that the present writ petition under Article 227 of the Constitution of India is not maintainable because firstly under the Motor Vehicles Act, 1988 there is no power to review or recall of the award passed under Section 168 of the Motor Vehicles Act. Secondly he has argued that against the award passed under Section 168 of the Act, it is open to the petitioner Insurance Company to file an appeal under Section 173 of the Act and therefore also this writ petition is not maintainable.
10. Learned Counsel for the petitioner has however argued that even though there may be no provision to review the award under the Motor Vehicles Act, every Court has the power to review or recall inherently the order or award, which had been obtained by a party either by fraud or misrepresentation.
11. Learned Counsel for the petitioner has relied on a decision of the Hon’ble Apex Court in the case of United Insurance Co. Ltd. v. Rajendra Singh and others, (2000) 2 LRI 12 in which an identical situation had arisen and the Hon’ble Apex Court has opined that in a case of fraud, the Insurance Company was justified in moving the High Court in writ jurisdiction. Th
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