IMPORTANT POINTS
(1) Motor Insurance – A third party claimant is not concerned with dispute between Insurer and insured.
(2) Burden is on insurance company to prove that policy of insurance produced on record is fake.

ORDER

The appellant insurance company filed this review petition against the judgment dated 20.05.2024 in M.A.C.A. No. 769 of 2024.

2. The above appeal was filed by the insurance company challenging the award in O.P.(MV) No. 2230 of 2019 on the file of the Motor Accident Claims Tribunal, Perumbavoor. The claim petitioner was a minor aged 10 years at the time of occurrence and according to the claim petitioner, on 16.11.2019, while he was standing on the side of the road, car driven by the 2nd respondent in a rash and negligent manner caused to hit him and thereby, he sustained serious injuries.

3. Before the Tribunal, the owner and driver of the offending vehicle were ex parte and the insurance company contended that the offending vehicle was insured with the company for the period from 04.01.2018 to 03.01.2019 and the company has not issued any policy covering the date of the accident. It is further contended that the policy produced by the petitioner covering the period from 04.01.2019 to 03.01.2020 is not a genuine policy and that it is a fake policy.

4. Before the Tribunal, Exhibits A1 to A14 were marked from the side of the claim petitioner. From the side of the insurance company, RW1 examined and Exhibits B1 and C1 were marked. The Tribunal recorded a finding that Exhibit A14 policy is seen issued by Maruti Booking Company, an authorized agent of the insurance company and that the insurance company has not initiated any steps to find out the foul play committed in connection with the policy. The Tribunal also found that the insurance company has not taken any action against the owner of the vehicle in connection with Exhibit A14 policy produced before the Tribunal and that if Exhibit A14 is a fake policy, it is the duty of the insurance company to prove the same and for the said reasons, recorded a finding that respondents 1 to 3 are jointly and severally liable to pay compensation to the claim petitioner.

5. As per the judgment dated 20.05.2024 in M.A.C.A. No. 769 of 2024, this Court confirmed the findings of the Tribunal regarding the liability of the insurance company and dismissed the appeal in limine.

6. Heard Sri. George Cherian, the learned Senior counsel for the review petitioner and Sri. T. Krishnanunni, the learned Senior counsel for the first respondent.

7. The learned counsel for the review petitioner argued that the appeal was dismissed in limine without properly appreciating the contentions raised by the appellant regarding the genuineness of Exhibit A14 and the fraud played in the case. It is also argued that this Court has not gone into the merits of the case and therefore, there is error apparent on the face of the record.

8. The learned counsel for the respondent/claim petitioner argued that a perusal of paragraphs 7, 8 and 9 of the judgment of this Court dated 20.05.2024 would show that this Court has considered the contentions of the appellant regarding the alleged foul play behind creation of Exhibit A14 policy and also recorded a finding that the insurance company has a bounden duty to conduct a discrete enquiry when the factum of issuance of a fake policy came to its notice and the company failed to do so and allowed the fake policy to exist and caused its production by the petitioner before the Tribunal and therefore, the insurance company cannot escape from its liability to indemnify the insured.

9. The Honourable Supreme Court in Rajender Kumar v. Rambhai [(2007) 15 SCC 513 : 2002 ICO 6370] held thus:

“… 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 judgment/order cannot be disturbed.”

10. In Asmath Khan v. Chadrahasa Bangara [2006 (4) KLT 494], a Division Bench of this Court held that even though there is power to review in appropriate circumstances in th