SUSHILA Vs. RAJBEER SINGH

JUDGEMENT

(1.) PETITIONERS have filed this review petition under Order 47, rule 1, Civil Procedure Code, against the order dated 21. 9. 1999 passed by the Division bench of this High Court in M. A. No. 169 of 1996 by which the Division Bench dismissed the appeal on the ground that after the death of respondent No. 2, who was the owner of the vehicle, his L. Rs. were not brought on record and application for dispensing with service was filed and the name of owner of the vehicle, respondent no. 2, was deleted at the risk of appellant. Subsequently, the Tribunal dismissed the application under the provisions of Chapter xi of the Motor Vehicles Act, 1988, which clearly indicate that a liability stand cast upon the insurer to indemnify against the third party risk on the establishment of the fact that the insured was liable to pay the damages to a third party. The provisions of Act do not require that the insurer must indemnify the third party independently of the liability of the insured. Where the insured is liable directly or vicariously to pay the damages is a question governed by law of Torts and considering the various provisions of Motor Vehicles Act by a detailed order dismissed the appeal. Against which this petition for review has been filed.

(2.) THIS review petition which has been filed on 19. 6. 2000, prima facie, appears to be barred by limitation and no application for condonation of delay had been filed. On 17. 3. 2004 when case came up for hearing, in the order-sheet it has been mentioned that list the petition for admission after delay in filing application is decided. But thereafter case was not listed for the same as no application for condonation of delay has been filed. Therefore, apparently the review petition appears to be barred by limitation and no application for condonation of delay has been filed. Secondly, there is no specific provision under the motor Vehicles Act for review. In section 169 and under rule 240 of the M. P. Motor vehicles Rules, 1994, certain provisions of the Civil Procedure Code have been made applicable for deciding the claim petition but certainly there is no specific provision that the review petition can be filed in cases of Motor Vehicles Act, 1988 or in the appeals arising out of Motor Vehicles Act. Prima facie, it appears that the provisions of Order 47, rule 1, Civil Procedure Code are not applicable in Motor Vehicles Act cases but at this stage we leave this question open to be decided in some other case.

(3.) MR. N. D. Singhal submitted that after the aforesaid impugned order passed by the Division Bench on 21. 9. 1999 in M. A. No. 169 of 1996, the Full Bench of Madhya pradesh High Court in Jamunabai v. Chhotesingh, 2004 ACJ 352 (MP), has overruled the aforesaid Division Bench decision and has held that appeal shall not fail on account of dispensing with notice upon the respondents, who were ex pane before the court of first instance. Therefore, it is submitted by Mr. Singhal that review application is maintainable. Mr. Singhal further argued that the case cannot be dismissed on the ground of technicalities and there should be apparent justice in the case. He placed reliance on the case of lily Thomas v. Union of India, AIR 2000 sc 1650.