NEW INDIA ASSURANCE COMPANY LTD Vs. PUSPA BARUI

JUDGEMENT

(1.) THIS application is at the instance of the insurer and is directed against the order dated September 24, 2007 passed by the learned Judge, M.A.C.C. Tribunal cum Additional District Judge, First Court, Alipore in M.A.C.C. No.173 of 2001. The short fact is that the opposite parties filed a claim petition under Section 163A of the Motor Vehicles Act, 1988 praying for compensation on the death of Raghab Barui, predecessor-in-interest of the claimants. The petitioner entered appearance in the said proceeding and it is contesting the same by filing a written statement denying all the material averments made in the application. The tribunal recorded evidence and an award of Rs.3,32,800/- was granted to the opposite parties payable by the insurer within 30 days from the date of order dated August 18, 2003. Thereafter, the insurer filed an application under Section 151, 152 and 153 of the C.P.C. contending, inter alia, that Raghab Barui (since deceased) was not at all an employee of M/s. Kalyani Petro Products, as claimed by the claimants and in fact, there is no existence of M/s. Kalyani Petro Products at all. So, the award dated August 18, 2003 passed in the said M.A.C.C. case should be recalled. That application was rejected upon hearing both the sides. Being aggrieved, the insurer has filed this revisional application.

(2.) NOW, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the an award for a sum of Rs.3,32,800/- was passed in favour of the claimants / opposite parties herein against the petitioner in the said M.A.C.C. case. Section 173 of the Motor Vehicles Act, 1988 lays down the provision for preferring an appeal against the award. Instead of availing that recourse, the insurer /petitioner herein filed an application under Section 151, 152 and 153 of the C.P.C. and prayed for recalling the award contending that there is no existence of M/s Kalyani Petro Products and so the certificate in respect of the deceased Raghab Barui is false and the claimants are not entitled to get any award at all. The evidence was recorded by the concerned tribunal and thereafter, the learned Tribunal has come to a finding that the contention of the insurer is not true and so he dismissed the application dated January 31, 2004 filed by the insurer.

(3.) IN view of the above observations when an award was passed, the insurer was to file an appeal under Section 173 of the Motor Vehicles Act, 1988. INstead of doing that it filed an application under Section 151, 152 and 153 of the C.P.C. which relates to rectification of clerical or arithmetical mistake or amendment of the plaint, etc. in exercising the inherent jurisdiction under Section 151 of the C.P.C. This revisional application has been filed challenging the said impugned order. Therefore, the recourse adopted by the insurer is not permissible under the provisions of the Motor Vehicles Act, 1988. This application is, therefore, not maintainable.