ORIENTAL INSURANCE CO LTD Vs. A J THOMAS

JUDGEMENT

(1.) Heard Mr. S. Dutta, learned Counsel for the review Petitioner Appellant and Ms. A. Paul, learned Counsel appearing for the opposite party claimant.

(2.) The Petitioner seeks review of/modification in the judgment and order dated 6.11.2009 passed by this Court in MAC Appeal No. 01(SH) of 2007 mainly on the ground that the extra premium of Rs. 100 paid by the claimant Respondent is only for covering the personal accident up to Rs. 1,33,330 at the maximum in case of death of the owner and pillion rider and such type of claim is to be adjudicated by the insurance company and this Court erred in holding that the insurer is liable to indemnify the loss suffered by the claimant. The other ground is that the claim petition being made under Section 163(A) of the M.V. Act, 1988, is not maintainable as there is no policy coverage on the accident in question and the learned Tribunal committed an error without considering the legal position that the Petitioner-insurer is not liable to pay the compensation.

(3.) The maintainability of the review petition has been questioned by Ms. A. Paul, learned Counsel for the opposite party. She submits that the Petitioner by filing this review application is trying to reopen the entire matter in appeal and trying to raise the issues which were not agitated before the learned Member, Motor Accident Claims Tribunal as well as in the memo of appeal, which is not permissible under the law particularly, under the provisions of order 47, Rule 1 of the Code of Civil Procedure, 1908. The review Petitioner is seeking modification of the reasoning and findings of the appellate court, which cannot be allowed in the review and as such, the review petition is liable to be dismissed. In support of her submissions, Ms. Paul relies upon the case of Meerabhanja v. Nirmala Kumari Choudhury, 1995 AIR(SC) 455. Further, it is submitted by the learned Counsel for the opposite party that the Petitioner-insurer in its written statement and even in the written argument before the learned Tribunal did not take the plea that the insurance policy covered the death of or bodily injury to any person being carried in the vehicle or damage to any property of third party only. The present stand of the Petitioner-insurer that under Section 147, an insurance company does not require to assume risk for death of or bodily injury to the owner of the vehicle, was also not taken in the written statement as well as in the written argument filed before the learned Tribunal. So also, its present stand that driver-owner is not a passenger, much less a third party, was also not taken in the written statement. The stand as taken by the Petitioner insurer in the present petition, having not been taken before the learned Tribunal, the same cannot be raised now in the review petition. The claim petition, according to Ms. Paul, was filed under Section 166 of the MV Act and not under Section 163(A) as presently contended by the Petitioner-insurer in the memo of appeal and as such, the ground taken in the review application that the claim petition is not maintainable inasmuch as there is no policy coverage on the accident in question and the learned Tribunal was totally oblivious of the legal position in passing the award, is not acceptable and such issue cannot be raised now in the review petition.