ORIENTAL INSURANCE CO. LTD. versus KALAWATI DEVI & ORS.

Citation: [2009] 4 S.C.R. 1049 · Decided: 24-03-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2009] 4 S.C.R. 1049 
_."' 
ORIENTAL INSURANCE CO. LTD. 
A 
V. 
KALAWATI DEVI & ORS. 
Civil Appeal No. 1824 of 2009 
MARCH 24, 2009 
8 
[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, 
JJ.] 
~· 
Motor Vehicles Act, 1988 - ss. 166 and 170 - High Court 
, 
" 
dismissed appeal of insurer on erroneous factual premises -
Also dismissed application for review - On appeal, held: Since c 
factual aspects were overlooked by the High Court, direction 
given to it, to hear the matter afresh - Appeal - Manner of 
disposal. 
' 
~ 
In proceedings arising out of an application filed D 
. 
under s.166 of the Motor Vehicles Act, 1988, the High Court 
dismissed the appeal of insu.rer on the ground that it did 
not obtain leave to contest as required under s.170 of the 
Act once the owner of the offending vehicle did not take 
interest after filing written statement. 
E 
• 
An application was filed before the High Court 
~ 
contending that the conclusion that the insurer had not 
obtained leave to contest was factually incorrect as leave 
to contest the claim was in fact granted by the MACT. The 
High Court rejected the application for review primarily F 
on the ground that the scope of review was very limited 
under Order 47 Rule 1 of CPC and this was not a case of 
the nature where action in terms of Order 47 Rule 1, CPC 
could be taken. 
--,. 
t-
G 
In the instant appeal, the appellant submitted that 
since the High Court at the first instance proceeded on 
erroneous factual premises, it should have recalled the 
earlier order and heard the matter afresh. 
1049 
H 
A 
1050 
SUPREME COURT REPORTS 
[2009] 4 S.C.R 
Allowing the appeal, the Court 
HELD: 1. The leave to contest the claim was granted 
to the insurer on 25.4.2001. Those aspects appear to have 
been overlooked by the High Court when the original 
B order dated 14.11.2003 was passed. That being so, the 
impugned orders dated 14.11.2003 and dated 5.7.2006 in 
Civil Review stand quashed. Since the matter is pending 
since long, the High Court is requested to dispose of the 
matter as early as practicable. [Para 5] [1051-D-F] 
C 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1824 
of 2009 
From the Judgement and Order dated 14.11.2003 in M.A. 
No. 184 of 2002 and Final Order and Judgement dated 
05.07.2006 in Civil Review No. 37 of2004 of the Division Bench 
D of Hon'ble High Court of Jharkhand at Ranchi. 
E 
Meenakshi Mid ha, Joy Basu, B.K. Satija, for the Appellant. 
Susmita Lal, Apurb Lal, Ashesh Lal, Rachna Lal, for the 
Respondents. 
The Judgement of the Court was delivered by 
DR. ARIJIT PASAYAT, J. 
1. Leave granted. 
F 
2. Challenge in this Appeal is to the order passed by a 
Division Bench of the Jharkhand High Court in M.A. No.184 of 
2002 dismissing the appeal filed by the appellant (hereinafter 
referred to as the 'insurer'). The High Court dismissed the appeal 
primarily on the ground that in the proceedings under Section 
G 166 of the Motor Vehicles Act, 1988 (in short the 'Acr) when the 
owner of the vehicle did not take interest after filing written 
statement, the insurer could have obtained leave to contest as 
required under Section 170 of the Act and establish that the 
Sheikh Akhtar, who was the driver responsible for the accident 
H 
in question, had no valid licence. But no such leave to contest 
• 
ORIENTAL INSURANCE CO. LTD. V 
1051 
KALAWATI DEVI & ORS. [DR. ARIJIT PASAYAT, J.] 
was obtained. Accordingly, appeal was dismissed. An A 
application was filed before the High Court contending that the 
conclusion that the insurer had not obtained leave to contest 
was ndt factually correct. In fact the leave to contest the claim 
was granted by the MACT on 25.4.2001. The High Court rejected 
the application for review primarily on the ground that the scope B 
of review was very limited under Order 4 7 Rule 1 of the Code of 
Civil Procedure, 1908 (in short the 'CPC') and this was not a 
case of the nature where action in terms of Order 4 7 Rule 1, 
CPC could be taken. 
3. Learned counsel for the appellant submitted that since C 
the High Court at the first instance proceeded on erroneous 
factual premises, it should have recalled the earlier order and ·· 
heard the matter afresh. 
4. Respondents supported the orders of the High Court. 
0 
5. Undisputedly the leave to contest the claim was granted 
to the insurer on 25.4.2001. Those aspects appear to have been 
overlooked by the High Court when the original order dated 
14.11.2003 was passed. That being so, we set
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