IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Review No. 52 of 2009 Reserved on: 17.6.2010 Date of decision: 5.07.2010 New Jayanti Bus Service ….. Petitioner Versus Oriental Insurance Co. Ltd. and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. Vinay Kuthiala, Advocate. For the respondents: Mr. Lalit K. Sharma, Advocate, for respondent No. 1. Mr. Virender Rathore vice Ms. Anjli Soni Verma, Advocate, for respondent No. 2. V.K. Ahuja, J. : This order shall dispose of the review petition filed by the petition/appellant under Order 47 Rule 1 read with Sections 114 and 151 of the Code of Civil Procedure for review of the judgment dated 4.8.2009 passed by this Court in FAO No. 75 of 205. 2. A notice of the petition was issued to the respondents. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. The submissions made by the learned counsel for the petitioner were that the Court had not considered the judgment relied 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 upon by the petitioner/appellant in support of his sub missions. It was also submitted that in view of the law laid down by the Hon’ble Supreme Court of India in these cases, the owner is required to take the precaution as to whether the owner had satisfied himself about the genuineness of the licence by taking a test of the driver and since there is evidence to this effect that the test was taken of the driver, responsibility lies with the Insurance Company even if the licence is proved to be fake one. Thus there was error apparent on the face of record. It was also submitted that according to the law, in case the judgment passed by the Hon’ble Supreme Court is not considered, which amounts to error apparent on the face of the record and as such, the review petition deserves to be allowed accordingly. 5. In support of his submissions, the learned counsel for the petitioner had relied upon the decision in The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh Vs. Beli Ram etc., AIR 1981 Himachal Pradesh 1, The observations made in Para 24 are relevant and are being reproduced below:- “24. The result is that we will answer the first part of the question in the negative, that is, a subsequent decision of the Supreme Court or a larger Bench of the same court rendering a decision taking a different or contrary view on a point covered by the said judgment, does not amount to a mistake or error apparent on the face of the record. The answer to the second part of the question is that failure of the court to take into consideration an existing decision of the Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on the face of the record. But a failure to take into consideration a decision of the 3 High Court would not amount to any mistake or error apparent on the face of the record.” 6. The Learned counsel for the petitioner has also placed reliance the decision in Lal Chand Vs. Oriental Insurance Co. Ltd., (2006) 7 SCC 318. The observations made in Paras 9 to 11 are relevant and are being reproduced below: “9. In the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner having satisfied himself that the driver had a licence and was driving competently, there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would not then be absolved of its liability. 10. Another decision rendered by a three-Judge Bench of this Court in National Insurance Co. Ltd. v. Swaran Singh can also be usefully referred to in the present context. This Court in para 110 of this judgment gave the summary of their findings to the various issues as raised in those petitions. We are concerned only with sub-para (iii) of para 110. The said sub-para (iii) reads thus: (SCC p. 341) “110.(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the river, as contained in sub-section 2(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To 4 avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.” 11. As observed in the above paragraph, the insurer, namely, the Insurance Company, has to prove that the insured, namely, the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time.” 7. On the other hand, learned counsel for the respondent/Insurance company on the question of the powers of the Court, had relied upon the following decisions:- The decision in Board of Control for Cricket in India and another Vs. Netaji Cricket Club and others, (2005) 4 Supreme Court Cases 741, shows that what constitutes “sufficient reasons” under Order 47 Rule 1, would depend upon the facts and circumstances of the case. Words “sufficient reason” covered even a misconception of fact or law by the court or even an advocate. The decision in Oriental Insurance Company Limited Vs. Kalawati Devi and others, (2009) 13 Supreme Court Cases 767, was relied upon, wherein it was observed that scope of review was very limited under Order 47 Rule 1 C.P.C. 5 Reliance also placed upon the decision in S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, (2009) 10 Supreme Court Cases 464, wherein it was held that error apparent on the face of the record is one such, depends upon the material placed before the Court. Reliance was also placed upon the decision in Haridas Das Vs. Usha Rani Banik (Smt) and others, (2006) 4 Supreme Court Cases 78, wherein it was observed that seeking review on the ground that the review petitioner had not highlighted all the aspects of the case or could have argued more forcefully or cited binding precedents to get a favourable judgment, held, not permissible. 8. In view of the above discussion and the decision of Full Bench of this Court in The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh Vs. Beli Ram etc., AIR 1981 Himachal Pradesh 1, it is clear that the judgment can be reviewed in case it is contrary to the findings recorded by the Hon’ble Supreme Court. 9. Coming to the question that the law referred to by the Court was not considered and according to various decisions referred to in the various applications, there was no breach of conditions of the policy by the petitioner. In support of his submissions, the learned counsel for the petitioner had relied upon the decision in Prem Kumari and others Vs. Prahlad Dev and others, (2008) 3 Supreme Court Cases 193. The observations made in Paras 7 to 9 are relevant and are being reproduced below:- “…… Mere absence of, fake or invalid driving licence or disqualification of the driver for driving at the relevant 6 time, are not in themselves defences available to the insurer against either the insured or the third parties. Even in the case that the licence was fake, the insurance company would continue to remain liable unless it proves that the owner was aware or noticed that the licence was fake and still permitted him to drive. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.” 10. No affidavit has been filed by the learned counsel for the petitioner that he raised a plea that the owner had taken sufficient steps and had taken a test also, but no findings were given by the Court. The affidavit is of the party. There is nothing on record to show that this was also urged during the course of hearing in the absence of any affidavit of the learned counsel for the petitioner. A perusal of the record shows that no such plea was taken in the reply filed by the respondent that he had satisfied about the genuineness of the driving licence and had taken a test also, but at the stage of evidence this was sought to be substantiated by evidence in the absence of any pleadings to this effect. Thus, it cannot be said that this point was urged and no findings were given and the present review petition will amount to reappraisal of the evidence and the pleadings of the parties, which cannot be permitted under the provisions of review. The Hon’ble Apex Court has held that the Insurance Company would continue to remain liable, but it has to be proved that the owner had taken due steps including the driving test of the driver before employing him. This question cannot be reconsidered as to the responsibility of the owner or Insurance Company by reappraisal of the whole evidence and as such, no case is made out for review. The judgment may be erroneous, which can be assailed in an 7 appeal, but it cannot be reviewed since it will require reappraisal of the evidence, which cannot be permitted. 11. In view of the above discussion, the review petition filed by the petitioner is dismissed accordingly. V.K. Ahuja ) July 05, 2010 Judge (BSS)