ORIENTAL INSURANCE CO. LTD.versusKALAWATI DEVI & ORS.

                                     [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-
                      In the instant appeal, the appellant submitted that G
                 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
    1050       SUPREME COURT REPORTS                  [2009] 4 S.C.R


A          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.
           Meenakshi Mid ha, Joy Basu, B.K. Satija, for the Appellant.
        Susmita Lal, Apurb Lal, Ashesh Lal, Rachna Lal, for the
    Respondents.
E
           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 aside the
impugned orders dated 14.11.2003 in MA No.184 of 2002 and             E
dated 5.7.2006 in Civil Review No.37 of 2004 stand quashed.
Since the matter is pending since long we request the High Court
to dispose of the matter as early as practicable, preferably within
two months from the date of receipt of this order.
     6. The Appeal is allowed.

8.8.B.                                           Appeal allowed.