Jammu & Kashmir High Court – Srinagar Bench
National Insurance Company Limited vs Naseema Begum And Others on 21 August, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
RP no.42/2021
Pronounced on: 21.08.2025
National Insurance Company Limited
.......Appellant(s)
Through: Mr Aatir Kawoosa, Advocate
Versus
Naseema Begum and others
......Respondent(s)
Through: Mr G. N. Shaheen, Advocate for
respondents 4&5/review petitioners
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Review of judgement dated 16th March 2021, passed by this Court in
an appeal, being MA no.33/2018 titled National Insurance Company
Limited v. Naseema Begum and others, is sought by respondents 4&5
in the said appeal, who are being hereinafter referred to as “review
petitioners”.
2. I have heard Mr G. N. Shaheen, learned counsel for review petitioners,
and considered the matter. I have gone through judgement dated 16th
March 2021.
3. It is contention of review petitioners, which has also been reiterated by
their counsel, that this Court has not appreciated arguments and
judgements produced by their counsel in the appeal, which led to legal
error in judgement. Five judgements are stated to have been submitted
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when arguments were made by counsel for review petitioners during
hearing the appeal and even mention about those judgements have not
been made in judgement dated 16th March 2021. It is being also stated
that even arguments made by counsel representing review petitioners
are not reflected in the judgement. Reiterating submissions made in the
appeal, it is being vehemently stated that the Tribunal had framed four
issues, which included about validity of driving licence and route
permit of offending vehicle, viz. whether owner of offending vehicle,
i.e., respondent no.2 had permitted respondent no.3 to ply offending
vehicle without valid and effective driving licence and route permit of
vehicle and thereby committed breach of condition of policy, if so, what
would be its effect on the claim petition. According to learned counsel
for review petitioners, driving licence was valid and effective at the
time of accident. Offending vehicle had route permit. Insurance
Company failed before Tribunal to prove violation of any terms and
conditions of contract of insurance. It is stated by counsel for review
petitioners that this court wrongly upset findings of the Tribunal.
4. It is also strenuously stated by learned counsel for review petitioners
that judgement of the Supreme Court in National Insurance Company
Limited v. Chella Bharathamma and others, (2004) 8 SCC 517 , has
wrongly been applied by this Court because the said judgement relates
to a vehicle which did not have route permit whereas in the case in hand
there was a route permit. There is a sharp distinction propounded by
courts with regard to application of offending vehicle being without
route permit and offending vehicle having valid permit but having
violated route permit. It is also being averred that there are catena of
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judgements and violation of route permit is one thing which will not
absolute insurance company from indemnifying insured.
5. Learned counsel for review petitioner has placed reliance on a judgment
passed by the Punjab and Haryana High Court in a case titled as Mani
Ram Aggarwal (deceased) through his LRs v. United India Insurance
Company Limited reported in (2017) ACJ 1082 and stated that the said
case/judgement is identical to the instant case. According to him, in the
aforesaid judgement it has been observed that breach of route permit
will not be a defence which will be available to Insurance Company.
Mere fact that truck was being operated in State of Haryana, though it
has route permit only for State of Rajasthan will not constitute violation
of terms and conditions of insurance policy and it will not be available
as defence to insurance company and that insurance company was
bound to indemnify insured.
6. Learned counsel for review petitioner would also rely on a judgement
passed by the Punjab and Haryana High Court in case titled as National
Insurance Company Limited v. Paramjit Kaur and others reported in
(2017) 3 ACC 502, in which distinction between a vehicle without route
permit and violation of plying vehicle beyond route permit areas.
7. According to learned counsel for review petitioners, appellant/
Insurance Company has not proved before the Tribunal that offending
vehicle was carrying passengers but offending vehicle was on personal
reason not carrying passengers. He has again placed reliance on a
judgement passed by the High Court of Rajasthan in United India
Insurance Company Limited v. Sharda Devi and others reported in
(2012) 4 WLN 125, in which it has been held that route permit
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authorizing to ply within local limits of municipality does not mean that
the said vehicle cannot go outside the local limits of municipality at all
and that failure of insurance company to show that offending vehicle
was at that time carrying passengers on said route in violation of route
permit makes insurance company liable to indemnify on behalf of
owner.
8. Learned counsel for review petitioner has also relied upon a judgement
of the Supreme Court in New India Insurance Company v. Shri Satpal
Singh and others reported as (2000) AIR SC 235 has laid down that
gratuitous passengers in a vehicle covering third party risk cannot be
excluded and insurance company cannot be absolved to indemnify on
behalf of owner. According to him, judgement under review is in
violation to law laid down by the High Court of Himachal Pradesh in
Oriental Insurance Company Limited v. Lekh Raj reported as (2014) 3
SimLC 1353, in which same views were made as were made by the
Punjab and Haryana High Court in Shri Ram General Insurance
Company Limited v. Aarti and others reported as (2014) Law Herald
613.
9. It is being stated that judgement under review has been passed contrary
to position of law as contained in Motor Vehicles Act as well as law
laid down by the High Courts. This Court is stated to have committed
error of law and illegality in setting aside judgement of the Tribunal.
10. Before proceeding further, it would be appropriate to reproduce
judgement under review hereunder:
1. Impugned in this Appeal is Award dated 11.04.2018 passed by Motor
Accident Claims Tribunal, Srinagar (for short “Tribunal”) on a Claim
petition bearing File no 29 of 2014 titled Naseema Begum and othersPage 4
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v. National Insurance Company Ltd and others, directing appellant
Insurance Company to pay compensation in the amount of Rs
5,55,000/- along with 6.5% interest per annum from the date of
institution of claim till realization, on the grounds made mention of
therein.
2. A claim petition, as is discernible from perusal of the file, was filed
by respondents 1 to 3 before the Tribunal on 03.03.2014 averring
therein that deceased namely Hilal Ahmad Lone S/O Mohammad
Maqbool Lone R/O Naribal Tehsil and District Baramulla aged 21
years, died in an accident, which took place on 21.02.2009 at Dagar
Mohalla, Chandoosa, due to rash and negligent driving of driver of
offending vehicle, (Tata Mini Bus) bearing Registration no. JK01B /
2920, which was insured with appellant Insurance Company. Before
the Tribunal, claimants/respondents sought compensation in the
amount of Rs.56,00,000/-
3. Appellant Insurance Company resisted the claim before the Tribunal
on the ground that driver of offending vehicle was not holding the
valid driving license
4. The Tribunal, in view of pleadings of parties, framed Issues for
determination, which are:
1) Whether on 21.09.2009 deceased namely Hilal Ahmad
Lone while travelling in a Mini Bus bearing regd No.
JK01B/2920 from Rajpora towards Babreshi met with an
accident at Dagar Mohalla Chandoosa due to rash and
negligent driving of the offending vehicle by its driver
i.e. respondent no. 3, as a result of which deceased got
seriously injured and succumbed to his injuries on spot.?
(OPP)
2) Whether on the date of accident offending vehicle was
under insurance cover of respondent no. 1? (OPP)
3) Whether the owner of the offending vehicle i.e.
respondent no. 2 had permitted the respondent no. 3 to
ply the offending vehicle without valid and effective D/L
and R/P of vehicle and thereby committed breach of
conditions of the policy, if so, what would be its effect
on the claim petition? (OPP-1)
4) In case issue No. 1 is decided in affirmative, then
whether petitioners are entitled to compensation, if so, to
what extent and from whom. ? (OPP)
5) Relief. OP Parties.
5. Claimants produced and examined five witnesses before the Tribunal;
besides claimants/respondent no 1. Appellant Insurance Company
also produced three witnesses.
6. By impugned Award, the Tribunal found claimants/respondents
entitled to receive compensation of Rs.5,55,000/ along with 6.5%
interest per annum.
7. Heard and considered.
8. Learned senior counsel appearing for appellant Insurance Company
has stated that the claim petition was contested among other grounds,
on the ground that the insured vehicle was being plied without valid
Route Permit at Chandoosa in District Baramulla. In this regard issue
No.3 was also framed by the Tribunal. Appellant produced officer of
the Company as a witness, who deposed that the Route Permit of the
offending vehicle was valid for Eastern area Srinagar city while as the
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accident took place at Dagar Mohalla Chandsoosa, as such, owner
committed breach of Policy conditions. He has further deposed that
the eastern area falls within jurisdiction of District Srinagar. Appellant
also produced Iqbal Ahmad Bhat, Senior Assistant RTO Kashmir,
Srinagar, who has deposed that offending vehicle was authorized to
ply on eastern area and the place of accident, i.e., Chandoosa, does
not come within the jurisdiction of eastern area. The Tribunal has
wrongly decided the issue against Appellant on the ground that
Appellant has not clarified that the place of occurrence namely Dagar
Mohalla Chandoosa does not fall in the eastern area of Srinagar City.
It is submitted by learned senior counsel that the witnesses have
categorically stated that Route Permit was valid for the eastern area
Srinagar City and the place of accident namely Chandoosa does not
come within jurisdiction of eastern area. It has been also proved that
the owner has committed breach of Policy conditions. Thus, the
Tribunal has wrongly decided the issue with regard to the Route
Permit against the appellant.
9. Learned senior counsel for appellant has also contended that the
Tribunal has failed to appreciate that the owner has committed breach
of the Policy conditions as the offending vehicle as being driven
without Route Permit. Thus, the finding recorded by the Ld. Tribunal
is misplaced. Since there is apparent breach of terms and conditions
of the Policy of Insurance committed by the Insured wilfully and
consciously and also the subject matter was not plied in accordance
with its “limitation as to use” detailed in the Policy Schedule itself.
Therefore, the impugned Award is bad in law and liable to be set
aside.
10. According to learned senior counsel for appellant it is settled position
of law as has been held by Supreme Court in the case of National
Insurance Company Ltd v. Chella Bharathamma and others, (2004) 8
SCC 517, that the vehicle, which does not have valid Route Permit on
the date of accident amounts to fundamental breach. Not only that
plying of the vehicle without a valid a route permit is not only breach
of the Policy conditions but also breach of law, as such, the Appellant
could not be held liable to indemnify the owner, therefore, the
impugned award is bad in law.
11. It may be mentioned here that the Tribunal while deciding Issue no.3,
(viz. whether the owner of the offending vehicle had permitted driver
to ply offending vehicle without valid and effective driving licence
and route permit, thereby committing breach of conditions of the
policy; if so, what would be its effect on the claim petition), has taken
into account statement of witnesses produced by appellant Insurance
Company as burden to prove Issue no.3 was upon appellant Insurance
Company. Appellant Insurance Company produced three witnesses
before the Tribunal.
12. There is substance in submission of learned senior counsel for
appellant Insurance Company. The reference made by him to National
Insurance Company Limited v. Challa Bharathamma and others,
(2004) 8 SCC 517, has direct bearing on the present case. In the said
cited judgement the Supreme Court has said that if offending vehicle
is plied without valid route permit on the date of accident, it amounts
to fundamental breach of insurance contract and that plying of vehicle
without valid route permit is not only breach of policy conditions but
also breach of law. In that view of matter, the impugned Award is
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liable to be set-aside and modified to the extent that recovery rights
are given to insurance company.
13. For the reasons discussed above, the impugned Award dated
11.04.2018 passed by Motor Accident Claims Tribunal, Srinagar on a
Claim petition bearing File no 29 of 2014 titled Naseema Begum and
others v. National Insurance Company Ltd and others, is set-aside and
modified to the extent that appellant Insurance Company shall pay
compensation in the amount of Rs 5,55,000/- along with 6.5% interest
per annum from the date of institution of claim till realization and then
recover the same from the owner of the offending vehicle.
14. Disposed of in terms of above.
15. Record of the Tribunal, if summoned/received, be send down along
with copy of this judgement.
16. It is pertinent to mention here that while considering abovementioned
contentions, the scope and ambit of Section 114 read with Order XLVII
Rule 1 of the Code of Civil Procedure is to be taken into consideration.
17. The grounds on which review can be sought are enumerated in Order
XLVII Rule 1 CPC, which reads as under:
“1. Application for review of judgment. – (1) Any person
considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but
from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on account
of some mistake or error apparent on the face of the record, or
for any other sufficient reason, desires to obtain a review of the
decree passed or order made against him, may apply for a review
of judgment of the court which passed the decree or made the
order.”
18. An application for review would lie, among others, when an order
suffers from an error apparent on the face of record and permitting the
same to continue would lead to failure of justice. Limitations on
exercise of power of review are well settled. The first and foremost
requirement of entertaining a review petition is that the order, review
of which is sought, suffers from any error apparent on the face of the
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order and permitting the order to stand will lead to failure of justice. In
absence of any such error, finality attached to the judgment/order
cannot be disturbed.
19. The power of review can also be exercised by the court in the event
discovery of new and important matter or evidence takes place which
despite exercise of due diligence was not within the knowledge of the
applicant or could not be produced by him at the time when the order
was made. An application for review would also lie if the order has
been passed on account of some mistake.
20. It is beyond any doubt or dispute that the review court does not sit in
appeal over its own order. A rehearing of the matter is impermissible
in law. It constitutes an exception to the general rule that once a
judgment is signed or pronounced, it should not be altered. It is also
trite that exercise of inherent jurisdiction is not invoked for reviewing
any order.
21. The Supreme Court in Haridas Das v. Usha Rani Banik (Smt.) and
Others, (2006) 4 SCC 78, while considering the scope and ambit of
Section 114 CPC read with Order 47 Rule 1 CPC observed and held as
under:
“14. In Meera Bhanja v. Nirmala Kumari Choudhury,
(1995) 1 SCC 170 it was held that:
“8. It is well settled that the review proceedings are not by
way of an appeal and have to be strictly confined to the scope and
ambit of Order 47 Rule 1 CPC. In connection with the limitation
of the powers of the court under Order 47 Rule 1, while dealing
with similar jurisdiction available to the High Court while seeking
to review the orders under Article 226 of the Constitution, this
Court, in AribamTuleshwar Sharma v. Aribam Pishak Sharma,
(1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has
made the following pertinent observations:
‘It is true there is nothing in Article 226 of the Constitution
to preclude the High Court from exercising the power of review
which inheres in every court of plenary jurisdiction to preventPage 8
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miscarriage of justice or to correct grave and palpable errors
committed by it. But, there are definitive limits to the exercise of
the power of review. The power of review may be exercised on the
discovery of new and important matter or evidence which, after
the exercise of due diligence was not within the knowledge of the
person seeking the review or could not be produced by him at the
time when the order was made; it may be exercised where some
mistake or error apparent on the face of the record is found, it may
also be exercised on any analogous ground. But, it may not be
exercised on the ground that the decision was erroneous on merits.
That would be the province of a court of appeal. A power of review
is not to be confused with appellate power which may enable an
appellate court to correct all manner of errors committed by the
subordinate court.’
15. A perusal of Order 47 Rule 1 shows that review of a
judgment or an order could be sought: (a) from the discovery of
new and important matters or evidence which after the exercise of
due diligence was not within the knowledge of the applicant; (b)
such important matter or evidence could not be produced by the
applicant at the time when the decree was passed or order made;
and (c) on account of some mistake or error apparent on the face
of the record or any other sufficient reason.”
22. An error which has to be established by a long-drawn process of
reasoning on points where there may conceivably be two opinions, can
hardly be said to be an error apparent on the face of the record. An
error that is not self-evident and has to be detected by a process of
reasoning, can hardly be said to be an error apparent on the face of
record justifying the court to exercise its power of review under Order
XLVII Rule 1 CPC. In exercise of jurisdiction under Order XLVII Rule
1 CPC, it is not permissible for an erroneous decision to be ‘reheard
and corrected’. A review petition, it must be remembered, has a limited
purpose and cannot be allowed to be ‘an appeal in disguise’. [Vide:
Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC
1047; Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa
Tirumale, AIR 1960 SC 137, and Parsion Devi v. Sumitri Devi, (1997)
8 SCC 715].
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23. Again, the Supreme Court in Lily Thomas v. Union of India, (2000) 6
SC 224, held that power of review could be exercised to correct a
mistake but not to substitute a view. Such powers could be exercised
within limits of statute dealing with exercise of power. It was further
observed that the words “any other sufficient reason” appearing in
Order XLVII Rule 1 CPC must mean “a reason sufficient on grounds
at least analogous to those specified in the rule” as was held in Chhajju
Ram v. Neki, AIR 1922 PC 112 and Moran Mar Basselios Catholicos
v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526.
24. Section 114, CPC, provides for a substantive power of review by a civil
court and consequently by appellate courts. Section 114 envisions:
“114. Review. –Subject as aforesaid, any person considering himself
aggrieved, —
(a) by a decree or order from which an appeal is allowed by this Code,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code,
(c) by a decision on a reference from a Court of Small cause,
may apply for a review of judgment to the Court which passed the decree
or made the order, and the Court may make such order thereon as it
thinks fit.”
25. The words “subject as aforesaid” occurring in Section 114 of the Code
mean subject to such conditions and limitations as may be prescribed
as appearing in Section 113 thereof and for the said purpose, the
procedural conditions contained in Order XLVII of the Code must be
taken into consideration. Section 114 of the Code although does not
prescribe any limitation on the power of the court but such limitations
have been provided for in Order XLVII Rule 1 CPC.
26. Power of review can be exercised for correction of a mistake but not to
substitute a view. Such powers can be exercised within the limits of
statute dealing with the exercise of power. The review cannot be treated
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like an appeal in disguise. It cannot be denied that the review is the
creation of a statute. In the case of Patel Narshi Thakershi v.
Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, the Supreme Court
has held that power of review is not an inherent power. It must be
conferred by law either specifically or by necessary implication. The
review is also not an appeal in disguise. It is essential that it should be
something more than a mere error; it must be one which must be
manifest on the face of the record. The real difficulty with reference to
this matter, however, is not so much in the statement of the principle as
in its application to the facts of a particular case. When does an error
cease to be mere error, and become an error apparent on the face of the
record? Learned counsel for review petitioner was unable to suggest
any clear-cut rule by which the boundary between the two classes of
errors could be demarcated. The term “mistake or error apparent” by its
very connotation signifies an error which is evident per se from the
record of the case and does not require detailed examination, scrutiny
and elucidation either of facts or legal position. If an error is not
obvious and detection thereof requires long debate and process of
reasoning, it cannot be treated as an error apparent on the face of the
record for the purpose of Order 47 Rule 1 CPC. To put it differently, an
order or decision or judgment cannot be corrected merely because it is
erroneous in law or on the ground that a different view could have been
taken by the court on a point of fact or law. In any case, while exercising
the power of review, the court cannot sit in appeal over its
judgment/decision.
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27. The Supreme Court in Ram Sahu (Dead) through LRs and others v.
Vinod Kumar Rawat and others, 2020 SCC OnLine SC 896, after
discussing a number of judgements on the subject of review, has held
that an application for review is more restricted than that of an appeal
and the Court of review has limited jurisdiction as to the definite limit
mentioned in Order XLVII Rule 1 CPC itself. The powers of review
cannot be exercised as an inherent power nor can an appellate power be
exercised in the guise of power of review. After holding this, the
Supreme court found that High Court overstepped jurisdiction vested
in the Court under Order XLVII Rule 1 CPC.
28. In the backdrop of above well-settled legal position, all that has been
argued by learned counsel for review petitioners and/or mentioned in
the instant review petition, is that this Court should reopen the findings
recorded in the judgement, review of which is sought. It is made clear
here that review jurisdiction cannot be used for that purpose. This is not
the scope of Section 114 read with Order XLVII Rule 1 CPC. After
having an overall view of the grounds taken in the application and
submissions made by learned counsel for review petitioner, there is no
error apparent on the face of record warranting review of the judgement
dated 16th December 2020. In such circumstances, the instant review
petition is liable to be dismissed. The judgements relied upon by
learned counsel for review petitioners, given above discourse, does not
given any help to the averments made by review petitioners in the
instant petition.
29. Notwithstanding the legal position and well settled law qua review of
judgement/order and having regard to contentions of learned counsel
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for review petitioners, more particularly with reference to judgements
cited by him, which according to him have not been made mention of
by this Court while rendering judgement under review, it would be
appropriate to say here that the Supreme Court in Gohar Mohammed v.
Uttar Pradesh State Road Transport Corporation and Others, (2023) 4
SCC 381, has held that even assuming that there was a valid and
effective Permit to ply offending vehicle, the same was not valid for the
place where accident took place, therefore, liability to pay
compensation is to be that of owner of offending vehicle. Relevant
portion thereof is quoted as under:
“8. Having heard the learned counsel for the parties and on perusal
of the material available on record, it clearly reveals that on the
date of accident, the appellant did not have a valid and effective
permit to ply the offending vehicle on the route where accident
took place. Having extensively gone through the fact-finding
exercise, it is categorically recorded by MACT that the appellant
was neither able to produce/ prove the original permit nor was able
to prove the information received under the RTI Act. Even if RTI
information is considered by which it is not clear as to when the
disputed permit was issued and by whom. The alleged permit was
issued on 28.7.2012 i.e. on Saturday and no explanation is on
record as to why deposit of fee was asked on the next day i.e.
Sunday. Moreover, assuming that permit was valid as per letter of
the Transport Authority, but it is not of any help to the appellant
since the vehicle was being plied on a route different than specified
in permit. The appellant has failed to give any explanation to refute
the observations made by MACT to ply the vehicle on Roorkee
bypass to Haridwar via Meerut which did not fall within the route
of permit issued by the Transport Authority. The said findings of
fact have been affirmed by the High Court by the impugned order.”
30. In Rani and others v. National Insurance Company Limited and others,
(2018) 8 SCC 492, the Supreme Court was considering an appeal
against the judgment passed by the High Court of Karnataka against the
Award of the Motor Accidents Claims Tribunal, which had, while
awarding compensation in favour of claimants therein, made Insurance
Company jointly and severely liable to pay compensation to claimants.
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The Award had been challenged by Insurance Company contending
that liability to pay compensation could not have been fastened on it as
offending vehicle did not possess a valid Permit to operate in State of
Karnataka and that Permit was granted for State of Maharashtra alone.
The High Court of Karnataka held that liability to pay compensation
was only that of the owner of offending vehicle. The Supreme Court,
however, held that Insurance Company should first pay compensation
amount to claimants and shall have liberty to recover the same from
owner of offending vehicle. In such circumstances, the contentions and
submissions of learned counsel for review petitioners are
misconceived, unfounded and baseless.
31. For the reasons discussed above, I do not find any merit in this petition
seeking review of judgement dated 16th March 2021, and the same is,
accordingly, dismissed.
(Vinod Chatterji Koul)
Judge
Srinagar
21.08.2025
Ajaz Ahmad, Secretary
Whether approved for reporting? Yes/No.
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