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2008 DIGILAW 199 (CAL)

Rina Mukherjee v. New India Assurance Co Ltd

2008-02-15

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment :- (1.) INSTEAD of hearing the application for early disposal of the appeal, we have heard the learned Advocate for the parties on the merit of the appeal itself by treating the same as on days list as the appeal can be disposed of on a pure question of law. (2.) THIS appeal under Section 173 of the Motor Vehicles Act, 1988 is at the instance of a claimant and is directed against the order dated 8th June, 2005 passed by the Additional District Judge, 2nd Court, Asansol, District-Burdwan and the Motor Accident Claims Tribunal, in M. A. C. Case No. 22 of 2004 by which the Tribunal modified its earlier order dated 19th May, 2005 by directing the Insurance Company to pay Rs. 9,35,348/- instead of Rs. 9,17,660/- ordered vide award dated 19th May, 2005. (3.) IT appears from record that initially the claim application being m. A. C. Case No. 22 of 2004 was disposed of by directing the Insurance company to pay Rs. 11,53,412/ -. Being dissatisfied, the Insurance Company filed an application under Order XLVII Rule 1 read with Section 151 of the code of Civil Procedure for review of the said award on the ground that while assessing the amount of the income of the victim, the Tribunal below took into consideration the gross salary whereas the different High Courts and the supreme Court have consistently held that the calculation of the awarded amount should be made on the basis of net salary. (4.) THE learned Tribunal accepted the aforesaid contention of the insurance Company and thus, on the basis of the net salary of the victim reduced the amount of award from Rs. 11,53,412/- to Rs. 9,17,660/ -. (5.) IT appears that subsequently, the claimant filed an application for review of the order dated 19th May, 2005 by which the award was so modified on the ground that while calculating the net income, there was typographical mistake, inasmuch as, the net income of the victim although was Rs. 10,520/-a month, the same was wrongly written as Rs. 10,320/- in the award and the assessment was made on that basis. The Tribunal accepted the said typographical mistake and again reviewed the earlier award by enhancing the amount from Rs. 9,17,660/-to Rs. 9,35,348/-vide order dated June 8, 2005. 10,520/-a month, the same was wrongly written as Rs. 10,320/- in the award and the assessment was made on that basis. The Tribunal accepted the said typographical mistake and again reviewed the earlier award by enhancing the amount from Rs. 9,17,660/-to Rs. 9,35,348/-vide order dated June 8, 2005. (6.) BEING dissatisfied with the last order dated 8th June, 2005 passed by the Tribunal, the present appeal has been preferred by the claimant. (7.) THE only point taken in this appeal is that the Tribunal had no jurisdiction to review its original award dated 26th April, 2005 on an application under Order XLVII Rule 1 filed by the Insurance Company and, therefore, the original award dated 26th April, 2005 to the extent of Rs. 11,53,412/- should be restored. (8.) MR. Banik, the learned Advocate appearing on behalf of the appellant contended before us that the Tribunal had no jurisdiction to review its earlier order taking recourse to Order XLVII Rule 1 of the Code of Civil procedure, as the Motor Vehicles Act does not provide for any review of an award. (9.) MR. Das, the learned Advocate appearing on behalf of the Insurance company, on the other hand, has contended that although there is no provision for review in the Motor Vehicles Act, 1988, the rules framed thereunder has made specific provision for applicability of all the provisions of the Code of civil Procedure and, therefore, there is no bar in invoking the provision of order XLVII Rule 1 of the Code of Civil Procedure by taking aid of the Rules. In support of such contention, Mr. Das, in support of his contention, has placed strong reliance upon huge number of decisions of the various High Courts arid the Supreme Court. (10.) THEREFORE, the only question that falls for determination in this appeal is whether in this appeal preferred against the award dated June 8, 2005, the appellant can challenge the reviewed award dated May 19,2005 on the ground of want of authority of the Tribunal to entertain an application for review, (11.) THERE is no dispute that review is a creature of Statute like the provision of appeal and in order to exercise such power, the Court should see that such power is conferred by law either specifically or by necessary implication (See : Patel Narshi Tahkreshi and Ors. v. Pradyumna Singhi Arjun singhi reported in AIR 1970 SC page 1273); however, a Court or Tribunal has an inherent jurisdiction of review its orders if such review is a procedural one, namely, the one that is necessitated for the correction of the mistake or fault on the part of the Tribunal resulting in prejudice to a litigant. As pointed out by the Supreme Court in the case of Grindlays Bank Limited v. The Central government Industrial Tribunal reported in Alr 1981 SC page 606 by explaining the case of Patel Narshi Tahkreshi (supra), although no review lies on merit unless the Statute specifically provides for it, nevertheless, when a review is sought for on the ground of procedural defect, the inadvertent error committed by the Tribunal should be corrected ex debitio justitiae to prevent the abuse of its process and such power inheres in every Court and Tribunal. We may at this stage point out at least two of the instances of the defect in the order authorising procedural review as distinguished from a regular review on merit. First, if a Court wrongly disposes of litigation on a date not fixed for hearing thereby depriving a party of his right to make submission resulting in denial of opportunity of hearing. Secondly, if the Court disposes of a matter ex parte under the impression that in spite of service of summons, one of the parties is not contesting the proceedings and ultimately, after the disposal of the matter, attention of the Court is drawn to the fact that no summons was at all issued from the office of the Court. (See : Subodh Chandra v. Sudhir Kumar reported in AIR 1950 CAL 209 ). (12.) IN the case before us, the Insurance Company, however, did not come forward with a case of procedural review but the application was one for review on merit by taking "an error apparent on the face of the award" as a ground inasmuch as the Tribunal calculated the amount of compensation not on the basis of the net income of the victim but on the gross income in violation of the valid precedent settled by the Apex Court. (13.) ALTHOUGH in the Motor Vehicles Act, 1988 there is no provision of review, it is rightly pointed out by Mr. (13.) ALTHOUGH in the Motor Vehicles Act, 1988 there is no provision of review, it is rightly pointed out by Mr. Das, the learned Advocate appearing on behalf of the Insurance Company, that unlike the provision of the Rules under the old Motor Vehicles Act, 1939, all the powers of the Civil Court as provided in the Code of Civil Procedure are applicable as provided in Rule 342 framed in exercise of power conferred under the Act. The said Rule 342 is quoted below : "342. Power vested in Civil Court which may be exercised by Claims tribunal.- (1) Without prejudice to the provision of sub-section (1) of section 169 of the Act every Claims Tribunal may exercise all or any of the powers vested in a Civil Court under the following provisions of the code of Civil Procedure, 1908 (as subsequently amended), in so far as they may be applicable namely, sections 30, 32, 34, 35, 35 (A), 75 (a)and (c), 76, 77, 94, 95, 132, 133, 144, 145, 147, 148, 149, 151, 152, 153 (A) and 153 (B) and subject to the provisions of the section 174 of the Act. (2) Any Claims Tribunal constituted for Calcutta where the amount of compensation awarded by it does not exceed Rs. 25,000 shall have all the powers of the City Civil Court, and where such amount exceeds Rs. 25,000 shall have all the power of the High Court, for the purpose of execution of the award, as if the award, is a decree for the payment of money made in suit by City Civil Court or the High Court, as the case may be. (3) Any Claims Tribunal constituted for West Bengal (outside Calcutta)shall have all the powers of the principal Civil Court of a district for the purpose of execution of any award for compensation made by it, as if the award is a decree for the payment of money made in a suit by each court. (3) Any Claims Tribunal constituted for West Bengal (outside Calcutta)shall have all the powers of the principal Civil Court of a district for the purpose of execution of any award for compensation made by it, as if the award is a decree for the payment of money made in a suit by each court. (4) For purpose other than those specified in sub-rule (1), the Claims tribunal may exercise all or any of the powers of Civil Court as may be necessary in any case for discharging its functions under the Act and these rules." (14.) FROM a plain reading of the entire Rule 342 and particularly the sub-rule (4) thereof, we are convinced that the Tribunal dealing with an application under Section 166 of the Act can not only exercise the power of procedural review but also the power of regular review conferred upon a Civil court as provided in Section 114 read with Order XLVII of the Code for the purpose of discharging its function under the Act. (15.) ONCE it is held that Order XLVII Rule 1 of the Code is applicable, we find substance in the contention of Mr. Das that the original assessment of amount by virtue of award dated 26th April, 2005 was on the face of it, erroneously made on the basis of gross salary which is not permissible and by taking into consideration the net salary, the Tribunal rightly reduced the amount. (See : the decision of the Supreme Court in the case of Asha and Ors. v. United india Insurance Company Ltd. reported in 2004 ACJ 448). It, however, appears that even in the modified award dated 6th May, 2005 there was an error due to typographical mistake and such typographical mistake was rectified by subsequent order dated 19th May, 2005 in exercise of inherent power. (16.) THAT the provision of Order XLVII Rule 1 of the Code applies to the proceedings under the Motor Vehicles Act, 1988 has been upheld by the Apex court in the case of Rajendra Kumar and Ors. v. Rambhai and Ors. reported in (2002)7 Supreme 205 . In this connection, it may be mentioned here that in the case of United Insurance Company Ltd. v. Rajendra Singh and Ors. v. Rambhai and Ors. reported in (2002)7 Supreme 205 . In this connection, it may be mentioned here that in the case of United Insurance Company Ltd. v. Rajendra Singh and Ors. reported in 2000 ACJ 1032, the Supreme Court has even recognised the right of review under the Motor Vehicles Act, 1988 on the ground of fraud in obtaining an award. (17.) WE, therefore, find no merit in this appeal and the same is accordingly dismissed. We hold that the Tribunal below rightly exercised its power of review provided under Section 114 of the Code by rectifying its award based on the gross income of the victim. (18.) IN view of our above findings, we ignore the other point taken by Mr. Das that in this appeal against the award dated June 8, 2005, the appellant is not entitled to challenge the award dated May 19, 2005 which itself was an appealable order under Section 173 of the Act. In the facts and circumstances, there will be, however, no order as to costs.