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2010 DIGILAW 878 (GAU)

Lalnunmawii v. National Insurance Co. Ltd.

2010-11-23

C.R.SARMA

body2010
JUDGMENT C.R. Sarma, J. 1. This review petition filed under Section 114 of the Code of Civil Procedure Code, 1908 (hereafter called 'CPC') read with Order 47 Rule 1 of CPC, is directed against the judgment and order, dated 05.09.2007, passed in MAC Appeal No. 32 of 2005. 2. The claimant-Respondent i.e. the review Petitioner's case is that on 26.08.2001, at 6.55 p.m, she was hit by a Scooter bearing Registration No. MZ-01/B-0113 on the road. The said vehicle was covered by the insurance policy issued by M/S National Insurance Co. Ltd. In the said accident, the claimant sustained 45% permanent disability in respect of her upper limbs. Accordingly, she filed a claim case being MAC Case No. 100 of 2003, claiming compensation for the disability suffered by her. The said claim case was contested by the insurer by filing a written statement and prayed for dismissal of the same. The learned trial Judge, upon the pleadings of the parties, framed the following issues: (1) Whether the claim petition is maintainable or not? (2) Whether the claimant is entitled to get compensation and if so, who is liable to pay and to what extent? 3. In order to substantiate her claim, the claimant examined herself as a witness and exhibited certain documents, including the medical certificate, issued by the Medical Officer with regard her disability. The learned Member, Motor Accident Claims Tribunal, after considering the materials on record, granted compensation of Rs.3,07,200/-, to be paid by the insurer in favour of the claimant with interest thereon @ 9% per annum. Being aggrieved by the said judgment and order, the insurer as Appellant, filed an appeal being MAC Appeal No. 32 of 2005, before this Court. 4. A learned Single Judge of this Court, having heard the learned Counsel for both the parties and considering the materials on record, while setting aside and quashing the impugned award, dated 17.06.2004, allowed the appeal. The learned Single Judge, in allowing the appeal, observed that the annual income of the claimant being more than Rs.40,000/-, the claim application, filed under Section 163A of the M.V. Act, was not maintainable. The learned Single Judge, in holding that the claimant failed to substantiate her plea of disability by examining the Medical Officer, who issued the Disability Certificate, observed as follows: ... It is also noticed that no Doctor examined to prove the percentage of the disability. The learned Single Judge, in holding that the claimant failed to substantiate her plea of disability by examining the Medical Officer, who issued the Disability Certificate, observed as follows: ... It is also noticed that no Doctor examined to prove the percentage of the disability. It has been decided by a catena decision of this Court as reported in Narayan Chakraborty v. Swap an Debnath and Anr. 2007 (1) GLT 735 and in the case of United India Insurance Co. Ltd. v. Recharson @ Akhai @ Yaokhai and Anr. 2007 (1) GLT 555 and in the case of New India Assurance Co. Ltd. v. Sanjit Kumar and Anr. 2000 (2) GLT 567. It was held in the case of New India Assurance (Supra) that the learned Commissioner giving an award on assessment of loss of earning capacity of the workman without the assistance of a Doctor, the award was set aside with the direction to take the assistance of a Doctor. Similarly, in the other two cases reported in 2007 (1) GLT 555 and 2000 (1) GLT 735, the same principle has been relied. In both the decisions referred above, it was held that without any assessment of the loss of earning capacity made by the qualified medical practitioner, the award was set aside and matter was remitted back for assessment of compensation afresh. It was also held that whether examination of Doctors is an essential requirement of the act so as to assess the disability - held, Yes. Evidence of medical witness is a condition precedent for assessment of the disability of the injured person. 7. Relying on the decisions of this Court as quoted above, I am of the considered opinion that the assessment made by the learned tribunal without the assistance of the examination of the Doctor cannot be considered and as such the impugned award dated 17.6.04 is hereby quashed and set aside. Being aggrieved by the said order of setting aside the award, the claimant-Respondent, has come up with this petition, seeking review/modification of the said judgment and order, passed by the learned Single Judge. 5. I have heard Mr. S.N. Meitei, learned Counsel, appearing for the Petitioner and Ms. Helen Dawngliani, learned Counsel, appearing for the Respondents. 6. Being aggrieved by the said order of setting aside the award, the claimant-Respondent, has come up with this petition, seeking review/modification of the said judgment and order, passed by the learned Single Judge. 5. I have heard Mr. S.N. Meitei, learned Counsel, appearing for the Petitioner and Ms. Helen Dawngliani, learned Counsel, appearing for the Respondents. 6. On behalf of the review Petitioner, it is submitted that the impugned judgment and order, has been passed relying on wrong and incorrect principles of law and that there is error apparent on the face of the record, requiring review/modification of the same. It is also submitted that, dismissal of the claim on the ground of non-maintainability of the claim petition, filed under Section 163A of the Motor Vehicles Act and non-examination of the Medical Officer, was not a correct approach taken by the learned Single Judge. The learned Counsel, further submitted that the provisions prescribed by the Motor Vehicles Act being a beneficial legislation, effort should be made to extend benefit to the victims of the vehicular accident and as such the dismissal of the claim petition on the technical ground of maintainability of the same and non-examination of the Medical Officer, was an error apparent on the face of the record. In support of his submission, the learned Counsel, has relied upon the following decisions: (1) R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. 2004 (2) SBR 365; (2) Hamida Khatun and Ors. v. Loobha Tea Co. Ltd. and Ors. 2004 (1) GLT 382; (3) Ajgarh Ali His Legal Heirs Must. Joynab Bewa and Ors. v. Abdul Siddique 1999 (1) GLT 642; (4) State Bank of Travancore, Tirupur Branch v. K. Vinayachandram and Anr. AIR 1989 Ker 302 . (5) The Custodian General E.P. and Ors. v. Mohd. Syed Baba, reported in AIR 1970 J&K 163 7. Refuting the said argument, advanced by the learned Counsel for the Petitioner, Ms. Helen Dawngliani, learned Counsel, appearing for the Respondents, has submitted that as the annual income of the claimant-Petitioner, was more than Rs.40,000/-, the claim petition filed under Section 163A of the Motor Vehicles Act, was not at all maintainable and as such the appellate court committed no error by observing that the claim petition was not maintainable. Helen Dawngliani, learned Counsel, appearing for the Respondents, has submitted that as the annual income of the claimant-Petitioner, was more than Rs.40,000/-, the claim petition filed under Section 163A of the Motor Vehicles Act, was not at all maintainable and as such the appellate court committed no error by observing that the claim petition was not maintainable. The learned Counsel, further submitted that the entire claim of the claimant having been based on the disability sustained by her, it was incumbent on her to establish, by adducing sufficient evidence, that she sustained 45% disability and for discharging such burden, the claimant should have examined the Medical Officer, who issued the said Disability Certificate. It is also submitted that, failure on the part of the claimant to examine the said Medical Officer, deprived the Respondent-Insurance Company from cross-examining the said Medical Officer and consequently to challenge the correctness of the said Disability Certificate. Therefore, it is submitted that non-examination of the Medical Officer caused much prejudice to the Respondent and that such lapse was fatal for the claimant-Petitioner. The learned Counsel further submitted that the learned Single Judge passed the order, under review, after considering the entire materials on record and hearing both the parties and that there is no error apparent on the face of the record. It is also submitted that any modification on review at this stage will amount to exercising the power of the appellate authority, which power is not vested with a Court of concurrent jurisdiction. In support of her submission, the learned Counsel, has relied upon the following decisions: (1) State of West Bengal and Ors. v. Kamal Sengupta and Anr. (2008) 8 SCC 612 ; (2) National Insurance Co. Ltd. v. Chandreswar Thakur and Ors. 2001 (1) GLT 393; (3) Basant Cables & Conductors Pvt. Ltd. and Anr. v. UCO Bank, Agartala and Ors., reported in 2006 1 GLT 13. 8. In order to ascertain as to whether this is a fit case for exercising the powers for review, it will be appropriate to peruse the principles of law with regard to review power. 9. 2001 (1) GLT 393; (3) Basant Cables & Conductors Pvt. Ltd. and Anr. v. UCO Bank, Agartala and Ors., reported in 2006 1 GLT 13. 8. In order to ascertain as to whether this is a fit case for exercising the powers for review, it will be appropriate to peruse the principles of law with regard to review power. 9. In the case of Ajgarh Ali (supra), a learned Single Judge of this Court, referred to the following observations made by the Hon'ble Supreme Court, in the case of Smti Meera Bhanja v. Smti Nirmala Kumari (Choudhury), reported in AIR 1995 SC 455 : The limits to exercise the power of review is limited, Review Court not to act as appellate court. The learned Single Judge also observed: The Supreme Court further pointed out that 'error apparent on the face of record' means an error which strikes one on mere looking at record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The Supreme Court also pointed out that review court should not reappreciate the evidence and arrive at different findings and if it is done, the review court must be deemed to exceed its jurisdiction. 10. In the case of Custodian General E.P. (supra), the review was allowed on the ground that specific provision of law was not pointed out to the Court at the time of passing the order under review. 11. In the case of State Bank of Travancore (supra), an order was passed without looking into the notification, which brought into force a provision regarding applicability of Section 34 of CPC. The claim of the Petitioner for interest was not accepted on the ground that the Plaintiff-Bank failed to prove the notification, bringing the said provision into force. The said notification being issued under the statutory power, was legislative in nature and as such the same amounted to law in force (See State of Bombay v. F.N. Balsara AIR 1951 SC 318 ). The Petitioner could get a copy of the Notification only after strenuous efforts and the review petition was filed with a petition for condonation of delay, stating therein that the Petitioner, earlier, could not trace out the Notification bringing the proviso into force. In view of the above, the Court observed that there was mistake apparent on the face of the record. In view of the above, the Court observed that there was mistake apparent on the face of the record. Accordingly, the review was allowed. 12. In the case of Basant Cables & Conductors Pvt. Ltd. (supra), a Division Bench of this Court, observed that Order 47 Rule 1 of Code of Civil Procedure leaves no doubt that the review proceeding is not an appeal and, therefore, has to be strictly confined to the scope and ambit of that provision. In the above cited case, this Court also referred the following observations made by the Hon'ble Supreme Court in the case of Smt. Meera Bhanja (supra): 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 persons 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 fact 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. 13. In the case of State of West Bengal (supra), the Hon'ble Supreme Court, while laying the down the principles regarding review power of the Tribunal, observed that an erroneous order/decision cannot be corrected in the guise of exercise of power of review. 14. Relying on the decision held in the case of Hamida Khatun (supra) and R.V.E. Venkatachala Gounder (supra), the learned Counsel, appearing for the Petitioner, submitted that as the Disability Certificate issued by the Medical Officer was exhibited, without any objection, non-examination of the Medical Officer to prove the said document was not fatal and that the learned Single Judge committed error by setting aside the award, on the ground of non-examination of the said Medical Officer. 15. 15. In the case of Hamida Khatun (supra), the claimant did not examine the doctor in support of the injuries and the documents relating thereto, but the documents were introduced in the evidence by the claimant without objection of the Respondent-owner, who in spite of notice of the proceedings did not contest the same. The Court examined the documents proved and exhibited, in the case from which it was found that the claimant had sustained the injuries. In view of the above, the Court was not inclined to hold the contention of the Respondent-owner that only because the claimant-injured had not examined the doctor, it was not open for the claimant, on the basis of the materials on record to urge, that the amount awarded by the learned Tribunal is inadequate and needs to be suitably enhanced. 16. In the case of R.V.E. Venkatachala Gounder (supra), the Supreme Court observed that failure to raise a prompt and timely objection with regard to admissibility of a document amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. 17. Refuting the said argument, advanced by the learned Counsel for the review Petitioner, the learned Counsel, appearing for the Respondents, relying on the decision of the National Insurance Co. Ltd. (supra), submitted that non-examination of the Medical Officer, who issued the Disability Certificate, deprived the Respondent from controverting the correctness of the said Certificate by cross-examining the Medical Officer. Therefore, it is submitted that non examination of the Medical Officer belied the claim of the claimant that she sustained 45% disability and as such the learned Single Judge committed no error by setting aside the award. 18. In the case of National Insurance Co. Ltd. (supra), a Division Bench of this Court observed as follows: Non-examination of the doctor to establish the extent of disabilities suffered by the claimant deny the opportunity to the Insurance Company to cross-examine the Doctor. In our jurisprudence witnesses put up by either of the parties is subject to cross-examination so as to test veracity or the truthness or correctness of the statement of the witnesses. In the instant case, no Doctor has been examined to establish the extent of disabilities suffered by the claimant and in that view the permanent disability has not been proved. 19. In the instant case, no Doctor has been examined to establish the extent of disabilities suffered by the claimant and in that view the permanent disability has not been proved. 19. In the case of Moranmar Basselios Cathalicos and Anr. v. Most Rev. Mar Paulose Athanasius and Ors. AIR 1954 SC 526 , it was observed that a review may be allowed on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. Regarding the term 'any other sufficient reason', the Supreme Court observed- It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule". See-Chhajju Ram v. Neki AIR 1922 PC 112 (D). This conclusion was reiterated by the Judicial Committee in-Bisheshwar Pratap Sahi v. Parath Nath AIR 1934 PC 213 (E) and was adopted by our Federal Court in-Hari Shankar v. Anath Nath AIR 1949 FC 106 at pp.110, 111(F). 20. In the case of Lily Thomas and Ors. v. Union of India and Ors. v. Union of India and Ors. (2000) 6 SCC 224 , the Supreme Court, discussing the power and scope of review and referring to the case of Patel Narshi Thakershi v. Pradyumansigghji Arjunsighji AIR 1970 SC 1273 , observed that the 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 cannot be denied that justice is a virtue which transcends all barriers and the rules or procedure or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the court from rectifying the error. If the court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the court from rectifying the error. The Supreme court referred to the case of S. Nagaraj v. State of Karnataka (1993 Supp(4) SCC 595 wherein it was observed that the review literally and even judicially means re-examination or reconsideration. The Supreme Court further observed that the power of review or exercise for omission or mistakes but not to substitute a view and that such power can be exercised within the limits of statute dealing with the exercise of power. It was also observed that the mere possibility of two views on the subject is not a ground for review. The Supreme Court further observed that if the court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption, which in fact did not exist, and its perpetration shall result in a miscarriage of justice nothing would preclude the court from rectifying the error. 21. In the case of Board of Control for Cricket in India and Anr. Vs Netaji Cricket Club and Ors., reported in (2005) 4 SCC 741 , the Supreme Court drawing reference to Section 114 and Order XLVII Rule (1) Code of Civil Procedure discussed the scope of review. In the above referred case, the Supreme Court observed: We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of involving the doctrine "actus curiae neminem gravabit. It is also not correct to contend that the court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29-9-2004. The subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake. 22. In the case of S. Nagraj v. State of Karnataka, reported in 1993 Supp (4) SCC 595, the Supreme Court observed - Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the court. In administrative Law the scope is still wider. Technicalities apart if the court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue. 23. Discussing the power of the Tribunal to review its order in the case of State of West Bengal and Ors. v. Kamal Sengupta and Anr. (supra), it is observed that the power of the Tribunal to review its order/decision is akin to that of the civil court under Section 114 read with Order 47 Rules 1 and 2 Code of Civil Procedure and that the Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 Code of Civil Procedure and not otherwise. In this case, the Supreme Court discussed the scope and power of review of the Tribunal under Section 22(3) of the Administrative Tribunal Act, 1985: 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 the facts or the legal position. If an error is not self-evident 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 Code of Civil Procedure or Section 22(3)(f) of the Act. If an error is not self-evident 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 Code of Civil Procedure or Section 22(3)(f) of the Act. 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/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. 24. In view of the principles of law pronounced by the Apex court in the above referred cases any person considering himself aggrieved by a decree or order may seek review of the decree or order may, under the provision of Order 47 Rule 1, apply for review of the order or the decree passed against him. Order 47 Rule (1) which provides for review reads as follows: 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, 25. In view of the above statutory provision, an aggrieved person may apply for review of the order on the grounds firstly, (i) new or important matter or evidence, which after the exercise of due diligence was not brought to his knowledge or could not be produced by him at the time when the decree or order was passed or made, has now been discovered, secondly (ii) there was some mistake or error apparent on the face of the record, thirdly (iii) for any other sufficient ground. 26. In the present case, the learned Single Judge, considering the decisions rendered in the case as reported in 2004 (2) TAC 289 SC, came to the finding that in view of the annual income (Rs.40,000/-) of the claimant, the Tribunal should not have entertain the claim petition. The learned Single Judge, referring to the decisions held in the cases of (1) Narayan Chakraborty v. Swapan Debnath and Anr. 2007 (1) GLT 735, (2) United India Insurance Co. The learned Single Judge, referring to the decisions held in the cases of (1) Narayan Chakraborty v. Swapan Debnath and Anr. 2007 (1) GLT 735, (2) United India Insurance Co. Ltd. v. Recharson @ Akhai @ Yaokhai and Anr. 2007 (1) GLT 555 and (3) New India Assurance Co. Ltd. v. Sanjit Kumar and Anr. 2000 (2) GLT 567, set aside the award passed by the learned Tribunal due to non-examination of the qualified medical practitioner to assess the loss of earning capacity. The learned Single Judge also observed that the evidence of the medical witness is a condition precedent for assessment of the disability of the injured person. In view of the above, the learned Single Judge set aside and quashed the impugned award, dated 17.06.2004, with the observations already above. There is nothing on record to find that the relevant law was not brought to the notice or the appellate court. 27. Carefully perusing the judgment and order, under review, it is found that the learned Single Judge decided the matter after by arriving at a finding with regard to the facts and the law and holding that in view of the income of the claimant (Rs. 40,000/-), the claim petition under Section163A of the Motor Vehicles Act, was not maintainable and that, non-examination of the Medical Officer, who issued the Disability Certificate, was an essential requirement to assess the extent of disability. There is nothing on record to find that there is any error apparent on the face of the record. 28. The review court has the limited jurisdiction to exercise its power to correct the error apparent on the face of the record. The review court is not authorised to re-appreciate the evidence or to reverse the finding of the Court, whose judgment is sought to be reviewed. As cautioned by the Supreme Court, re-appreciation of evidence and arriving at a different finding would amount to exceeding the jurisdiction of a review court. The alleged errors, as pointed out by the learned Counsel, appearing for the review Petitioner, are far from self-evident and as such the said errors can't be cured by a court exercising review power. As cautioned by the Supreme Court, re-appreciation of evidence and arriving at a different finding would amount to exceeding the jurisdiction of a review court. The alleged errors, as pointed out by the learned Counsel, appearing for the review Petitioner, are far from self-evident and as such the said errors can't be cured by a court exercising review power. Any modification of the judgment and order under review, on the grounds cited by the review Petitioner will amount to exercising the appellate jurisdiction, because the modification as sought for by the review Petitioner would amount to entertaining the ground that the decision was erroneous on merit. This would be the province of a Court of Appeal. The review court can't correct all manner of errors committed by a Court of law, whose judgment and order, is sought to be reviewed. 29. In the light of the above discussions, I am of the considered opinion that, though the grounds cited by the review Petitioner may possibly be taken in an appeal, the same cannot be basis for a review petition. 30. Therefore, I find no sufficient merit in this review petition, and, accordingly, the same is dismissed. No order as to cost. Petition dismissed.