Branch Manager, Oriental Insurance Company Limited v. Tlangngaihzuali W/o Lalthanzauva
2021-05-03
NELSON SAILO
body2021
DigiLaw.ai
JUDGMENT : Heard Mr. Lalremtluanga, learned counsel for the review petitioner and Mr. Zochhuana for the respondent Nos. 1 & 2 in the review petition and for the petitioner in the contempt petition. 2. The contempt petition has been tagged alongwith review petition pursuant to the Order dated 20.04.2021 passed in the contempt petition which is to the effect that despite receiving notice, the sole respondent i.e., the Branch Manager of the Oriental Insurance Company Limited failed to appear before the Court either in person or through a counsel. Since the review petition has been preferred by the Branch Manager of the said Insurance Company, this Court therefore directed that the contempt petition be tagged alongwith the review petition. 3. Mr. Lalremtluanga, learned counsel for the review petitioner submits that he has no instructions in so far as the contempt petition is concerned. 4. The review petition has been preferred by the review petitioner seeking review of the Judgment & Order dated 27.05.2020, passed by this Court in MAC Appeal No. 27/2019. Two grounds have been taken for preferring the review petition. They are:- (i) that 7% interest on the total awarded amount was given while interest on future prospect should not be given interest and (ii) that tax deduction at source was not considered from the salary of deceased Lalthanzauva by the Tribunal, while the said deduction has to be made. 5. Brief facts essential for disposal of the review petition is that the husband of the respondent No. 1 and father of respondent No. 2 i.e., Sh. Lalthanzauva, aged about 24 years met with an accident on 10.08.2014 at around 12:24 PM, while travelling in a Tata Sumo tourist vehicle bearing registration No. AS11-BC-3076, which was proceeding from Mizoram towards Guwahati. The accident happened when the vehicle reached Lad-Mukhla village (Meghalaya) in National Highway 44 where it collided with one Truck bearing registration No. NL01-K-1588 coming from the opposite direction. The Tata Sumo vehicle was driven by Sh. Laltlanzova, S/o L.V. Zuia of Thakthing Venghnuai. As a result of the accident, both the vehicles were badly damaged. There were 8 (eight) occupants in the Tata Sumo vehicle including the driver and out of which, 7 (seven) passengers including the driver received serious injuries on their person. One of the passengers Sh. Abishek Mahindra Bhimani expired on the spot. Sh.
As a result of the accident, both the vehicles were badly damaged. There were 8 (eight) occupants in the Tata Sumo vehicle including the driver and out of which, 7 (seven) passengers including the driver received serious injuries on their person. One of the passengers Sh. Abishek Mahindra Bhimani expired on the spot. Sh. Laltlanzova succumbed to his injuries, while he was being taken to NEIGRIHMS, Shillong. 6. The respondent Nos. 1 & 2 therefore filed a claim application before the Motor Accident Claims Tribunal, Aizawl (Tribunal) claiming a sum of Rs. 1,01,73,016/-, as compensation under Section 166 of the Motor Vehicles Act, 1988 (MV Act). The deceased was a Sepoy in the Indian Army and he joined the 9th Assam Regiment on 29.06.2007 and his Army No. was 04374720N and he was earning a monthly salary of Rs. 44,551/-. According to the claimants, the accident occurred due to the rash and negligent driving on the part of the driver of the accident vehicle and that the accident vehicle was validly insured with the Oriental Insurance Company. Therefore, the claimants contended that they were liable to be compensated for the death of the deceased person on whose salary they were solely dependent upon. 7. The claim application was thereafter disposed on contest by the Tribunal vide Judgment & Award dated 23.04.2019, by awarding the claimants a sum of Rs. 97,93,016/- as compensation alongwith interest @ 7% p.a. from the date of filing of the claim application. The award was directed to be satisfied by the Oriental Insurance Company Ltd., which was arrayed as opposite party No. 3 in the claim application. 8. Being aggrieved, the Insurance Company preferred MAC Appeal No. 27/2019 before this Court, which came to be disposed of vide Judgment & Order dated 27.05.2020, by modifying the awarded amount to Rs. 96,93,016/- after deducting Rs. 1 lakh awarded by the Tribunal towards loss of expectation of life in view of the decision of the Apex Court in National Insurance Company Ltd. Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680 . Besides this modification, other things remained unchanged including the interest that was awarded. Not being satisfied with the said Judgment & Order, the appellant Insurance Company is again before this Court as review petitioner seeking review of the Judgment & Order on two grounds, as already stated hereinabove. 9. Mr.
Besides this modification, other things remained unchanged including the interest that was awarded. Not being satisfied with the said Judgment & Order, the appellant Insurance Company is again before this Court as review petitioner seeking review of the Judgment & Order on two grounds, as already stated hereinabove. 9. Mr. Lalremtluanga, the learned counsel submits that this Court had committed error in awarding 7% interest towards future prospect and therefore, the Judgment & Order should be reviewed by restricting the interest to other components except for future prospect. In support of his submission, he relies upon the following authorities:- (i) Judgment dated 09.04.2019 of this Court in MAC Appeal No. 100/2014 (Nasima Begum Vs. Keramat Ali & Ors.) 2019 Supreme (Gau) 507:2019 Legal Eagle (GAU)298 (ii) Judgment dated 01.10.2019 of this Court in MAC Appeal No. 378/2017 (Oriental Insurance Co. Ltd. Vs. Champabati Ray & Ors.) 2019 Legal Eagle (GAU) 954. (iii) Judgment dated 15.11.2019 of this Court in MAC Appeal No. 329/2017 and MAC Appeal No. 167/2018 (Oriental Insurance Co. Ltd. & Ors. Vs. Malina Basumatary & Ors) 2019 Legal Eagle (GAU) 1030. 10. The learned counsel further submits that the tax deduction at source was not considered from the salary of the deceased while computing the amount of compensation to be paid to the claimants. He however submits that he does not have any authority to cite in support of this ground of review. 11. Mr. Zochhuana, learned counsel, on the other hand by referring to the affidavit-in-opposition filed by the respondent Nos. 1 & 2 on 19.04.2021 submits that the two grounds taken by the review petitioner for seeking review of the Judgment & Order of this Court cannot be maintained in view of the fact that the same was not even raised before the Tribunal and likewise, before the Appellate Court. He submits that the same can be seen from a perusal of the grounds taken by the review petitioner in its appeal preferred before this Court. The learned counsel by referring to the second ground taken in the review petition submits that the petitioner by filing the instant review petition cannot seek review of the judgment and award passed by the Tribunal. Review if permissible would lie only before the Tribunal and not before this Court.
The learned counsel by referring to the second ground taken in the review petition submits that the petitioner by filing the instant review petition cannot seek review of the judgment and award passed by the Tribunal. Review if permissible would lie only before the Tribunal and not before this Court. He also submits that the MV Act is otherwise a complete code and in the absence of any provision, revision petition cannot be entertained in the garb of clarification. The learned counsel submits that a review petition has to be strictly confined to the scope and ambit of Order 47 Rule 1 of the Civil Procedure Code (CPC) and that this present review petition does not fall under the scope of the said provision. He also submits that what was not raised before the Tribunal and before the appellate Court cannot be raised before the review Court for the first time. He therefore submits that the review petition may be dismissed. In support of his submission, the learned counsel has relied upon the following authorities:- (i) M.P. Shreevastava Vs. Mrs. Veena, reported in AIR 1966 SC 1193 (ii) Meera Bhanja (Smt) Vs. Nirmala Kumari Choudhury (Smt), reported in (1995) 1 SCC 170 (iii) Bankatlal Vs. Special Land Acquisition Officer & Anr., reported in (2014) 15 SCC 116 . 12. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 13. As may be noticed, the petitioner has taken two grounds for reviewing the judgment and order of this Court. The first ground is that 7% interest on future prospect should not have been awarded to the claimants. In support of this ground, the learned counsel has cited the case of Nasima Begum (Supra), Champabati Ray & Ors. (Supra) and Malina Basumatary & 2 Ors (Supra). No doubt, this Court in the three cases referred to, had not granted interest on the future prospect but the fact remains that it was neither the case of the review petitioner as appellant that interest on future prospect should not be given nor were the three (3) decisions relied upon or cited before the appellate Court. Under the CPC, the provision for review is provided under Order 47 Rule 1. The same may be abstracted for ready perusal : “1.
Under the CPC, the provision for review is provided under Order 47 Rule 1. The same may be abstracted for ready perusal : “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 fact 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 to the Court which passed the decree or made the order” 14. From the above abstract, it may be seen that application for review may be preferred on the ground of discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the petitioner or could not be produced by him when the decree or order was passed or on a ground of some mistake or error apparent on the face of the record or for any other sufficient reason. It is not in dispute that the Tribunal had awarded 7% interest per annum on the compensation amount which was upheld by this Court in MAC Appeal No. 27/2019 and that the only difference was that Rs. 1 lakh awarded towards the conventional head ‘loss of expectation of life’ was excluded. The review petitioner admittedly did not raise the issue on the award of interest towards future prospect either before the Tribunal or before the Appellate Court. Therefore, having regard to the expressed provision provided in Order 47 Rule 1, the ground taken by the review petitioner cannot be accepted. 15. Coming to the second ground taken in the review petition, it may be seen that according to the review petitioner tax deduction at source was not considered from the salary of the deceased by the Tribunal.
Therefore, having regard to the expressed provision provided in Order 47 Rule 1, the ground taken by the review petitioner cannot be accepted. 15. Coming to the second ground taken in the review petition, it may be seen that according to the review petitioner tax deduction at source was not considered from the salary of the deceased by the Tribunal. It may be seen that the instant review petition is preferred against the judgment and order passed by this Court in MAC Appeal No. 27/2019 and not against the judgment and award passed by the Tribunal. Therefore, there is no scope for reviewing the judgment and award passed by the Tribunal in the claim application through the instant review petition. The materials on record also shows that the said ground has not been taken in the written statement filed by the review petitioner before the Tribunal. In MAC Appeal No. 27/2019, the review petitioner at ground No. 2 had taken the stand that the learned Tribunal failed to deduct Income Tax while calculating the award. It may otherwise be seen that the Judgment & Order dated 27.05.2020 came to be passed by this Court with the agreement of the rival parties and particularly, the counsel for the review petitioner who had submitted that the grounds of appeal are twofold. The first ground was that the Tribunal committed error in awarding Rs. 1 lakh towards the conventional head ‘loss of expectation of life’ contrary to the Apex Court decision in Pranay Sethi & Ors. (Supra). The second ground was that the accident occurred due to mechanical failure of the accident vehicle and therefore, the Tribunal could not have imposed the liability of paying compensation upon the Insurance Company. As such, the question of considering a deduction of income tax while calculating the award did not arise. It may also be noticed that the deceased was a Sepoy in the 9th Assam Regiment and was earning a monthly salary of Rs. 44,551/-. His Last Pay Certificate exhibited as Exhibit C-20 was the basis on which the claimants had sought for the quantified compensation. The said exhibit admittedly was not objected to by the review petitioner either before the Tribunal or even in the appeal proceeding. Further, Exhibit C-20 does not reveal any deduction towards income tax.
44,551/-. His Last Pay Certificate exhibited as Exhibit C-20 was the basis on which the claimants had sought for the quantified compensation. The said exhibit admittedly was not objected to by the review petitioner either before the Tribunal or even in the appeal proceeding. Further, Exhibit C-20 does not reveal any deduction towards income tax. The same may be due to the fact that the deceased belongs to a schedule tribe community and was posted in a Scheduled Tribe area. Be that as it may, having regard to the provisions of Order 47 Rule 1 of the CPC, this aspect of the matter cannot be gone into in this review petition. The Apex Court in Meera Bhanja (Smt) (Supra) has held that the power of review should only be confined to such discovery of new important matter which after due exercise of diligence was not within the knowledge of the person seeking review. While exercising the power of review, it would not be permissible to re-appreciate the entire evidence or sit as a Court of appeal. Therefore, on the given facts of that case, the Apex Court held that the Review Bench had exceeded its jurisdiction. 16. The case of Bankatlal (Supra) cited by the learned counsel for the respondent Nos. 1 & 2 pertains to Land Acquisition Act, 1894 and the Apex Court held that in the absence of any statutory provision a review petition cannot be entertained. This decision in my considered view is not directly applicable to the present case. Further, due to the conclusion proposed to be taken in the present review petition, I do not find the necessity to enter into the issue about the admissibility of filing a review petition against the judgment & award of the Tribunal or the Judgment & Order of the appellate Court. In the case of M.P. Shreevastava (Supra), the Apex Court in the given facts of that case, declined to accept the ground taken for the first time before it and which otherwise was not raised before the Court of first instance and also before the High Court. The said ratio in my considered view would squarely apply to the present case since, the review petitioner did not raise the issue before the Tribunal when the monthly pay slip of the deceased person was being exhibited. 17.
The said ratio in my considered view would squarely apply to the present case since, the review petitioner did not raise the issue before the Tribunal when the monthly pay slip of the deceased person was being exhibited. 17. Thus upon due consideration, I do not find any merit in the review petition and the same is dismissed. 18. In so far as the contempt petition is concerned, the same be segregated and listed after 2 (two) weeks. A copy of this order be also kept in the file of the Contempt Petition.