Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1243 (ALL)

Anwar Ahmad v. Uttarakhand Transport Corporation

2022-08-05

AJAI TYAGI, KAUSHAL JAYENDRA THAKER

body2022
JUDGMENT : 1. Heard Sri Rahul Anand Gaur, Counsel for the original respondent now applicant for the review petitioner and Sri Satish Chandra Pandey, Counsel for the respondents - original claimants. 2. The present review petition raises issue of deduction of personal expenses and calculation of compensation being faulty. There is no dispute with respect to liability. The age of the deceased is 21 years which is not in dispute. 3. Learned Counsel for the review petitioner has heavily relied on the decisions in Sube Singh and another Vs. Shyam Singh (Dead) and others, reported in 2018 0 Supreme (SC) 126. Learned counsel has also relied on the decision titled Meena Pawaia and others Vs. Ashraf Ali and others, published in 2021 LawSuit (SC) 743; The learned counsel for review petitioner has even placed reliance on Suresh Chandra Bagmal Doshi and another Vs. The New India Assurance Company Limited and others, 2018 0 Supreme (SC) 357; and Dr. Anoop Kumar Bhattacharya and another Vs. National Insurance Co. Ltd., 2021 0 Supreme (All) 1277, so as to contend that the deduction for personal expenses of a bachelor has to be only one half and the appeal court under section 173 of Motor Vehicles Act 1988 cannot deduct one-fourth even if there are more dependents as sisters and brothers and father cannot be said to be dependent on the deceased. The learned counsel for review petitioner has contended that this is error apparent on the record and requires to be reviewed. 4. The judgments relied by Sri Gaur appearing for the applicant - respondent are considered by us and the submission that in case of death of bachelor 1/2 and not 1/4th be deducted for personal expenses is not the law propounded. It is normally dependent on how many dependents are on the deceased. 5. It is submitted by the Counsel for the review petitioner that the deceased was a bachelor and the father was an earning member and hence deduction of 1/4th should not have been made, it should have been 50% of the income earned by deceased. 6. While considering the facts, we have categorically mentioned in paragraph no.4 "It is submitted by learned counsel for the appellant that the deceased was 21 years of age survived by his parents and brothers and sister who were minor at the time of accident. He was JCB mechanic. 6. While considering the facts, we have categorically mentioned in paragraph no.4 "It is submitted by learned counsel for the appellant that the deceased was 21 years of age survived by his parents and brothers and sister who were minor at the time of accident. He was JCB mechanic. In the year 2014, the Tribunal has assessed the income of the deceased to be Rs.3,000/-, which is on the lower side. Further the Tribunal has not granted any amount under the head of future loss of income. Multiplier of 17 was applied which should be 18. Further amount under the head of non-pecuniary damages has been awarded on lower side. Further rate of interest has been considered to be 7% which should be 9%. Thus, quantum of compensation is required to be enhanced." 7. It is submitted by Counsel for original claimants that the deceased was survived by his parents, brothers and sisters, who are minor at the time of accident. The deceased was bachelor. The family was dependant on him and, therefore, this Court had deducted 1/4th. 8. It is submitted by Sri Gaur, learned counsel for review petitioner that father of the deceased cannot be said to be the dependant on the son. It is submitted that claimants are under a duty to prove that father of deceased was dependent on the income of deceased. There were minor brothers and sisters though are legal representative of the deceased but is not proved that they were dependant on deceased, therefore, this review requires to be allowed in view of the following authoritative pronouncements:- 9. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, AIR 1964 SC 1372 , the Court said : "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." 10. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, 1979 (4) SCC 389 the Court said: "... there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent 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. there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent 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 powers which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court." 11. Again, in Meera Bhanja v. Nirmala Kumari Choudhury, AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the Court once again held that 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. 12. In Parsion Devi and others Vs. Sumitri Devi and others, 1997 (8) SCC 715 it was held that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record justifying the court to exercise powers of review in exercise of review jurisdiction. 13. In Rajendra Kumar Vs. Rambai, AIR 2003 SC 2095 , the Apex Court has observed about limited scope of judicial intervention at the time of review of the judgment and said: "The limitations on exercise of the 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 order and permitting the order to stand will lead to failure of justice. 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 order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/ order cannot be disturbed." 14. Thus, Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. In Lily Thomas Vs. Union of India AIR 2000 SC 1650 , the Court said that power of review can be exercised for correction of a mistake and not to substitute a new. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in Inderchand Jain Vs. Motilal (2009) 4 SCC 665. 15. In Kamlesh Verma Vs. Mayawati and others 2013 (8) SCC 320 , the Court said : "19. 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 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles: 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526 , to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526 , to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337 . 22.2. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." (emphasis supplied) 16. Having heard the learned counsels for the parties We do not disturb the findings as far as monthly income of the deceased as decided by this court. Supreme Court in Meena Pawaia (supra) has held that if deceased is bachelor but has more family members who are dependant on the deceased, the deduction can vary. Here father cannot be said to be dependant as it is not demonstrated that father was dependant. The minor children would take one quotient between two of them and one count for mother hence instead of 1/4 it has to be 1/3 for personal expenses in view of discussion in latest judgment in Dr. Anoop Kumar (supra). 17. We even find that there is an error apparent on the face of the record in the judgment. The minor children would take one quotient between two of them and one count for mother hence instead of 1/4 it has to be 1/3 for personal expenses in view of discussion in latest judgment in Dr. Anoop Kumar (supra). 17. We even find that there is an error apparent on the face of the record in the judgment. The calculation is based on a grave mistake the court instead of considering amount payable has calculated on basis of deduction of personal expenses. In fact, the claimants should have also filed review application as what has been calculated is considering the amount which was to be deducted as personal expenses instead of considering grantable datum amount. Therefore, we recalculate the amount as under:- i. Income Rs.4,000/- ii. Percentage towards future prospects 40% namely Rs.1,600/- iii. Total income Rs.4,000 + 1,600 = Rs.5,600/- iv. Income after deduction of 1/3rd Rs.3,733/ v. Annual income Rs.3,733 x 12 = Rs.44,796/- vi. Multiplier applicable 18 vii. Loss of dependency Rs.44,796 x 18 = Rs.8,06,328/- viii. Amount under non pecuniary heads Rs.40,000/- ix. Total compensation Rs.8,46,328/- 18. We have been conveyed by Sri Gaur that no amount has yet been deposited except the amount awarded by the Tribunal. This review petition is filed immediately after the judgment. Hence, the enhanced amount would be deposited with 7.5% interest at flat rate of interest. We even modify paragraph no.10 as no amount has been deposited by the applicant-review petitioner herein and it is not a very old matter. 19. We are thankful to Uttrakhand Transport Corporation for having brought these glaring mistakes to our notice by way of filing this review. 20. The Uttrakhand Transport Corporation should have deposited the amount which was on lower side as there was mistake in calculation which unfortunately overlooked by this court. The amount could have been deposited even under protest but the review petitioner has not deposited the same. May that as it may be, from the date of claim petition till amount is deposited, the amount would carry 7.5% rate of interest. The amount as recalculated be deposited within 8 weeks from today failing which entire amount will carry 9% rate of interest after expiry of the period. 21. The rest of the directions are not altered. The record, if yet not transmitted, be sent to Tribunal. The amount of Rs. 25,000/-, if not transmitted, be transmitted expeditiously. 22. The amount as recalculated be deposited within 8 weeks from today failing which entire amount will carry 9% rate of interest after expiry of the period. 21. The rest of the directions are not altered. The record, if yet not transmitted, be sent to Tribunal. The amount of Rs. 25,000/-, if not transmitted, be transmitted expeditiously. 22. The review petition is partly allowed.