1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh)
AIZAWL BENCH
Review Petition No.06 of 2008
Smt. Lalnunmawii,
W/o Rohmingthanga,
R/o Tut, Dapchhuah,
Mamit District, Mizoram.
………………………. Petitioner.
– Vs –
1. M/S National Insurance Co. Ltd.,
Represented by its Branch Manager,
Aizawl Branch, Aizawl.
2. Sri C. Rohira,
S/o Hrangzuala,
R/o Mamit District,
Mizoram
(Owner of Scooter No.MZ-01/B-0113).
………………… Respondents.
BEFORE
HON’BLE MR. JUSTICE C. R. SARMA
For the petitioner: Mr. S.N. Meitei, Advocate.
For the respondent: Ms. Helen Dawngliani, Advocate.
Date of hearing :23.11.2010
Date of delivery of
Judgment & order : ……..November, 2010.
JUDGMENT & ORDER (CAV)
This review petition filed under Section 114 of the 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. It has been decided by a catena decision of this court as reported in Narayan Chakraborty vrs. Swapan Debnath & Anr. as reported in 2007 (1) GLT 735 and in the case of United India Insurance Co. Ltd. Vrs. Recharson @ Akhai @ Yaokhai & Anr. as reported in 2007 (1) GLT 555 and in the case of New India Assurance Co. Ltd. Vrs. Sanjit Kumar & Anr. as reported in 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.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 vs. Arulmigu Viswesaraswami & V.P. Temple & Anr, reported in 2004 (2) SBR 365;
(2)Hamida Khatun & Ors. Vs. Loobha Tea Co. Ltd. & Ors., reported in 2004 (1) GLT 382;
(3)Ajgarh Ali His Legal Heirs Must. Joynab Bewa & Ors. Vs. Abdul Siddique, reported in 1999 (1) GLT 642;
(4)State Bank of Travancore, Tirupur Branch vs. K. Vinayachandram & Anr., reported in AIR 1989 Kerala 302.
(5)The Custodian General E.P. & Ors. Vs. Mohd. Syed Baba, reported in AIR 1970 Jammu and Kashmir 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. 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 & ors. Vs. Kamal Sengupta & Anr., reported in (2008) 8 SCC 612;
(2)National Insurance Co. Ltd. Vs. Chandreswar Thakur & Ors., reported in 2001 (1) GLT 393;
(3)Basant Cables & Conductors Pvt. Ltd. & Anr. Vs. UCO Bank, Agartala & Ors., reported in 2006 (Suppl.) 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 vs. 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 vs. F.N. Balsara, reported in 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. 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 CPC 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.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 case of Moranmar Basselios Cathalicos and Anr. Vs Most Rev. Mar Paulose Athanasius and Ors., reported in 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 Vs Neki, AIR 1922 PC 112 (D). This conclusion was reiterated by the Judicial Committee in- Bisheshwar Pratap Sahi Vs Parath Nath, AIR 1934 PC 213 (E) and was adopted by our Federal Court in- Hari Shankar Vs Anath Nath, AIR 1949 FC 106 at pp.110,111(F).”
20.In the case of Lily Thomas and Ors. Vs. Union of India & Ors. Vs. Union of India & Ors., reported in (2000) 6 SCC 224, the Supreme Court, discussing the power and scope of review and referring to the case of Patel Narshi Thakershi Vs Pradyumansigghji Arjunsighji, reported in 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. The Supreme court referred to the case of S. Nagaraj Vs 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.