Gaya Bux Singh vs Jitnedra Singh And Another
2021 Latest Caselaw 11450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No.- 966 of 2013
 
Appellant :- Gaya Bux Singh
 
Respondent :- Jitnedra Singh And Another
 
Counsel for Appellant :- Abhishek Srivastava
 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

Order on Civil Misc. Delay Condonation Application No.362427 of 2014

1. The application for compensation was allowed by the Tribunal, however, the applicant was not happy with the same as a meagre sum of Rs.27,698/- was awarded though he had a permanent partial disablement to the extent of 45%. The review application, therefore, came to be filed with delay condonation application.

2. The delay is explained properly.

3. The application is accordingly allowed.

4. Delay is condoned ex-parte as there is minimal delay of 24 days in filing the review application.

Order on Civil Misc. Review Application No.362428 of 2014

1. Having condoned the delay, we take up the review application for hearing. Seven years have elapsed from the time the review application came to be filed.

2. The review-applicant has challenged the judgment and order impugned on the following grounds:-

"i) Because order dated 17.09.2014 has been passed without summoning the record and on Non-availability of the certain documents while those papers have been available on the record of lower court and judgment dated 10.01.2013 passed by the learned Tribunal after considering them but given negative findings.

ii) Because counsel for the appellants during course of argument requested before this Hon'ble Court to grant time for filing those documents alongwith supplementary affidavit for consideration, but this Hon'ble Court has not considered the prayer of the counsel.

iii) Because the above noted appeal has been listed before this Hon'ble Court for considering of the delay condonation application, but court has passed final order after condoning delay on same day, but no opportunity has been given to the appellant to file such documents which are necessary for deciding the appeal.

iv) Because due to non-availability of the disability certificate before this Hon'ble Court has not considered the facts that disability certificate dated 30.11.2011 has been issued by the Chief Medical Officer, District Unnao after taking opinion of two other doctors, who were Orthopedic Surgeon and Eye Surgeon as such disability certificate has been issued by the competent authority after considering all the facts and status of the body of the appellant.

v) Because learned Supreme Court has been given his opinion in various case that in any particular subject other than legal points, expert's opinion on that particular subject is most reliable document to decide those particular subject/issues and same cannot be ignored without any legal and valid reasons.

vi) Because due to non-availability and non-consideration of the documents by this Hon'ble Court before deciding the appeal create amount of injustice with the appellant.

vii) Because appellant is very poor labour and not able to doing work of white wash of the house due to old age and weakness of the legs which bones has been broken from two places during accident.

viii) Because amount of Rs.27,698/- allowed by the learned Tribunal are very low amount and in normal way more than such amount spent during treatment and operation. If such type of injuries caused by any common man as caused to appellant.

ix) Because in those circumstances the requirement of law is that Tribunal has considered those parchas carefully and compare with the other parchas and continuation of the treatment and prescriptions given by the doctors and then take decision over the parchas because in this country educated persons has full knowledge of relevancy of paper in legal term but illiterate persons are not so careful and think about what is requirement of law.

x) Because the object of the M.V. Act is social and for given just and reasonable compensation to the effected persons who has been suffered from accidents.

xi) Because compensation awarded by the learned Tribunal are not just and proper in the present circumstances because medical treatment is very costly now a days.

xii) Above noted circumstances this Hon'ble Court may kindly be pleased to review the order dated 17.09.2014 and enhance the amount of compensation after summon the record of claim petition No.790 of 2010 from the Tribunal."

3. While perusing the order passed by this Court, with profound respect to the Division Bench, we have to differ with the said order, as post 2014 and 2014, even on the date, partial disablement would entitle the litigant to get minimum amount of Rs.25,000/-. What the Tribunal has done? It has granted only bills, as it is borne out from the order of our predecessors. This review application will have to be allowed on the contours set up for deciding the review, which reads as follows:-

4. 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."

5. 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. 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."

6. 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.

7. 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.

8. 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. In the absence of any such error, finality attached to the judgement/order cannot be disturbed."

9. 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.

10. 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 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).
 
11.	The reasons of allowing the review application on   merits is that even if a person has a permanent partial         disablement, it would result in a fracture and he would be   entitled to a sum of Rs.25,000/- under the head of no fault    liability under Section 140 of the Motor Vehicle Act, 1988 (hereinafter referred to as "M.V. Act, 1988").
 
12.	Even in light of the judgment of U.P.S.R.T.C. Vs. Km. Mamta and Others AIR 2016 SCC 948 appeal has to be    decided on all the questions. Hence, this review application has to be allowed, the order impugned has to be quashed as the judgment of Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343, will not permit us to concur with the Division Bench's order.
 
Order in Appeal
 
1.	This defective appeal is listed for hearing on 21.12.2021. 
 
2.	Copy of this order be given to Shri Radhey Shyam for seeking instructions from the National Insurance Company Limited as he is on the panel of the National Insurance      Company Limited.
 
3.	Office to prepare board well in advance. 
 
Order Date :- 9.12.2021
 
Zafar