Bombay High Court
Oriental Insurance Co. Ltd. Thr. ... vs Jayabai Wd/O Jivan Madavi And 4 ... on 4 April, 2016
Bench: A.S. Chandurkar
240-J-FA-177-07 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.177 OF 2007
Oriental Insurance Co. Ltd.
Through its Divisional Manager,
Division Office No.3.
Wardhman Nagar, Nagpur. ... Appellant.
-vs-
1. Jayabai wd/o Jivan Madavi
Aged 49 yrs. Occ. Labour
2. Kuwarlal s/o Jiwan Madavi
Aged 39 yrs, Occ. Labour
3. Nandkishore s/o Jiwan Madavi
Aged 24 yrs, Occ. Labour
All R/o Baghdongri,
Rehsil Amgaon, Dist. Gondia.
4. Govindlal s/o Brijmohan Bajaj
Aged 44 yrs, Occ. Business,
R/o Bajaj Nagar, Gulchur Road,
Gondia.
5. Brijlal s/o Jailal Sahare
Aged 34 yrs, Occ. Driver
R/o Vijay Nagar, Gondia. ... Respondents.
Shri A. M. Quazi with Shri A. R. Kaple, Advocates for appellant.
Shri P. A. Gode, Advocate for respondent Nos.1 to 3.
CORAM : A.S.CHANDURKAR, J.
DATE : April 04, 2016
Oral Judgment :
The appellant is aggrieved by the order dated 11/05/2005 passed
240-J-FA-177-07 2/8
by the learned Member, Motor Accident Claims Tribunal, Gondia whereby
the review application filed by the respondent No.1 has been allowed and the
amount of compensation as was awarded by the Claims Tribunal by award
dated 07/02/2005 has been enhanced.
2. The respondent Nos.1 to 3 are the original claimants who had
filed proceedings under Section 166 of the Motor Vehicles Act, 1988 (for
short, the said Act) seeking compensation for the accidental death of the
husband of respondent No.1 in an accident that occurred on 22/03/1996.
The Claims Tribunal by its judgment dated 07/02/2005 partly allowed the
claim and granted compensation of a sum of Rs.1,33,000/- which included
the amount of no fault liability. This amount was payable with 9% interest
per annum. The original claimants filed a review application before the
Claims Tribunal stating therein the Tribunal had awarded a lessor amount by
wrongly calculating the amount of pension that was being received by
respondent No.1. By the impugned order, the review application has been
allowed and the claimants have been held entitled to receive compensation
of an amount of Rs.3,64,208/- including the amount received towards no
fault liability. Hence this appeal.
3. Shri A. M. Quazi along with Shri A. R. Kaple, the learned counsel
for the appellant submitted that the Claims Tribunal was not justified in
240-J-FA-177-07 3/8
reviewing its earlier order on the ground that said order suffered from an
error apparent on the face of the record. It was submitted that the exercise
conducted by the Claims Tribunal while passing the impugned order was
infact beyond the scope of review and it amounted to exercising powers of
the appellate Court. The error sought to be corrected could not be treated to
be an error apparent on the face of the record and in fact the Tribunal
undertook the exercise of freshly adjudicating the claim of the original
claimants. It was submitted that while passing the original order dated
07/02/2005, the loss of dependency was taken to Rs.1000/- per month after
considering the aspect that the claimant No.1 was working as an agricultural
labourer. Another aspect considered was that the deceased could have
earned minimum Rs.500/- per month for at least seven more years. On that
basis, compensation of Rs.1,33,000/- was awarded. However, while
exercising the power of review, the total loss of dependency had been taken
to Rs.2678/- which was in fact the amount of pension that was being
received by claimant No.1. Relying upon the judgments of Honourable
Supreme Court in Meera Bhanja vs. Nirmala Kumari Choudhury (1005) 1
SCC 170 and Assistant Commercial Taxes Officer vs. Makkad Plastic
Agencies (2011) 4 SCC 750, it was submitted the exercise undertaken by the
Claims Tribunal was beyond the scope of the powers of review. It was
therefore submitted that the impugned order is liable to be set aside.
240-J-FA-177-07 4/8
4. Shri P. A. Gode, the learned counsel for the respondent Nos.1 to 3
submitted that the Claims Tribunal was justified in exercising the power of
review. It was submitted that while passing the order dated 07/02/2005,
the loss of dependency was wrongly taken as Rs.1300/- which was half the
amount of pension and from said amount other deductions had been made.
According to him, by considering the legal position that no deductions were
permissible from the amount of pension, the Claims Tribunal took the entire
amount of pension of Rs.2678/- to be the loss of dependency. It was
submitted that after noticing that an error had been committed while
calculating the amount of compensation, the Claims Tribunal corrected itself
by exercising the power of review. It was therefore submitted that the
appeal has no merits and the same is liable to be dismissed.
5. I have heard the respective counsel at length and I have also gone
through the impugned judgment. The question that arises for consideration
is : " Whether the Claims Tribunal was justified in reviewing its earlier
judgment dated 07/02/2005 ? "
It is not in dispute that while deciding the claim petition filed
under Section 166 of the said Act, the Tribunal had initially awarded a sum
of Rs.1,33,000/- as compensation. While doing so, the monthly salary of
Rs.2678/- was taken into consideration. It was then found that the claimant
No.1 would have got Rs.1300/- as pension which was the loss of
240-J-FA-177-07 5/8
dependency. After deducting the amount of Rs.300/- which she could have
earned through labour, the loss of dependency was taken at Rs.1000/- per
month. Thereafter a finding was recorded that the deceased could have
earned Rs.500/- per month and for a period of seven years, he would have
earned Rs.42,000/-. It is on that basis that the Claims Tribunal arrived at the
figure of Rs.1,33,000/- to be the amount of compensation.
6.
While allowing the review application, the Claims Tribunal took
into consideration the total income of the deceased as Rs.2678/- per month
and by applying the multiplier of 17 calculated the loss of dependency at
Rs.5,46,312/- On that basis the amount of compensation was determined at
Rs.3,64,208/-.
7. The Honourable Supreme Court in Meera Bhanja (supra) while
considering the scope of review has observed in paragraph 8 as under :
" 8. ..... 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 duce 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 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."
240-J-FA-177-07 6/8
In Assistant Commercial Taxes Officer (supra) it was held that
re-appreciation of entire evidence for coming to a different finding would not
be permissible while rectifying a mistake.
8. Considering aforesaid legal position, it is clear that a decision
which may be erroneous on merits can be corrected only by a Court of
appeal. The power of review cannot be confused with appellate power. In
the present case, the Claims Tribunal under the garb of exercising review
jurisdiction has re-appreciated the entire evidence and has then come to a
different conclusion. There is no finding recorded that the earlier order
suffered from any error apparent on the face of the record.
The question whether the Claims Tribunal was justified in taking
the loss of dependency to be Rs.1000/- per month or Rs.2678/- per month
would be a question to be decided by the appellate Court. It has not been
found by the Claims Tribunal while reviewing the earlier order that its
finding regarding the earning as agricultural labour by the claimant No.1 and
the earning of Rs.500/- per month by the deceased was either based on no
evidence on record or was erroneously recorded. In fact by exercising the
power of review, the Claims Tribunal has substituted its finding recorded in
paragraphs 8 and 9 with totally different findings after re-appreciating the
material on record. It is therefore clear that the Claims Tribunal exceeded its
jurisdiction while exercising the power to review by passing the impugned
240-J-FA-177-07 7/8
order. The point as framed is answered by holding that the Claims Tribunal
has exceeded its jurisdiction while deciding the review application and was
not justified in doing so.
9. In view of aforesaid, the following order is passed :
(1) The order dated 11/05/2005 on review application No.01 of 2005
passed by the learned Member, Motor Accident Tribunal, Gondia
is quashed and set aside. The judgment dated 07/02/2005 in
Claim Petition No.217 of 2003 stands restored.
(2) It would be open for either of the parties to challenge the
judgment dated 07/02/2005 passed in Claim Petition No.217 of
2003 in accordance with law. If any appeal is preferred, the
period spent in prosecuting the present appeal filed by the
Insurance Company can be taken into consideration while
considering the prayer for condonation of delay. The respective
contentions of the parties with regard to correctness of judgment
dated 07/02/2005 are kept open.
(3) The appellant has deposited an amount of Rs.1,17,107/- on
11/04/2005 before the Claims Tribunal, Gondia. Without
prejudice to the rights of the parties and subject to the claimants
giving an undertaking that in case the amount of compensation is
reduced, same shall be repaid to the present appellant, the
claimants would be entitled to receive the said amount along with
interest accrued therein.
240-J-FA-177-07 8/8
(4) The amount of Rs.3,75,595/- deposited by the appellant in this
Court shall be returned to the appellant with interest accrued
thereon.
(5) First appeal is allowed in aforesaid terms with no order as to
costs.
JUDGE
Asmita
