Delhi High Court

Seema Madaan & Ors vs Balwant Singh & Ors on 25 July, 2012

Author: Gita Mittal

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 25th July, 2012

+        REVIEW PET.310/2012 in MAC. APP. 178/2012

         SEEMA MADAAN & ORS                           ..... Petitioners
                    Through               Mr. Atul Nanda, Sr. Advocate
                                          with Ms. Rameeza Hakeem &
                                          Mr. Rajat Brar, Advocates
                            versus


         BALWANT SINGH & ORS                          ..... Respondent
                     Through              None

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                                     JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Petitioners seek review of the judgment dated 13.03.2012 on the ground that the reliance on the two judgments passed by the learned Single Judge of this Court in Dalvinder Kaur v. United India Insurance Company, 2008 SCC 385 and Kavita Arora v. Raj Kumar & Ors. MAC APP.404/2011 decided on 18.08.2011 is misplaced as the learned Single Judge did not apply the law on the ground of future prospects correctly.

2. It is urged that as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Syed Basheer Ahamed & Ors. v. Mohd. Jameel & Anr., (2009) 2 SCC

225, the Supreme Court rejected the plea of grant of future prospects in case of self employed person.

3. Para 5 of the judgment sought to be reviewed is extracted hereunder:-

"5. As far as the deceased's income is concerned, Income Tax Return for the assessment years 2006-07, 2005-06 and 2004-05 Ex.PW-1/2, PW-1/3 and PW-1/4 respectively were proved on record. It is evident that the deceased returned a total income of `9,62,844/-, `5,29,051/- and `3,30,123/- respectively. This would show that the deceased's income was substantially increasing on year to year basis. The loss of dependency, therefore, ought to have been considered after giving benefit of 30% towards future prospects. In the case of a self employed person such a benefit was given by this Court in Dalvinder Kaur v. United India Insurance Company, 2008 SCC 385 and in an unreported judgment in Kavita Arora v. Raj Kumar & Ors. MAC APP.404/2011 decided on 18.08.2011. An SLP bearing No.35392/2011 preferred against the latter judgment was dismissed by the Supreme Court by an order dated 06.01.2012."

4. This Court gave reasons for grant of future prospects, that is, the deceased's income was consistently increasing on year to year basis. In Santosh Khandelwal & Ors. v. Abbas & Ors., (MAC. APP. 31/2010) decided on 16.03.2012 this Court granted future prospects in case of self employed person. In para 9 of the report in Santosh Khandelwal, this Court held as under:-

"9. .... In Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, the Supreme Court simply stated that

in case of self employed persons usually actual income at the time of death should be considered. Since, in this case the income was gradually increasing and the deceased was aged 34 years, I would grant him future prospects on the scale of Sarla Verma (supra) i.e. 50%."

5. In the case of Santosh Devi v. National Insurance Company Ltd.

& Ors., 2012 (4) SCALE 559; the Supreme Court distinguished Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and held that in case of self-employed and persons having fixed income, an increase to the extent of 30% could be given towards inflation. Para 14 of the report is extracted hereunder:-

"14........In our view, it will be naive to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self- employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of

Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self- employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."

6. The judgment dated 13.03.2012 sought to be reviewed is in consonance with the sound principles and does not call any review. Otherwise also, this Application is not an Application for review but an Appeal in the guise of a Review Petition.

The power of review can be exercised on account of some mistake or error apparent on the face of the record. A review cannot be claimed or asked for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for a correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. In M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, AIR 1964 SC 1372, the Supreme Court held as under:-

"There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."

7. In Lily Thomas Etc. Etc. v. Union of India & Ors., (2000) 6 SCC 224, the Supreme Court observed that Review is not an Appeal in disguise and that the review is permissible only on the ground provided in the Statute. Para 52 of the report in Lily Thomas (supra) is extracted hereunder:-

"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to

correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakersh v. Pradyunman singh ji Arjunsingh ji AIR 1970 SC 1273 held 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 procedures 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 miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka (1993) Supp (4) SCC 595 held:-

"Review literally and even judicially means re- examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Prithwi Chand Law Choudhury v. Sukhraj Rai, AIR 1941 FC 1 the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow

ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court was final and could not be altered."