Gauhati High Court

Page No.# 1/6 vs The Oriental Insurance Company ... on 12 November, 2021

                                                                     Page No.# 1/6

GAHC010065362021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : Review.Pet./56/2021

            MANOMANTI CHOUHAN AND ANR.
            W/O- SRI JAGANNATH CHOUHAN @ GAGANATH CHOUHAN, R/O- VILL.-
            JILIKAKHAT, P.S. KALAIGAON, DIST.- UDALGURI, BTAD, ASSAM.

            2: JAGANNATH CHOUHAN @ GAGANATH CHOUHAN
             S/O- LATE JUNKHUN CHOUHAN
             R/O- VILL.- JILIKAKHAT
             P.S. KALAIGAON
             DIST.- UDALGURI
             BTAD
            ASSAM

            VERSUS

            THE ORIENTAL INSURANCE COMPANY LTD.
            REP. BY ITS REGIONAL MANAGER, ULUBARI, GUWAHATI- 781007, DIST.-
            KAMRUP(M), ASSAM.



Advocate for the Petitioner   : MR. B. DUTTA

Advocate for the Respondent : MS C BORAH




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                        JUDGMENT

Date : 12.11.2021 Page No.# 2/6

Heard Mr. B. Dutta, learned counsel for the petitioner, and Ms. M. Choudhury, learned counsel for the respondent/Insurance Company.

2. This is an application under Section 114v R/W Order 47 Rule 1 of the CPC praying for review of the judgment dated 15.,-03.2021 passed in MAC App. 227/2019.

3. One moving vehicle collided with a stationary vehicle as a result of which, the passenger travelling in the driver's cabin of the moving vehicle lost his life. The Tribunal held that both the vehicles are equally responsible for the accident. Even then, the Tribunal directed the Insurance Company of the moving vehicle to pay compensation of Rs. 7,90,000/- to the claimant.

4. In Appeal before this court, the Insurance Company of the moving vehicle had referred to the cross examination portion of the evidence of the Investigator of the Insurance Company and pointed out that the said witness claimed that the owner of the stationery vehicle admitted before him that the vehicle was wrongly kept stationery and that act contributed to the accident.

5. The judgment of the Tribunal held both trucks to be responsible for the accident. Inspite of that the Tribunal did not quantify the quantum of negligence. This court found the judgment of the Tribunal an ambiguous one and therefore the judgment was set aside, the case was remanded to Page No.# 3/6

the Tribunal to pass a fresh judgment on all issues.

6. Mr. Dutta primarily confined his argument on the point that the accident took place because of the composite negligence and in that case the claimant has the option to choose any one of the Insurance Company's of the vehicles involved in the accident. In order to buttress his point, Mr. Dutta has relied upon the decision of the Supreme Court in T.O. Anthony Vs. Karvarnan & Ors. reported in (2008) 3 SCC 748. Paragraphs-5 & 6 of the said judgment are quoted as under:

"5. The Tribunal assumed that the extent of negligence of the appellant and the first respondent is 50:50 because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers Page No.# 4/6

injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.

7. Mr. Dutta further relied upon another judgment of the Supreme Court that was rendered in Khenyei Vs. New India Assurance Company Ltd. & Ors. reported in (2015) 9 SCC 273. Paragraph 22 of the said judgment is quoted as under:

"22. What emerges from the aforesaid discussion is as follows : 22.1. In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.

22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings.

22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the Page No.# 5/6

absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award."

8. Par contra, Ms. Choudhury has submitted that the points raised by the learned counsel for the petitioner relates to the merit of the case and under the provisions of Section 114 or Order 47 Rule 1 of the CPC, the merit of the matter cannot be considered. Ms. Choudhury submits that there must be an error apparent on the face of record and then only a review petition can be considered.

9. I have given my anxious consideration to the submissions made by the learned counsel for the parties.

10. This court in Review Petition No. 52/2018 has held as under :

"11. It is well settled that the power to review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power of review. A review cannot be treated like an appeal in disguise. It is not the case of the review petitioner herein that they had discovered a new and important evidence which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the learned Tribunal during the course of the proceedings in MAC Case no. 30/2011. The two documents on which the review petitioner had relied upon, were available with them during the course of the proceedings before the learned Tribunal. No such plea was taken in the written statement. No evidence was led by the insurer of the subject-vehicle before the learned Tribunal. When the plea of alleged fraud was raised in the appeal, the appellate court had discussed the said issue thoroughly, as have been extracted above.

12. In a review petition, it is not open for the Court to review the evidence and reach a different conclusion, even if that is possible. In Page No.# 6/6

Kamalesh Verma vs. Mayawati reported in (2013) 8 SCC 320, the Hon'ble Supreme Court of India has held that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of the Code of Civil Procedure. 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 such judgment of the appellate court under the review jurisdiction in the guise that an alternative view is possible

11. The law on the point is very clear. Under review jurisdiction, there must be an error apparent on the face of the record and then only such a jurisdiction can be exercised. Mere dissatisfaction with a judgment cannot be a ground for invoking review jurisdiction under Order 47 Rule 1 of the CPC. In the guise of a review petition an appeal cannot be heard.

12. This court is of the opinion that the present case, there is no error apparent on the face of the record. The review petitioner has touched the merit of the case and for this matter, this review petition is not maintainable in law.