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Judgment
1.By this review petition, the petitioner sought for review of the judgment and order dated 29-04-2014 passed by this Court in MAC App. No.
35/2005.
The brief facts of the case, which may be relevant for disposal of this review petition is that the petitioner sustained injury in a motor vehicle
accident and the learned Motor Accident Claims Tribunal awarded a compensation of Rs. 5,50,000/- by the judgment and award dated 21-07-2004
passed in MAC Case No. 1250/2000.
The claimant filed a writ petition challenging the award, which was dismissed with the observation that the compensation awarded by the tribunal
was more than reasonable. Claimant then filed an appeal before this Court for enhancement of the compensation which also stood dismissed. Hence,
the present petition seeking review of the judgment and order dated 29-09-2014 passed by this Court.
Learned counsel, Mr. A. Lal for the review petitioner and Mr. S.K. Goswami, learned counsel for the opposite party were heard.
Learned counsel for the petitioner submitted that the petitioner sustained permanent disablement, because of the injury on his left upper limb and
also adduced medical evidence to that effect, which was not considered by this Court in the appellate judgment. This Court overlooked the material
evidence, that the petitioner sustained permanent disablement on his upper limb affecting his earning and passed the judgment, taking into account only
the facial injury sustained by the petitioner, which was error apparent on the face of the record, contends Mr. Lal. Further contention of Mr. Lal was
that non-consideration of a vital piece of evidence was a mistake on the part of the court and one cannot be made to suffer for the court’s own
mistake. In support of his contention, the learned counsel placed reliance on the following decisions :- 1. Tapan Kumar Dutta Roy-VS- Union of India
and Ors., 2010 (5) GLT 52. 2. Pannalal Ghosh and Ors.-VS- Iresh Das and Ors. 2008 (4) GLT 857 3. Smti Bismita Saikia-VS- Pranjal Dutta, Review
Petition No. 85/2016,.
In Tapan Kr. Dutta â€"VS- Union of India (supra) this Court, following the maxim “actus curiaeneminem gravabit†reviewed its judgment and
order on the ground that while deciding the writ petition the court took an erroneous assumption of fact and observed that “it is the duty of this
Court to rectify, revise and recall its order as and when it is brought to its notice that certain orders were passed on a wrong and mistaken and
assumption of facts and that implementation of those orders would cause grave prejudice to the petitioner for which he cannot be faulted. It is thus a
case of an error or mistake apparent on the face of record.â€
In Pannalal Ghosh-VS- Irish Das (supra) learned Single Judge of this Court observed that “none examination of a plea raised in revision petition
constitute an error apparent on the face of record and review sought on such ground also comes within the meaning of any other sufficient reasonâ€.
Per contra, learned counsel Mr. S.K.Goswami submitted that there was no error apparent on the face of record, inasmuch as, wrong appreciation
of evidence or non-consideration of a particular portion of the evidence for whatever reason cannot be considered as error apparent on the face of
record. Allowing the petition on the ground, as submitted by the learned counsel for the review petitioner, would amount to exercise of appellate power
in disguise, which is not permissible in a review petition, submits Mr. Goswami.
Placing reliance on a decision of Dr. Subramanian Swamy, (2014) 5 SCC 75, Mr. Goswami further submits that “even an erroneous decision
cannot be a ground for the court to undertake review, as 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 in absence of any such error, finality attached to the judgment/order
cannot be disturbedâ€. Mr. Goswami also placed reliance on a decision of the Apex Court in Union of India â€"VS- Sandur Manganese and Iron Ores
Ltd., (2013) 8 SCC 337, where the Apex Court observed in paragraph 23 as under :- “It has been time and again held that the power of review
jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8
SCC 715, this Court held as under:- “9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error
apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an
error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule I CPC. In exercise of the jurisdiction
under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be ""reheard and corrected"". A review petition, it must be remembered
has a limited purpose and cannot be allowed to be ""an appeal in disguise"".â€
As provided under Order XLVII Rule 1 CPC, review of an order or judgment can be sought on the following grounds :- i) discretionary power of
new and important matter or evidence which after exercise of due diligence was not within the knowledge of the applicant for review or such
evidence or materials could not be produced by him when the decree or order was made. ii) Some error or mistake apparent on the face of record iii)
Any other sufficient ground.
Basically in the instant case, the petitioner sought review of the order on the second ground, i.e., error apparent on the face of the record or
mistake committed by the court. The Apex Court in Thungabhadra Industries Ltd- vs- The Government Of Andhra Pradesh reported in AIR 1964 SC
1372 dealing with the scope of review and the expression “error apparent on the face of record’’ observed, that there is a distinction
between a mere erroneous decision and a decision which could be characterized as vitiated by error apparent, though, it might not be always capable
of exposition. A review is not an appeal in disguise, whereby the erroneous decision is re-heard and corrected, but lies only for patent error. Where
without any elaborate argument, one could point out 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 opinion entertained about it, a clear case of error apparent on the face of the record would be made out. Therefore, even
if the matter is decided with an erroneous interpretation of law and facts, such erroneous decision is not amenable to review. Therefore, in order to
invoke the jurisdiction of review, the error or mistake in the judgment and order must be visible one without any search for it.
In the instant case, the grievance of the petitioner is that there was clear evidence of the doctor that the petitioner sustained 50% physical disability
of the upper limb, because of injury sustained on the left shoulder and this categorical evidence was not considered or overlooked by this Court, and
the judgment was pronounced under the impression that the petitioner sustained only facial injury. Had the court taken into account the above
evidence, the decision of this Court could have been otherwise.
This Court while dismissing the appeal observed as under :- “Fine fracture of alveolar process of maxilla on the left side and a thin fracture in
the left pterygoid plate through the base and thin fracture in the greater wing of the sphenoid on the left side and air pockets and bone fragments in the
soft tissue of the left cheek. The fracture sustained by the petitioner is relating to facial bones. The contention of the counsel for the appellant that
appellant has become disabled due to injuries and hence cannot pursue any avocation does not appear to be tenable argument. Facial fracture may
affect to some extent the eating capacity and also disfiguration to some extent but the said fracture may not affect his employment and earning.
Plastic surgery was advised by doctors. Therefore, on re-assessment of compensation a sum of Rs. 50,000/- is awarded towards pain and agony and
Rs. 50,000/- loss of amenity and future discomfort. Medical bills for Rs. 1,67,000/- have been produced. Petitioner is granted Rs. 1,80,000/-towards
medical and incidental expenses. Injured was a businessman and is said to be earning Rs. 6,000/- per month. He may have been out of employment
for three months on account of injuries. Therefore, Rs. 18,000/- is awarded towards loss of income during the lay-off period. Even if Rs. 1,00,000/- is
to be awarded towards plastic surgery the compensation of Rs.5,50,000/- awarded is more than the just entitlement and does not call for any
enhancement and accordingly, the appeal is dismissed.â€
Learned tribunal granted a compensation of Rs. 5,50,000/- and the review petitioner filed the appeal for enhancement of the compensation. Having
considered the materials on record, this Court in the impugned judgment held that petition was entitled to an amount of Rs. 3,98,000/- (Rs. 50,000/- +
Rs. 50,000/- + 1,80,000/- + 18,000/-+ 1,00,000/-), and as such, did not enhance the compensation as the quantum of compensation granted by the
tribunal was found to be more than just compensation.
It is no doubt true that the injury sustained by the petitioner on his left upper limb and consequent disability was not taken into account while
deciding the appeal. Overlooking a material evidence having bearing on the decision and order passed on a mistaken assumption of facts may be a
ground for review if such decision caused injustice or prejudice to any party. Therefore, adhering to the maxim “actus curiae neminem gravabitâ€,
the court in such case is duty bound to rectify the order to undo the injustice.
From the evidence of the doctor, it was apparent that the petitioner sustained injuries on his left upper limb resulting in 50% disability of the said
limb because of restriction of movement. However, the impugned order, as reproduced above, was passed on the assumption, that the petitioner
sustained only facial disability, which was not considered to have affected the income or avocation of the petitioner. It is to be borne in mind, that in a
claim case under the M.V. Act, what is most important in case of physical disability is the affect of such disability on the earning capacity of the
person who sustained the injury due to vehicular accident. As already mentioned, that having considered the materials on record, this Court held the
compensation granted by the tribunal to be on higher side and more than the entitlement of the petitioner. Therefore, even if overlooking a particular
piece of evidence, as contended by the learned counsel, is considered to be a mistake on the part of the court, what needs to be seen in this petition is
whether such mistake has caused any prejudice to the petitioner warranting a review or recalling of the judgment.
As per evidence of the doctor, the petitioner sustained 50% disability of his left upper limb and such disability was apparently not of the whole
body. Therefore, even if the 50% disability of the left upper limb of the petitioner is taken into consideration, the corresponding disability of the whole
body or affect of such partial disability of the left upper limb on the earning capacity could not be more than 15% to 25% even in case of a person
engaged in physical work. The petitioner in the instant case is qualified person and stated to be businessman. Therefore, even if the factum of the
petitioner, having sustained injury on his left upper limb causing partial disability, effect of such disablement on his earning could not be more than 10%,
having regard to his avocation. The impugned judgment transpires, that the compensation awarded by the tribunal was found to be on much higher side
and as per calculation of the court, the tribunal awarded approximately Rs.1.5 lakh more than the entitlement. Therefore, even if the evidence of the
doctor was taken into consideration, the loss of earning of the petitioner could not be more than Rs. 1.5 lakh, which could be added to Rs. 3,98,000/- as
reassessed by this Court. Viewed from this angle, the alleged mistake of the Court or the impugned judgment dismissing the appeal cannot be held to
have prejudiced the petitioner requiring a review or reconsideration of the judgment, inasmuch as, the tribunal already granted a compensation of Rs.
5,50,000/-, which is just and reasonable and sufficient to compensate the probable loss of earning due to partial disability of the left upper limb. Being
of the above view, this Court is of the opinion, that the mistake of the court as indicated above in the impugned judgment does not call for a
reconsideration or review. Accordingly, the petition is dismissed.