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Judgment
The Oriental Insurance Company Limited has preferred this Review Petition under order 47 Rule 1 read with Section 114 of the Code of Civil Procedure, 1908, questioning the legality and propriety of the order dated 08.11.2019 passed by this Court in MA(C) No.919 of 2015, whereby, the amount of compensation has been enhanced to the total sum of Rs.54,41,635.74/-, rounded off Rs.54,41,636/-, from Rs.10,56,992/-, as awarded by the concerned Claims Tribunal, with 6% interest per anum from the date of filing of the claim petition till its realisation in appeal preferred by the claimants.
Aforesaid amount of compensation has been determined upon consideration of the yearly pay certificate (Ex.P-11) of the deceased, namely, Devendra Vishwakarma, who was working as an operator of Heavy Earth Moving Machine (H.E.M.M) in Gevara Project of S.E.C.L. According to the said certificate, the gross yearly salary of the deceased was shown to be Rs.6,91,370/- and a sum of Rs.60,346/- was shown to be deduction towards income tax. Accordingly, the net income of the deceased was assessed at Rs.6,31,024/- (Rs.6,91,370 – Rs.60,346).
The amount of compensation has thus been enhanced as mentioned herein above by placing reliance upon the said certificate and on the basis of the Constitution Bench decision of the Supreme Court, which was rendered in the matter of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680.
Learned counsel appearing for the petitioner would, however, submits while referring to the letter dated 10.08.2020 (Annexure A-3) issued by the Chief Manager of the Head Office of the Company vis-a-vis, Form 16-A that certain components of salary, like gas allowance, holiday allowance and overtime allowance included therein were incidental to deceased’s job and therefore, the same were not required to be considered. Yet the same has been taken into consideration for calculating the amount of compensation. The order impugned, is, therefore, liable to be reviewed by reducing the same.
What is therefore contended herein that the amount of compensation has been determined by this Court in mis-interpreting the Form 16-A. However, such an argument was never advanced at the time of hearing of the said appeal i.e., MAC No.919/2015 and is being taken herein for the first time and that too after the delay of 369 days. It, thus, appears to be the after thought of the petitioner’s company which is even otherwise not amenable or permissible to be taken into consideration under the review jurisdiction in the light of the principles laid down by the Supreme Court in the matter of Parsion Devi and others vs. Sumitri Devi and others reported in (1997) 8 Supreme Court Cases 715. In the said matter, while interpreting the review jurisdiction provided under Order 47 Rule 1 of C.P.C., it has been held at para 9, which is relevant for the purpose, reads 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 1 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”.”
In view of the aforesaid principles, it is, thus, evident that even if the decision is erroneous, the same by itself would not be amenable or permissible to be corrected in review jurisdiction unless and until the mistake or error is shown to be apparent on the face of the record which, however, I do not find in the order impugned so as to call for any interference in this review jurisdiction.
Besides, it is to be noted at this juncture that after passing of the award impugned, a recommendation was made by the Regional Office, Raipur to its Head Office for its satisfaction, but the competent Authority of the Head office vide letter dated 10.08.2020 (Annexure A-3) while blaming upon his own counsel has opined to file the Review Petition. The verbatim of the said letter in order to ascertain the conduct of the officers concerned of the company is to be seen which reads as under:-
ORIENTAL FROM:
FROM: Motor TP Deptt Head Office Unit, 88- Janpath, New Delhi-110001
TO: RO Raipur
DATE: 10/08/2020
Reg: Case no-MAC No.909/2015 at HC Bilaspur Case
Title-Deeparthi Vs. Midhuna Claim no-193300/31/2014/000397
Above mentioned suit claim file was forwarded to HO with recommendation of satisfaction of award of Rs.54,41,636/= + interest @ 6%.
On perusal of file it was observed that accident occurred on 13.02.2013 and person died on same date. For calculation of compensation, MACT considered payslip of Feb 2013 (ie payslip for the period 1st Feb to 13th Feb 13), took net paid salary and awarded Rs.10,56,992/= + interest @ 6%.
As settled law as on date is consideration of Gross Salary (not net salary) and also it cannot be said as justified to consider 13 days salary for computation of compensation.
Claimants approached High Court for enhancement, they were justified, HC considered Form 16 A and 12 BA issued by employer SECL, and modified MACT award which became award of Rs.54,41,636/= + interest @ 6%.
From above, one can find that this was a fit case for compromise in High Court. Regularly we are taking up the matter with all HC CPOs to check respondent appeals and if grounds of enhancement are valid then those cases should also be compromised. In this case we could have saved good amount of money and minimized litigation.
However, while defending us before High Court, adequate care has not been taken by our advocate/CPO because Form 16-A, though gives very fair idea about money paid but there are certain components of salary which comes in Form 16A as salary/perqs but they are not required to be considered for compensation calculation. To this extent, HC has erred because allowances incidental to job like gas allowance and holiday/OT salary are not allowable.
For your ready reference, details of salary package to coal sector, downloaded form internet is attached.
For example, considering salary of January 2013 allowing Basic, VDA, SDA, Conveyance and Attendance bonus (Only 1/3rd as it is paid quarterly) monthly salary comes to Rs. 41,044 and award calculation comes to Rs 41,044*12*1.15*2/3*11 + 70,000 = Rs 42,23,653. Hence, as per our estimates, the High Court award is overstated by Rs 12.17 Lakhs approx.
Competent Authority has not agreed with the recommendation of RO to satisfy the award but file a Review petition in High Court of Chhattisgarh, Bilaspur on above mentioned points of quantum.
Also, for other cases of coal sector, RO is advised to review the case handling on above lines.”
(Chief Manager)
The entire approach of the Insurance Company while filing this review petition based upon such an opinion given much after passing of the impugned award appears to be frivolous in nature. Therefore, in my opinion, the insurance company deserves to be burdened with exemplary costs, as the Supreme Court in the matter of Dnyandeo Sabaji Naik and another vs. Pradnya Prakash Khadekar and others reported in (2017) 5 Supreme Court Case 496 had deprecated the conduct of the litigants in flooding the Court with frivolous litigations as a result of which, the genuine matters, which require consideration are delayed. The relevant observations made therein at paragraphs 13 and 14 read as under:-
“13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.
Courts across the legal system - this Court not being an exception – are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.”
(Emphasis Supplied)
The aforesaid judgment was cited with approval in a latter judgment of Hon’ble the Supreme Court in the matter of Icomm Tele Limited vs. Punjab State Water Supply And Sewerage Board And Another reported in (2019) 4 Supreme Court Cases 401.
In view of the aforesaid mandate given by the Supreme Court, it is necessary to deal with such a frivolous filing of this review petition.
As observed herein above, the amount of compensation has been determined under the award impugned while considering the net income of the deceased based upon due consideration of the certificate, marked as (Ex.P-11), coupled with the principles laid down by the Constitution Bench of the Supreme Court which was rendered in the matter of “National Insurance Company Limited vs. Pranay Sethi and others” (supra).
In view of the aforesaid background, it cannot be said to be irrelevant consideration of the said document (Ex.P-11) under this review jurisdiction unless and until the mistake is shown to be apparent on the face of the record as held by the Supreme Court in the matter of “Parsion Devi and others vs. Sumitri Devi and others” (supra). Therefore, the contention made herein is apparently beyond the scope of review jurisdiction and rather appears to be frivolous in nature and has been made in an ulterior motive just to gain time as much as possible so as to avoid the amount of compensation payable to the claimants. The petition is, therefore, deserves to be dismissed with exemplary costs of Rs.50,000/-, to be deposited with the High Court Legal Services Committee in order to prevent the filing of such a frivolous petition. In addition, the Respondents/claimants having been dragged in unnecessary litigation deserves to be awarded costs of Rs.25,000/-.
The aforesaid amount shall be recovered by the petitioner (The Oriental Insurance Company Limited) from the guilty officers/officials, who opined the case to be fit for filing such a frivolous review petition as it occurred only because of impersonal and irresponsible attitude of the concerned officers who want to put everything to Court and shirk to take decisions in proper manner.
For the forgoing reasons, the review petition is hereby dismissed. The amount of costs as observed above be deposited in the High Court Legal Services Committee through its Secretary Member and paid to the Respondents/Claimants as well, within the period of 2 months from today, Affidavit of compliance to be filed before this Court.