Gujarat High Court
Narbahadur Nandkishor Prasad vs Jaherali K Shaikh on 11 July, 2018
Author: S.G. Shah
Bench: S.G. Shah
C/FA/2016/2012 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION NO. 1 of 2016
IN R/FIRST APPEAL NO. 2016 of 2012
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NARBAHADUR NANDKISHOR PRASAD Versus JAHERALIA A SHAIKH ========================================================== Appearance:
MR MTM HAKIM for the PETITIONER(s) No. MS LILU K BHAYA for the RESPONDENT(s) No. RULE UNSERVED for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 11/07/2018 IA ORDER
1. Heard learned advocate Mr. MTM Hakim for the applicant and learned advocate Ms. Lilu K. Bhaya for respondent - insurance company. Perused the record. The applicant is original appellant in First Appeal No.2016 of 2010. Such appeal is preferred by the applicant being victim of road accident, which has been dismissed by oral judgment dated 23.09.2013 by the co - ordinate bench (Coram ; Ravi R. Tripathi, J.) by detail reasoned judgment of 22 pages.
2. The applicant has preferred this application somewhere in the month of June 2015. However, it could not be registered for want of removal of office objections and thereafter, the delay in filing such application was condoned by an order dated 02.11.2015.
3. By present application, applicant has prayed to review the above referred oral judgment dated 23.09.2014 in First Appeal No.2016 of 2012 with an order in Civil Application No.7572 of Page 1 of 7 C/FA/2016/2012 IA ORDER 2012, whereby the appeal of the applicant was dismissed and thereby there was only order in Civil Application that it does not survive.
4. It is undisputed fact that such First Appeal No.2016 of 2012 was preferred by the appellant being victim of the road accident against judgment and award dated 06.12.2010 in Motor Accident Claims Petition No.865 of 1994 by the Motor Accident Claims Tribunal, Vadodara. It is undisputed fact that appellant claimant has claimed in all Rs.2,00,000/- before the claims tribunal whereas the tribunal has calculated the quantum of compensation payable to the claimant as Rs.2,42,637/- and awarded such amount relying upon the decision of the Honourable Supreme in case of Nagappa vs. Gurudayal Singh & Ors. reported in 2003 ACJ 12.
However, appellant has contended in his appeal that the tribunal ought to have awarded Rs.7,00,000/- for entire medical expenses incurred by him and the tribunal ought not to have reduce the amount, which is reimbursed to the applicant under the medi claim contract with senor citizens plans of Unit Trust of Indian. For the purpose, applicant is relying upon the decision in case of Helen C. Rabellow vs. Maharashtra State Road Transport Corporation reported in 1999 ACJ 10. However, the impugned award shows no discussion regarding such total amount of medical expenditure incurred by the applicant, though judgments referred by the applicant has been discussed in para 20 of the judgment by the tribunal but ultimately it was held by the tribunal that those judgments are not applicable to the case of the applicant and, therefore, the tribunal has awarded only Rs.47,227/- towards medical expenses because original bills of such amount is produced at Exh. 70. Therefore, applicant has preferred an appeal before this Court contending that the tribunal ought to have awarded total Page 2 of 7 C/FA/2016/2012 IA ORDER amount of expenditure being Rs.2,67,970/- taking such stand in memo of appeal also. Unfortunately, though appellant is entitled to such amount of medical expenditure, and though there are several decisions to that effect, the co-ordinate bench has by above referred oral judgment dated 23.09.2014, dismissed the appeal and, therefore, applicant has preferred this application to review and recall such judgment dated 23.09.2014 and to restore such appeal for consideration of the same on merits and to stay implementation and execution of such judgment till pendency of this review petition.
5. In support of his submission, learned advocate for the applicant has read over several paragraphs of such oral judgment dated 23.09.2014. for ready reference those paragraphs are quoted here under;
"5. In this regard, learned Advocate for the appellant- claimant invited attention of the Court to the Division Bench judgment of this Court in the matter of Satishkumar Rasiklal Doctor Vs. Baldevbhai Chhaganbhai Thakore & Ors., reported in 2007 (1) GCD 727 (Guj.). Learned Advocate read this judgment extensively, starting from para-9, wherein the Division Bench considered various decisions including that in the matter of Helen C.Rebellow Vs. Maharashtra State Road Transport Corporation, reported in 1999 ACJ 10 (para 37).
12. The aforesaid decision will not be applicable to the facts of the present case in view of the discussion made hereinabove. Under a Medi Claim Policy, a person is to get reimbursement of the expenses which he has incurred. Had it been a case of any other benefits, may be flowing from the policy of medi claim then the things would have been different. If such benefit was taken into consideration by the Hon'ble Tribunal, while granting compensation, the judgment and award would have warranted interference at the hands of this Court.
15. In the result, this First Appeal fails and the same is dismissed. However, it will be open for the claimant to move an application for amendment to enhance the Page 3 of 7 C/FA/2016/2012 IA ORDER claim before the Hon'ble Tribunal. It goes without saying that the Hon'ble Tribunal will decide the same without being influenced by any of the observations made hereinabove, strictly in accordance with law laid down by the Full Bench of this Court, which provides that, 'an amendment application should be liberally granted and a notice be given to other parties contesting that claim petition so that they are able to present their case'."
6. With reference to above quoted paragraphs, it is submitted by the learned advocate for the applicant that when applicant has cited a decision in case of Satishkumar Rasiklal Doctor Vs. Baldevbhai Chhaganbhai Thakore & Ors., reported in 2007 (1) GCD 727 (Guj.), which is by the division bench of this Court, the co-ordinate bench has tried to distinguish the judgment in case of Helen C.Rebellow Vs. Maharashtra State Road Transport Corporation, reported in 1999 ACJ 10. Whereas so far as judgment in case of Satishkumar (supra) is concerned, the co- ordinate bench has simply concluded that judgment in case of Life Insurance Corporation of India Vs. Heirs & Legal Representatives of Decd. Naranbhai Munjabhai Vadhia reported in 1972 (13) GLR 920 would cover the issue and, therefore, judgment in case of Satishkumar (supra) is not applicable.
7. It is also contended that the final directions in para 15 are un-executable, in as much as, the co-ordinate bench has observed that it would be appropriate for the claimant to move an application for enhancement when appeal is dismissed and thereby no proceedings are pending. It is also contended that, in fact, applicant has filed a Civil Application for Directions for amending the original claim petition, but instead of proceeding with such application, the co-ordinate bench has disposed of the main appeal when in fact, Civil Application for orders was listed before it. In Page 4 of 7 C/FA/2016/2012 IA ORDER support of such last submission, applicant is relying upon the title of the order which shows that probably Civil Application (For Direction) No.7572 of 2012 was listed on particular date and probably therefore, the judgment starts with reproducing the prayer of such application and not prayer in appeal. The first paragraphs of such judgment makes it clear that applicant - original appellant has prayed to permit him to enhance claim amount from Rs.2,00,000/- to Rs.7,00,000/-, which is disposed of by the same judgment stating that as the First Appeal is dismissed, Civil Application does not survive. Therefore, it is submitted that for deciding the application, appeal was taken up for final hearing and dismissed by judgment under reference.
8. Learned advocate for the applicant is also relying upon a decision in case of Reliance General Insurance Company ltd. Vs. Shahshi Sharma & Ors. reported in (2016) 9 SCC 627 by the larger bench of the Honourable Supreme Court wherein also the Honourable Supreme court has reconfirmed that other benefits of the deceased including family pension, provident fund etc must remain unaffected and cannot be curtailed, which any way wold be paid to the dependent of the deceased, applying the principle expounded in case of Helen C. Rebello (supra).
9. I have perused the factual details and record. I have considered the submissions of the learned advocate for the applicant. However, even if there is substance in such submission so as to review the judgment dated 23.09.2014 on different grounds which are discussed herein above, the fact remains that rightly or wrongly the judgment dated 23.09.2014 is conclusive determination and decision by the co-ordinate bench and, therefore, there would be limited jurisdiction of any other Court Page 5 of 7 C/FA/2016/2012 IA ORDER including the same court which has passed such judgment to review or recall such judgment which is decided on merits, even if alternate view is possible or even if that decision is supported by settled legal position. For the purpose one has to rely upon following decisions;
(1) Kamlesh Verma vs. Mayawati & Ors. reported in AIR 2013 SC 3301 (2) Cine Exhibition Pvt. Ltd. vs. Collector, Distric, Gwalior & Ors. reported in AIR 2013 SC 3669 9.1 All two judgments are practically dealing with the powers of the Court with reference to Order 47 Rule 1 of the Code of Civil Procedure regarding review. In Kamlesh Verma (supra) the Honourable Supreme Court has enumerated the grounds for which review is not maintainable. Those grounds are as under;
"16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) When the review will be maintainable-:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors., (1955) 1 SCR 520 : (AIR 1954 SC 526), to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Ltd. and Ors., JT 2013 (8) SC 275 :
(2013 AIR SCW 2905).
(B) When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.Page 6 of 7
C/FA/2016/2012 IA ORDER
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
9.2 Whereas in Cine Exhibition Private Ltd. (supra), the Honourable Supreme Court has considered altogether different position observing that review cannot be permissible except for the reasons available under Order 47 Rule 1 of the Code of Civil Procedure.
10. Therefore, in the present case, though applicant may have a good case on merits, unfortunately I am unable to recall the judgment by the Co-ordinate bench because it does not fall in grounds enumerated in Kamlesh Verma (Supra) so as to review such judgment. Therefore, only remedy is available to the applicant is to challenge the judgment in higher forum. Thereby, present application stands dismissed.
(S.G. SHAH, J) DRASHTI K. SHUKLA Page 7 of 7