Gujarat High Court
Kuldipsinh Ramharisinh Jat vs Purnimaben Jitendrabhai Shah Wd/O ... on 28 April, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/FA/2425/1997 ORDER DATED: 28/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2425 of 1997
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2017
In R/FIRST APPEAL NO. 2425 of 1997
With
R/FIRST APPEAL NO. 2427 of 1997
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2017
In R/FIRST APPEAL NO. 2427 of 1997
With
R/FIRST APPEAL NO. 2428 of 1997
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2017
In R/FIRST APPEAL NO. 2428 of 1997
With
R/FIRST APPEAL NO. 2429 of 1997
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2017
In R/FIRST APPEAL NO. 2429 of 1997
With
R/FIRST APPEAL NO. 2430 of 1997
With
R/FIRST APPEAL NO. 2431 of 1997
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2017
In R/FIRST APPEAL NO. 2431 of 1997
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KULDIPSINH RAMHARISINH JAT & 1 other(s)
Versus
PURNIMABEN JITENDRABHAI SHAH WD/O JITENDRABHAI VADILAL
SHAH & 11 other(s)
==========================================================
Appearance:
ADVOCATE NAME DELETED for the Appellant(s) No. 1
MS. NIYATI K JUTHANI(7014) for the Appellant(s) No. 2
DECEASED LITIGANT for the Defendant(s) No. 5
DELETED for the Defendant(s) No. 5.1,5.2
MR MEHUL S SHAH(772) for the Defendant(s) No. 1,4
NOTICE SERVED for the Defendant(s) No. 5.3,5.4,5.5
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 28/04/2022
ORAL ORDER
1. A group of First Appeals Nos. 2425/1997, 2427/1997, Page 1 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022 C/FA/2425/1997 ORDER DATED: 28/04/2022 2428/1997, 2429/1997, 2430/1997 and 2431/1997 came to be disposed of by common judgment dated 29.3.2017 by this Court (Coram: Hon'ble Mr. Justice Mohinder Pal) whereby all the Appeals filed by the appellants came to be dismissed and the judgment and award passed by the learned tribunal granting compensation to the respective claimants along with interest at the rate of 15% has been confirmed.
2. It appears that the Insurance Company has preferred these Review Applications only with respect to rate of interest and has prayed to review the said judgment on the aspect of interest.
3. Heard Ms. Niyati Juthani, learned advocate for the Insurance Company and Mr. Dhairyawan D. Bhatt, learned advocate for the claimants in all the Review Applications.
4. Ms. Niyati, learned advocate for the Insurance Company has submitted that there is apparent error of law in granting interest at the rate of 15%, as at the relevant time, the interest rate was much lower than 15%. She has submitted that interest ought not to have been granted more than Page 2 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022 C/FA/2425/1997 ORDER DATED: 28/04/2022 9%. She has prayed to review the judgment and award passed by learned tribunal granting compensation to the respective claimants along with interest at the rate of 15%, which has been confirmed by this Court vide common judgment dated 29.3.2017 in all the Appeals. She has relied upon the following decisions in support of her submissions:
1. Kaushnuma Begum v. New India Assurance Co. Ltd, reported in (2001) 2 SCC 9;
2. Branch Manager, Oriental Insurance Company Ltd. v.
R. Zokhuma, reported in (2018) 2 ACC 451 ;
3. Transport Corporation v. Sangum Bhagyamma,
reported in 2001 Supreme (AP) 855.
5. Per contra, Mr. Dhairyawan D. Bhatt, learned advocate for the claimants have vehemently submitted that present review applications do not fall under the provisions of Order 47 Rule 1 of the Code of Civil Procedure. He has submitted that there is no error or mistake apparent on the face of the record. He has submitted that this Court has confirmed the rate of interest considering the fact that at the relevant time, the rate of interest was 15% and the learned Tribunal has granted interest of 15% on the basis of Page 3 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022 C/FA/2425/1997 ORDER DATED: 28/04/2022 the decisions of the Apex Court and this Court. He has submitted that since there is no error apparent on the face of the record, the review applications itself are not maintainable. He has also submitted that the question of deduction of interest was also agitated before this Court and this Court in judgment dated 29.3.2017 has already rejected the contention of the Insurance Company and, therefore, now there is no question of reviewing the said order. He has submitted that the Appellants can take appropriate recourse but the review is not permissible. He has relied upon the following decisions:
1. Asharfi Devi (D) Thr. Lrs v. State of U.P. and Ors, reported in 2019 (5) SCC 86;
2. Shri Ram Sahu (Dead) Through LRS and Ors. v. Vinod Kumar Rawat & Ors, reported in 2020 (12) Scale 415;
3. N. Anantha Reddy v. Anshu Kathuria and others, reported in (2013) 15 SCC 534;
4. United India Insurance Co. Ltd v. Ramanbhai Kachrabhai Raval and Others, reported in 1996 (1) G.L.H
272.
6. In the case of Kaushnuma Begum v. New India Assurance Page 4 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022 C/FA/2425/1997 ORDER DATED: 28/04/2022 Co. Ltd (Supra), the Apex Court, in Para-24, has observed as under:
"24. Now, we have to fix up the rate of interest. Section 171 of the MV Act empowers the Tribunal to direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf. Earlier, 12% was found to be the reasonable rate of simple interest. With a change in economy and the policy of the Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9% on fixed deposits for one year.
We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9% per annum from the date of the claim made by the appellants.
7. In the case of Branch Manager, Oriental Insurance Company Ltd. v. R. Zokhuma (Supra), the Gauhati High Court has followed the aforesaid judgment and considering the fact that the accident was of the year 2017, interest was provide 6.5%.
8. In the case of Transport Corporation v. Sangum Bhagyamma (Supra), considering the decision of Kaushnuma Begum v. New India Assurance Company Ltd. (Supra), the Andhra Pradesh High Court has also granted interest at the rate of 6%.
Page 5 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022
C/FA/2425/1997 ORDER DATED: 28/04/2022
9. Regarding the scope of the jurisdiction of review under Order 47 Rule 1, the observation of the Apex Court in case of Asharfi Devi (D) Thr. Lrs v. State of U.P. and Ors (Supra), especially Para-21, needs to be reproduced hereinbelow:
"21 It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case."
10. Recently, the Apex Court, in case of Shri Ram Sahu (Dead) Through LRS and Ors. v. Vinod Kumar Rawat & Ors (Supra), has summarised the law and jurisdiction of review under Order 47 Rule 1 of CPC in Para-9 as under:
"9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on Page 6 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022 C/FA/2425/1997 ORDER DATED: 28/04/2022 the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review."
11. In the case of N. Anantha Reddy v. Anshu Kathuria and others (Supra), the Apex Court in Para-6 has observed as under:
"6. ........The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits".
12. In the case of United India Insurance Co. Ltd v. Ramanbhai Kachrabhai Raval and Others (Supra), it is observed in Para- 6, as under:
"6. ........However, so far as the request for interfering with the said order of interest is concerned we are not inclined. We have gone through both these judgments and so far as the interest is concerned, there being no rate fixed by the statute Page 7 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022 C/FA/2425/1997 ORDER DATED: 28/04/2022 other than that it is held to be within the realm of discretion of the concerned Tribunal, we will not interfere with the same. Apart from that on merit, if one reads the judgment it is clear that the promotional chances referred to on behalf of the claimants up to the stage of police sub-inspector has been answered by the learned Tribunal Judge on the ground that it depends upon the efficiency and many other factors. But the learned Judge has gone mainly by the income certificate, Exh. 38, where the monthly income is shown to be Rs. 2,170/- on the basis of monthly salary being Rs. 1,000/- plus DA 114 per cent. The maximum of the scale has been taken into consideration and putting the figure of Rs. 3,000/- at the maximum scale, the learned Judge has arrived at a mean figure of Rs. 2,170/-. This means that future increase in the income on account of promotion or upward revision of pay has not been taken into consideration, instead the existing scale has been considered and the amount of salary drawn at the time of incident, what could have been drawn on the date of the award and what likely amount he would have got at the end of the scale that has been taken into consideration. Under the circumstances, we are not inclined to interfere with the rate of interest awarded by the Tribunal. Hence, this plea of interest is rejected.
13. Now considering the legal position in respect of the exercise of power of review under Order 47 Rule 1, so far as the fact of the present matters are concerned, it clearly transpires that by the common judgment dated 29.3.2017, this Court has dismissed all the Appeals and has specifically referred to the contention of the Insurance company regarding the interest. In Para-7, the following observation Page 8 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022 C/FA/2425/1997 ORDER DATED: 28/04/2022 has been made, which reads as under:
"7. .....Keeping in view the year of the accident and prevalent rate of interest during those time, the award of interest at 15% by the Tribunal is also just and proper."
14. Thus, while confirming the rate of interest, this Court has clearly made observation on factual as well as legal aspect and, therefore, there is no error apparent on the face of the record. Therefore, in view of the decision of the Apex Court in case of Shri Ram Sahu (Dead) Through LRS and Ors. v. Vinod Kumar Rawat & Ors (Supra), the power of review cannot be exercised as an inherent power nor can an appellate power can be exercised in guise of power of review. The review jurisdiction cannot be exercised in the present matters as there is no mistake apparent on the face of the record.
15. At this juncture, it needs to be observed that in one of the matters i.e. First Appeal No. 2431/1997, while dealing with an Application being MCA No.2 of 2017, which was filed for restoration of review application, it appears that inadvertently instead of restoring the review application, some typographical mistake has occured in passing the order restoring First Appeal No. 2431 of 1997. However, Page 9 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022 C/FA/2425/1997 ORDER DATED: 28/04/2022 there was no question of restoration of First Appeal No. 2431 of 1997 as it was decided on merits earlier. Therefore, it seems that typographical error has cropped up in the order dated 7.12.2018. Hence, the First Appeal No. 2431 of 1997 has not been heard on merit but only review applications have been heard with regard to all the Appeals
16. In view of the above discussion, all the Civil Review Applications in respective First Appeals for review of the judgment dated 29.3.2017 on the ground of interest, stand dismissed. No order as to costs. Since all the First Appeals have been dismissed earlier, no further order is required to be passed in the Appeals.
(DR. A. P. THAKER, J) SAJ GEORGE Page 10 of 10 Downloaded on : Thu Apr 28 21:21:29 IST 2022