Orissa High Court
Prafulla Kumar Mohanty vs National Insurance Company Ltd ... on 26 July, 2016
Author: Vineet Saran
Bench: Vineet Saran
ORISSA HIGH COURT: CUTTACK
RVWPET NO.52 OF 2013
In the matter of an application under Order 47 Rule 1 read with Sections 114 and 151 of
Civil Procedure Code for review of the order dated 09.05.2012 passed by a Division
Bench of this Court in Cross LPA No.41 of 2002.
AFR ----------
Prafulla Kumar Mohanty ......... Petitioner
-versus-
National Insurance Company ......... Opp. Parties
Ltd .Represented through its
Administrative Officer (Legal) & others
For petitioner : In person
For Opp. Parties : None
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R.SARANGI
Date of hearing : 21.07.2016 : Date of Judgment : 26.07.2016
Dr. B.R.Sarangi, J.The claimant-petitioner has filed this application to review the order dated 09.05.2012 passed by a Division Bench of this Court in rejecting the Cross-LPA No.41 of 2002 preferred by him against the judgment dated 11.07.2001 passed by the learned Single Judge in Misc. Appeal No. 430 of 1996.
2. This review petition though was filed on 01.03.2013, till date certified copy of the impugned order has not been filed by the petitioner. Thus, the matter was listed on 21.07.2016 for orders with regard to filing of certified copy of the impugned order. However, considering the age and insistence of the petitioner to take up the matter, without calling for filing of certified copy of the order impugned and without considering the question of limitation, the matter was heard and disposed of at the order stage with the consent of the petitioner.
3. In a nutshell, the factual matrix of the case, as borne out from the available records, is that the claimant-petitioner, who was serving as a Senior Clerk in the Court of the learned District Judge, Berhampur, while going with his family in a car bearing registration number AAS 4005 from Puri to his village, met with an accident on 28.04.1990 at about 9.00 AM near village Palia, Chatrapur of NH-V. As a result of such accident, there was dislocation of his hip joint and right tibia. Consequently, he was treated in MKCG Medical College-Hospital, Berhampur as an indoor patient from 29.04.1990 to 31.07.1990. Subsequently, he was examined by Dr. B.D. Naidu, Professor of Orthopaedics, KCH, Visakhapatnam on 13.04.1994, 04.12.1994, 06.06.1995 and 16.01.1996, as would be evident from the certificate granted by the said doctor on 05.01.1996.
As a result of the said accident, the petitioner was declared completely and permanently incapacitated for further work by the Medical Board, as would be evident from the certificate granted by the C.D.M.O., Ganjam, Berhampur. As a consequence of which, the petitioner took voluntary retirement from service on 10.04.1992 and made a claim of Rs.4,98,782.62 before the 2nd Motor Accident Claims Tribunal (S.D.), Berhampur in MAC No.13 of 1991 (451/90). The Tribunal, considering the oral and documentary evidence available on record, awarded a sum of Rs.86,000/- as compensation on different heads, which was challenged before this Court in Misc. Appeal No.430 of 1996. The learned Single Judge vide judgment dated 11.07.2001 came to hold that the claimant was entitled to get a sum of Rs.2,31,000/- along with interest @ 9% per annum from the date of claim. Against the said judgment of the learned Single Judge, the opposite party, Insurance Company on 13.11.2002 preferred Letters Patent Appeal being LPA No.41 of 2002 with 460 days delay and the petitioner filed Cross Appeal under Order 41, Rule 22 CPC on 09.04.2003 in the same LPA claiming higher compensation on the count of loss of pay, pension and gratuity. The said LPA was disposed of by the Division Bench of this Court vide judgment dated 24.06.2004 by reducing the amount of compensation from Rs. 2,31,000/- to Rs. 1,65,000/-. The claimant-petitioner preferred SLP(C) No.23158 of 2004 on 12.10.2004, which was dismissed vide Order dated 22.11.2004. Thereafter, the petitioner herein preferred Review Petition No.71 of 2004 on 21.12.2004 along with an application for condonation of delay after dismissal of SLP(C) No.23158 of 2004 praying to allow the Cross Appeal and to award an amount of Rs.13,19,724/- towards loss of pay, pension and gratuity. The Division Bench of this Court, which took up the matter, vide order dated 19.01.2009, while declining to condone the delay, dismissed the petition for review. Against the said order, the petitioner herein filed SLP(C) No.9376 of 2009 before the Apex Court and the Apex Court converted the SLP(C) No.9376 of 2009 to Civil Appeal No.4226 of 2011 dated 10.05.2011, allowed the said appeal and set aside the impugned order dated 19.01.2009 passed by this Court and remanded the matter to this Court to dispose of the same on merits in accordance with law.
4. After remand, the Division Bench of this Court vide order dated 22.08.2011 allowed the review petition no. 71 of 2004 by setting aside the reduction of claim amount and upholding the judgment dated 11.07.2001 passed by the learned Single Judge in M.A. No.430 of 1996 by awarding Rs.2,31,000/- along with interest and dismissed Cross LPA No.41 of 2002 as not maintainable. Though a cross appeal was also filed by the petitioner for enhancement of the compensation, the same was not considered at the time of disposal of LPA and review petition. However, the Division Bench of this Court vide order dated 09.05.2012 did not feel inclined to entertain the Cross-LPA taking into consideration the provisions of Section 100-A of the CPC applicable to the fact and situation of the case and came to hold that when LPA was disposed of as not maintainable, the cross appeal filed by respondent no.1 (petitioner herein) was also not maintainable and accordingly dismissed the same. The judgments of the various High Courts had been relied upon by the petitioner but in the said judgments the amended Section 100-A of the CPC were not taken into consideration.
Against the judgment of learned Single Judge dated 11.07.2001 passed in Misc. Appeal No.430 of 1996 as well as the order dated 09.05.2012 passed by the Division Bench of this Court in Cross L.P.A. No.41 of 2002 dismissing the cross appeal, the petitioner preferred Special Leave to Appeal (Civil) No.2963 and 2964 of 2013 before the Apex Court and the Apex Court upon hearing the learned counsel for the petitioner passed the following order on 01.02.2013:
"The special leave petitions are dismissed on the ground of delay and also on merits".
The petitioner by way of this review petition wants to review the order dated 09.05.2012 passed by the Division Bench of this Court in rejecting the Cross-LPA No.41 of 2012 and claims for higher compensation by applying the multiplier method of calculation.
5. Mr. Prafulla Kumar Mohanty, the petitioner appearing in person urged that the learned Single Judge has committed an error apparent on the face of the record inasmuch as, while passing the impugned judgment by awarding compensation, has not taken into consideration the multiplier method, for which indulgence of this Court is warranted, even at this stage. It is further urged that the Division Bench of this Court has erroneously arrived at the conclusion that in view of Section100-A of CPC the Cross-LPA is not maintainable. On various other grounds also he seeks for review of the order dated 09.05.2012 passed by the Division Bench of this Court and prays for enhancement of the compensation.
6. Having heard the petitioner in person and on perusal of the records, this Court finds that there is no dispute with regard to the factual assertions discussed in the foregoing paragraphs. But, as it appears, the petitioner has invoked the review jurisdiction of this Court to reopen the matter, which has already been concluded by order dated 01.02.2013 passed by the Apex Court in SLP No. 2963 & 2964 of 2013, by which the Apex Court dismissed the Special Leave Petitions filed by the petitioner on the ground of delay as well as on merits.
7. The dismissal of the SLPs filed by the petitioner manifests that the Apex Court has taken into consideration both the question of limitation as well as the merits of the case itself. Once the Apex Court has taken into consideration, the merits of the case itself and dismissed the SLP, then, in that case, the doctrine of merger applies. The Supreme Court while dismissing the SLPs on limitation as well on merits upheld the decisions of this Court against which the SLPs had been preferred. Therefore, the SLPs having been dismissed both on the count of limitation as well as on merits, applying the principle of doctrine of merger the judgment dated 11.07.2001 of the learned Single Judge passed in Misc. Appeal No.430 of 1996 as well as the order dated 09.05.2012 passed by the Division Bench of this Court in Cross-LPA No.41 of 2002 have been merged with the order of the Apex Court dated 01.02.2013 and the same have reached finality. Once the order dated 09.05.2012 passed by the Division Bench of this Court in Cross-LPA No.41 of 2002 reached its finality on merger of the same with the order dated 01.02.2013 passed by the Apex Court, there is no scope left to this Court either to reconsider or review the same in any manner whatsoever. Apart from the same, as the certified copy of the impugned order dated 09.05.2012 has not been enclosed along with the review petition, the review petition has not been filed in accordance with law. There is also delay in filing of review petition. As the certified copy of the impugned order has not been filed, the review application is not ready for stamp reporting to find out the delay caused in such application, thereafter the review application having not been filed in consonance with law, the same otherwise cannot be entertained.
8. In view of the discussions made above, the petitioner has utterly failed to establish his case for reviewing the order dated 09.05.2012 passed by the Division Bench of this Court in Cross-LPA No.41 of 2002 and, accordingly, the petition for review stands dismissed being bereft of merits. No order as to cost.
9. Since the petitioner is appearing in person, the office shall send a copy of this judgment to the petitioner by registered post at his address given in the cause title.
............................
VINEET SARAN, CHIEF JUSTICE ...........................
Dr.B.R.Sarangi, JUDGE Orissa High Court, Cuttack The 26th July, 2016, Alok/GDS