IN THE GAUHATI HIGH COURT

(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura,

Mizoram and Arunachal Pradesh)

AIZAWL BENCH

Review Petition No.06 of 2008

Smt. Lalnunmawii,
W/o Rohmingthanga,
R/o Tut, Dapchhuah,
Mamit District, Mizoram.
.
Petitioner.

Vs

1. M/S National Insurance Co. Ltd.,

Represented by its Branch Manager,
Aizawl Branch, Aizawl.
2. Sri C. Rohira,
S/o Hrangzuala,
R/o Mamit District,
Mizoram
(Owner of Scooter No.MZ-01/B-0113).

Respondents.

BEFORE
HONBLE MR. JUSTICE C. R. SARMA
For the petitioner :

Mr. S.N. Meitei, Advocate.

For the respondent

Date of hearing

23.11.2010

Date of delivery of
Judgment & order :

Ms. Helen Dawngliani, Advocate.

..November, 2010.

JUDGMENT & ORDER (CAV)

This review petition filed under Section 114 of the Civil
Procedure Code,1908 (hereafter called CPC) read with Order 47
Rule 1 of CPC, is directed against the judgment and order, dated
05.09.2007, passed in MAC Appeal No.32 of 2005.

2.

The claimant-respondent i.e. the review petitioners

case is that on 26.08.2001, at 6.55 p.m, she was hit by a Scooter

bearing Registration No.MZ-01/B-0113 on the road.

The said

vehicle was covered by the insurance policy issued by M/S National

Insurance Co. Ltd. In the said accident, the claimant sustained 45%
permanent disability in respect of her upper limbs. Accordingly,
she filed a claim case being MAC Case No.100 of 2003, claiming
compensation for the disability suffered by her. The said claim case
was contested by the insurer by filing a written statement and
prayed for dismissal of the same. The learned trial Judge, upon the
pleadings of the parties, framed the following issues :

3.

(1)

Whether the claim petition is maintainable

or not?

(2)

Whether the claimant is entitled to get

compensation and if so, who is liable to pay
and to what extent?

In order to substantiate her claim, the claimant

examined herself as a witness and exhibited certain documents,

including the medical certificate, issued by the Medical Officer with
regard her disability. The learned Member, Motor Accident Claims
Tribunal, after considering the materials on record, granted
compensation of Rs.3,07,200/-, to be paid by the insurer in favour
of the claimant with interest thereon @ 9% per annum.
Being aggrieved by the said judgment and order, the
insurer as appellant, filed an appeal being MAC Appeal No.32 of
2005, before this Court.

4.

A learned Single Judge of this Court, having heard the

learned counsel for both the parties and considering the materials
on record, while setting aside and quashing the impugned award,
dated 17.06.2004, allowed the appeal. The learned Single Judge, in
allowing the appeal, observed that the annual income of the
claimant being more than Rs.40,000/-, the claim application, filed
under Section 163A of the M.V. Act, was not maintainable. The
learned Single Judge, in holding that the claimant failed to
substantiate her plea of disability by examining the Medical
Officer, who issued the Disability Certificate, observed as follows : It is also noticed that no Doctor
examined to prove the percentage of the
disability. It has been decided by a catena
decision of this court as reported in Narayan
Chakraborty vrs. Swapan Debnath & Anr. as
reported in 2007 (1) GLT 735 and in the case of
United India Insurance Co. Ltd. Vrs. Recharson @
Akhai @ Yaokhai & Anr. as reported in 2007 (1)
GLT 555 and in the case of New India Assurance
Co. Ltd. Vrs. Sanjit Kumar & Anr. as reported in
2000 (2) GLT 567. It was held in the case of New
India Assurance (Supra) that the learned
Commissioner giving an award on assessment of
loss of earning capacity of the workman without
the assistance of a Doctor, the award was set
aside with the direction to take the assistance of
a Doctor. Similarly, in the other two cases
reported in 2007 (1) GLT 555 and 2000 (1) GLT
735, the same principle has been relied. In both
the decisions referred above, it was held that
without any assessment of the loss of earning
capacity made by the qualified medical
practitioner, the award was set aside and matter
was
remitted
back
for
assessment
of
compensation afresh. It was also held that
whether examination of Doctors is an essential
requirement of the act so as to assess the
disability held, Yes. Evidence of medical
witness is a condition precedent for assessment
of the disability of the injured person.

7.
Relying on the decisions of this court
as quoted above, I am of the considered opinion
that the assessment made by the learned
tribunal
without
the
assistance
of
the
examination of the Doctor cannot be considered
and as such the impugned award dated 17.6.04
is hereby quashed and set aside.

Being aggrieved by the said order of setting aside the

award, the claimant-respondent, has come up with this petition,
seeking review/modification of the said judgment and order,
passed by the learned Single Judge.
5.

have

heard

Mr.

S.N.

Meitei,

learned

counsel,

appearing for the petitioner and Ms. Helen Dawngliani, learned

counsel, appearing for the respondents.
6.

On behalf of the review petitioner, it is submitted that

the impugned judgment and order, has been passed relying on

wrong and incorrect principles of law and that there is error
apparent on the face of the record, requiring review/modification of
the same. It is also submitted that, dismissal of the claim on the
ground of non-maintainability of the claim petition, filed under
Section 163A of the Motor Vehicles Act and non-examination of the
Medical Officer, was not a correct approach taken by the learned
Single Judge. The learned counsel, further submitted that the
provisions prescribed by the Motor Vehicles Act being a beneficial
legislation, effort should be made to extend benefit to the victims
of the vehicular accident and as such the dismissal of the claim
petition on the technical ground of maintainability of the same and

non-examination of the Medical Officer, was an error apparent on

the face of the record. In support of his submission, the learned
counsel, has relied upon the following decisions :-

7.

(1)

R.V.E. Venkatachala Gounder vs. Arulmigu

Viswesaraswami & V.P. Temple & Anr, reported in
2004 (2) SBR 365;

(2)

Hamida Khatun & Ors. Vs. Loobha Tea Co. Ltd. &
Ors., reported in 2004 (1) GLT 382;

(3)

Ajgarh Ali His Legal Heirs Must. Joynab Bewa &

Ors. Vs. Abdul Siddique, reported in 1999 (1) GLT
642;

(4)

State Bank of Travancore, Tirupur Branch vs. K.

Vinayachandram & Anr., reported in AIR 1989
Kerala 302.

(5)

The Custodian General E.P. & Ors. Vs. Mohd.

Syed Baba, reported in AIR 1970 Jammu and
Kashmir 163

Refuting the said argument, advanced by the learned

counsel for the petitioner, Ms. Helen Dawngliani, learned counsel,

appearing for the respondents, has submitted that as the annual
income of the claimant-petitioner, was more than Rs.40,000/-, the
claim petition filed under Section 163A of the Motor Vehicles Act,
was not at all maintainable and as such the appellate court
committed no error by observing that the claim petition was not
maintainable. The learned counsel, further submitted that the
entire claim of the claimant having been based on the disability
sustained by her, it was incumbent on her to establish, by
adducing sufficient evidence, that she sustained 45% disability and
for discharging such burden, the claimant should have examined

the Medical Officer, who issued the said Disability Certificate. It is

also submitted that, failure on the part of the claimant to examine
the said Medical Officer, deprived the respondent-Insurance
Company from cross-examining the said Medical Officer and
consequently

to challenge the correctness of the said Disability

Certificate. Therefore, it is submitted that non-examination of the

Medical Officer caused much prejudice to the respondent and that
such lapse was fatal for the claimant-petitioner. The learned
counsel further submitted that the learned Single Judge passed the
order, under review, after considering the entire materials on
record and hearing both the parties and that there is no error
apparent on the face of the record. It is also submitted that any
modification on review at this stage will amount to exercising the
power of the appellate authority, which power is not vested with a
Court of concurrent jurisdiction.

In support of her submission, the

learned counsel, has relied upon the following decisions:-

8.

(1)

State of West Bengal & ors. Vs. Kamal Sengupta

& Anr., reported in (2008) 8 SCC 612;

(2)

National Insurance Co. Ltd. Vs. Chandreswar

Thakur & Ors., reported in 2001 (1) GLT 393;

(3)

Basant Cables & Conductors Pvt. Ltd. & Anr. Vs.

UCO Bank, Agartala & Ors., reported in 2006
(Suppl.) 1 GLT 13.
In order to ascertain as to whether this is a fit case for

exercising the powers for review, it will be appropriate to peruse

the principles of law with regard to review power.

9.

In the case of Ajgarh Ali (supra), a learned Single

Judge of this Court, referred to the following observations made by

the Honble Supreme Court, in the case of Smti Meera Bhanja
vs. Smti Nirmala Kumari (Choudhury), reported in AIR 1995
SC 455 :
The limits to exercise the power of review is
limited, Review Court not to act as appellate
court.
The learned Single Judge also observed :The Supreme Court further pointed out that
error apparent on the face of record means an
error which strikes one on mere looking at
record and would not require any long drawn
process of reasoning on points where there may
conceivably be two opinions.
The Supreme Court also pointed out that
review court should not reappreciate the
evidence and arrive at different findings and if it
is done, the review court must be deemed to
exceed its jurisdiction.

10.

In the case of Custodian General E.P. (supra), the

review was allowed on the ground that specific provision of law

was not pointed out to the Court at the time of passing the order
under review.
11.

In the case of State Bank of Travancore (supra), an

order was passed without looking into the notification, which

brought into force a provision regarding applicability of Section 34
of CPC. The claim of the petitioner for interest was not accepted on
the ground that the plaintiff-Bank failed to prove the notification,
bringing the said provision into force. The said notification being

issued under the statutory power, was legislative in nature and as

such the same amounted to law in force (See State of Bombay
vs. F.N. Balsara, reported in AIR 1951 SC 318). The petitioner
could get a copy of the Notification only after strenuous efforts and
the review petition was filed with a petition for condonation of
delay, stating therein that the petitioner, earlier, could not trace
out the Notification bringing the proviso into force. In view of the
above, the Court observed that there was mistake apparent on the
face of the record. Accordingly, the review was allowed.
12.

In the case of Basant Cables & Conductors Pvt.

Ltd. (supra), a Division Bench of this Court, observed that Order

47 Rule 1 of CPC leaves no doubt that the review proceeding is not
an appeal and, therefore, has to be strictly confined to the scope
and ambit of that provision. In the above cited case, this court also
referred the following observations made by the Honble Supreme
Court in the case of Smt. Meera Bhanja (supra) :
The power of review may be exercised on the
discovery of new and important matter or
evidence which, after the exercise of due
diligence was not within the knowledge of the
persons seeking the review or could not be
produced by him at the time when the order was
made; it may be exercised where some mistake
or error apparent on the fact of the record is
found; it may also be exercised on any
analogous ground. But, it may not be exercised
on the ground that the decision was erroneous
on merits. That would be the province of a Court
of Appeal. A power of review is not to be
confused with appellate power which may
enable an Appellate Court to correct all manner
of errors committed by the Subordinate Court.

13.

In the case of State of West Bengal (supra), the

Honble Supreme Court, while laying the down the principles

regarding review power of the Tribunal, observed that an erroneous
order/decision cannot be corrected in the guise of exercise of
power of review.
14.

Relying on the decision held in the case of Hamida

Khatun (supra) and R.V.E. Venkatachala Gounder (supra),

the learned counsel, appearing for the petitioner, submitted that
as the Disability Certificate issued by the Medical Officer was
exhibited, without any objection, non-examination of the Medical
Officer to prove the said document was not fatal and that the
learned Single Judge committed error by setting aside the award,
on the ground of non-examination of the said Medical Officer.
15.

In the case of Hamida Khatun (supra), the claimant

did not examine the doctor in support of the injuries and the
documents relating thereto, but the documents were introduced in
the evidence by the claimant without objection of the respondentowner, who in spite of notice of the proceedings did not contest
the same. The Court examined the documents proved and
exhibited, in the case from which it was found that the claimant
had sustained the injuries. In view of the above, the Court was not
inclined to hold the contention of the respondent-owner that only
because the claimant-injured had not examined the doctor, it was
not open for the claimant, on the basis of the materials on record

10

to urge, that the amount awarded by the learned Tribunal is

inadequate and needs to be suitably enhanced.
16.

In

the

case

of

R.V.E.

Venkatachala

Gounder

(supra), the Supreme Court observed that failure to raise a

prompt and timely objection with regard to admissibility of a
document amounts to waiver of the necessity for insisting on
formal proof of a document, the document itself which is sought to
be proved being admissible in evidence.
17.

Refuting the said argument, advanced by the learned

counsel for the review petitioner, the learned counsel, appearing

for the respondents, relying on the decision of the National
Insurance Co. Ltd. (supra), submitted that non-examination of
the Medical Officer, who issued the Disability Certificate, deprived
the respondent from controverting the correctness of the said
Certificate by cross-examining the Medical Officer. Therefore, it is
submitted that non examination of the Medical Officer belied the
claim of the claimant that she sustained 45% disability and as such
the learned Single Judge committed no error by setting aside the
award.
18.

In the case of National Insurance Co. Ltd. (supra),

a Division Bench of this Court observed as follows :Non-examination of the doctor to establish the
extent of disabilities suffered by the claimant
deny the opportunity to the Insurance Company
to
cross-examine
the
Doctor.
In
our
jurisprudence witnesses put up by either of the
parties is subject to cross-examination so as to

11

test veracity or the truthness or correctness of

the statement of the witnesses. In the instant
case, no Doctor has been examined to establish
the extent of disabilities suffered by the
claimant and in that view the permanent
disability has not been proved.

19.

In the case of Moranmar Basselios Cathalicos and

Anr. Vs Most Rev. Mar Paulose Athanasius and Ors., reported

in AIR 1954 SC 526, it was observed that a review may be
allowed on three specified grounds, namely, (i) discovery of new
and important matter or evidence which, after the exercise of due
diligence, was not within the applicants knowledge or could not be
produced by him at the time when the decree was passed, (ii)
mistake or error apparent on the face of the record and (iii)for any
other sufficient reason. Regarding the term any other sufficient
reason, the Supreme court observedIt has been held by the Judicial Committee that
the words any other sufficient reason must
mean a reason sufficient on grounds, at least
analogous to those specified in the rule. SeeChhajju Ram Vs Neki, AIR 1922 PC 112 (D). This
conclusion was reiterated by the Judicial
Committee in- Bisheshwar Pratap Sahi Vs Parath
Nath, AIR 1934 PC 213 (E) and was adopted by
our Federal Court in- Hari Shankar Vs Anath
Nath, AIR 1949 FC 106 at pp.110,111(F).

20.

In the case of Lily Thomas and Ors. Vs. Union of

India & Ors. Vs. Union of India & Ors., reported in (2000) 6
SCC 224, the Supreme Court, discussing the power and scope of
review and referring to the case of Patel Narshi Thakershi Vs
Pradyumansigghji Arjunsighji, reported in AIR 1970 SC 1273,

12

observed that the power of review is not an inherent power. It must

be conferred by law either specifically or by necessary implication.
The review is also not an appeal in disguise. It cannot be denied
that justice is a virtue which transcends all barriers and the rules
or procedure or technicalities of law cannot stand in the way of
administration of justice. Law has to bend before justice. If the
court finds that the error pointed out in the review petition was
under a mistake and the earlier judgment would not have been
passed but for erroneous assumption which in fact did not exist
and its perpetration shall result in a miscarriage of justice nothing
would preclude the court from rectifying the error. The Supreme
court referred to the case of S. Nagaraj Vs State of Karnataka
(1993 Supp(4) SCC 595 wherein it was observed that the review
literally

and

even

judicially

means

re-examination

or

reconsideration. The Supreme Court further observed that the

power of review or exercise for omission or mistakes but not to
substitute a view and that such power can be exercised within the
limits of statute dealing with the exercise of power. It was also
observed that the mere possibility of two views on the subject is
not a ground for review. The Supreme Court further observed that
if the court finds that the error pointed out in the review petition
was under a mistake and the earlier judgment would not have
been passed but for erroneous assumption, which in fact did not
exist, and its perpetration shall result in a miscarriage of justice
nothing would preclude the court from rectifying the error.

13

21.

In the case of Board of Control for Cricket in India

& Anr. Vs Netaji Cricket Club & Ors., reported in (2005) 4 SCC
741, the Supreme Court drawing reference to Section 114

and

Order XLVII Rule (1) CPC discussed the scope of review. In the
above referred case, the Supreme Court

observed :-

We are, furthermore, of the opinion that the

jurisdiction of the High Court in entertaining a
review application cannot be said to be ex facie
bad in law. Section 114 of the Code empowers a
court to review its order if the conditions
precedent laid down therein are satisfied. The
substantive provision of law does not prescribe
any limitation on the power of the court except
those which are expressly provided in Section
114 of the Code in terms whereof it is
empowered to make such order as it thinks fit.
Thus, a mistake on the part of the court
which would include a mistake in the nature of
the undertaking may also call for a review of the
order. An application for review would also be
maintainable if there exists sufficient reason
therefor. What would constitute sufficient
reason would depend on the facts and
circumstances of the case. The words sufficient
reason in Order 47 Rule 1 of the Code are wide
enough to include a misconception of fact or law
by a court or even an advocate. An application
for review may be necessitated by way of
involving the doctrine actus curiae neminem
gravabit.
It is also not correct to contend that the
court while exercising its review jurisdiction in
any situation whatsoever cannot take into
consideration a subsequent event. In a case of
this nature when the court accepts its own
mistake in understanding the nature and
purport of the undertaking given by the learned
Senior Counsel appearing on behalf of the Board
and its correlation with as to what transpired in
the AGM of the Board held on 29-9-2004. The
subsequent
event
may
be
taken
into
consideration by the court for the purpose of
rectifying its own mistake.

14

22.

In the case of S. Nagraj Vs State of Karnataka,

reported in 1993 Supp(4) SCC 595, the Supreme Court observed

Justice is a virtue which transcends all barriers.

Neither the rules of procedure nor technicalities
of law can stand in its way. The order of the
court should not be prejudicial to anyone. Rule
of stare decisis is adhered for consistency but it
is not as inflexible in Administrative Law as in
Public Law. Even the law bends before justice.
Entire concept of writ jurisdiction exercised by
the higher courts is founded on equity and
fairness. If the court finds that the order was
passed under a mistake and it would not have
exercised the jurisdiction but for the erroneous
assumption which in fact did not exist and its
perpetration shall result in miscarriage of justice
then it cannot on any principle be precluded
from rectifying the error. Mistake is accepted as
valid reason to recall an order. Difference lies in
the nature of mistake and scope of rectification,
depending on if it is of fact or law. But the root
from which the power flows is the anxiety to
avoid injustice. It is either statutory or inherent.
The latter is available where the mistake is of
the court. In administrative Law the scope is still
wider. Technicalities apart if the court is satisfied
of the injustice then it is its constitutional and
legal obligation to set it right by recalling its
order. Here as explained, the Bench of which one
of us (Sahai, J.) was a member did commit an
error in placing all the stipendiary graduates in
the scale of First Division Assistants due to
States failure to bring correct facts on record.
But that obviously cannot stand in the way of
the
court
correcting
its
mistake.
Such
inequitable consequences as have surfaced now
due to vague affidavit filed by the State cannot
be permitted to continue.

23.

Discussing the power of the Tribunal to review its order

in the case of State of West Bengal & Ors. Vs Kamal

Sengupta & Anr. (supra), it is observed that the power of the

15

Tribunal to review its order/decision is akin to that of the civil court

under Section 114 read with Order 47 Rules 1 and 2 CPC and that
the Tribunal can review its decision on either of the grounds
enumerated in Order 47 Rule 1 CPC and not otherwise. In this case,
the Supreme Court discussed the scope and power of review of the
Tribunal under Section 22(3) of the Administrative Tribunal
Act,1985 :The term mistake or error apparent by its
very connotation signifies an error which is
evident per se from the record of the case and
does not require detailed examination, scrutiny
and elucidation either of the facts or the legal
position. If an error is not self-evident and
detection thereof requires long debate and
process of reasoning, it cannot be treated as an
error apparent on the face of the record for the
purpose of Order 47 Rule 1 CPC or Section 22(3)
(f) of the Act. To put it differently an order or
decision or judgment cannot be corrected merely
because it is erroneous in law or on the ground
that a different view could have been taken by
the court/tribunal on a point of fact or law. In
any case, while exercising the power of review,
the court/tribunal concerned cannot sit in appeal
over its judgment/decision.
24.

In view

of the principles of law pronounced by the

Apex court in the above referred cases any person considering

himself aggrieved by a decree or order may seek review of the
decree or order may, under the provision of Order 47 Rule 1, apply
for review of the order or the decree passed against him. Order 47
Rule (1) which provides for review reads as follows :Any person considering himself aggrieved-

16

(a)

by a decree or order from which an appeal

is allowed, but from which no appeal has
been preferred,

(b)

by a decree or order from which no appeal

is allowed, or

(c)

by a decision on a reference from a Court

of Small Causes,

and who, from the discovery of new and

important matter or evidence which, after the
exercise of due diligence, was not within his
knowledge or could not be produced by him at
the time when the decree was passed or order
made, or on account of some mistake or error
apparent on the face of the record, or for any
other sufficient reason, desires to obtain a
review of the decree passed or order made
against him, may apply for a review of judgment
to the Court which passed the decree or made
the order.

25.

In view of the above statutory provision, an aggrieved

person may apply for review of the order on the grounds firstly, (i)
new or important matter or evidence, which after the exercise of
due diligence was not brought to his knowledge or could not be
produced by him at the time when the decree or order was passed
or made, has now been discovered, secondly (ii) there was some
mistake or error apparent on the face of the record, thirdly (iii) for
any other sufficient ground.
26.

In

the

present

case,

the

learned

Single

Judge,

considering the decisions rendered in the case as reported in 2004

(2) TAC 289 SC, came to the finding that in view of the annual
income (Rs.40,000/-) of the claimant, the Tribunal should not have
entertain the claim petition. The learned Single Judge, referring to
the decisions held in the cases of (1) Narayan Chakraborty vrs.

17

Swapan Debnath & Anr., reported in 2007 (1) GLT 735, (2)
United India Insurance Co. Ltd. Vrs. Recharson @ Akhai @
Yaokhai & Anr., reported in 2007 (1) GLT 555 and (3) New
India Assurance Co. Ltd. Vrs. Sanjit Kumar & Anr., reported
in 2000 (2) GLT 567, set aside the award passed by the learned
Tribunal

due

to

non-examination

of

the

qualified

medical

practitioner to assess the loss of earning capacity. The learned

Single Judge also observed that the evidence of the medical
witness is a condition precedent for assessment of the disability of
the injured person. In view of the above, the learned Single Judge
set aside and quashed the impugned award, dated 17.06.2004,
with the observations already above. There is nothing on record to
find that the relevant law was not brought to the notice or the
appellate court.
27.

Carefully perusing the judgment and order, under

review, it is found that the learned Single Judge decided the matter
after by arriving at a finding with regard to the facts and the law
and holding that in view of the income of the claimant
(Rs.40,000/-), the claim petition under Section 163A of the Motor
Vehicles Act, was not maintainable and that, non-examination of
the Medical Officer, who issued the Disability Certificate, was an
essential requirement to assess the extent of disability. There is
nothing on record to find that there is any error apparent on the
face of the record.

18

28.

The review court has the limited jurisdiction to exercise

its power to correct the error apparent on the face of the record.
The review court is not authorised to re-appreciate the evidence or
to reverse the finding of the Court, whose judgment is sought to be
reviewed. As cautioned by the Supreme Court, re-appreciation of
evidence and arriving at a different finding would amount to
exceeding the jurisdiction of a review court. The alleged errors, as
pointed out by the learned counsel, appearing for the review
petitioner, are far from self-evident and as such the said errors
cant

be

cured

by

court

exercising

review

power.

Any

modification of the judgment and order under review, on the

grounds cited by the review petitioner will amount to exercising
the appellate jurisdiction, because the modification as sought for
by the review petitioner would amount to entertaining the ground
that the decision was erroneous on merit. This would be the
province of a Court of Appeal. The review court cant correct all
manner of errors committed by a Court of law, whose judgment
and order, is sought to be reviewed.
29.

In the light of the above discussions, I am of the

considered opinion that, though the grounds cited by the review

petitioner may possibly be taken in an appeal, the same cannot be
basis for a review petition.
30.

Therefore, I find no sufficient merit in this review

petition, and, accordingly, the same is dismissed. No order as to

cost.

19

JUDGE
ROY.