Review Petition
Review Petition
Review Petition
AIZAWL BENCH
Vs
Respondents.
BEFORE
HONBLE MR. JUSTICE C. R. SARMA
For the petitioner :
Date of hearing
23.11.2010
Date of delivery of
Judgment & order :
..November, 2010.
2.
The said
3.
(1)
(2)
4.
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.
have
heard
Mr.
S.N.
Meitei,
learned
counsel,
7.
(1)
(2)
Hamida Khatun & Ors. Vs. Loobha Tea Co. Ltd. &
Ors., reported in 2004 (1) GLT 382;
(3)
(4)
(5)
8.
(1)
(2)
(3)
9.
10.
13.
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
In
the
case
of
R.V.E.
Venkatachala
Gounder
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
19.
20.
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
and
even
judicially
means
re-examination
or
13
21.
& 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 :-
14
22.
23.
15
In view
16
(a)
(b)
(c)
25.
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,
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
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.
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
19
JUDGE
ROY.