M.K. Rajeevan v. K. Kunhikannan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **RP.No.267 OF 2018 IN MACA. 1924/2008** **AGAINST THE ORDER/JUDGMENT IN MACA 1924/2008 DATED 02-082017 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/S:** **M.K.RAJEEVAN,S/O.BALAN, AGED 50 YEARS, PARAMBIL HOUSE, VALIYANNUR, P.O.VARAM, KANNUR DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER PRAVEEN.M.P., S/O.NARAYANAN, AGED 57, MALLYSEHRY HOUSE, NEAR SANKARAVILASAM U.P.SCHOOL, KANHIRODE, P.O.KOODALI, KANNUR DISTRICT.** **BY ADVS. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA** ## **RESPONDENT/S:** **1 K.KUNHIKANNAN, S/O.KUNHIRAMAN, PUTHARIYADUKKAM, PALAYI ROAD, PEROL VILLAGE, NEELESWARAM, KASARAGOD. 2 MS.ORIENTAL INSURANCE CO.LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, KANNUR. 3 V.THAMPAN, S.I,V,MADHAVAN NAIR, CHOORKKAYAM NATTAKKAL P.O., WEST ELERI VILLAGE (PARAPPA).** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 04.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** -2- RP.No.267 OF 2018 IN MACA. 1924/2008 ## **ORDER** ## **Anil K.Narendran, J.** The review petitioner is the appellant in MACA No.1924 of 2008, arising out of the award passed by the Additional Motor Accidents Claims Tribunal, Thalassery dated 22.11.2006 in O.P. (MV)No.1282 of 2001, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 29.09.2000, while he was driving a bus. At the place of accident, it was hit by another bus bearing registration No.KL-14/B-1239, owned and driven by respondents 1 and 3 and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus bearing registration No.KL-14/B-1239 by the 3[rd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.5,00,000/- under various heads. By the award dated 22.11.2006, the Tribunal awarded a total compensation of Rs.1,28,640/- and directed the 2[nd] respondent insurer to deposit the said amount before the Tribunal, -3- RP.No.267 OF 2018 IN MACA. 1924/2008 together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost. 2. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the review petitioner filed MACA No.1924 of 2008 before this Court. By the judgment sought to be reviewed, that appeal was disposed of granting him an additional compensation of Rs.37,190/-, together with interest at the rate of 8% per annum from the date of petition till realisation, excluding the period of delay of 480 days in filing the appeal. Seeking review of the said judgment, the petitioner has filed this review petition, under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, contending that, while awarding additional compensation under the head disability, this Court has not taken into consideration 20% occupational disability assessed by the Medical Board in Ext.X1 disability certificate and as such, there is error apparent on the face of record, warranting interference. 3. Heard the learned counsel for the review petitioner/appellant and also the learned Standing Counsel for the 2[nd] respondent/insurer. -4- RP.No.267 OF 2018 IN MACA. 1924/2008 4. The injuries sustained by the review petitioner/ appellant, as borne out from Ext.A2 wound certificate, are as follows: “Deformity on the right thigh and diffused swelling, lacerated wound over the medial aspect of the right foot 5 x 1 cm. and swelling, fracture shaft of the right femur and comminuted fracture first metatarsal of right foot.” He had undergone inpatient treatment for 32 days. As borne out from Ext.A3 series of discharge summaries, he had undergone K wire fixation of the right first metatarsal. The document marked as Ext.X1 is the disability certificate issued by the Medical Board at the District Hospital, Kannur, in which his permanent disability has been assessed as 8%. The Medical Board has also assessed his occupational disability as 20%, as bus driver. 5. In the judgment sought to be reviewed, this Court noticed that the appellant has not chosen to prove the occupational disability of 20%, as certified in Ext.X1, by examining the members of the Medical Board. Since the basis for assessment of occupational disability, much above 8% -5- RP.No.267 OF 2018 IN MACA. 1924/2008 permanent disability assessed in Ext.X1 was not established with supporting evidence, the Tribunal took 8% permanent disability as the basis for awarding disability compensation. In the judgment sought to be reviewed, this Court found that the procedure adopted by the Tribunal while awarding disability compensation warrants no interference and in such circumstances, the entitlement of the appellant for disability compensation can only be for 8% permanent disability, as assessed in Ext.X1. 6. The accident occurred on 29.09.2000. The Medical Board at the District Hospital, Kannur examined the review petitioner on 07.05.2005, in order to assess his permanent disability on account of the injuries sustained in the accident. In Ext.X1 disability certificate, it is noted as follows; “Right hip - terminal movements – painful; Right knee – movements – normal; right ankle – normal; right foot - deformity; Metatarsophalangal joint stiff in 10% .....; Toe movement - painful.” The procedure adopted by the Medical Board for fixing his functional disability as 20%, as bus driver, is not discernible from Ext.X1. Before the Tribunal, the review petitioner was -6- RP.No.267 OF 2018 IN MACA. 1924/2008 examined as PW1 on 05.08.2006, nearly 15 months after his examination by the Medical Board. PW1 has not deposed that he is suffering from joint stiffness or painful movement on account of the injuries sustained in the accident. He has also not deposed anything about the difficulties or disabilities being experienced on account of the injuries sustained in the accident and the resultant permanent disability, which are restricting his activities as a bus driver. 7. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** , the Apex Court laid down the principles governing assessment of future loss of earning due to permanent disability. The Apex Court held that where the claimant suffers a permanent disability as a result of the injuries, the assessment of compensation under the head loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the -7- RP.No.267 OF 2018 IN MACA. 1924/2008 injured; and after assessing the loss of earning capacity in terms of a percentage of income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). 8. In **Raj Kumar's case** , the Apex Court held that, if the Tribunal concludes that there is permanent disability as a result of the injuries, then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any -8- RP.No.267 OF 2018 IN MACA. 1924/2008 kind of livelihood; or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on; or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. When compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear or a token or nominal amount may have to be awarded under that head. 9. Relying on the decision of this Court in **Karunakaran @ Kannan v. Abdul Rasheed and others [2015 (4) KLT 465]** the learned counsel for the petitioner would contend that oral examination of the doctor cannot be insisted upon for accepting the functional disability of 20% assessed in Ext.X1 disability certificate, since it is one issued by the Medical Board at the District Hospital, Kannur. -9- RP.No.267 OF 2018 IN MACA. 1924/2008 10. In **Karunakaran @ Kannan** , a Division Bench of this Court held that there is no hard and fast rule that in all cases, invariably, the doctor should be examined in order to accept the permanent disability certified by him in respect of a person who sustained injuries in a motor accident. If the Tribunal is satisfied with the reasons stated by the doctor and the permanent disability certified by him, there is no need for calling him to the Tribunal and examining him for accepting the disability certified by him in the disability certificate. In the said case the Tribunal did not accept Ext.A8 disability certificate issued by Dr.Jacob P.J., Department of Orthopedics, Government Medical College Hospital, Thrissur, in which a permanent whole body disability of 11.5% was assessed, as per Mc Bride Scale, for the reason that the Doctor who issued the certificate was not examined and he was not the Doctor who treated the appellant. The Tribunal did not award any compensation under the head permanent disability even though some amount was awarded under the head loss of amenities. In Ext.A8 disability certificate, after clinical and radiological examinations, the Doctor has made a detailed -10- RP.No.267 OF 2018 IN MACA. 1924/2008 evaluation of the quantum of disability, narrating the reasons for the permanent disability certified therein. As directed by the Division Bench the appellant appeared before the Medical Board at the Medical College Hospital, Kozhikode for the purpose of assessing permanent disability. The Medical Board issued Ext.C1 disability certificate assessing permanent disability as 41.12%. The break up of permanent disability was attached to Ext.C1 disability certificate. The Division Bench, after considering the nature of difficulties and disabilities being experienced by the appellant, has fixed his loss of earning capacity, as a result of the permanent disability sustained due to the injuries suffered in the accident, as 40%, for the purpose of awarding compensation under the head loss of earning capacity. 11. In the instant case, as already noticed hereinbefore, the procedure adopted by the Medical Board for fixing the functional disability of the review petitioner as 20%, as bus driver, is not discernible from Ext.X1 disability certificate. Before the Tribunal, while the review petitioner was examined as PW1 on 05.08.2006, nearly 15 months after his examination RP.No.267 OF 2018 IN MACA. 1924/2008 -11- by the Medical Board, he has not deposed that he is suffering from joint stiffness or painful movement on account of the injuries sustained in the accident. He has also not deposed anything about the difficulties or disabilities being experienced on account of the injuries sustained in the accident and the resultant permanent disability, which are restricting his activities as a bus driver. In such circumstances, as rightly held in the judgment sought to be reviewed, the entitlement of the appellant for disability compensation can only be for 8% permanent disability as assessed in Ext.X1. 12. In **Satyanarayan Laxminarayan Hedge v. Millikarjun Bhavanappa Tirumale [AIR 1960 SC 137]** the Apex Court observed that, an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. 13. In **Thungabhadra Industries Ltd v. Government of Andhra Pradesh [AIR 1964 SC 1372]** the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but RP.No.267 OF 2018 IN MACA. 1924/2008 -12- lies only for correcting patent errors. 14. In **Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167]** the Apex Court held that, if the view adopted by the Court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 15. In **Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170]** the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. In **Aribam Tuleshwar Sharma** **v. Aribam Pishak Sharma [AIR 1979 SC 1047]** , while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, the Apex Court observed that, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of Plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. RP.No.267 OF 2018 IN MACA. 1924/2008 -13- But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new R.P.No.998 of 2019 in 65 W.P.(C)No.38888 of 2018 and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person 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 face 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. 16. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a RP.No.267 OF 2018 IN MACA. 1924/2008 -14- process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 17. Later, in **Lily Thomas v. Union of India [(2006) 3 SCC 224]** the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 18. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534]** the Apex Court held that, 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. RP.No.267 OF 2018 IN MACA. 1924/2008 -15- The review does not permit rehearing of the matter on merits. 19. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII, Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions. 20. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in this review petition fall within the ambit and scope of Order XLVII, Rule 1 of the Code. In the result, this review petition fails and the same is, accordingly, dismissed. ## **Sd/C.T.RAVIKUMAR JUDGE** ## **Sd/ANIL K.NARENDRAN JUDGE** **das**