IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) [CASE NUMBER] 1. [ENTITY], Regional Office at G.S. Road, Bhangagarh, Guwahati-871005, Assam. - Petitioner. -VERSUS- 1. Sri [ENTITY], Son of Late Jadu Mondal, Resident of Quarter No.184(A), Hijiguri Railway Colony, Tinsukia, Dist. & P.O.: Tinsukia, Assam (Claimant). 2. Mrs. [ENTITY], Wife of Sri Premodhar Saikia (Owner of the vehicle). 3. Sri [ENTITY], Son of Late Nandiram Saikia (Driver of the vehicle), Both the respondent Nos.2 & 3 are resident of Hill View, Margherita Town, P.O. & P.S. Margherita, Dist. Tinsukia (Assam). - Respondents. BEFORE HON'BLE MR JUSTICE HRISHIKESH ROY For the Petitioner: Mr. [ENTITY], Advocate. For the Respondents: Mr. [ENTITY], Sr. Advocate, Ms. [ENTITY] & Mrs. [ENTITY], Advocates. Date of hearing & judgment: 09.06.2015. JUDGEMENT AND ORDER (ORAL)
Heard Mr. [ENTITY], the learned counsel appearing for the petitioner i.e. the [ENTITY] Also heard Mr. [ENTITY], the learned senior counsel representing the claimant in whose favour enhanced compensation was granted by the MAC Tribunal, Tinsukia, through the impugned order dated 20.3.2010 (Annexure-F), in the Misc. [CASE NUMBER].
2. The compensation was claimed in the proceeding under [SECTION] of the [ACT] (hereinafter referred to as 'the [ACT]') on account of the injury suffered by the claimant [ENTITY], who was hit from behind on 18.7.2005 at about 7:30 P.M. by the offending Maruti Van bearing Regn. No.AS- 23B-5418, driven by one [ENTITY]. The claimant was knocked down from his bicycle and suffered various injuries and loss of vision and thus compensation of Rs.12.40 lakhs was claimed by him.
3. After examining the evidence on record, the MAC Tribunal quantified the compensation for pain and suffering and loss of income and medical expenses and considering the salary of the claimant to be Rs.5,000/- P.M., the Tribunal awarded Rs.2,14,000/- to be paid by the [ENTITY] under whom the vehicle was insured, through the award dated 29.1.2007 (Annexure- A).
4. As the MAC Tribunal did not grant any compensation on account of permanent disability suffered by the victim, he filed an Appeal under [SECTION] of the [ACT] to challenge the award dated 29.1.2007 and this Court disposed of the [CASE NUMBER] on 29.4.2009 (Annexure-B) by directing the MAC Tribunal, Tinsukia to ascertain the issue of permanent disablement by examination of Doctor and thus the matter was remanded for fresh adjudication.
5. Upon remand by the High Court, the MAC Tribunal examined Dr. [ENTITY], the Eye Specialist who examined the claimant on 23.7.2005 at the Assam Medical College Hospital, Dibrugarh and she opined that the victim has suffered permanent blindness in one eye on account of the road traffic accident. Because of the Doctor's evidence, the Tribunal concluded that the claimant suffered permanent disability to the extent of 50% and since nothing was awarded under this head, a further sum of Rs.1,50,000/- was awarded. Thus the original amount was enhanced to Rs.3,64,000/- from the earlier Rs.2,14,000/-, by the judgment dated 4.1.2010 (Annexure-C).
6. However since the amount towards permanent disability was not quantified in accordance with [SECTION] of the [ACT] and was arbitrarily decided by the Tribunal, the claimant filed a Review Petition on 3.2.2010 (Annexure-D) for proper calculation of the awardable amount under the permanent disability head. The learned Tribunal noticed that the procedure for assessment prescribed by the [SECTION] of the [ACT] was not followed and accordingly held that an error apparent on the face of the record was committed in computing the award. With this perception, the Review Petition was allowed and the payable amount was reassessed by applying the formula under the [ACT], with the following order:-
On a careful perusal of the judgment of this Tribunal which was delivered on
04.01.2010, it is seen that the error is apparent on the face of the record for not following the procedure in assessing the loss for permanent partial disability for complete loss of vision of one eye of the claimant. This being the position, the review petition is allowed and the loss is reassessed by applying the formula laid down in [SECTION] of the [ACT], which is :-
Monthly loss of income : Rs.5,000/- Annual loss of income : Rs.60,000/- Multiplier applicable is : 18 Hence Total Loss is : Rs.10,80,000/-. 30% of the total loss is : Rs.3,24,000/-.
Hence, the compensation for permanent partial disability will be Rs.3,24,000/- instead of Rs.1,50,000/-. This being the position, total compensation will come to Rs.5,38,000/-. The direction to O.P. No.3 to pay the compensation remain the same as laid down in judgment dated 04.04.2010 of this Tribunal. "
7.1. Assailing the legality of the review exercise and the recalculation made by the MAC Tribunal, Mr. [ENTITY], learned counsel submits that the Tribunal after rendering its award on 4.1.2010 (Annexure-C), became functous officio. In support of his submission, the counsel relies on [PRECEDENT] to contend that when compensation was awarded under the permanent disability head, the MAC Tribunal has no jurisdiction to review its decision and grant a higher amount on the same head.
7.2. Referring to the limited power of the Tribunal conferred under [SECTION] of the [ACT] and since review power is not provided, Mr. [ENTITY] argues that since the tribunal is deemed to be a Civil Court only for specific purposes was unjustified invoking the review power under the circumstance.
7.3. The petitioner relies on FGP Limited vs. [ENTITY] reported in (2009) 10 SCC 464 to argue that simple error can't be corrected by invoking the review power unless the error is manifest on the face of the record. 8.1. On the other hand, Mr. [ENTITY], the learned senior counsel submits that when a victim has suffered permanent disability, the compensation amount under the [ACT] is required to be calculated under [SECTION]. Under Sub-clause (b) of Clause 5, in case of permanent partial disablement, the loss of earning capacity is required to be determined under [SECTION] of the [ACT] (hereinafter referred to as 'the [ACT]'). Under [SECTION] of the [ACT], when loss of vision of one eye occurs, 30% loss of earning capacity is approved by law. Reading these provisions of the [ACT] and the [ACT], the senior counsel argues that a major procedural mistake was committed by the Tribunal by awarding Rs.1,50,000/- without quantifying the amount by applying the formula prescribed by the [ACT] read with the [ACT]. Therefore it is argued that this procedural error can be rectified by the Review power inherent on the MAC Tribunal.
8.2. The respondent's counsel submits that the MAC Tribunal quantified the awardable sum without applying the statutorily prescribed formula and accordingly when the Tribunal has realized that the procedure for assessment, as laid down in [SECTION] of the [ACT] was not followed, it was competent to apply the formula and re-fix the awardable amount.
9. The [ACT] does not confer any power of review on the MAC Tribunal and it has been held earlier by the Court that the power of review is not inherent but must be conferred. But while examining the ambit of review power for the Tribunal(s) under the [ACT], the Apex Court in [PRECEDENT], declared that the Tribunal has the power to review its own order in the interest of justice and such power is endowed as incidental power upon the Tribunal for its effective functioning and doing justice between the parties.
10. The Madhya Pradesh High Court in the case of [PRECEDENT] was examining the power of the MAC Tribunal to review its decision. In the context, the Court noted that the Tribunals under the [ACT] follow a summary procedure and is at liberty to evolve its own procedure. Applying the ratio of Grindlays Bank Ltd. (Supra), the learned Judge observed that the power of review inheres in every Court or Tribunal and therefore a Review Application is maintainable before an MAC Tribunal when it is filed to cure a procedural defect.
11. In [PRECEDENT], the Supreme Court after discussing the ratio of the earlier cases, declared that when a authority commits a procedural irregularity which goes to the root of the matter invalidates the proceeding, the power of procedural review may be invoked because the procedure adopted by the authority was erroneous and contrary of the legal prescription.
12. This Court while examining the scope of review under the [ACT] in [PRECEDENT] held that when an award is passed contrary to the provision of law, the same is rectifiable by the MAC Tribunal by invoking the power of review inherent in the Tribunal. Similarly in the case of [PRECEDENT], another learned Judge of this Court held that the MAC Tribunal has inherent review power for doing substantive justice to the parties.
13. The ratio of the above decisions clearly shows that although the [ACT] does not confer the power of review when an award is given by following an erroneous procedure, it can certainly be invoked by the Tribunal. In the case in hand, the awardable amount on the permanent disability head was not decided by applying the formula prescribed under [SECTION] of the [ACT] read with [SECTION] of the [ACT] and therefore an error apparent on the face of the record was found to be committed by the Tribunal. The Rs.1.5 lakh was arbitrarily decided by disregarding the formula prescribed by the statute and therefore the error is manifest on the face of the record in the earlier decision given by the MAC Tribunal on 4.1.2010 (Annexure-C). In fact, for re-determination of the payable amount by applying the formula, further investigation or inquiry is unnecessary and therefore even under the ratio of [ENTITY] (Supra), cited by the Insurance Company's lawyer, the necessary re-determination exercise can be made by the MAC Tribunal by reviewing its earlier decision.
14. In exercising supervisory jurisdiction under [SECTION] of the [ACT], when a subordinate authority has failed to exercise a jurisdiction to determine the awardable compensation in accordance with the statutory prescribed formula, the intervention of the High Court will be justified. When the permanent disability of 50% is found and if the statutory formula under the [ACT] read with the [ACT] is applied, the claimant is entitled to Rs.3,24,000/- but he was awarded a lesser amount. Thus the non-application of the prescribed formula has certainly led to injustice to the claimant. Therefore by applying the ratio of [PRECEDENT], I feel that since the Tribunal's exercise will further the cause of justice, which in review applied the statutory formula for re-determining the awardable compensation, the exercise of supervisory jurisdiction under [SECTION] of the [ACT] will not be justified when the impugned order is consistent with the legal provision.
15. In view of above discussion, this petition is found to be without any merit and the same is accordingly dismissed. Consequently the petitioner Insurance Company is directed to deposit the balance of the awarded amount before the learned MAC Tribunal, Tinsukia within 8 weeks and the claimant is permitted to withdraw the money upon due identification. If the additional amount is not deposited within the specified time frame, the same will accrue interest @7% p.a. from the date of the Tribunal's order dated 20.3.2010 (Annexure-F), in the Misc. [CASE NUMBER]. It is ordered accordingly.
16. With the above order, the case stands allowed to the extent indicated, leaving the parties to bear their own cost. The Registry is accordingly directed to return the L.C.R. with a copy of this order.
JUDGE [ENTITY].