Civil Revision No. 2322 of 2008 (1) In the High Court of Punjab & Haryana at Chandigarh Civil Revision No. 2322 of 2008 (O&M) Date of decision : 31.1.2009 Lt. Col. Balwant Singh ..... Petitioner vs United India Insurance Company Limited and others ..... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Chetan Mittal, Senior Advocate with Mr. Vishal Garg, Advocate, for the petitioner. Mr. Ravinder Arora, Advocate, for respondent no. 1. Rajesh Bindal J. Challenge in the present petition is to the order dated 13.2.2008 passed by the learned Motor Accident Claims Tribunal, Ambala (for short, “the Tribunal”), whereby through an application filed the petitioner- claimant for correction of the date of institution from 8.1.1997 to 30.11.1989 in the award dated 15.6.1998 was allowed but it was further held that the petitioner shall not be entitled to any interest for the intervening period for the reasons stated in the impugned order. Briefly, the facts are that on account of an accident which took place on 18.2.1989, the petitioner suffered serious injuries. The claim petition was filed before the Tribunal on 30.11.1989 under the Motor Vehicles Act, 1988. Notices were issued to the respondents. However, due to non-filing of process-fee, the claim petition was dismissed in default on 24.8.1990. The petitioner filed application for restoration which was also dismissed on 5.5.1995 by the Tribunal. The order dismissing the application for restoration was challenged before this court in Civil Revision No. 242 of 1996 which was allowed by this court vide order dated 26.11.1996 and the matter was remitted back to the Tribunal for decision on merits. The parties were directed to appear before the Tribunal on 8.1.1997. Vide award dated 15.6.1998, the claim petition filed by the petitioner was accepted by the Tribunal and compensation was assessed at Rs. 5 lacs along with interest @ 12% per annum from the date of the original petition till realization. Civil Revision No. 2322 of 2008 (2) The Insurance company filed F.A.O. No. 2221 of 1998 before this court against the aforesaid award of the Tribunal which was initially dismissed on 7.5.2001 in the absence of counsel for the Insurance Company. However, in an application filed by the Insurance Company, the matter was reconsidered and vide order dated 13.8.2004, again the appeal filed by the Insurance Company was dismissed as not maintainable. Thereafter, the petitioner filed execution application before the Tribunal and submitted calculation of the amount due to him in terms of the award. The execution application was resisted by the Insurance Company by submitting its own calculations, whereby the amount of interest was calculated from 8.1.1997 and not from 30.11.1989. Finding that there is an error in the award of the learned Tribunal where in the title of the award, the date of institution was mentioned as 8.1.1997, an application was filed before the Tribunal seeking correction of the award to the effect that the original date of institution of the claim petition was 30.11.1989 and not 8.1.1997. The learned Tribunal though accepted the plea of the petitioner to the effect that the date of institution of the claim petition was 30.11.1989 and allowed the correction accordingly, however, the Tribunal went on to consider the merits of the controversy regarding claim of interest for the period, the claim petition was originally filed, its dismissal in default and restoration by this court finally and held that the petitioner shall not be entitled to any interest for the period from 30.11.1989 to 8.1.1997, the date on which the parties were directed to appear before the Tribunal after this court set aside the order of the Tribunal dismissing the application filed by the petitioner for setting aside the ex-parte order. It is this order which is impugned in this present revision. Learned counsel for the petitioner submitted that the award passed by the learned Tribunal on 15.6.1998 is quite explicit whereby the petitioner is held entitled to compensation of Rs. 5 lac along with interest @ 12% per annum from the date of the original petition till realization. The Insurance company being aggrieved against the award, filed appeal before this court. The same was dismissed and the award was upheld. The only prayer made in the application was for correction in the award of the Tribunal dated 15.6.1998 the date of institution of the claim petition as was mentioned as 8.1.1997 though it should have been as 30.11.1989 as it is the date of filing Civil Revision No. 2322 of 2008 (3) of petition originally. Though initially it was dismissed in default but having been restored by this court vide order dated 26.11.1996 and directed the petitioner to appear before the Tribunal on 8.1.1997. Date of appearance given cannot be said to be date of institution of the petition. It was merely a date for the appearance of the parties before the Tribunal after the decision of petition filed by the petitioner challenging the dismissal of his application for restoration. He, however, submitted that vide impugned order the learned Tribunal while considering the contentions raised by the petitioner to the effect that there is an error in the mentioning of the date of institution of the claim petition in the title of the award as 8.1.1997 as against 30.11.1989, went on to consider as to whether the petitioner was entitled to interest for the intervening period when the petition was dismissed in default and ultimately restored by this court and after considering the issue, which was not before the learned Tribunal in the proceedings instituted by the petitioner, though directed that the correction be made in the date of institution of the claim petition as 30.11.1989, however, interest for the intervening period was not granted to the petitioner which is totally beyond the scope of Section 152 CPC, as merits of the controversy could not be gone into, after the award had been upheld by this court. Learned counsel for respondent no.1 submitted that no illegality has been committed by the learned Tribunal in declining the payment of interest from 30.11.1989 till 8.1.1997 as during this period, it was the fault of the petitioner that proceedings in the claim petition could not continue. In fact, the original claim petition filed on 30.11.1989 was not maintainable and grant of interest for any period therefrom shall certainly be unreasonable burden on the Insurance Company and unjust enrichment of the petitioner. Heard learned counsel for the parties and perused the record. The basis of the provision under Section 152 CPC is found on the maxim actus curiae neminem gravabit i.e., an act of the court shall prejudice no man. The judgment, which is quite close to the facts in the present case is Jayalakshmi Coelho vs Oswald Joseph Coelho AIR 2001 Supreme Court 1084, wherein Hon'ble the Supreme Court opined that any error occurred in the decree on account of arithmetical or clerical error or accidental slip can be rectified by the court. The principle behind this is that Civil Revision No. 2322 of 2008 (4) no party should suffer due to mistake of the court and whatever is intended by the court while passing the decree must be properly reflected therein, otherwise it would be antithesis to the principle of advancing the cause of justice. The accidental slip or omissions should be attributable to the court which though the court intended to say but omitted. No new arguments or rearguments are required for such correction. Paragraphs 13 and 14 of the aforesaid judgment can very well be referred to. The same are extracted below: “13. So far as the legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 CPC, any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases on the point may be made: The basis of the provision under Section 152 CPC is found on the maximum actus curiae neminen gravabit i.e. An act of court shall prejudice no man (Jenk Cent-118) as observed in a case reported in Assam Tea Corpn. Ltd. v. Narayan Singh, AIR 1981 Gau 41. Hence, an unintentional mistake of the court which may prejudice the cause of any party must be rectified. In another case reported in L. Janakirama Iyer v. P. M. Nilakanta Iyer, AIR 1962 SC 633, it was found that by mistake the words “net profit” were written in the decree in place of “mesne profit”. This mistake was held to be inadvertent. In Bhikhi Lal v. Tribeni, AIR 1965 SC 1935 it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in Master Construction Co. (P) Ltd. v. State of Orissa, AIR 1966 SC 1047, it has been observed that arithmetical mistake is a mistake of Civil Revision No. 2322 of 2008 (5) calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits are required for such rectification of mistake. In a case reported in Dwaraka Das v. State of M.P., (1999) 3 SCC 500, this Court has held that the correction in the order or decree should be of the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial court had not granted the interest pendente lite though such a prayer was made in the plaint but on an application moved under Section 152 CPC the interest pendente lite was awarded by correcting the judgment and the decree on the ground that non-awarding of the interest pendente lite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152 CPC by the courts beyond its scope has been deprecated. While taking the above view this court had approved the judgment of the Madras High Court in Thirugnanavalli Ammal v. P. Venugopala Pillai, AIR 1940 Mad. 29 on Maharaj Pattu Lal v. Sripal Singh, AIR 1937 Oudh 191. Similar view is found to have been taken by this court in a case reported in State of Bihar v. Nilmani Sahu,(1996) 11 SCC 528, where the court in the Civil Revision No. 2322 of 2008 (6) guise of arithmetical mistake on reconsideration of the matter came to a fresh conclusion as to the number of trees and the valuations thereof in the matter which had already been finally decided. Similarly in the case of Bai Shakriben v. Special Land Acquisition Officer, (1996) 4 SCC 533, this Court found omission of award of additional amount under Section 23(1-A), enhanced interest under Section 28 and solatium etc. could not be treated as clerical or arithmetical error in the order. The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law. 14. As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the court to rectify such mistake. But before exercise of such power the court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise, that is to say, while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better Civil Revision No. 2322 of 2008 (7) order or decree could or should be passed. There should not be reconsideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought the court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of the court's inherent powers as contained under Section 152 CPC. It is to be confined to something initially intended but left out or added against such intention.” [Emphasis supplied]. It is a case where on account of accident, the petitioner filed claim petition on 30.11.1989. The factum of filing of petition on that date is not in dispute. Notice in the petition was issued. However, due to non-filing of process-fee, the same was dismissed in default. As is evident from the order dated 26.11.1996 passed in Civil Revision No. 242 of 1996, the petitioner was not informed by the counsel about the order of dismissal of his petition in default and when this fact came in his knowledge, an application for restoration was filed. However, the learned Tribunal considering the same to be belated, dismissed the same. The order was impugned before this court in Civil Revision No. 242 of 1996, where this court noticing the fact that the petitioner being under treatment on account of accident, was never informed by his counsel about the steps to be taken in the claim petition filed by him and also the dismissal in default thereof and that the petitioner had even filed a complaint against the counsel in the Bar Council, this court vide order dated 26.11.1996 set aside the order passed by the Tribunal dismissing claim petition in default and directed the petitioner to appear before the learned Tribunal on 8.1.1997. It may be mentioned that after the restoration of the claim petition filed by the petitioner in the written statement filed by the Insurance Company, preliminary objections were raised including that the petitioner was not entitled to any interest as the petition remained dismissed in default for quite some time. The issue was dealt with by the learned Tribunal and a finding was recorded against the Insurance Company and in favour of the petitioner. In para 29 of the award where the issue has been considered in Civil Revision No. 2322 of 2008 (8) detail, it was held that the court after considering the facts and circumstances of the case comes to the conclusion that the petitioner is entitled to interest @ 12% per annum from the date of the original petition. Finally relief was granted on these issues. Relevant part of para 29 of the award dated 15.6.1998 is extracted below:- “Ld. Counsel for the Insurance company vehemently argued that the claimant is not entitled to any interest since, he got his petition dismissed for default and thereafter he has been prosecuting the case with his own delay and lethargy and the Insurance Company cannot be burdened for interest for such a long time. However, the argument is untenable as there is no intention at any stage of the proceedings emanating from the conduct of the petitioner that he was at all interested to delay his own case, nor did he committed any act to raise an inference that he was responsible for any delay in disposal of the case, after the case was dismissed. He perused the case before Hon'ble the High Court and it was ordered by Hon'ble the High Court to restore the petition, as indicated above. No body cannot be made liable because of mistake of the court. It it was dismissed by the court, it was not fault of the petitioner. So, I am of the view that in the interest of justice and looking to the equity justice and good conscience, the petitioner is entitled to the interest at the rate of 12% per annum from the date of the original petition.” Relief granted to the petitioner was summed up in para 30 of the award, which is as under:- “In view of my finding on the aforesaid Issues, the present petition succeeds and is hereby accepted with costs and an award of Rs. 5 lakhs is hereby passed in favour of the petitioner on account of compensation with an interest at 12% per annum from the date of the original petition till realization, payable Civil Revision No. 2322 of 2008 (9) by the respondents being the driver, owner and insurer of the offending vehicle, jointly or severally.” Aggrieved against the aforesaid award of the learned Tribunal, the Insurance Company filed FAO No. 2221 of 1998 before this court which though was initially dismissed on 7.5.2001 in the absence of counsel for the Insurance Company. However, the matter was reconsidered on an application filed by the Insurance Company and was finally dismissed again on 13.8.2004, as not maintainable. Meaning thereby that the finding of the learned Tribunal with regard to the amount of compensation as also grant of interest to the petitioner from the date of filing of original petition were upheld. The factum of noticing a wrong date in the award passed by the Tribunal in favour of the petitioner came to his knowledge during the execution proceedings where the Insurance Company calculated the amount of interest from 8.1.1997 as against 30.11.1989. It is on account of the fact that in the award the date of institution was mentioned as 8.1.1997, the date which was given by this court for appearance of the petitioner before the learned Tribunal while setting aside the order dismissing his application for restoration. Immediately, the petitioner filed the application for correction of the date of institution as was mentioned in the award dated 15.6.1998. The learned Tribunal found that the claim petition was originally filed on 30.11.1989 and accordingly directed for the correction of date as mentioned in the aforesaid award as 30.11.1989 as against 8.1.1997. However, it went on discussing the merits of the issue as to whether the petitioner is entitled to interest for the intervening period from 30.11.1989 to 8.1.1997 and referring to a judgment of Hon'ble the Supreme Court in Jayalakshmi Coelho's case (supra) directed that it would amount to unjust enrichment if the petitioner is allowed interest for the intervening period as it was due to the fault of the petitioner that the petition remained pending for the long intervening period. In my considered opinion, the findings recorded by the learned Tribunal on this issue are totally beyond the scope of Section 152 CPC which provides for correction of clerical, arithmetical mistake or accidental slip in any order or judgment. What was sought to be corrected was a clerical error i.e. mentioning of date of institution in the award passed in favour of the petitioner on 15.6.1998 where the date is mentioned as 8.1.1997 as against the date of institution originally being 30.11.1989. The Civil Revision No. 2322 of 2008 (10) same having been directed to be corrected, the Tribunal did not have jurisdiction to deal with the issue that the petitioner was not entitled to interest for the intervening period which is something on the merits of the controversy for which detailed arguments required to be addressed. The Tribunal while dealing with an application under Section 152 CPC was not sitting in appellate jurisdiction against the earlier award of the Tribunal. The learned Tribunal also failed to notice the fact that the same claim was made by the Insurance Company before the Tribunal at the time of consideration of the original petition and after rejecting the arguments addressed, it was directed that the petitioner would be entitled to interest on the amount of compensation from the date of original petition. The award of the Tribunal having been upheld by this court in appeal by the Insurance Company, the same issue could not be addressed again in an application filed by the claimant for correction of the error under Section 152 CPC. The judgment in Jayalakshmi Coelho's case (supra), did not support the reasoning sought to be adopted by the Tribunal while dealing with the issue on merits. Considering the reasoning given by the Tribunal in the award originally passed, the manner in which the issue was dealt with by the Tribunal amounted to modification of the earlier award, which is not permissible in proceedings under Section 152 CPC. The application filed by the petitioner was merely for correction of date of filing of the petition and nothing was required to be considered on merits. In view of my aforesaid discussion, I find merit in the present petition. Accordingly, the same is allowed and the impugned order passed by the Tribunal to the extent that the petitioner is not entitled to interest from 30.11.1989 to 8.1.1997 is set aside. 31.1.2009 ( Rajesh Bindal) vs. Judge (Refer to Reporter)