# Anwar Ahmad & Ors v. Uttarakhand Transport Corp. & Ors

- **Citation:** (2022) 10 ILRA 608
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-05
- **Case number:** Civil Misc. Review Application No.420 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anwar-ahmad-ors-v-uttarakhand-transport-corp-ors-47766
- **Pages:** 7

## Headnote

Civil Law- Code of Civil Procedure, 1908 -
Order 47 Rule 1-Motor Vehicles Act 1988-
Section 173 - The present review petition
raises issue of deduction of personal
expenses and calculation of compensation
being faulty-Review is not an appeal in
disguise - Rehearing of the matter is
impermissible in the garb of review. It is
an exception to the general rule that once
a judgment is signed or pronounced, it
should not be altered.

Settled law that the power of review cannot be
exercised on merits of the case as that is the
domain of the appellate court, however the
power of review may be exercised only where
some mistake or error apparent on the face of
the record is found or to prevent miscarriage of
justice or to correct grave and palpable errors
committed by it and 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
person seeking the review or could not be
produced by him at the time when the order
was made and for any other sufficient reason.

Civil Law - Code of Civil Procedure, 1908 -
Order 47 Rule 1-Motor Vehicles Act 1988-
Section 173- Here father cannot be said to
be dependant as it is not demonstrated
that father was dependant. The minor
children would take one quotient between
two of them and one count for mother
hence instead of 1/4 it has to be 1/3 for
personal expenses- There is an error
apparent on the face of the record in the
judgment. The calculation is based on a
grave
mistake
the
court
instead
of
considering
amount
payable
has
calculated
on
basis
of
deduction
of
personal expenses. In fact, the claimants
10 All. Anwar Ahmad & Ors. Vs. Uttarakhand Transport Corp. & Ors.
609
should have also filed review application
as what has been calculated is considering
the amount which was to be deducted as
personal expenses instead of considering
grantable datum amount- From the date
of claim petition till amount is deposited,
the amount would carry 7.5% rate of
interest. The amount as recalculated be
deposited within 8 weeks from today
failing which entire amount will carry 9%
rate of interest after expiry of the period.

As error apparent on the face of the record
has been found in as much as the appellate
court has calculated the amount payable on the
basis of personal expenses and one-fourth
cannot be deducted even if there are more
dependents as sisters and brothers and father
cannot be said to be dependent on the
deceased- Amount therefore recalculated. (11,
14, 16, 17)

Review application allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

608 INDIAN LAW REPORTS ALLAHABAD SERIES
with the facts of the case so as to dissuade
her from disclosing such facts to the court
or to any police officer or tamper with the
evidence;

3. that the applicant shall not
leave India without the previous permission
of the court;

4. that in default of any of the
conditions
mentioned
above,
the
investigating officer shall be at liberty to
file appropriate application for cancellation
of anticipatory bail granted to the applicant;

5. that the applicant shall not
pressurize/
intimidate
the
prosecution
witness;

6. that the applicant shall appear
before the trial court on each date fixed
unless personal presence is exempted;

7. that in case of breach of any of
the above conditions the court below shall
have the liberty to cancel the bail.

12. In view of above, the present
anticipatory bail application is disposed of.
----------
(2022) 10 ILRA 608
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Civil Misc. Review Application No.420 of 2021
In
First Appeal From Order Defective No. 689 of
2016

Anwar Ahmad & Ors. ...Applicants
Versus
Uttarakhand Transport Corp. & Ors.
 ...Opp. Parties

Counsel for the Applicants:
Sri Rahul Anand Gaur

Counsel for the Opp. Parties:
Sri Satish Chandra Pandey

Civil Law- Code of Civil Procedure, 1908 -
Order 47 Rule 1-Motor Vehicles Act 1988-
Section 173 - The present review petition
raises issue of deduction of personal
expenses and calculation of compensation
being faulty-Review is not an appeal in
disguise - Rehearing of the matter is
impermissible in the garb of review. It is
an exception to the general rule that once
a judgment is signed or pronounced, it
should not be altered.

Settled law that the power of review cannot be
exercised on merits of the case as that is the
domain of the appellate court, however the
power of review may be exercised only where
some mistake or error apparent on the face of
the record is found or to prevent miscarriage of
justice or to correct grave and palpable errors
committed by it and 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
person seeking the review or could not be
produced by him at the time when the order
was made and for any other sufficient reason.

Civil Law - Code of Civil Procedure, 1908 -
Order 47 Rule 1-Motor Vehicles Act 1988-
Section 173- Here father cannot be said to
be dependant as it is not demonstrated
that father was dependant. The minor
children would take one quotient between
two of them and one count for mother
hence instead of 1/4 it has to be 1/3 for
personal expenses- There is an error
apparent on the face of the record in the
judgment. The calculation is based on a
grave
mistake
the
court
instead
of
considering
amount
payable
has
calculated
on
basis
of
deduction
of
personal expenses. In fact, the claimants
10 All. Anwar Ahmad & Ors. Vs. Uttarakhand Transport Corp. & Ors.
609
should have also filed review application
as what has been calculated is considering
the amount which was to be deducted as
personal expenses instead of considering
grantable datum amount- From the date
of claim petition till amount is deposited,
the amount would carry 7.5% rate of
interest. The amount as recalculated be
deposited within 8 weeks from today
failing which entire amount will carry 9%
rate of interest after expiry of the period.

As error apparent on the face of the record
has been found in as much as the appellate
court has calculated the amount payable on the
basis of personal expenses and one-fourth
cannot be deducted even if there are more
dependents as sisters and brothers and father
cannot be said to be dependent on the
deceased- Amount therefore recalculated. (11,
14, 16, 17)

Review application allowed. (E-3)

Judgements/ Case law relied upon:-

1. Sube Singh & anr. Vs Shyam Singh
(Dead) & ors., 2018 0 Supreme (SC) 126
(cited)

2. Meena Pawaia & ors. Vs Ashraf Ali & ors.,
2021 LawSuit (SC) 743 (cited)

3. Suresh Chandra Bagmal Doshi & anr. Vs The
New India Assurance Comp. Ltd & ors.,2018 0
Supreme (SC) 357 (cited)

4. Dr. Anoop Kumar Bhattacharya & anr. Vs
National Insurance Co. Ltd., 2021 0 Supreme
(All) 1277 (cited)

5. Thungabhadra Industries Ltd. Vs The Govt. of
A.P., AIR 1964 SC 1372

6. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma 1979 (4) SCC 389

7. Meera Bhanja Vs Nirmala Kumari Choudhury
AIR 1995 SC 455

8. Parsion Devi & ors. Vs Sumitri Devi & ors.
1997, (8) SCC 715

9. Rajendra Kumar Vs Rambai, AIR 2003 SC
2095

10. Lily Thomas Vs U.O.I, AIR 2000 SC 1650

11. Inderchand Jain Vs Motilal (2009) 4 SCC 665

12. Kamlesh Verma Vs Mayawati & ors. 2013 (8)
SCC 320

13. Chhajju Ram Vs Neki, AIR 1922 PC 112

14. Moran Mar Basselios Catholicos Vs Most Rev.
Mar Poulose Athanasius & ors., AIR 1954 SC 526

15. U.O.I Vs Sandur Manganese & Iron Ores
Ltd. & ors., 2013 (8) SCC 337.

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Sri Rahul Anand Gaur,
Counsel for the original respondent now
applicant for the review petitioner and Sri
Satish Chandra Pandey, Counsel for the
respondents - original claimants.

2. The present review petition raises
issue of deduction of personal expenses and
calculation of compensation being faulty.
There is no dispute with respect to liability.
The age of the deceased is 21 years which
is not in dispute.

3. Learned Counsel for the review
petitioner has heavily relied on the
decisions in Sube Singh and another Vs.
Shyam Singh (Dead) and others, reported
in 2018 0 Supreme (SC) 126. Learned
counsel has also relied on the decision
titled Meena Pawaia and others Vs.
Ashraf Ali and others, published in 2021
LawSuit (SC) 743; The learned counsel for
review petitioner has even placed reliance
on Suresh Chandra Bagmal Doshi and
610 INDIAN LAW REPORTS ALLAHABAD SERIES
another Vs. The New India Assurance
Company Limited and others, 2018 0
Supreme (SC) 357; and Dr. Anoop Kumar
Bhattacharya and another Vs. National
Insurance Co. Ltd., 2021 0 Supreme (All)
1277, so as to contend that the deduction
for personal expenses of a bachelor has to
be only one half and the appeal court under
section 173 of Motor Vehicles Act 1988
cannot deduct one-fourth even if there are
more dependents as sisters and brothers and
father cannot be said to be dependent on
the deceased. The learned counsel for
review petitioner has contended that this is
error apparent on the record and requires to
be reviewed.

4. The judgments relied by Sri Gaur
appearing for the applicant - respondent
are considered by us and the submission
that in case of death of bachelor 1/2 and
not 1/4th be deducted for personal
expenses is not the law propounded. It is
normally
dependent
on
how
many
dependents are on the deceased.

5. It is submitted by the Counsel
for the review petitioner that the
deceased was a bachelor and the father
was an earning member and hence
deduction of 1/4th should not have been
made, it should have been 50% of the
income earned by deceased.

6. While considering the facts, we
have
categorically
mentioned
in
paragraph no.4 "It is submitted by
learned counsel for the appellant that the
deceased was 21 years of age survived
by his parents and brothers and sister
who were minor at the time of accident.
He was JCB mechanic. In the year 2014,
the Tribunal has assessed the income of
the deceased to be Rs.3,000/-, which is
on the lower side. Further the Tribunal
has not granted any amount under the
head of future loss of income. Multiplier
of 17 was applied which should be 18.
Further amount under the head of nonpecuniary damages has been awarded on
lower side. Further rate of interest has
been considered to be 7% which should
be 9%. Thus, quantum of compensation
is required to be enhanced."

7. It is submitted by Counsel for
original claimants that the deceased was
survived by his parents, brothers and
sisters, who are minor at the time of
accident. The deceased was bachelor.
The family was dependant on him and,
therefore, this Court had deducted 1/4th.

8. It is submitted by Sri Gaur,
learned counsel for review petitioner
that father of the deceased cannot be
said to be the dependant on the son. It is
submitted that claimants are under a
duty to prove that father of deceased was
dependent on the income of deceased.
There were minor brothers and sisters
though are legal representative of the
deceased but is not proved that they
were dependant on deceased, therefore,
this review requires to be allowed in
view of the following authoritative
pronouncements:-

9. In Thungabhadra Industries Ltd.
Vs. The Government of Andhra Pradesh
AIR 1964 SC 1372, the Court said:

"A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies
only for patent error."

10. In Aribam Tuleshwar Sharma
Vs. Aribam Pishak Sharma 1979 (4) SCC
389 the Court said:
10 All. Anwar Ahmad & Ors. Vs. Uttarakhand Transport Corp. & Ors.
611

"... there is nothing in Article 226
of the Constitution to preclude a 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. 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 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 powers which
may enable an Appellate Court to correct
all manner of errors committed by the
Subordinate Court."

11. Again, in Meera Bhanja v.
Nirmala Kumari Choudhury AIR 1995 SC
455 while quoting with approval the above
passage from Abhiram Taleshwar Sharma
Vs. Abhiram Pishak Shartn (supra), the
Court
once
again
held
that
review
proceedings are not by way of an appeal and
have to be strictly confined to the scope and
ambit of Order 47 Rule 1 CPC.

12. In Parsion Devi and others Vs.
Sumitri Devi and others 1997 (8) SCC
715 it was held that an error, which is not
self evident and has to be detected by
process of reasoning, can hardly be said to
be error apparent on the face of the record
justifying the court to exercise powers of
review in exercise of review jurisdiction.

13. In Rajendra Kumar Vs.
Rambai, AIR 2003 SC 2095, the Apex
Court has observed about limited scope of
judicial intervention at the time of review
of the judgment and said:

"The limitations on exercise of
the power of review are well settled. The
first
and
foremost
requirement
of
entertaining a review petition is that the
order, review of which is sought, suffers
from any error apparent on the face of the
order and permitting the order to stand will
lead to failure of justice. In the absence of
any such error, finality attached to the
judgement/ order cannot be disturbed."

14. Thus, Review is not an appeal in
disguise. Rehearing of the matter is
impermissible in the garb of review. It is an
exception to the general rule that once a
judgment is signed or pronounced, it should
not be altered. In Lily Thomas Vs. Union
of India AIR 2000 SC 1650, the Court said
that power of review can be exercised for
correction of a mistake and not to substitute
a new. Such powers can be exercised within
limits of the statute dealing with the
exercise of power. The aforesaid view is
reiterated in Inderchand Jain Vs. Motilal
(2009) 4 SCC 665.

15.

In
Kamlesh
Verma
Vs.
Mayawati and others 2013 (8) SCC 320,
the Court said:

"19. Review proceedings are not
by way of an appeal and have to be strictly
confined to the scope and ambit of Order
47 Rule 1 of CPC. In review jurisdiction,
mere disagreement with the view of the
judgment cannot be the ground for invoking
the same. As long as the point is already
dealt with and answered, the parties are not
entitled
to
challenge
the
impugned
612 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment in the guise that an alternative
view
is
possible
under
the
review
jurisdiction.

Summary of the Principles:

20. Thus, in view of the above,
the following grounds of review are
maintainable
as
stipulated
by
the
statute:

20.1. When the review will be
maintainable:-

(i)
Discovery
of
new
and
important matter or evidence which, after
the exercise of due diligence, was not
within knowledge of the petitioner or could
not be produced by him;

(ii) Mistake or error apparent on
the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient
reason" has been interpreted in Chhajju
Ram vs. Neki, AIR 1922 PC 112 and
approved by this Court in Moran Mar
Basselios Catholicos vs. Most Rev. Mar
Poulose Athanasius & Ors., AIR 1954 SC
526, to mean "a reason sufficient on
grounds at least analogous to those
specified in the rule". The same principles
have been reiterated in Union of India vs.
Sandur Manganese & Iron Ores Ltd. &
Ors., 2013 (8) SCC 337.

22.2. When the review will not be
maintainable:-

(i) A repetition of old and
overruled argument is not enough to reopen
concluded adjudications.

(ii)
Minor
mistakes
of
inconsequential import.

(iii) Review proceedings cannot
be equated with the original hearing of the
case.

(iv) Review is not maintainable
unless the material error, manifest on the
face
of
the
order,
undermines
its
soundness or results in miscarriage of
justice.

(v) A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected but lies
only for patent error.

(vi) The mere possibility of two
views on the subject cannot be a ground
for review.

(vii) The error apparent on the
face of the record should not be an error
which has to be fished out and searched.

(viii)
The
appreciation
of
evidence on record is fully within the
domain of the appellate court, it cannot be
permitted to be advanced in the review
petition.

(ix) Review is not maintainable
when the same relief sought at the time of
arguing the main matter had been
negatived." (emphasis supplied)

16. Having heard the learned counsels
for the parties We do not disturb the findings
as far as monthly income of the deceased as
decided by this court. Supreme Court in
Meena Pawaia (supra) has held that if
deceased is bachelor but has more family
members who are dependant on the deceased
10 All. Anwar Ahmad & Ors. Vs. Uttarakhand Transport Corp. & Ors.
613
, the deduction can vary. Here father cannot
be said to be dependant as it is not
demonstrated that father was dependant. The
minor children would take one quotient
between two of them and one count for
mother hence instead of 1/4 it has to be 1/3
for personal expenses in view of discussion in
latest judgment in Dr. Anoop Kumar (supra).

17. We even find that there is an error
apparent on the face of the record in the
judgment. The calculation is based on a grave
mistake the court instead of considering
amount payable has calculated on basis of
deduction of personal expenses. In fact, the
claimants should have also filed review
application as what has been calculated is
considering the amount which was to be
deducted as personal expenses instead of
considering
grantable
datum
amount.
Therefore, we recalculate the amount as
under:-

i. Income Rs.4,000/-

ii. Percentage towards future
prospects : 40% namely Rs.1,600/-

iii. Total income : Rs. 4,000 +
1,600 = Rs. 5,600/-

iv. Income after deduction of
1/3rd : Rs. 3,733/-

v. Annual income : Rs. 3,733 x 12
= Rs. 44,796/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.
44,796 x 18 = Rs. 8,06,328/-

viii. Amount under non pecuniary
heads : Rs. 40,000/-

ix. Total compensation : Rs.
8,46,328/-

18. We have been conveyed by Sri
Gaur that no amount has yet been deposited
except the amount awarded by the Tribunal.
This review petition is filed immediately
after the judgment. Hence, the enhanced
amount would be deposited with 7.5%
interest at flat rate of interest. We even
modify paragraph no.10 as no amount has
been deposited by the applicant-review
petitioner herein and it is not a very old
matter.

19. We are thankful to Uttrakhand
Transport Corporation for having brought
these glaring mistakes to our notice by way
of filing this review.

20.

The
Uttrakhand
Transport
Corporation should have deposited the
amount which was on lower side as there
was
mistake
in
calculation
which
unfortunately overlooked by this court. The
amount could have been deposited even
under protest but the review petitioner has
not deposited the same. May that as it may
be, from the date of claim petition till
amount is deposited, the amount would
carry 7.5% rate of interest. The amount as
recalculated be deposited within 8 weeks
from today failing which entire amount will
carry 9% rate of interest after expiry of the
period .

21. The rest of the directions are not
altered. The record, if yet not transmitted,
be sent to Tribunal. The amount of Rs.
25,000/-, if not transmitted, be transmitted
expeditiously.

22. The review petition is partly
allowed.
----------
614 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 10 ILRA 614
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 147 of 2012

Sultan ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Arvind Kumar Mishra, Sri
Gaurav Kakkar, Ms. Archana Singh (A.C.)

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Sections 374(2) & 383 -
Indian Penal Code, 1860-Sections 302,
504 - Arms Act,1959 - Section 25challenge to-conviction-broad day light
murder-motive as well as direct evidence
of
two
eye-witnesses
available-
an
altercation took place between deceased
and appellant over the relationship of
appellant's wife with the deceased-both
the eye-witnesses PW-2 and PW-5 were
present at the place of occurrencerecovery as well as medical evidence fully
supported the prosecution version-PW-1,
PW-2 and PW-5 who being real brothers
and sister of the deceased are interested
witnesses, therefore, their testimony has
no value, does not inspire confidencethere is no bar in law on examining family
members
or
any
other
person
as
witnesses if they disclose truthful or
actual facts leading to the occurrence-It is
well settled that interested evidence is not
necessarily
unreliable
evidence-Hence,
Trial
court
rightly
convicted
the
accused.(Para 1 to 46)

The appeal is dismissed. (E-6)
List of Cases cited:
1. Mekala Sivaiah Vs St. of A.P. (2022) SCC
Online SC 887

2. Kartik Malhar Vs St. of Bih. (1996) CRL, L.J.
889

3. St. of U.P. Vs Kishan Chand & ors. (2004) 7
SCC 629

4. St. of J & K Vs S. Mohan Singh & ors. (2006)
9 SCC 272

5. Namdeo Vs St. of Mah. (2007) 14 SCC 150

6. Shyam Babu Vs St. of U.P. (2012) AIR SC
3311

7. Kuna @ Sanjaya Behera Vs St. of Ori. (2017)
SCC Online SC 1336

8. Suresh Chandra Bahri Vs St. of Bih. (1995)
Supp 1 SCC 80

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This jail appeal is by the
appellant-Sultan against the judgment and
order dated 5th October, 2011 passed by
the First Additional Sessions Judge,
Baghpat in Sessions Trial No. 132 of
2008 (State Vs. Sultan) arising out of
Crime No. 304 of 2007, under Sections
302,
504
I.P.C.,
Police
StationSinghawali Aheer, District Baghpat and
in Sessions Trial No. 133 of 2008 (State
Vs. Sultan) arising out of Crime No. 317
of 2007, under Section 25 Arms Act,
Police
Station-Singhawali
Aheer,
District-Baghpat, whereby the accusedappellant
has
been
convicted
and
sentenced
to
undergo
(i)
life
imprisonment for the offence under
Section 302 I.P.C. with a fine of Rs.
50,000/-, in default thereof, he has to
further undergo one year additional