PRAFULLA KUMAR MOHANTY Vs. NATIONAL INSURANCE CO. LTD.

JUDGEMENT

(1.) AFTER being unsuccessful before the Supreme Court in Special Leave Petition No. 23158 of 2004, the Petitioner has once again approached this Court by filing a review petition under Order 47, Rule 1 read with Section 114 of the Code of Civil Procedure, inter alia, praying to review the Judgment dated 24th May, 2004 passed by the Division Bench of this Court in Letters Patent Appeal No. 41 of 2002. The said petition has been registered as RVWPET No. 71 of 2004. The present Misc. Case has been filed under Section 5 read with Section 14 of the Limitation Act praying to condone the delay in filing the review petition. According to the Stamp Reporter, there is a delay of 150 days. In the Misc. Case, it is averred that the Judgment dated 24.6.2004 passed in L.P.A. No. 4l of 2002 was challenged before the Supreme Court in Special Leave Petition No. 23I58 of 2004 and after dismissal of the Special Leave Petition, the review petition has been filed and as such, the delay should be condoned. According to the Petitioner, the delay in filing the review petition was neither deliberate nor intentional and had occasioned due to pendency of the Special Leave Petition before the Supreme Court and as such, the period spent in pursuing the Special Leave Petition should be excluded.

(2.) AFTER receiving notice, Opposite Party -Insurance Company filed a Counter affidavit repudiating the averments made in the Misc. Case and taking a positive stand that Section 14 of the Limitation Act will not be applicable to a case where the matter was prosecuted at Supreme Court in Special Leave Petition and as such, the prayer for exclusion of time spent in prosecuting the case at Supreme Court is misconceived. It is also stated that the Judgment passed by the Division Bench of this Court in L.P.A No. 41 of 2002 has merged with the order passed by the Supreme Court in Special Leave Petition No. 23l58 of 2004 and as such, the Review Petition is not maintainable and should be dismissed in limine.

(3.) THE Petitioner was working as a Senior Clerk in the District Judge's Court at Berhampur. While travelling in a car along with his family members on 28.4.1990 he met with an accident and sustained certain injuries including dislocation of hip joint and right tibia. He filed a claim petition bearing MAC No. 13 of 1991 before the 2nd M.A.C.T., Berhampur for compensation to the tune of Rs. 4,98,782.62. The Tribunal after vivid discussion of the evidence, both oral and documentary, awarded a compensation of Rs. 86,000 with interest @ 9% per annum. Being aggrieved by the said award, he approached this Court in Misc. Appeal No. 430 of 1996. Learned Single Judge on being satisfied, enhanced the compensation to Rs. 2,31,000 with interest at the rate of 9% per annum from the date of claim. The said Judgment was assailed by the Insurance Company in L.P.A. No. 41 of 2002. The Division Bench of this Court after referring to the medical report and other evidences came to the conclusion that the claimant was able to walk and perform normal duties. He did not require assistance of any person while riding bicycle, while walking or climbing steps. After being discharged from the hospital, he continued to work as Bench Clerk in the Civil Court and then opted for voluntary retirement. Thereafter, he got himself enrolled as an Advocate and started practicing in different Courts. Considering the evidence of P.W.6 and other materials it was found that the claimant had not become totally invalid, on the other hand, he opted for voluntary retirement and went into active practice as an advocate, where work is more strenuous than that of a Bench Clerk. The Division Bench reduced the compensation to Rs. 1,65,000 with interest @ 9% per annum from the date of filing of the claim petition. The said order was assailed by the Appellant before the Supreme Court in Special Leave Petition No. 23158 of 2004. After hearing the Learned Counsel, the Supreme Court passed the following order on 22.11.2004 in the Special Leave Petition. Upon hearing Counsel the Court made the following ORDER The special leave petition is dismissed.