ORDER
G. Chandraiah, J.
1. Heard Sri N. Subba Rao, learned Counsel for the review petitioner and Sri A. Ramalingeshwara Rao, learned Counsel for the 2nd respondent - Insurance Company.
2. This review petition is filed to review the order dated 22-10-2003 passed by the learned single Judge of this Court in C.M.A. No. 551/2002.
3. The brief facts of the case for better appreciation are that the workman/claimant was working as driver on lorry bearing No. ATS 6589, to which the 1st respondent herein was the owner. While so, during the course of employment on 8-8-2000 at 12-00 midnight, accident occurred. Alleging that the workman sustained grievous injuries, a claim petition under Section 22 of the Workmen's Compensation Act, 1923 (for short 'the Act') was filed before the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-1, Guntur (for short 'the Commissioner'), claiming a compensation of Rs. 2,00,000/-.
4. The owner of the lorry remained ex parte and the insurer, contested the matter and denied the averments of the workman and also the liability, and sought for dismissal of the claim petition.
5. The Commissioner after framing appropriate issues and considering the evidence of workman as A.W.1; doctor as A.W.2 and; the documents Exs.A-1 to A-7 marked on behalf of the workman, granted a compensation of Rs. 47,000/-. The insurance company did not lead any evidence either oral or documentary before the Commissioner.
6. Not being satisfied with the compensation granted by the Commissioner, the workman preferred the appeal and the learned single Judge of this Court, after re-appreciating the entire evidence on record, confirmed the order of the Commissioner and dismissed the appeal. To review the said order of the learned single Judge, the present review petition is filed.
7. The learned Counsel appearing for the workman/review petitioner Sri N. Subba Rao contended that the order of the learned single Judge is in disregard to the evidence on record and is opposed to the settled principles and the judgments of this Court and, therefore, this amounts to 'error apparent on the face of the record' and hence requires review under Order 47, Rule 1 CPC. With regard to maintainability of review, the learned Counsel for the workman relied on the judgments reported in D. Hanumayya v. G.R.K. Murthy 1989(2) ALT 100, In Re, Mahamaya Banerjee : (1988)2CALLT260(HC) (D.B.), S. Nagaraj v. State of Karnataka 1993 Supp. (4) SCC 595. He submitted that as per the evidence of the doctor (A.W.2), there is healed scar on the anterior lateral aspect of proximal 2/3rd of right thigh with shortening of leg by 1st and stiffness of knee joint and, therefore, the Commissioner ought to have seen that the workman is not entitled to perform the duties of driver. He stated that for non-mentioning of the shortening of the leg in Ex.A-2, the disability certificate issued by the Medical Board, the workman cannot be found fault with. He stated that as per the evidence of workman, he sustained injuries in the accident and it is difficult for him to work as driver because of shortening of leg. He stated that because of the accident, steel rod was fixed and therefore, the workman is unable to discharge his duties as driver. Relying on the judgments reported in Ballari Rajendra v. G. Gurumurthy and Ors. : 2001(1)ALD423 , Rayapati Venkateswara Rao v. Mantai Sambasiva Rao : (2002)IVLLJ339AP , Pasupuleti Ramarao v. Pothinaboina Durgarao : 2000(2)ALD752 , Lingampalli Rajam (died) by LRs. v. Colliery Manager, MPSC Co. Ltd., : 2000(1)ALD554 and New India Assurance Co. v. Kotam Appa Rao : (1995)IILLJ436AP , he contended that as the workmen is unable to perform his duties as driver, owing to shortening of the leg and stiffness in the knee joint, the workman suffered total disability as per Section 2(1) of the Act and, therefore, loss of earning capacity has to be assessed at 100 per cent. He contended that the Act being a beneficial legislation, has to be construed in favour of the workman. He further contended that the learned single Judge not properly appreciating the above aspects and the evidence on record, dismissed the appeal and, therefore, the order of the learned single Judge warrants review. He further sought for enhancement of the compensation granted by the Commissioner.
8. On the other hand, the learned Counsel appearing for the insurance company Sri A. Ramalingeshwara Rao submitted that if the workman is aggrieved by the order of the learned single Judge, he is always at liberty to avail the appeal remedy. He contended that the learned single Judge after re-appreciating the entire evidence, has recorded the finding and the same cannot be corrected in a review. Relying on the decision of the Madras High Court in B. Dhanalakshmi v. M. Shajahan AIR 2004 Madras 512 (D.B.), he contended that review is available only when there is an error apparent on the face of record and not on erroneous decision and review petition cannot be allowed to be an appeal in disguise. He stated that there is no error apparent on the face of record. Accordingly, he sought for dismissal of the review petition.
9. In view of the above rival contentions, the point that arises for my consideration is:
Whether there is any error apparent on the face of record, warranting review of the order of the learned single Judge dated 1 -10-2003 in C.M.A. No. 551/2002 under Order 47, Rule 1 of C.P.C.?
10. To consider the above issue, it is necessary to look into factual aspects vis-avis the legal position. The workman, who is the driver of the lorry, sustained injuries due to the accident that occurred on 8-8-2000. To prove his case, he examined himself as A.W.1 and also examined the doctor as A.W.2. He got marked Exs.A-1 to A-7. Ex.A-2 is the disability certificate issued by the Medical Board. The doctor (A.W.2) deposed that the workman got admitted on 9-8-2000 for fracture on soft of the femur on right side and X-rays confirmed the same and I.M. nailing was done on 30-8-2000. He was discharged on 25-9-2000. The disability issued by the Medical Board is 65%. The steel rods are to be removed wherever necessary by operation. The doctor has specifically deposed that the claimant will have very minimal problems while working as driver, but in case of strenuous job, it is difficult when he works continuously and he may feel pain in the knee joint because of the stiffness. He deposed that basing on his examination there is healed scar on the anterior lateral aspect of proximal 2/3rd of right thigh with shortening of 1' and stiffness of the knee right moderation. In the cross-examination, he deposed that there is nothing in Ex.A-7 with regard to shortening of leg. On the basis of this evidence, the Commissioner assessed the loss of earning capacity at 25 per cent. The judgment of the learned single Judge on the above aspects is as under:
'15. The applicant is a driver, by profession. The medical evidence, adduced by the applicant, through the Doctor, examined as A.W.2, discloses, that, the disability is 25%, while the disability, as per the Certificate issued by the Medical Board, exhibited as A-2, discloses, that, it is 65%.
16. A.W.2, the Government Doctor of the Government General Hospital, Guntur, deposed, that, due to the accident, the applicant will have very minimal problems, while working as driver, and that, in case of strenuous job, it will be difficult, and, when he works continuously, he may feel pain in the knee joint, because of stiffness.
17. So, therefore, the medical evidence, both oral and documentary, do not, at all, disclose, even remotely, that, due to the accident, and the injuries, A.W.1 was permanently disabled from discharging his duties, as a driver, which job, he was doing, as at the time of accident and injuries.
18. Hence, it cannot be said, that, the applicant sustained total disablement, within the, factual and legal, scope and ambit, and purview of the said Section 2(1)(I) of the said Enactment of 1923.
19. It may be for some time, the applicant might not have driven the vehicle, due to injuries, but only, temporarily. In his cross-examination, he admitted, that, he did not apply for cancellation of his driving licence, exhibited as Ex.A-4.
20. There is no material, much less, tangible material, whatever, on Record, to record disablement of the appellant, within the meaning and scope, of the said Sub-section 2(1)(I) of the Enactment, 1923.
21. Even the facts and circumstances and the material, on Record, does not warrant any such interference, even to record, such a finding, after arriving at such conclusion.
22. Hence, the finding of the said Commissioner, in the impugned Order, cannot be interfered with, on any question of fact, or, law.'
11. From the above, the finding of the learned single Judge is that the workman did not sustain total disablement as per Section 2(1)(I) of the Act and that the workman might not drive the vehicle due to injuries, but it is only temporary. Considering these aspects, the learned single Judge confirmed the order of the Commissioner.
12. Now the learned Counsel appearing for the workman, again referring to the evidence of the doctor, wants review of the above order of the learned single Judge. He contended that as the doctor deposed that there is shortening of leg and stiffness of knee joint, the workman is not entitled to perform the duties of driver. Therefore, as per the judgments cited 4 to 8 supra, there is total disablement and the loss of earning capacity has to be assessed at 100 per cent.
13. From the above contention of the learned Counsel for the workman, it is very clear that he wants to substitute or record a different finding than that of the learned single Judge on the aspect of disability, by reviewing the order. He did not point out any apparent error or mistake on record. Order 47, Rule 1 of CPC permits 'review' only under three circumstances viz., (1) where it is shown that some new and important matter or evidence has been discovered, which could not, with due diligence, was produced earlier; (2) where there is error apparent on the face of record; and (3) for any other sufficient reason. The said provision does not contemplate any substitution of view or recording of a different finding than the one arrived at, earlier. It is not the case of the workman that any new or important evidence has been discovered subsequently after the disposal of the case, which he could not produce earlier with due diligence. Further no such error apparent on record has been pointed out. No other sufficient reason, also has been made out. However, sufficient reason does not mean re-appreciation of evidence and recording of a different finding. Therefore, it can safely be concluded that the workman did not fulfill the above three ingredients of Order 47, Rule 1 of CPC.
14. The Hon'ble Apex Court in the decision reported in Lily Thomas v. Union of India AIR 2000 SC 1650 held that review is not appeal in disguise and it is for correction of mistakes and not for substitution of views. It was further held that just two views are possible, cannot be ground to seek review. The Apex Court further held that 'any other sufficient reason' appearing in Order 47, Rule 1 of CPC must mean 'a reason sufficient on grounds at least analogous to those specified in the rule'. The relevant portion of the judgment is extracted as under:
55. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such power can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.'
57. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence.... The words 'any other sufficient reason appearing in Order 47, Rule 1, CPC must mean 'a reason sufficient on grounds at least analogous to those specified in the rule,' as was held in Chhajju Ram v. Neki Ram, AIR 1922 PC 1123 and approved by this Court in Moran Mar Bassellos Chatholics v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526.'
15. The learned Counsel for the review petitioner seeks a finding that the appellant was totally disabled and thus lost 100 per cent earning capacity. This substitution or recording different finding, is not at all permissible as per the above judgment of the Apex Court (10 supra) and also as per Order 47 Rule 1 of CPC. If the workman is aggrieved by the finding of the learned single Judge, even assuming that it is erroneous, for the sake of argument, he is always at liberty to file appeal, but indubitably cannot seek the review of the order by pointing out that such finding, 'as error apparent on the face of the record.'
16. The Apex Court in the decision reported in Delhi Administration v. Gurdip Singh Uban : (2000)7SCC296 held that there is a real distinction between an erroneous decision and a decision which could be characterized as vitiated by 'error apparent' and that a 'review' is by no means an 'appeal' in disguise.
17. The same view was expressed by a Division Bench of the Madras High Court in B. Dhanalakshmi (9 supra), relying on the judgments of the Apex Court. The relevant portion of the judgment at paragraph No. 11 is extracted as under.
'From the above judgments, it is seen that the law is well settled inasmuch as the power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. If the parties aggrieved by the judgment on the ground that it is erroneous, remedy is only questioning the said order in appeal. The power of review under Order 47, Rule 1, C.P.C. may be opened inter alia, only if there is a mistake or an error apparent on the face of the record. The said power cannot be exercised as is not permissible for an erroneous decision to be 'reheard and corrected'. A review application also cannot be allowed to be 'an appeal in disguise'. Similarly, the error apparent on the face of the record must be such an error, which must strike one on mere looking at record and would not require any long drawn process of reasoning on points, where there may conceivably be two opinions'.
18. The quintessence of the above judgments is that 'error' or 'mistake' must be such that it shall be glaring and should be visible on mere looking of the record and on other hand, it shall not necessitate delving of the issue once again, so that a different view is possible. To point out such error or mistake, if reasoning process has to be resorted to, it does not amount to 'error apparent on the face of record' and the 'review', shall not be an appeal in disguise. The words 'for any other sufficient reason' occurring in Order 47, Rule 1 of C.P.C. shall be similar to those specified in the Rule. At the cost of repetition it is to be seen that based on the evidence on record, the workman/review petitioner is seeking to review the finding of the learned single Judge. Hence, the same is not permissible.
19. In view of the above, the decisions relied by the counsel for the workman that the loss of earning capacity has to be fixed at 100 per cent, if the workman is unable to discharge the duties, which he was discharging prior to the accident, also cannot be looked into. These judgments appear to have not been brought to the notice of the learned single Judge. However, as per the judgment of the Apex Court in Dokka Samuel v. Dr. Jacob Lazarus Chelly : [1997]2SCR1137 omission on the part of a counsel to cite an authority of law does not amount to error apparent on the face of the record so as to constitute a ground for reviewing prior judgment.
20. In the judgment reported in S. Nagaraj's case (3 supra), the Apex Court held that an order passed under a mistake, can be recalled to avoid injustice. But as discussed above, no such mistake apparent on the face of the record is pointed out. On the other hand, the workman seeks this Court to disturb a finding on the aspect of disability and record a different finding, which is not at all permissible as per the judgment of the Apex Court in Lilly Thomas case (10 supra). As already recorded above, the workman want to re-agitate the same issue, which has been considered and decided by the learned single Judge of this Court. If that is resorted to, it amounts to exercising the appellate jurisdiction under the guise of review, which is not spirit of Order 47, Rule 1 of C.P.C. and also as per the judgment of the Apex Court in Gurudip Singh's case (11 supra) and also as per the decision of the Division Bench of the Madras High Court in B. Dhanalakshmi's case (9 supra). For the same analogy and also in view of the judgments of the Apex Court, the judgment of the learned single Judge of this Court in D. Hanumayya case (1 supra) cannot be made applicable the facts of the present case.
21. Coming to the decision of the High Court of Calcutta In Re: Mahamaya Banerjee (2 supra), the facts of the said case are quite different. The petitioner therein filed application to draw preliminary decree, when already such decree was existing, due to ill-advice of her counsel. To prove this, that she was not properly advised, the petitioner therein has examined the counsel. Considering these facts and circumstances, the Division Bench of Calcutta High Court held that in such a situation, the Court shall come to the rescue of the petitioner by exercising inherent power and review the order. But in the present case, it is not the case of the workman that counsel did not properly advise him. Therefore, the judgment of the High Court of Calcutta is not at all applicable to the facts of the present case.
22. Hence, the issue framed is answered in negative and the review petition is liable to be dismissed.
23. For the foregoing reasons, the review petition is dismissed and in the circumstances of the case, without costs.