Keeper Lalrohlua through Next Friend C. Lalbiakmawia v. National Insurance Co. Ltd.
2009-04-30
H.BARUAH
body2009
DigiLaw.ai
JUDGMENT H. Baruah, J. 1. By this petition under Section 114 read with Rule 1 of order 47 of the Code of Civil Procedure, 1908 the judgment and order dated 4.7.2008 passed in MAC Appeal No. 15/2008 is sought to be reviewed on the ground contended in the petition. In the petition, it is contended by the review Petitioner that the future economic loss as calculated by this Court is erroneous. Deduction of 2/3 of the income as computed in the case between United India Insurance Co. Ltd. v. Chhaganlal Punamchand Jain and Ors. 2005 ACJ 1046 would, however, be not applicable in the present case since the deceased was a married woman. Her minor son filed the claim petition through his next friend for grant of compensation on account of death of his mother in a vehicular accident. In the case between Chhaganlal Punamchand Jain and Ors. (supra), the High Court deducted 2/3 of the income while calculating the future economic loss in view of the fact that the deceased was unmarried. In the present case, the deceased being a married woman not similarly situated with the facts appearing in the case between Chhaganlal Punamchand Jain and Ors. (supra), deduction of 2/3 from the income in calculating the future economic loss is not sustainable. That apart, it is pleaded that the ratio laid down by the Apex Court in the case between Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Ors. (2004) 2 SCC 473 would be applicable. It is also contended that the hon'ble High Court, while dealing with the case between Chhaganlal Punamchand Jain and Others also relied upon the ratio of the case between Sarla Dixit v. Balwant Yadav 1996 ACJ 581 (SC) and (1996) 3 SCC 179 . The review Petitioner, therefore, in view of the above has prayed for review of the judgment and order dated 4.7.2008 passed in MAC Appeal No. 15/2008 by this Court. 2. A stiff resistance is made by the National Insurance Co., the opposite party No. 1 by filing written objection wherein it is contended that as per desire of the learned Counsel for the review Petitioner, the future economic loss was calculated by this Court taking the decision of the hon'ble High Court in the case between United India Insurance Co. Ltd. v. Chhaganlal Punamchand Jain and Ors..
Ltd. v. Chhaganlal Punamchand Jain and Ors.. In the objection, it is also contended that the learned Counsel representing the review Petitioner too relied on the decision in the case of Chhaganlal Punamchand Jain and Ors. (supra) and now the computation so made per guidelines of the hon'ble Aizawl Bench High Court cannot be challenged by virtue of the review petition. It is also contended that if this Court takes into consideration the ratio of the case in between Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Ors., it would amount to declaring the judgment and order dated 4.7.2008 as per in curium. The calculation of the future economic loss by this Court in the judgment in appeal was made as per guidelines of the Chhaganlal Punamchand case (supra) as referred to by the learned Counsel of the review Petitioner himself and relied on, such computation of future economic loss, in view of the above fact, cannot be reviewed by invoking the provisions of Section 114 and the provisions of order 47 of the Code. The opposite party No. 1, therefore, prayed this Court to dismiss the review petition. 3. Mr. Zochhuana, learned Counsel for the review Petitioner as well as Mrs. Helen Dawngliani, learned Counsel appearing for the opposite party No. 1 were heard at length. 4. Admittedly, the calculation of future economic loss was made as per guidelines of the Chhaganlal Punamchand case (supra) and this Court deducted 2/3 of the income of the deceased while calculating such income. The facts appearing in the Chhaganlal Punamchand case (supra) are found somewhat different to the facts of our present case. In Chhaganlal Punamchand case (supra), the deceased was unmarried while in our present case, the deceased was a married woman. The hon'ble High Court, while deciding Chhaganlal Punamchand case (supra), taking into consideration the facts that the deceased was unmarried and had he been alive, the deceased would have got married and deducted accordingly 2/3 of the total income while computing the future economic loss. The present case being not similarly situated with the case of Chhaganlal Punamchand (supra), deduction of 2/3 was not justified since the deceased was a married woman. While deciding the judgment in appeal, this aspects was not seriously considered. 5. In the case between Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Ors.
The present case being not similarly situated with the case of Chhaganlal Punamchand (supra), deduction of 2/3 was not justified since the deceased was a married woman. While deciding the judgment in appeal, this aspects was not seriously considered. 5. In the case between Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Ors. (supra) decided by the Apex Court, reported in (2004) 2 SCC 473 , 1/3 of the monthly income was deducted while computing the compensation. In that case, the tribunal deducted 50% while computing the compensation which is approved by the High Court, but the Apex Court restricted such deduction to 1/3 of the monthly income. The hon'ble Apex Court, while dealing with the case supra in paragraph 7 of the judgment held as under: 7. What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction. 6. The stand taken by the insurer in the case of Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Ors. (supra) that the deceased was a bachelor and had he been alive, after marriage, the contribution to the parents would have been lesser and, therefore, the view taken by the Tribunal and the High Court were justified in deducting 50% of the monthly income, was, however, not approved by the hon'ble Apex Court. The Apex Court restricted such deduction to 1/3 of the monthly income. The Apex Court held that there can be no rigid rule nor any formula of universal application in respect of percentage of deduction for personal expenditure. It varies from case to case. 7. In our present case, the deceased being not a bachelor rather a married woman, 2/3 of the monthly income would be in the higher side. The judgment in appeal dated 4.7.2008 is, therefore, required to be reviewed to the extent as contended in the review petition. 8.
It varies from case to case. 7. In our present case, the deceased being not a bachelor rather a married woman, 2/3 of the monthly income would be in the higher side. The judgment in appeal dated 4.7.2008 is, therefore, required to be reviewed to the extent as contended in the review petition. 8. This Court while dealing with the judgment in appeal failed to consider the aspect of the matter as pointed out by the review Petitioner and, accordingly, deducted 2/3 of the income in computing the future economic loss. The objection raised by the opposite party No. 1 though appears to have some substance cannot be accepted to 100 percent in view of the facts appearing in the present case and the facts appearing in Chhaganlal Punamchand case (supra). 9. In the face of the above, the review petition is allowed and the future economic loss is calculated as under: (i) Rs. 4500 x 12 = Rs. 54,000 Rs. 54000 x 2 = Rs. 1,08,000 Rs. 1,08,000 + 54000 = Rs. 1,62,000 Rs. 1,62,000 /2 = Rs. 81,000 Rs. 81,000 x 2/3 = Rs. 54,000 Rs. 54000 x 15 = Rs. 8,10,000 (ii) Runeral Expense = Rs. 10,000 (iii) Loss of Estate = Rs. 10,000 (iv) Conventional = Rs. 5,000 Total = Rs. 8,35,000 10. This review application stands allowed. The above amount so calculated and awarded shall be paid within two months with interest from the date of receipt of the certified copy of the review judgment. The interest part would remain undisturbed.