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2020 DIGILAW 439 (JK)

Mohammad Afzal Beigh v. Kuldeep Kumar

2020-08-27

SANJAY DHAR

body2020
JUDGMENT This review petition has been filed by the respondent No.3- National Insurance Company Ltd. (hereinafter referred to as the review petitioner) seeking review of the judgment dated 29.06.2020 passed by this Court in the above titled case. 2) The present proceedings arise out of a motor vehicular accident that took place on 27.05.2010 resulting in death of one Abdul Aziz Beigh, who, at the time of accident, was working as an Assistant Sub Inspector in Jammu and Kashmir Police. His legal heirs/dependents filed a claim petition before Motor Accident Claims Tribunal, Anantnag, and the same was decided by the Tribunal in terms of its award dated 26.03.2014, whereby a sum of Rs.3,64,000/ along with interest @ 6% per annum was awarded as compensation in favour of the claimants with a direction that the same shall be payable by the review petitioner herein. The award was called in question by the claimants/dependents of the deceased by way of an appeal and the same came to be disposed of by this Court vide judgment dated 29.06.2020, whereby the compensation in favour of the claimants was enhanced to Rs.21,12,181/ along with interest @6% per annum from the date of filing of claim petition till its realization. The Insurance Company-review petitioner was held liable to pay the awarded amount. Against this judgment, the Insurance Company has filed the instant review petition on the following grounds: (i) That the observation of the Court in the impugned judgment that there is no legal impediment in taking on record and considering the last pay certificate produced by the appellants during the course of the proceedings before the Court, is not in accordance with the law because the insurance company has not been given an opportunity to rebut the last pay certificate of the deceased and that it amounts to an error apparent on the face of the record; (ii) That as per communication dated 07.05.2010, that was produced by the appellants before the Court, the deceased was retiring on 30.06.2010 and there were no chances of future increase in his salary and, therefore, 15% increase in salary ought not to have been taken into account while assessing the income of the deceased; (iii) That the Court has not considered the law laid down by the Supreme Court and this Court in CMAM No.116/2017 titled National Insurance Co. Ltd. vs. Nasima Begum and Ors and in New India Insurance Co. Ltd. vs. Gulzara Bibi and Ors., wherein it has been held that the salary received or receivable by the claimants for a period of seven years should be deducted from total compensation; (iv) That while assessing the compensation on account of loss of dependency, the Court has not deducted the income tax from the monthly salary of the deceased, which is against the law laid down by the Supreme Court in the cases of Sarla Verma and others vs. Delhi Transport Corporation and another and National Insurance Company Ltd. vs. Pranay Sethi and Ors. 3) I have heard learned counsel for the review petitioner and the learned counsel for the claimants. I have also gone through the grounds of the review petition and the record of the case. 4) The review proceedings have to be strictly confined to the ambit and scope of Order XLVII Rule 1 of the Code of Civil Procedure, which provides that an application for review of a judgment can be maintained only on two grounds. Firstly, when the petitioner has discovered a new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made and secondly when there is a mistake or error apparent on the face of the record. 5) In Thungabhadra Industries Ltd. v. Government of Andhra Pradesh reported in 1964 SCR (5)174, the Supreme Court while considering the scope of review proceedings observed as under: “What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an “error apparent on the face of the record”. The fact that on the earlier occasion the court held on an ‘identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by “error apparent”. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.” 6) Again in Smt. Meera Bhanjia vs. Smt. Nirmala Kumari Choudhary 1995 (1) SCC 170 , the Supreme Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to scope and ambit of Order XLVII Rule 1 of CPC. 7) The aforesaid two judgments were relied upon by the Supreme Court in Parsion Devi & Ors vs. Sumitri Devi & Ors., 1997 (8) SCC 715 . The Court observed as under: “Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has limited purpose and cannot be allowed to be “an appeal in disguise.” 8) Thus it is clear that the scope of review is limited and it cannot be an appeal in disguise. In the backdrop of this legal position, let us now proceed to consider the grounds of review urged by the review petitioner. 9) So far as the first ground urged by the review petitioner is concerned, the same pertains to the course adopted by this Court in considering the last pay certificate of the deceased which was placed on record by the claimants during the pendency of proceedings before this Court and had not been filed by them before the Tribunal. 9) So far as the first ground urged by the review petitioner is concerned, the same pertains to the course adopted by this Court in considering the last pay certificate of the deceased which was placed on record by the claimants during the pendency of proceedings before this Court and had not been filed by them before the Tribunal. The course adopted by this Court in this regard is a conscious decision by this Court for the reasons given in para 23 of the judgment sought to be reviewed. Whether these reasons are sufficient or not for considering the last pay certificate of the deceased at the appellate stage is a question which cannot be gone into in these proceedings. As already stated, the scope of review is limited and it cannot be converted into an appeal in disguise. The ground urged by the review petitioner does not fulfill the criteria of any of the two situations contemplated in Order XLVII Rule 1 of CPC and, therefore, the same deserves to be rejected. 10) The next ground urged by the review petitioner is with regard to age of the deceased and his impending retirement after a few days of his death. It has been argued by the learned counsel for the review petitioner that in the impugned judgment, the age of the deceased has been taken as 56 years though claimants own document shows that the deceased was superannuating on 30.06.2010 i.e. about one month after his death meaning thereby that the deceased was aged about 60 years at the time of his death and that he had no future prospects. 11) In reference to the above contention of the learned counsel for the review petitioner, it is to be noted that in the year 2010, the retirement age of government employees of Jammu and Kashmir was 58 years and it was enhanced to 60 years only in the year 2014. So at the time of death of the deceased, his age was 57 years. Whether the age of the deceased is taken as 56 years or 57 years, there will be no change in the applicable multiplier as the multiplier of 9 is to be adopted for the age group of 55 to 60 years. So at the time of death of the deceased, his age was 57 years. Whether the age of the deceased is taken as 56 years or 57 years, there will be no change in the applicable multiplier as the multiplier of 9 is to be adopted for the age group of 55 to 60 years. 12) Coming to the future prospects, the Supreme Court in Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , has, while discussing the matter with regard to addition of income on account of future prospectus, observed that it is necessary to standardize the addition on account of future prospects to avoid different yardsticks being applied or different methods of calculations being adopted. As a rule of thumb, it was laid down by the Supreme Court that an addition of 50% of actual salary should be made towards future prospects where the deceased was below 40 years of age, an addition of 30% should be made towards future prospect where the deceased was aged between 40 to 50 years and no addition should be made towards future prospects where the deceased was more than 50 years. However, the Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and others ( AIR 2017 SC 5157 ) held that an addition of 15% of actual salary should be made towards future prospects in case the age of the deceased is 50 to 60 years. 13) The standards pertaining to addition on account of future prospects, as laid down in Sarla Verma and Pranay Sethi’s cases, are for the purposes of avoiding application of different yardsticks in different cases and for minimizing chances of different methods of calculation being adopted by the Courts. These principles have been laid down by the Supreme Court as a rule of thumb. So the question whether the deceased would have actually earned future increase in salary in a particular case cannot be gone into while applying the aforesaid principles laid down by the Supreme Court. These principles have been laid down by the Supreme Court as a rule of thumb. So the question whether the deceased would have actually earned future increase in salary in a particular case cannot be gone into while applying the aforesaid principles laid down by the Supreme Court. 14) In the instant case, there were chances that the deceased may not have actually earned any extra monetary benefits after his retirement from government service but there were also bright chances of his getting some post retirement assignment like that of a Security Guard or a Security Officer in a private security agency which would have fetched him a handsome amount of salary. These imponderables whether or not a deceased person would have actually earned some income after his death have been taken into account by the Supreme Court while laying down the principles as stated above as rule of thumb. So while assessing the future prospects of the deceased, we have to keep in mind the logic behind the principles laid down by the Supreme Court and we cannot go into the question whether there would actually have been increase in the income of the deceased. The contention of the learned counsel for the review petitioner, therefore, is without any merit and deserves to be rejected. 15) It has also been contended by the learned counsel for the review petitioner that as per the law laid down by the Supreme Court referred to in the review petition, the salary received or receivable by the legal heirs for a period of seven years is to be deducted from total compensation. This contention of the learned counsel for the review petitioner gets knocked down by his own admission that the deceased was about to retire in one month’s time. In that case, then there was no occasion for the Government to pay any salary for seven years or for any other period to the legal heirs of the deceased because the salary, as per the rules, is to be paid to the legal heirs of a government employee who has died in harness, only up to the time he attains the age of superannuation or up to the period of seven years, whichever is less. Since the deceased was retiring in about a month’s time after his death, as such, his legal heirs would not have been entitled to the salary beyond that period. Therefore, the contention of the learned counsel for the review petitioner, in this regard, is without any merit. 16) Lastly, it has been urged in the review petition that while calculating the compensation on account of loss of dependency, the Court has not deducted the income tax from the gross salary of the deceased, which is against the law laid down by the Supreme Court in the cases of Sarla Verma and others vs. Delhi Transport Corporation (supra) and another and National Insurance Company Ltd. vs. Pranay Sethi and Ors (supra). 17) A perusal of the record reveals that while calculating the income of the deceased, the Court has taken monthly gross salary of the deceased as Rs.24,664/. The last pay certificate does not show deduction of any income tax or deduction under any other head. The salary shown in the last pay certificate certainly comes within the taxable range. It has been clearly laid down by the Supreme Court in Sarla Verma’s case that while calculating the income of the deceased, salary less by income tax should be the starting point. This aspect of the case has escaped notice of this Court while calculating the compensation. Therefore, this is an error apparent on the face of record and the same deserves to be corrected. Taking note of this, the compensation payable to the claimants is assessed in the following manner. 18) Gross annual salary of the deceased, by taking his monthly income as Rs.24,644, as reflected in the Last Pay Certificate comes to Rs.2,95,728. During the financial year 2010-2011, the annual income upto Rs.1,60,000/ was exempted from payment of tax whereas 10% income tax was payable in respect of income up to rupees five lacs. Thus annual income tax payable on income of the deceased at the relevant time would come to Rs.13572. The actual annual salary of the deceased would be Rs.2,95,728-13,572=2,82,156. After adding a sum equivalent to 15% of the actual salary towards future prospectus, the annual income of the deceased would come to Rs.3,24,479. After deducting 1/3rd income of the deceased towards personal and living expenses, the annual loss of dependency to the claimants comes to Rs.2,16,320. The actual annual salary of the deceased would be Rs.2,95,728-13,572=2,82,156. After adding a sum equivalent to 15% of the actual salary towards future prospectus, the annual income of the deceased would come to Rs.3,24,479. After deducting 1/3rd income of the deceased towards personal and living expenses, the annual loss of dependency to the claimants comes to Rs.2,16,320. The total loss of dependency, after applying the multiplier of 9 comes to Rs.19,46,880. Besides this, the claimants are entitled to compensation under notional heads of loss of estate, loss of consortium and funeral expenses. The revised compensation is, therefore, assessed as under: 1. Loss of dependency Rs.19,46,880/. 2. Loss of estate Rs.15,000/. 3. Loss of consortium Rs.40,000/. 4. Funeral expenses Rs.15,000/ Total Rs.20,16,880/ (twenty lacs sixteen thousand eight hundred eighty) (19) Accordingly, the claimants are held entitled to the compensation of Rs.20,16,880(rupees twenty lacs sixteen thousand eight hundred eighty) along with interest @6% per annum from the date of institution of the claim petition till its realisation, which shall be payable by National Insurance Company Ltd (review petitioner herein). 20) The judgment under review shall stand modified to the above extent. The review petition stands disposed of accordingly.