Gauhati High Court
Bhuban Ch Borah And Anr vs New India Assurance Co Ltd And Anr on 11 June, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/8
GAHC010176122015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./51/2015
BHUBAN CH BORAH and ANR
S/O LATE KHUDLARA BORAH, R/O SAHPURIA GAON, P.O. and P.S.
PULIBOR, DIST. JORHAT, ASSAM.
VERSUS
NEW INDIA ASSURANCE CO LTD and ANR
HAVING ITS REGISTERED AND HEAD OFFICE AT NEW INDIA ASSURANCE
BUILDING 87 MAHATMA GANDHI ROAD, FORT, MUMBAI 400001 AND
REGIONAL OFFICE AT G.S. ROAD, GUWAHATI-5, ASSAM, REPRESENTED
BY THE CHIEF REGIONAL MANAGER.
2:THE NAME OF RESPONDENT No. 2 IS STRIKE OUT
AS PER HON'BLE COURT ORDER Dtd. 23.07.2018
3:M/S BOHNIMAN ICECREAM PVT. LTD.
C/O SRI NIPEN GHOSAL
J. BARUAH ROAD
NEAR DONA APARTMENT
SILPUKHURI
GUWAHATI
Advocate for the Petitioner : MR G JALAN
Advocate for the Respondent : MR.S DUTTA
Page No.# 2/8
Linked Case : Review.Pet./7/2016
NEW INDIA ASSURANCE COMPANY LTD
HAVING ITS REGISTERED OFFICE AT NEW INDIA ASSURANCE BUILDING 8
M.G. ROAD FO
MUMBAI 400001 AND ONE OF ITS BRANCH OFFICE AT TINSUKIA AND
REGIONAL OFFICE AT GUWAHATI -5
REPRESENTED BY ITS REGIONAL MANAGER
VERSUS
SRI BHUBAN CHANDRA BORAHand 2 ORS
S/O LATE KHUDLARA BORAH
R/O SAHPURIA GAON
P.O. and P.S. PULIBOR
DIST. JORHAT
ASSAM.
2:SMT. NIRU BORAH
W/O SRI BHUBAN CH. BORAH
R/O SAHPURIA GAON
P.O. and P.S. SPULIBOR
DIST. JORHAT
ASSAM.
------------
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocates for the petitioners : Shri Shri G. Jalan, Advocate.
Advocates for the respondent : Shri S. Dutta, Advocate.
Date of hearing : 11.06.2024
Date of Judgment : 11.06.2024
Page No.# 3/8
Judgment & Order
Both these two applications for review have been filed by the rival parties in
the MAC App. No. 128/2015. While Review Pet. No. 51/2015 is filed by two
applicants who were the claimants before the MACT, Dibrugarh, Review Pet. No.
7/2016 has been filed by the Insurance Company both qua the judgment and
order dated 04.03.2015 passed by this Court in the aforesaid appeal.
Accordingly, this Court proposes to dispose of both the petitions by this common
order.
2. Before going to the issues which have been raised in the two petitions, it
would be convenient if a brief background on the factual aspect is given.
3. The claimants had instituted the claim petition before the MACT, Dibrugarh
being MAC Case No. 82/2006 on the death of their son in a motor vehicle
accident. The learned Tribunal vide the award dated 15.03.2012 had granted an
amount of Rs. 7,24,252/- (Rupees Seven Lakhs Twenty Four Thousand Two
Hundred Fifty Two) only as compensation along with interest @ 9% per annum
and further interest in case of delay.
4. The aforesaid award dated 15.03.2012 was the subject matter of challenge
in MAC App No. 128/2012. This Court vide the judgment and order dated
04.03.2015 had modified the award and the amount concerned was modified to
Rs.6,98,720/- (Rupees Six Lakhs Ninety Eight Thousand Seven Hundred Twenty)
only along with interest @ 12% per annum after expiry of one month by which
time the amount was directed to be released. The breakup of the amount in
question was in the following manner:-
Page No.# 4/8
"1)Loss of dependency = Rs. 6830/-
less 50% = Rs. 3,415.00
p.m.x12 =Rs 40,980/-p.a.
Rs 40,980/- Multiplier of 14 = Rs 5,73,720.00
2. Funeral expenses = Rs 25.000.00
3) Loss of consortium = Rs 1,00,000.00
Total: = Rs. 6,98,720.00"
5. It is this judgment in respect of which the present applications for review
has been made.
6. I have heard Shri G. Jalan, learned counsel for the claimants and Shri S.
Dutta, learned counsel for the Insurance Company which are the petitioners in
these two petitions and also the corresponding respondents.
7. Shri Jalan, the learned counsel has submitted that the multiplier has been
wrongly applied by taking into consideration the age of the claimants. It is
submitted that the relevant age is that of the victim and in the instant case, the
victim of the accident was the son of the claimants who died in the said accident
and was aged 24 years and accordingly the correct multiplier was 18 and not 14
as was held by this Court. In this connection, he has also relied upon the case
of National Insurance Company Ltd. Vs Pranay Sethi and Ors. reported
in (2017) 16 SCC 680 wherein the principles for determining compensation
have been laid down, the relevant paragraph of which is extracted herein
Page No.# 5/8
below:-
"59.7 The age of the deceased should be the basis for applying the
multiplier."
8. So far as the review sought for by the Insurance Company is concerned,
Shri Dutta, the learned counsel for the Insurance Company has submitted that
while making the calculation, the income of the deceased has been taken to be
Rs.6,830/-. However, the salary of the deceased was Rs.6030/- which was
inclusive of the GPF amount of Rs.835/. He accordingly submits that this Court
had made a wrong assumption regarding the aforesaid factor by which the GPF
amount of Rs.835/- was taken into account twice.
9. The exercise of the powers of review are well established. In a recent
judgment, namely, S Madhusudhan Reddy Vs. V Narayana Reddy & Ors .
reported in (2022) SCC OnLine 1034, the Hon'ble Supreme Court has
reiterated the earlier principles laid down in the case of Kamlesh Verma Vs.
Mayawati & Ors. reported in (2013) 8 SCC 320 wherein the principles laid
down are extracted herein below:
"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.
Page No.# 6/8
The words "any other sufficient reason" have been interpreted in
Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose Athanasius 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 v. Sandur
Manganese & Iron Ores Ltd.
20.2. 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.
Page No.# 7/8
(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."
10. The grounds on which the review is sought for by both the parties
constitute a point of law wherein it appears that there was an error apparent on
the face both in applying the multiplier vis-à-vis the age of the victim and also
the monthly salary received by the deceased. Accordingly, in the considered
opinion of this Court, both the applications warrant merit.
11. This Court also records that the learned counsel for the either of the
parties have not opposed in principle the prayer for review on the grounds
mentioned above as the said grounds involve a pure point of law settled by the
Hon'ble Supreme Court and also amounts to an apparent error in so far as
construing the monthly salary of the deceased.
12. Accordingly, both the applications are allowed and the compensation
payable would be in the following manner:-
"Monthly salary =Rs.6030/-
(-) Less 50% =Rs 3015/-
Being bachelor
______________________________________
Annual Salary =Rs. 3015x12=36180/-
Total Dependency =36,180x18 (Multiplier, being 24 years)
= 6,51,240/-
Add: Funeral Expenses = 25,000/-
Add: Loss of Consortium =1,00,000/-
_________________________________
Page No.# 8/8
Total Award ought to be =Rs.7,76,240/- "
13. This Court has been informed that in the meantime, the original amount of
Rs.6,98,720/- has already been paid.
14. Accordingly, it is directed that the balance amount of Rs.77,520/- (Rupees
Seventy Seven Thousand Five Hundred Twenty) only be paid within a period of
45 days from today. The amount would carry interest @ 9% if there is delay in
making the payment within the aforesaid period.
15. Both the petitions are accordingly disposed of.
JUDGE
Comparing Assistant
