Jammu & Kashmir High Court
Ram Prasad Age 65 Years vs New India Assurance Co. Ltd on 3 October, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 27.08.2024
Pronounced on: 03.10.2024
Case:- RP No. 26/2024
1. Ram Prasad Age 65 years
2. Subash Chander Age 57 years
3. Kaka Ram Age 51 years
4. Amrit Sagar Gupta Age 55 years
All sons of Late Ishtar Das Gupta,
Residents Drabashalla, Kishtwar. .....Petitioner(s)
Through: Mr. A. A. Hamal, Advocate.
Vs
New India Assurance Co. Ltd.
Divisional Office No. II, Auqaf Market
Gandhi Nagar, Jammu ......Respondents(s)
Through: Mr. Amrit Sarin, Advocate.
Coram: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Through the medium of this review petition filed under
Section 65 of the J&K High Court Rules, 1999 read with
Order 47 Rule 1 of Code of Civil Procedure, 1908,
petitioners seek review of judgment dated 12.03.2024,
delivered by this Court by a common judgment passed in
MA No. 251/2008 titled - "New India Assurance Co. Ltd.
vs Ram Parsad & Ors.".
02. It has been asserted in the review petition that there is an
error apparent on the face of the record which has crept in
the judgment dated 12.03.2024 as it appears that
inadvertently in MA No. 251/2008 the deceased who was
shown as married, and 1/3rd of his income for personal
expenses was deducted by this Court to compute the
compensation whereas the fact of the matter was that the
deceased was a bachelor and the deduction on account of
personal expenses should have been 50% instead of 1/3rd.
03. It has also been contended that the judgment (supra)
sought to be reviewed had not taken into account the
enhancement under the head "future prospects" which
the claimants were entitled to the extent of 40% having
regard to their age in view of the law laid down by the Apex
Court in the judgments titled as "Magma General
Insurance Co. Ltd. vs Nanu Ram alias Chuhru Ram &
Ors." and "National Insurance Co. Ltd. vs Pranay Sethi".
04. Learned counsel for the review petitioners argued that on
both these counts, the judgment under review is required to
be reviewed making corrections which are apparent on the
face of the record. He has further argued that so far as
deduction on account of personal expenses is concerned, it
was to be made half of the income, whereas this Court had
deducted one-third of the income on the personal expenses,
inadvertently treating the deceased as a married, disregard
to the fact that deceased was bachelor at the time of death.
05. The learned counsel for the review petitioners argued that
this Court has committed an error apparent on the face of
the record in the judgment sought to be reviewed to the
extent that the deceased in the case was unmarried and the
personal expenses from his income should have been
deducted @ 50%, whereas the Tribunal and this Court had
deducted 1/3rd of the amount from his income to calculate
the compensation. He has further argued that the income
of the deceased should have been stepped up by 40%
having regard to his age and the future prospects, in view of
the Hon'ble Supreme Court Judgments titled as "Magma
General Insurance Co. Ltd. vs Nanu Ram alias Chuhru
Ram & Ors." and "National Insurance Co. Ltd. vs Pranay
Sethi".
06. The learned counsel for the respondent has conceded that
the deceased in the claim petition filed by the review
petitioners was unmarried, however, the Tribunal while
deciding the claim petition and this Court while deciding
the appeal, had committed errors by deducting 1/3rd of his
income on account of his personal expenses whereas the
fact of the matter is that the deceased at the time of his
death was a bachelor, as such, 50% of his income should
have been deducted on his personal expenses so as to
calculate the loss of dependency to the claimants.
07. The 2nd contention with regard to stepping up of the
income of the deceased by 40% in the case is concerned the
Hon'ble Supreme Court in various judgments particularly
in "Magma General Insurance Co. Ltd. vs Nanu Ram
alias Chuhru Ram & Ors." reported as 2018 Legal Eagle
(SC) 786 and "National Insurance Co. Ltd. vs Pranay
Sethi" reported as (2017) 16 SCC 680 observed that
having regard to the future prospects of increase in income
in case of self-employed, as the deceased was in this case
up to the age of 40 years, an addition of 40% of the
established income should be granted towards future
prospects. These judgments passed by the Apex Court
ought to be followed by the High Courts and the Tribunals
as a legal precedent and cannot be deviated. Therefore, on
this count also, the judgment is required to be reviewed to
correct the error apparent on the face of the record.
08. When a case is decided, the Court considers the claim and
the relief sought applies the statute which is applicable and
the law which is laid down particularly when it is by a
Constitutional Bench in deciding the case, just as in the
case of a judgment where the applicable statute not being
applied would result in a judgment which becomes
amenable to be corrected and reviewed, when a binding
judgment of Supreme Court which is enlisted by the parties
ignored, it should not have a different consequence, in fact,
the power of review is to be exercised based on provision of
Order 47 Rule 1 of the Code of Civil Procedure, 1908. Any
such refusal to follow the decision binding on it would
undoubtedly disclose an error which would be palpable
being self-evident.
09. For the foregoing reasons and observations made
hereinabove, this Court, in review, is of the view that an
error apparent on the face of the record while passing the
judgment sought to be reviewed to the extent of treating the
deceased as a married though admittedly the deceased was
a bachelor, as such, instead of 1/3rd of his income 50% of
his income should have been deducted on his personal
expenses to work out the loss of dependency to the
claimants.
10. The deceased - Madan Lal Gupta being bachelor and
having a monthly income of Rs. 8,000/-, with the stepping
up of his income by 40%, his monthly income comes to Rs.
11,200/- and annual income comes to Rs. 1,34,400/-.
11. The annual income, however, is to be deducted by 50%
having regard to the deceased being bachelor, therefore, the
annual loss of dependency to the claimants as dependents
comes to Rs. 67,200/-.
12. The deceased at the time of his death was shown to be
32/33 years, therefore, the multiplier of 16, as per "Sarla
Verma" judgment (supra) passed by the Hon'ble Supreme
Court and reiterated in "Pranay Sethi's case" (supra) is to
be applied. Therefore, the annual loss of dependency to the
claimants is worked out as (67200 x 16), i.e., Rs.
10,75,200/-.
13. The amount of compensation to which the
claimants/review petitioners are found entitled to is, thus,
detailed as follows:-
1. Loss of Dependency Rs. 10,75,200/-
2. Loss of Estate Rs. 5,000/-
3. Cremation expenses Rs. 2,000/-
4. Loss of consortium Rs. 5,000/-
Total Rs. 10,87,200/-
14. The total compensation to which review petitioners as
claimants are entitled is, thus, enhanced from
Rs. 10,35,360/- to Rs. 10,87,200/-. The interest
component will remain the same as was awarded by the
Tribunal, while deciding the claim petition.
15. The awarded amount deposited by the respondent -
Insurance Company with the Registry is ordered to be
released in favour of the claimants on their proper
identification and after deduction of Court fees under rules.
The balance amount, if any, shall be paid by the
respondent - Insurance Company to the claimants within a
period of three weeks from the date of pronouncement of
this judgment.
16. Viewed thus, the judgment sought to be reviewed is,
accordingly, reviewed and the review petition is allowed.
(M A CHOWDHARY)
JUDGE
JAMMU
03.10.2024
Bunty
Whether the order is speaking: Yes
Whether the order is reportable: Yes
