Citation : 2022 Latest Caselaw 1135 Tri
Judgement Date : 21 December, 2022
1
HIGH COURT OF TRIPURA
AGARTALA
Review Pet.No.22 of 2021
Sri Prabhas Das, S/O- late Nitai Chandra Das R/O - Kumarghat,
Ambedkar Nagar P.S- Kumarghat, District - Unakoti
-----Petitioner(s)
Versus
1.Sri Dipak Das, S/O- Dilip Das, R/O- Village-Ashram Palli,
Kumarghat, near Krishna Kali Ashram, P.S- Kumarghat, District -
Unokoti, Tripura. (Owner of the vehicle bearing Registration No.
TR- 02-B-2866).
2.The Divisional Manager, Oriental Insurance Company Ltd.
Hariganga Basak Road, Agartala, District- West Tripura (Insurer of
the vehicle bearing Registration No. TR-02-B-2866
-----Respondent(s)
BEFORE
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
For the Petitioner(s) : Ms. S.Acharjee, Adv.
For the Respondent(s) : Mr. B.Majumder, Adv.
Date of hearing : 14.12.2022
Date of delivery of : 21.12.2022
Judgment/Order
Whether fit for reporting : YES/NO
JUDGMENT
[1] This Revision Petition has been filed seeking review of
the judgment dated 30.06.2021 passed by this Court in MAC
Appeal No.31 of 2020 whereby this court declined to interfere with
Review Pet.22/2021
the judgment and award of the MAC Tribunal and dismissed the
appeal of injured claimant Prabhas Das.
[2] The factual background of the case is as under:
Twenty-five years old claimant Prabash Das, a mason
by occupation, was travelling in the offending vehicle bearing
registration No. TR-02B-2866 from Asrampalli to Tasanta Road in
Manu on 28.07.2016 at about 9.30 am. On the way, he slipped
from the speeding vehicle as a result of rash and negligent driving
of the said vehicle. Injured claimant was immediately taken to RGM
Hospital at Kailashahar in critical condition from where he was
referred to AGMC and GBP Hospital at Agartala. After few days of
treatment as an indoor patient he was discharged from the
hospital. Thereafter, he visited Silchar Medical College Hospital
several times for better treatment. His father, Nitai Das lodged a
written FIR with the Officer-in-charge of Kumarghat police station
day after the occurrence accusing the driver of the said vehicle of
rash and negligent driving and based on his FIR Manu P.S Case
No.2016MNU028 under Sections 279, 338 and 201 IPC was
registered and investigation of the case was carried out by
Alauddin Majumder, Sub-Inspector of Police. After conducting the
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whole investigation, the said Investigating Officer submitted charge
sheet against accused Dipak Das, owner-cum-driver of the
offending vehicle for having committed offence punishable under
Sections 279, 338 and 201 IPC and under Section 187 read with
Section 134 M.V. Act.
[3] The injured claimant filed a petition under Section 166
of the Motor Vehicles Act before the Motor Accident Claims
Tribunal, No.1 at Agartala claiming compensation of an amount of
Rs.78,97,000/-.
[4] Notice was issued to the owner-cum-driver of the
offending vehicle and the Divisional Manager, Oriental Insurance
Company Ltd, Agartala who were impleaded as respondents. They
appeared and filed written objections. In his written objection, the
owner-cum- driver of the said vehicle pleaded that his vehicle was
insured with Oriental Insurance Company Ltd. (respondent No.2)
and the insurance policy was in operation on the date of
occurrence. It was also pleaded by him that he was possessing
valid driving license and his vehicle was also duly registered. All
other documents including permit were also in operation. He,
Review Pet.22/2021
therefore, claimed that liability to pay compensation lied with the
insurance company.
[5] On behalf of the Oriental Insurance Company
(respondent No.2) it was pleaded that claim of the petitioner was
exorbitant and its liability to pay compensation was subject to
production of a valid insurance policy, valid driving license of the
driver of the vehicle, its registration certificate and other necessary
documents.
[6] Claimant petitioner led the evidence of three PWs
including the Medical Officer who certified his disability as a
Member of the District Disability Medical Board. Besides adducing
the oral testimony of the witnesses, petitioner relied on as many as
13 documents. Respondent No.1 also got his oral statement
recorded at the Tribunal and relied on his driving license, the
registration certificate of his vehicle, its fitness certificate and the
insurance policy which were marked as Exbts. A, B, C and D
respectively.
[7] Having relied on the said evidence, the Tribunal
quantified the compensation at Rs.15,56,000/- and awarded the
said compensation to the claimant along with 6% interest on the
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said amount from the date of presentation of the petition at the
Tribunal till the date of realization. For quantifying the
compensation, the Tribunal guessed the daily income of the
claimant at Rs.300/- per day and worked out his monthly income at
Rs. (300 x 25) = 7,500/-. Thereafter, Tribunal added 40% of the
said amount (Rs.3000/-) towards future prospect of the claimant in
terms of the judgment of the Supreme Court in National
Insurance Company Limited Vrs. Pranay Sethi and Others;
reported in (2017) 16 SCC 680 and monthly income of the
claimant was worked out at Rs. (7500 + 3000) = 10,500/- and as
such the annual income of the claimant came to be Rs.(10,500x
12)= 1,26,000/- which was multiplied by the multiplier of 18 in
terms of the table formulated in the judgment of the Apex Court in
Sarla Verma (Smt) and Other Vrs. Delhi Transport
Corporation and Another; reported in (2009)6 SCC 121 and
assessed the loss of future income of the claimant at
Rs.22,68,000/-. Since the claimant suffered from 60% disability, his
loss of future income was worked out at Rs. (22,68,000 x 60)=
13,60,800. Thereafter, an amount of Rs.30,000/- was added by the
Tribunal for his actual loss of income as a result of his confinement
in hospital and home and after calculating the other expenses
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borne by him and other losses suffered by him, the Tribunal
quantified the compensation as under:
Sl. Heads Amount
01. For loss of future Rs.13,60,800/-
No.
02. For loss of actual Rs. 30,000/-
income
03. For medicines Rs. 29,000/-
income
04. For transportation Rs. 10,000/-
05. For attendant charges Rs. 26,000/-
charges
06. For pain and agony Rs. 1,00,000/-
Total : Rs.15,55,800/-
Rounded off to Rs.15,56,000/-
[8] Aggrieved by and dissatisfied with the said award of the
Tribunal, claimant petitioner being appellant filed MAC Appeal No.
31 of 2020 before this Court, mainly on the following grounds:
(i) Assessment of compensation made by the Tribunal
was not fair and just. Particularly, for his treatment in
Silchar Medical College outside the State, the claimant
spent a higher amount which was not taken into
consideration by the Tribunal.
(ii) Tribunal did not consider the fact that as per the
disability certificate, the claimant suffered from
paralysis in both of his legs and completely lost his
capacity to earn as a mason. Considering the extent of
disability and the occupation of the claimant, the
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Tribunal should have taken it as 100% functional
disability and allowed compensation accordingly.
(iii) The Tribunal did not also consider the fact that the
attendants who accompanied the claimant to various
hospitals outside the State also incurred higher
expenses for this purpose.
[9] Having appreciated the evidence and the submissions
made by learned counsel of the parties, this Court viewed as
under:
"[9] In the course of her arguments, Ms. S. Acharjee, learned counsel appearing for the claimant has relied on the decision dated 6th November, 2017 of the Apex Court in Ankur Kapoor Vrs. Oriental Insurance Co. Ltd. (Civil Appeal No.17998 of 2017) in which Tribunal awarded Rs. 6,60,000/- to the claimant along with 9% interest for 50% disability which was raised by the High Court to an amount of Rs.8,80,000/- with interest and the Apex Court raised the amount to Rs.22,00,000/- with uniform rate of interest at 8% per annum from the date of presentation of the claim. Counsel argues that in the given case, the appellant suffered from 60% disability and in view of the judgment of the Apex Court in Ankur Kapoor(supra), he would be entitled to higher amount of compensation. In the said case, the Apex Court found that the injured appellant lost whole strength and flexibility of his right arm for which he was unable to lift any weight and unable to raise the arm beyond the level of 90 degree and as a result, the appellant who was a driver by occupation was completely unable to drive a vehicle as his arm was not as strong as it was before the accident. In such circumstances, the Apex Court made a twofold enhancement of the compensation which is completely distinguishable from the facts of the present case. In the case before us, the District Disability Medical Board vide certificate dated 09.02.2017 (Exbt.9) has certified that the claimant appellant suffered from 60% disability, as a result of the accident and paraparesis was diagnosed in both of his legs.
Dr. Abhishek Majumder who issued the certificate testified at
Review Pet.22/2021
the Tribunal as PW-2 and stated that physical disability of the appellant would certainly affect his ability to work as a mason. There is no evidence to suggest that the claimant became completely unable to pursue his occupation. [10] In these circumstances, the award assessed by the Tribunal appears to be just and reasonable and as such, I find no reason to interfere with the said award. Resultantly, the appal stands dismissed. The insurance company (respondent No.2) is directed to deposit the whole amount of compensation at the Tribunal within a period of six weeks from today. [11] In terms of the above, the appeal is disposed of. Pending application(s), if any, shall also stand disposed of."
[10] In the review petition it has been averted that in the
course of hearing of the claim petition before the Tribunal as well
as during the hearing of the appeal before this court, the claimant
appellant contended that he suffered from 100% disability from the
accident and the State Level Appellate Board of AGMC and GBP
Hospital, Agartala by a certificate dated 19.02.2021 also certified
that the claimant suffered from Paraplegia with severe bladder
disability and he was certified to be 100% disabled.
[11] The main ground for seeking review is that the
Tribunal acted upon the disability certificate issued by the District
Disability Medical Board on 09.02.2017[Exbt.9] in which the
claimant was declared to have been suffering from 60% disability.
According to the review petitioner, after the said disability
certificate dated 09.02.2017 was issued by the District Disability
Medical Board, the aggrieved petitioner applied to the said State
Review Pet.22/2021
Level Appellate Board, who, by certificate dated 19.02.2021
declared him to be 100% disabled. It is therefore, contended on
behalf of the petitioner that the judgment rendered by this Court in
MAC Appeal No.31 of 2020 should be reviewed to enhance the
amount of compensation on the basis of the disability certificate
issued by the State Level Appellate Board.
[12] In the course of hearing of the Review petition the
petitioner wanted to adduce the disability certificate dated
19.02.2021 issued by the State Level Appellate Board as an
additional evidence and for this purpose the claimant petitioner
filed IA No.1 of 2022. The said IA was allowed by an order dated
3.11.2022 passed in the Review Petition, the relevant extract of
which reads as under:
"[12] Mr. S. Bhattacharjee, counsel appearing for the review petitioner submits that the disability certificate dated 19.02.2021 certifying 100% disability of the petitioner was procured by the claimant petitioner during the hearing of his appeal before this Court, it was submitted before this Court during the pendency of the appeal. Counsel, however, contends that petitioner has been awarded compensation on the basis of 60% disability as certified by the District Disability Medical Board by issuing certificate dated 09.02.2017 [Exbt.9 before the Tribunal]. According to learned counsel, the disability has been reviewed by the State Level Appellate Board and the disability of the claimant has been certified to be 100% under certificate dated 19.02.2021 issued by the State Level Appellate Board. Counsel contends that the claimant petitioner would be seriously prejudiced unless his compensation is enhanced by this Court by reviewing its
Review Pet.22/2021
judgment dated 30.06.2021 on the basis of the certificate issued by the State Level Appellate Board.
[13] Mr. K.C. Bhattacharjee, learned counsel appearing for the insurance company along with Mr. D.C. Saha, learned counsel on the other hand has argued that the Tribunal passed the award on the basis of the disability certificate [Exbt.9] issued by the District Disability Medical Board in which it was clearly stated that the claimant petitioner suffered from locomotor disability (temporary) to the extent of 60% from the accident. Counsel contends that the District Disability Medical Board under the said certificate [Exbt.9] recommended reassessment after 5 years and as such the said certificate issued by the District Disability Medical Board was made valid upto 8th February, 2022. But, before the time came for reassessment, the State Level Appellate Board issued fresh certificate dated 19.02.2021 certifying that the claimant suffered from 100% disability which is not acceptable. Mr. Bhattacharjee, learned counsel of the insurance company submits that at this belated stage petitioner cannot be allowed to seek review of the judgment of this Court on the basis of this document. Counsel further submits that the disability certificate dated 19.02.2021 of the State Level Appellate Board does not state as to why the disability certificate [Exbt.9] issued by the District Disability Medical Board before the Tribunal was found wrong. Counsel, therefore, urges the Court to reject the review petition.
[14] Considered the submissions made by the counsel appearing for the parties.
[15] Apparently, there is no error in the judgment of the Tribunal because the Tribunal decided the matter on 06.05.2020 on the basis of the disability certificate dated 09.02.2017 [Exbt.9] issued by the District Disability Medical Board, North Tripura District. The present disability certificate whereby the State Level Appellate Board has certified that petitioner has suffered from 100% disability has been issued on 19.02.2021 after the judgment and award has been passed by the Tribunal. Since, the petitioner has come out with a genuine document which has certified that he actually suffered from 100% disability from the accident, I am of the view that the claimant petitioner should be given an opportunity to adduce additional evidence with regard to his disability.
[16] In his petition filed under Order XLI Rule 27 CPC in I.A No.01 of 2022, petitioner has stated that he raised the claim of 100% disability before the Tribunal, but the Tribunal did not consider his claim. Petitioner then filed appeal before this
Review Pet.22/2021
Court against the Tribunal's award and during the pendency of appeal, he approached the State Level Appellate Board of AGMC and GBP hospital, Agartala which examined the petitioner and having gone through required formalities, issued a fresh disability certificate dated 19.02.2021 certifying that as a result of the accident, he suffered from paraplegia and he was declared 100% disabled. Therefore, a fresh enquiry is to be made to ascertain the extent of disability of the petitioner for which evidence is to be recorded. Order XLI Rule 27 CPC provides the circumstances under which additional evidence can be adduced in the Appellate Court. The provision reads as under:
"27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
[17] Order XLI Rule 28 provides that wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
[18] Order XLI Rule 29 provides that where additional evidence is directed or allowed to be taken, the Appellate
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Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.
[19] Obviously, for the purpose of admitting the disability certificate into evidence, members of the State Level Appellate Board who examined the claimant petitioner to ascertain the extent of his disability have to be examined by the Tribunal besides examining any other expert as the Tribunal may consider appropriate. Therefore, this Court is of the view that the matter should be referred to Motor Accident Claims Tribunal, No.1, West Tripura, Agartala which passed the impugned award to take such evidence and send back the matter to this Court. Such evidence shall be confined to the following points:
(i) Under what circumstances the State Level Appellate Board examined the claimant to ascertain the extent of his disability, particularly when in the disability certificate [Exbt.9] issued by the District Disability Medical Board on 09.02.2017, reassessment was recommended only after 5 years.
(ii) Whether the disability certified by the State Level Appellate Board is relatable to the injury suffered by the claimant in the road traffic accident which occurred on 28.07.2016.
(iii) The reasons as to why the State Level Appellate Board disagreed with the assessment made by the District Disability Medical Board, North Tripura in its certificate dated 09.02.2017 [Exbt.9].
[20] The Tribunal may also take the evidence of any other medical expert of AGMC and GBP hospital on the subject for the purpose of ascertaining the extent of disability of the claimant.
[21] Copy of this order be communicated to the Tribunal immediately and copies shall also be furnished to the respective counsel of the parties free of cost. The disability certificate issued by the State Level Appellate Board shall be returned to the petitioner through his counsel immediately and the petitioner is directed to submit the said disability certificate along with a copy of this order before the Tribunal within a period of 3 (three) days for necessary directions of the Tribunal. The Tribunal on receipt of the copy of this order and the original disability certificate of the petitioner issued by the State Level Appellate Board shall issue summons to any or more members of State Level Appellate Board as the Tribunal may consider appropriate and record his/her evidence giving
Review Pet.22/2021
opportunity to the other side to cross-examine the witness. As directed, the Tribunal may also take evidence of any other medical expert of AGMC and GBP hospital.
[22] After recording the evidence, Tribunal shall send it to this Court within a period of 1 (one) moth from today for disposal of the review petition. In terms of the above, I.A No.01 of 2022 stands disposed of.
..................................................................................................."
[13] In terms of the order of this Court, the Principal MAC
Tribunal No.01, West Tripura, Agartala has taken additional
evidence. The evidence of Doctor Santosh Reang, Associate
Professor, Department of Orthopedics, AGMC and GBP Hospital has
been recorded by the Tribunal and the disability certificate dated
19.02.2021 has been taken into evidence and marked as Exbt.14.
The evidence of doctor Santosh Reang who is also cross examined
on behalf of the insurance company is as under:
"On 19.02.2021 I was posted as Associate Professor, Department of Orthopedics, AGMC and GBP Hospital, Agartala. On that day one patient namely Prabhas Das was examined at State Level Appellate Board, GBP hospital, Agartala regarding his disability and thereafter, I along with the Member -Secretary, State Level Appellate Board GBP hospital, Agartala and Chairman of State Level Appellate Board GBP hospital, Agartala issued a certificate of disability to Shri Das stating that the patient has 100% disability which is not likely to be improved. The witness has identified the original disability certificate which is marked as Exbt.14. Witness has also identified his signature on the disability certificate and it is marked as Exbt. 14/1. I also know the signature of the Chairman and Member Secretary of State Level Appellate Board as I have worked with them. The signature of the Chairman and the Member Secretary of State Level Appellate Board GBP hospital, Agartala on being identified by the witness are marked as Exbts.14/2 and 14/3, respectively."
Review Pet.22/2021
There was a disagreement with the assessment made by District Disability Board, North Tripura in its certificate dated 09.02.2017 as they only mentioned paraparesis in both legs of the victim but during our examination we found Paraplegia in both legs of the victim which is the extreme form of disease along with very severe urinary bladder disability. Due to the disability the victim cannot walk without the help of another person and he also has problem in urine discharge spontaneously. The nature of functional disability in the lower limb is also 100%.
Cross Examination by O.P.-Insurance Company
I have no knowledge that during recording testimony of the victim before the Tribunal, he came on his own without any help. I did not mention in the report that there is no possibility of improvement in the disability. I mentioned that it is not likely to improve.
It is not a fact that I did not state the true fact before the Tribunal"
[14] In view of the evidence of doctor Santosh Reang
recorded by the Tribunal, there is no doubt that the nature of
functional disability in the lower limb of the claimant is 100%. The
insurance company could not impeach his evidence by
examination.
[15] Heard Ms. S.Acharjee, learned Advocate appearing for
the petitioner.
Heard Mr. B.Majumder, learned counsel appearing for
the respondent.
Review Pet.22/2021
[16] Counsel appearing for the petitioner submits that this
court is not powerless to review its judgment in such
circumstances. Learned Counsel, Ms. S. Acharjee, refers to the
decision dated 14.03.2000 of the Hon'ble Apex Court in United
Insurance Company Ltd. Vs. Rajendra Singh and
Ors.[SLP(Civil)8479 of 1999] wherein the Apex Court has held
that court has inherent power to recall its order where a party is
prejudiced by such order of the court. Counsel has also relied on
the decision dated 02.03.2002 of the High Court of Gauhati in New
India Assurance Co.Ltd. v. Samar Roy[CRP 40 of 2001] wherein
the High Court of Gauhati held that the power of review is implicit
in every Court of civil nature regardless of the power expressly
provided under the Code of Civil Procedure learned Counsel also
relied on the decision dated 08.03.2011 of the High Court of
Gauhati in New India Assurance Company Ltd. v. Rekha Paul &
Another[CRP 22 of 2010] wherein the High Court held that a
review application is maintainable when review is sought due to
procedural defect, or inadvertent error committed by the Tribunal,
to prevent abuse of its process.
[17] Counsel further relied on the decision of this Court
dated 25.03.2015 in Review Pet. No.18 of 2013[Sri Sukumar
Review Pet.22/2021
Saha vs. Sri Kishore Kumar Bhattacharjee and Ors.] wherein this
Court enhanced the compensation awarded to the claimant by
allowing the review petition against its own order.
[18] Mr. B.Majumder, learned counsel appearing for the
insurance company on the other hand contends that review of its
own order passed in appeal is not maintainable. Counsel refers to a
decision dated 06.09.2010 of the Hon'ble Apex Court in
Kalabharati Advertising vs. Hemant Vimalnath Narichania and
Ors. wherein the Court in para 14 of the Judgment has held as
under:
"14. Therefore, in view of the above, the law on the point can be summarised to the effect that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification / modification /correction is not permissible. Case dismissed /withdrawn- effect on interim relief:"
[19] Considered the submissions of learned counsel
representing the parties. Perused the record.
[20] The facts being completely distinguishable, the
judgment cited by the counsel of the Insurance company has no
application in this case.
[21] In view of the additional evidence recorded by the
Tribunal particularly the disability certificate dated 19.02.2021
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issued by the State Level Appellate Board [Exbt.14] and the
evidence of doctor Santosh Reang, there is no doubt in the mind of
this Court that the claimant who is a mason by occupation has
suffered 100% disability from the accident and he has lost all
capacity to work as a mason.
[22] In these circumstances, for fair ends of justice, it
would be appropriate to review the judgment of this Court passed
in MAC Appeal No.31 of 2020 and enhance the compensation on
the basis of the said certificate issued by the State Level Appellate
Board[Exbt.14]. Otherwise it will tantamount to gross injustice to
the claimant.
[23] In view of the above discussion, the judgment dated
30.06.2021 is modified in review and award made by the Tribunal
is enhanced as under:
Tribunal assessed the loss of future income of the
claimant petitioner at Rs.22,68,000/- in terms of the settled
principles. On the basis of the previous disability certificate dated
09.02.2017 which certified 60% disability, only 60% of the said loss
of future income was given to him which was worked out to be
Rs.22,68,000/-x 60% =13,60,800/-. Since, as per Exbt.14, it is now
Review Pet.22/2021
proved that the claimant petitioner suffered from 100% functional
disability, he is entitled to the whole amount of the loss of future
income assessed by the tribunal i.e. 22,68,000/-. With this amount,
a sum of Rs.30,000/- would be added for actual loss of income as a
result of his confinement in hospital and home and after calculating
the other expenses borne by him and other losses suffered by him,
the compensation is quantified as under:
Sl. No. Heads Amount
01. For loss of future income Rs.22,68,000/-
02. For loss of actual income Rs. 30,000/-
03. For medicines Rs. 29,000/-
04. For transportation charges Rs. 10,000/-
05. For attendant charges Rs. 26,000/-
06. For pain and agony Rs. 1,00,000/-
Total : Rs.24,63,000/-
Rounded off to : Rs.24,70,000/-
[24] The insurance company is directed to deposit the said
amount of compensation, after deducting the amount already paid.
If the whole amount of compensation awarded by the Tribunal is
already paid by the insurance company, only the amount enhanced
under the head 'For loss of future income' shall have to be paid.
The said amount is worked out to be (22,68,000 - 13,60,800)
=9,08,000/- (Nine lakhs Eight Thousand) only. The insurance
company is directed to pay this amount with the Registry within
8(eight) weeks from today, failing which it will carry 6% annual
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interest from today. On deposit, Registry will disburse the amount
to the claimant petitioner by transferring the same to his individual
bank account on verification of his identity.
[25] In terms of the above, the review petition stands
disposed of.
Pending application(s), if any, shall also stand disposed
of.
JUDGE
Saikat Sarma
Review Pet.22/2021
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