National Insurance Company Limited v. Ajay G.S. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940** **RP.NO. 369 OF 2018 IN MACA. 2082/2014** **AGAINST THE JUDGMENT IN M.A.C.A.NO.2082/2014 OF HIGH COURT OF KERALA DATED 23.01.2018** **----------------------** **REVIEW PETITIONER(S)/3RD RESPONDENT :** **----------------------------------** **THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, NOOR COMPLEX, NEAR SBT, ARAYEDATHUPALAM, MAVOOR ROAD, KOZHIKKODE - 673 661. REPRESENTED BY REGIONAL MANAGER.** **BY ADV.SMT.P.K.SANTHAMMA** **RESPONDENT(S)/APPELLANTS AND RESPONDENTS 1 AND 2:** **--------------------------------------------** **1. AJAY G.S., S/O. LATE SADANANDAN, H.NO.23/1187A, ANJU HOUSE, EDAKKANDY PARAMBU, P.O.THIRUVANNUR, PANNIYANKARA, KOZHIKODE - 673 661.** **2. ANUPAMA, D/O. LATE SADANANDAN,** - **H.NO.23/1187A, ANJU HOUSE, EDAKKANDY PARAMBU,** - **P.O.THIRUVANNUR, PANNIYANKARA, KOZHIKODE - 673 661.** **3. LAKSHMI KUTTY AMMA,** - **(W/O. LATE DAMODHARAN NAIR), RESIDING AT 5, KADAVATH LANDI HOUSE, KOZHIKODE - 673 661.** **4. MUHAMMED SAFI, S/O. KADEEJA, RESIDING AT 15/681, PANDIKASALAKANNAMATT HOUSE, P.O. FEROKE, CHANDA, KOZHIKODE - 673 631.** ## **5. ABID,** - **S/O. ABDULLA, NEELATTUPARAMBU, P.O.FEROKE, CHANDA, KOZHIKODE - 673 631.** **BY ADV. SRI.V.S.CHANDRASEKHARAN** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 25-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------R.P. No.369 of 2018** ## **in M.A.C.A No.2082 of 2014 ---------------------------------Dated this the 25[th] day of June, 2018** ## **O R D E R** This review petition is filed by the insurer against the judgment in M.A.C.A No.2082 of 2014. The above appeal was filed against the award in O.P.(M.V.) No.302 of 2013 of the Principal Motor Accidents Claims Tribunal, Kozhikode and this Court disposed the matter on 23.01.2018. Being aggrieved by that, the insurer preferred this review petition. 2. The grounds raised for review are as follows: A. There is an error apparent on the face of the record, by allowing the amount, which is not entitled by the legal heirs of the deceased. B. As per the judgment of the Hon'ble Supreme Court in National Insurance Company -Vs-Pranay Sethi, the deceased who had crossed 60 years would not be entitled for any future prospectus. The Hon'ble High Court added 10% of the income of the deceased, as future prospectus, who was 64 years at the time of death, for finding R.P. No.369 of 2018 in 2 M.A.C.A No.2082 of 2014 out the loss of dependency. The addition of the said amount is unsustainable and it is excessively given. 3. An application for review of the judgment is possible under Order XLVII of the Code of Civil Procedure (for short, CPC), which reads as follows: Application for review of judgment R.1 (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, - (b) by a decree or order from which no - appeal is allowed, or - (c) by a decision on a reference from a (K) - Court of Small Causes, and who from the discovery of 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 decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where R.P. No.369 of 2018 in 3 M.A.C.A No.2082 of 2014 the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case of which he applies for the review. [Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.] 4. A reading of Order XLVII R.1 CPC shows that, the scope of such review is very limited and it may be allowed on three grounds namely; (i) discovery of new and important matter of evidence which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order was made, or (ii) some mistake or error apparent on the face of the record, or (iii) for any other sufficient reasons (which has been interpreted to be analogous to the other reasons specified above.) Apex Court in **Raja Shatrunjit** v. **Mohammad Azmat Azim Khan and others [AIR 1971 SC 1474 (1476)] : [1971 (2) SCC 200]** held that; The words 'any other sufficient reason' in Order 47 of the ## R.P. No.369 of 2018 in 4 M.A.C.A No.2082 of 2014 Code mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds of review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at time when the decree was passed or order made. The review may also be asked for on account of some mistake or error apparent on the face of the record. Grounds for allowing review application prescribed, namely: (1) discovery of new and important matter, under certain circumstances, (2) mistake or error apparent on the face of record and (3) any other sufficient reason. On a perusal of the grounds highlighted by the review petitioner, it is found that there is no discovery of new and important matter, there is no mistake or error apparent on the face of record or other sufficient reasons in this review petition. The only ground is that the deceased crossed 60 years and the dependants are not entitled to get 10% increase for future prospects. 5. In this context, I may refer the decision of the Apex Court in **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** , in which it was held as follows: 61. In view of the aforesaid analysis, we proceed to record R.P. No.369 of 2018 in 5 M.A.C.A No.2082 of 2014 ## our conclusions:- (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts ## R.P. No.369 of 2018 in 6 M.A.C.A No.2082 of 2014 shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 6. Learned counsel submitted that in view of **Pranay Sethi (Supra)** future prospects 10% income cannot be added with income since the deceased was more than sixty years. It is pertinent to note that the deceased in this case was a business man aged 64 years and after 60 years also, he was earning money from his business. In **Pranay Sethi (Supra)** Apex Court discussed about the income of salaried person when he had a permanent job, or self employed person or a person on a fixed salary upto sixty years alone. Constitution Bench of the Apex Court gave guidelines for awarding just amount as compensation to the dependants of the deceased. The R.P. No.369 of 2018 in 7 M.A.C.A No.2082 of 2014 decision in **Pranay Sethi (Supra)** is a binding precedent for the person with age upto 60 years. In exceptional situation like this, where there is considerable income to the deceased after 60 years the Tribunal cannot ignore such income and it can add 10% future prospects to the actual income in eligible cases. When life longevity of an average citizen is increased to 70 years then for awarding just compensation to the dependants periodical enhancement is necessary. If the review petitioner is aggrieved by the judgment that it has not been decided as per law, such arguments may be agitated in appeal before the Superior Court but not in a review petition. In view of the above, there is no merit in this Review Petition and it is dismissed accordingly. ## Sd/- **P.D. RAJAN, JUDGE** /True Copy/ NS P.A. To Judge