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2020 Supreme(J&K) 423
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Sanjay Dhar, J.
Mohammad Afzal Beigh & Others
Versus
Kuldeep Kumar & Ors.
RP No.18/2020
Decided on 27-08-2020
For the Petitioner:Mr. Rizwan-ul-Zaman Bhat, Advocate
For the Review Petition No. 3:Mr. J. A. Kawoosa, Advocate
Headnote:
Civil Procedure Code1908 - Order XLVII - Rule 1 - Motor Accident Claim - Compensation payable – Tribunal same was decided by Tribunal in terms of its award whereby a sum along with interest annum was awarded as compensation in of claimants with a direction that same shall be payable by review petitioner herein- award was called in question by claimants dependents of deceased by way of an appeal and same came to be disposed of this Court vide judgment whereby compensation in claimants was enhanced along with filing of claim petition till its realization- Insurance Company-review petitioner was held liable to pay awarded amount- Against this judgment Insurance Company has filed instant review petition on following grounds Court impugned judgment that re is no legal impediment in taking on record and considering last pay certificate produced by appellants during course of proceedings before Court is not in accordance with law because insurance company has not been given an opportunity to rebut last pay certificate of deceased and that it amounts to an error apparent on face of record –Held, Case was no occasion for Government to pay any salary for seven years or for any or period to legal heirs of deceased because salary as per rules is be paid to legal heirs of a government employee who has died in harness only up to time he attains age of superannuation or up to period of seven years whichever is less- Since deceased was retiring in about a month’s time after his death as such his legal heirs would not have been entitled salary beyond that period- therefore contention of learned counsel for review petitioner in this regard is without any merit petition that while calculating compensation on account of loss of dependency Court has not deducted income tax from gross salary of deceased which is against law laid down by Supreme Court in cases Delhi Transport Corporation (supra) and another and National Insurance Company Court has taken monthly gross salary of last pay certificate does not show deduction of any income tax or deduction under any or head- salary shown in last pay certificate certainly comes within taxable range - It has been clearly laid down by Supreme Court case that while calculating income of deceased salary less by income tax should be starting point- This aspect of case has escaped notice of this Court while calculating compensation- therefore this is an error apparent on face of record and same deserves to be corrected- Taking note of this compensation payable to claimants is assessed in following manner income tax was payable in respect of income up to rupees Thus annual income tax payable on income of deceased at relevant time would come actual annual salary of deceased would - After adding a sum equivalent actual salary towards future prospectus annual income of deceased would come -After deducting income of deceased towards personal and living expenses annual loss of dependency to claimants comes total loss of dependency after applying multiplier comes Besides this claimants are entitled to compensation under notional heads loss of estate loss of consortium and funeral expenses revised compensation - Petition disposed
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 concer
