Leave granted.
The appellants herein are the legal heirs of one Gautam
Mazumdar (hereinafter referred to as the 'deceased') who died
on 06.05.2007 in a road accident allegedly due to rash and
negligent driving of goods carriage vehicle, when, according
to the appellants, the said goods carriage vehicle bearing
No. W.B.41/8002 plying on G.T. Road towards Durgapur to JUDGMENT Asansol came from behind with high speed without headlights
and ran over Gautam Mazumdar, a pedestrian, and fled away
from the place of accident rather than helping the injured.
The victim died on the spot due to the said accident. The
vehicle was insured by respondent No. 3–New India Assurance
Company Limited. The appellants herein (who are the widow
and minor daughter of the deceased) filed the claim for
compensation because of the demise of Gautam Mazumdar in the
said accident before the Motor Accidents Claims Tribunal,
City Civil Court, Calcutta (hereinafter referred to as
'MACT'). MACT went ahead with the trial and recorded the
evidence of the parties. However, ultimately vide its orders
dated 18.06.2009, MACT held that Kolkata Court did not have
territorial jurisdiction to entertain the same and returned
the said petition filed by the appellants for presentation
thereof, in the Court of law competent to decide the said
claim. The appellants filed review petition against that
order which was also dismissed vide orders dated 10.04.2013.
Challenging this order, the appellants filed petition
under Article 227 of the Constitution in the High Court of
Calcutta which has been dismissed by the High Court on the
ground of delays and laches stating that though MACT had
dismissed the review petition of the appellants vide orders
dated 10.04.2013, revisional application challenging that
order was filed only on 03.03.2015 after a delay of almost 2 JUDGMENT years. Challenging that order, the present special leave
petition is filed in which we have granted leave as
aforesaid.
It is an admitted position in law that no limitation is
prescribed for filing application under Article 227 of the
Constitution. Of course, the petitioner who files such a
petition is supposed to file the same without unreasonable
delay and if there is a delay that should be duly and
satisfactorily explained. In the facts of the present case,
we find that the High Court has dismissed the said petition
by observing that though there is no statutory period of
limitation prescribed, such a petition should be filed within
a period of limitation as prescribed for applications under
Sections 115 of the Code of Civil Procedure. This approach
of the High Court cannot be countenanced. As mentioned
above, in the absence of any limitation period, if the
petition is filed with some delay but at the same time, the
petitioner gives satisfactory explanation thereof, the
petition should be entertained on merits.
In the present case, we find that sufficient reasons
were given by the appellants in the petition filed under
Article 227. Moreover, the High Court should have also kept
in mind that Gautam Mazumdar, who was the only earning
member, died in the said accident and appellants are the
widow and minor daughter of the deceased. In a case like JUDGMENT this, the High Court should have considered the revisional
application on merits rather than dismissing the same on the
ground of delay.
In the aforesaid circumstances, the order of the High
Court does not stand judicial scrutiny and, therefore, is
liable to be set aside.
At this stage, learned counsel appearing for the
appellants has submitted that Gautam Mazumdar had died in the
accident on 06.05.2007, i.e., more than 9½ years ago and the
appellants have still not been given any compensation. In
these circumstances, his prayer is that since the entire
evidence is available in respect of the earnings of the
deceased and also that there is no dispute about the fact
that he was 40 years of age at the time of the accident, this
Court itself can fix the compensation on the basis of the
aforesaid material which is placed on record. Learned
counsel for the respondents also is agreeable for fixing the
compensation by this Court in the aforesaid peculiar and
unprecedented circumstances.
We find that the deceased was an employee and his
employer, Ashok K. Shaw had appeared in the witness box as
PW-2 before the MACT. He had deposed that the deceased was
employed with him and was getting a salary of Rs.5,000/- per
month. In this manner, the annual income of the deceased
comes to Rs.60,000/-. We may assume that 1/3 of this income JUDGMENT the deceased was spending on himself and the balance thereof,
he was contributing to his family, i.e., the appellants
herein. In this way, after adjusting 1/3 of the income, the
annual contribution for the appellants herein would be
Rs.40,000/-. Keeping in view the age of the deceased as 40
years, for awarding compensation, multiplier of 15 shall be
applicable and after applying the same, the compensation is
worked out at Rs.6 lakhs. We grant another sum of Rs.2 lakhs
for loss of consortium to the appellants. In this manner, a
total compensation of Rs.8 lakhs is fixed.
The appellants shall also be entitled to interest
thereupon from the date of filing of the petition before MACT
at the rate of 9 per cent per annum. However, from the
aforesaid period, a period of two years shall be excluded
which is to be attributed to the appellants in preferring the
revision application before the High Court. The appellants
shall also be entitled to cost of these proceedings which we
quantify at Rs.50,000/-. The aforesaid amount shall be paid
within a period of eight weeks from today.
The appeal stands disposed of.
[ A.K. SIKRI ]
New Delhi; February 01, 2017.