BITHIKA MAZUMDAR AND ANR. Vs. SAGAR PAL AND ORS.

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 1311 of 2017, Judgment Date: Feb 01, 2017

                                                                'REPORTABLE'
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1311 OF 2017
                  (Arising out of SLP (C)No. 25584 of 2015)


BITHIKA MAZUMDAR AND ANR.                                     ... Appellants

                                   VERSUS

SAGAR PAL AND ORS.                                           ... Respondents


                               J U D G M E N T


A. K. SIKRI, J.


            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 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 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  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  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.



                                                 ......................., J.
                                                             [ A.K. SIKRI ]




                                                 ......................., J.
                                                           [ R.K. AGRAWAL ]

New Delhi;
February 01, 2017.