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.