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'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

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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

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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

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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

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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.

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