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2009 DIGILAW 803 (CAL)

New India Assurance Co. Ltd v. Sajeda Begum

2009-11-16

B.Bhattacharya, Prasenjit Mandal

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JUDGMENT B.Bhattacharya and Prasenjit Mandal, JJ. 1. AFTER hearing the learned Counsel for the parties and after going through the explanation given in this application, we are convinced that the appellant was prevented by sufficient cause from preferring this appeal within the period of limitation. 2. WE, therefore, condone the delay in preferring the appeal. Let the appeal be now registered, if other wise in form. 3. THE application being CAN No. 7544 of 2009 is allowed. 4. IT is stated by Mr. Roy, the learned Advocate appearing on behalf of the claimants-respondents that he has filed Vakalatnama on 16th November, 2009 vide Entry No. 16169. Since Mr. Das has raised a pure question of law in support of this appeal, we propose to hear out the appeal itself by treating it as on days' list without passing any direction for preparation of the informal paper books. 5. SINCE cross-objection being COT No. 75 of 2009 has been filed today in connection with the present appeal, the same be also heard along with this appeal. A copy of the cross-objection filed today Mr. Roy be kept with the record and be treated as original. 6. THIS appeal is at the instance of Insurance Company and is directed against an award dated 21st March, 2009 passed by the Motor Accident Claims Tribunal, Second Court, Murshidabad in M.V. Case No. 284 of 2006 thereby disposing of a proceeding under Section 166 of the Motor Vehicles Act by awarding a sum of Rs. 7,53,104/- in favour of the claimants with a direction upon the Insurance Company to pay the said amount within three months from the date of passing of such award with a stipulation that in case of default, the amount should carry interest at the rate of 5% per annum with effect from the date of the award till realization. There is no dispute that as regards the death of the victim in the accident which occurred due to rash and negligent driving on the part of the driver of the offending vehicle was insured by the appellant before us. 7. IT appears that the victim was a Government Employee and had net salary of Rs. 8,558/- a month at the time of accident. 7. IT appears that the victim was a Government Employee and had net salary of Rs. 8,558/- a month at the time of accident. The learned Tribunal below, while assessing the amount of compensation, decided to apply the principle of the Second Schedule of the Motor Vehicles Act by applying the multiplier of 11 after deducting the one-third of the amount as the personal expenses of the victim, and, thus, assessed at the figure of Rs. 7,53,104/-. 8. MR. Das, the learned Advocate appearing on behalf of the appellant vehemently contended before us that the learned Tribunal below erred in law in applying multiplier of 11 on the basis of the salary of the victim when the victim had just seven years of service left. MR. Das submits that in such a situation, it was the duty of the learned Tribunal to apply the multiplier of 7 on the basis of the present salary of the victim. Mr. Roy, the learned Advocate appearing on behalf of the claimant- respondent, however, did not dispute the aforesaid submission of Mr. Das. 9. MR. Roy, however, submits that the learned Tribunal below committed substantial error of law in not awarding interest on the awarded sum at least at the rate of 8% per annum from the date of filing of the application till actual payment irrespective of the fact whether there was delay on the part of the Insurance Company in making payment within the time stipulated by award. 10. AFTER hearing the learned Counsel for the parties, we find substance in the contention of Mr. Das that having regard to the fact that the victim had just seven years of service left, the learned Tribunal below should not have applied multiplier of 11 on the salary of the victim at the time of death, it should have applied multiplier of 7 and should have assessed at a figure after deducting the 1/3rd of the amount so assessed. We also find substance in the contention of Mr. Roy that the claimants are entitled to get interest at the rate of 8% per annum from the date of filing of the application till the actual deposit of the amount by the Insurance Company. We, therefore, set aside the awarded amount and reduce the same to Rs. We also find substance in the contention of Mr. Roy that the claimants are entitled to get interest at the rate of 8% per annum from the date of filing of the application till the actual deposit of the amount by the Insurance Company. We, therefore, set aside the awarded amount and reduce the same to Rs. 4,79,248/- by application of multiplier of 7 and further grant interest at the rte of 8% per annum on the aforesaid amount from the date of filing of the application (July, 2006). Since the entire amount has already been deposited by the appellant as a condition for grant of stay of execution of the awarded amount before the learned Registrar General of this Court, we direct the said learned Registrar General to release a sum of Rs. 4,79,240/- alongwith interest at the rate of 8% per annum from 1st August, 2006 till 30th November, 2009 and to return the balance amount to the Insurance Company including the" statutory deposit. The learned Registrar General will release 1/8th of the total amount in favour of the respondent No.1 1/8th in favour of the respondent No.5 and 1/8th each in favour of the respondent Nos.2, 3 and 4. However, the cheque issued in the name of the respondent No.5 should not be encashed and should be kept invested in any Natinonalized Bank till she attains majority. 11. IN view of disposal of the appeal itself, the connected application for stay has become infructuous and the same is, accordingly, disposed off.