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2013 DIGILAW 273 (CAL)

Kalyani Das v. Oriental Insurance Company Ltd.

2013-05-14

JYOTIRMAY BHATTACHARYA, MRINAL KANTI SINHA

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JUDGMENT While considering the appellants’ application for expeditious hearing, we were requested by the learned advocates of both the parties to dispose of the appeal itself on merit after hearing them. Accordingly, the appeal itself is taken up for hearing. 2. Since the owner of the offending vehicle did not contest the claim case before the Tribunal, requirement of service of notice of appeal upon the owner of the offending vehicle is dispensed with on the prayer of the learned advocate appearing for the appellants. Thus, the appeal is treated as ready as regards service upon the respondents. 3. Claim petition filed by the claimants under section 166 of the Motor Vehicles Act on account of the accidental death of the husband of the claimant/appellant no. 1 who died in a motor accident due to rash and negligent driving of the offending vehicle bearing registration no. WB-59/0768 (Mini Truck) was partly allowed by the learned Tribunal by its judgement and award dated 21st August, 2012. 4. By the said award, the Insurance Company was directed to pay a sum of Rs.5,18,870/- towards compensation to the claimants. While assessing such compensation payable to the claimants, the learned Tribunal selected the multiplier of 5 in the instant case. 5. Since selection of multiplier of 5 was not in conformity with the structured formula as prescribed under section 163A of the Motor Vehicles Act, the claimants felt aggrieved. According to them, multiplier of 8 should have been selected in the instant case with reference to the age of the deceased who died in the said motor accident at the age of 57 years 10 months. 6. The claimants filed a review application under section 47 of the Civil Procedure Code. The said review application which was registered as Misc. Judicial Case No. 2 of 2012 was allowed on contest. 7. The learned Tribunal recorded in its order that the multiplier of 8 was selected by consent of both the parties and the compensation amount was enhanced on consent of both the parties from Rs.5,18,870/- to Rs.6,40,903/-. 8. It was further recorded in the said order that other condition passed in the judgement will remain unaltered. This part of the judgement was also passed by taking note of the consent given by both the parties. 9. 8. It was further recorded in the said order that other condition passed in the judgement will remain unaltered. This part of the judgement was also passed by taking note of the consent given by both the parties. 9. The claimants were not satisfied with the modified award as according to them compensation should have been awarded at a much higher side. Accordingly, they preferred the instant miscellaneous appeal before this Court. 10. After hearing the learned advocates of the parties and after considering the materials on record, we are of the view that such an appeal is barred under Section 96(3) of the Civil Procedure Code. Section 96(3) provides that no appeal shall lie from a decree passed by the Court with the consent of parties. 11. Since the modified order which is under challenge in this appeal was passed by consent of the parties, we are of the view that the instant appeal is not maintainable. 12. Mr. Banik, learned advocate appearing for the claimants/appellants submits before us that his clients never consented for fixing the enhanced compensation at Rs.6,40,903/- in modification of the earlier award. 13. Mr. Banik further submits that the parties consented only with regard to the selection of multiplier and nothing else. According to him, recording of consent of parties regarding fixation of compensation at Rs.6,40,903/- in the impugned order was incorrect. 14. Mr. Banik further invites our attention to the operative part of the order wherein it was recorded that the said Misc. case was allowed on contest. 15. Though we find that the operative part of the order is in conflict with the penultimate paragraph where the learned Tribunal recorded that on consent of both parties, the awarded amount of compensation passed on 21st August, 2012 for Rs.5,18,870/- will be modified and it will be enhanced at Rs.6,40,903/- and other condition passed in the judgement will remain unaltered, but we cannot correct the impugned order even though it was incorrectly recorded that the said order was passed on consent of both the parties. 16. In fact, the Appeal Court has no jurisdiction to do so while considering the appeal. The Appeal Court while considering the appeal will have to consider the order as it stands without any modification. 16. In fact, the Appeal Court has no jurisdiction to do so while considering the appeal. The Appeal Court while considering the appeal will have to consider the order as it stands without any modification. The only remedy which is available to the parties, in our view, is to approach the same court which passed the award for correction of the order if the parties feel that the submission of the learned advocates of the parties was not correctly recorded therein. 17. With these observations we dismiss the appeal by holding that the same is not maintainable in view of the bar created under Section 96(3) of the Civil Procedure Code. 18. If the lower court record has already been received by this Court, let the same be sent down to the concerned Tribunal immediately. 19. Both the application for expeditious hearing and the appeal are thus disposed of. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.