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2017 DIGILAW 14 (CAL)

Debendra Kumar Singhania v. National Insurance Co. Ltd.

2017-01-05

MIR DARA SHEKO, RAKESH TIWARI

body2017
Rakesh Tiwari, J. 1. Pursuant to the order dated 10.11.2016 reply to the objection in the delay condonation application has been filed. It is taken on record. 2. This appeal is preferred challenging the award dated 20.9.2014 passed by the learned Judge, M.A.C. Tribunal (Vth Bench, City Civil Court at Calcutta) in M.A.C. Case No.538 of 2008 particularly on the ground that though the Tribunal has more or less correctly passed an award of Rs.6,66,680/- for premature accidental death of the only son of the appellant, aged about 38 years in an accident occurred on 27.4.2008, but it suffers from an error on face of record as the Tribunal did not allow statutory interest thereon which the appellant is legally entitled to and as such, the award is liable to be allowed modifying the award by providing interest on the sum assessed by the Tribunal as compensation. 3. Stamp reporter had reported the appeal to be beyond time by 343 days. Respondent-Insurance Company has filed objection to the delay condonation application which has already been taken on record. 4. As per dictum of Apex Court we have not only heard the appellant on the delay condonation application but also seen the merits of the case. 5. So far as the delay condonation application is concerned, the applicant has only stated that due to death of his only son who was an earning member in the family, the appellant was totally broken down particularly financially and mentally causing severe adverse reflections in his normal behavioural activities in forgetting even important matters and that at the initiative of some well-wishers and one advocate he could file claim application before the Tribunal for his claim of Rs.4,51,000/- only. The claim application was decided after a period of six years vide impugned award dated 20.9.2014 and at that time he was out of Calcutta. On his return a message from the advocate was received and he could contact the Advocate somewhere in midst of April near about 22/23.4.2015. The Advocate apprised him of the award and opined that the Tribunal had not allowed the interest though the interest on awarded sum was a statutory right of the claimant under Section 171 of the Motor Vehicles Act, hence, he should prefer an appeal. It is submitted that it is then the appellant obtained certified copy of the award was applied and filed the appeal. 6. It is submitted that it is then the appellant obtained certified copy of the award was applied and filed the appeal. 6. Learned Counsel for the appellant relies upon paragraph 9 of the decision Manoharan Vs. Sivarajan & ors., reported in 2014 SAR (Civil) page 22 and also upon an unreported decision of this Hon’ble Court in the case of Smt. Saraswati Sen & ors. Vs. New India Assurance Co. Ltd., (F.M.A.548 of 2016). 7. Upon hearing counsel for the appellant on the delay condonation application, we find from the averments made therein that it was averred in it that time lapse was not intentional, as the appellant was not in a fit mental state to file the application after the accidental death of his son. 8. We also find that the death of the son had taken place on 24.6.2008 in a motor accident. The claim application being M.A.C. case no.538 of 2008 under Section 163A of the Motor Vehicles Act was filed by the petitioner immediately after the death of his son in which the decision was ultimately rendered by the Tribunal after six years of filing of the claim application. 9. It appears from the facts on record that though the petitioner had averred in the claim that he was not in a fit state of mindshock he could not but had perused the said claim case for six years which period he has not filed any medical papers of his so serious mental shock. Admittedly, also the petitioner was not at home having gone out of station when the award was passed. It was only on his return that he was advised by his advocate to file an appeal challenging non award of the interest part. His actions are therefore on the advice of the Counsel and there is no evidence on record to show that in his said serious mental state he was not under medical observation and treatment. It also transpires from record that though the petitioner claimed a sum of Rs.4,51,000/-as compensation but the Tribunal awarded a sum of Rs.6,66,860/-as compensation which he had received without any objection but had objection of non award of interest on the basis of advice of his Advocate. It also transpires from record that though the petitioner claimed a sum of Rs.4,51,000/-as compensation but the Tribunal awarded a sum of Rs.6,66,860/-as compensation which he had received without any objection but had objection of non award of interest on the basis of advice of his Advocate. As regards the merit of this case is concerned, it is noticed that Section 171 of the Motor Vehicles Act provides that “Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid”. Therefore, by use of word ‘may’ in the Section neither the discretion of the Court has been taken away by the Statute nor awarding of interest in every case is mandatory. Counsel for the petitioner has also submitted that Section 173 of the Motor Vehicles Act is more liberal in approach than Section 5 of the Limitation Act. It may be so but then in every case the appellant’s Counsel approaches the Court beyond time. In such circumstances the appellant has to provide sufficient cause to the Court for consideration of the applicability of Section 5 or Section 173, condonation of delay. In our considered opinion, sufficient cause has not been shown. Furthermore, from the award it also appears that even though salary certificate of the victim was not exhibited, yet the Tribunal accepted the case of the petitioner before it and awarded a higher amount than claimed by making addition with regard to future prospect. 10. For the reasons stated above, we find that neither sufficient cause has been shown by the appellant for condoning delay nor he has been meted with any injustice. Therefore, there is no merit in the application for condonation of delay as well as in the appeal. 11. For all the reasons stated above, both the application for condonation of delay being C.A.N. 12248 of 2015 as well as the appeal is dismissed. 12. No order as to cost.