Most. Jabina Khatoon and ors. Vs. Shyam Prasad Yadav and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. order1. this appeal, by the claimants, is for enhancement of compensation awarded by the motor accident claims tribunal, hazaribagh in claim case no. 63/2005. by which the tribunal has assessed the compensation at rs. 2,95,000/- for the death of imteyaz hussain in a motor vehicle accident.2. we have heard the learned counsel for the appellants and the learned counsel for the insurance company.3. there is no dispute with regard to the liability of the respondents for payment of compensation. the only issue is as to what should be just and reasonable compensation.4. the claimants case is that the deceased imteyaz hussain was working in bharat leather jacket factory, new delhi and he was getting salary of rs. 6,000/- per month. in support of the earning of the deceased, the claimants examined witnesses but, the tribunal, holding that no documentary evidence has been produced in support of the earning of the deceased, took the wages of the deceased at rs. 80/- per day. on the basis of this wages of rs. 80/- per day, amount of compensation was calculated.5. from perusal of records, we do not find as to on what basis the tribunal fixed the daily wages at rs. 80/-, which was being earned by the deceased. in any view of the matter, the tribunal ought to have taken at least rs. 3000/- as monthly income of the deceased. even if we take rs. 3000/- as monthly income of the deceased and deduct 1/3rd, the annual dependency comes to rs. 24,000/-. there is no dispute that the deceased was 26 years of age and died leaving behind young widow, a minor son aged five years and old parents. even a lesser multiplier of 15 is taken, in our definite opinion, the compensation amount should be assessed at rs. 3,60,000/-.6. we, therefore, of the view that the appellants are entitled to rs. 3,60,000/- by way of compensation together with interest at the rate awarded by the tribunal.7. this appeal is, therefore, allowed. the compensation amount is enhanced to rs. 3,60,000/- together with interest awarded by the tribunal.8. it appears that a sum of rs. 50,000/- was already paid by way of interim compensation. we must clarify here that the amount of compensation, so determined by the tribunal, shall be deposited, as directed by the tribunal. however, the enhanced amount of compensation together with interest shall be paid to the widow and minor son of the deceased.

Judgment:
ORDER

1. This appeal, by the claimants, is for enhancement of compensation awarded by the Motor Accident Claims Tribunal, Hazaribagh in Claim Case No. 63/2005. by which the Tribunal has assessed the compensation at Rs. 2,95,000/- for the death of Imteyaz Hussain in a motor vehicle accident.

2. We have heard the learned Counsel for the appellants and the learned Counsel for the Insurance Company.

3. There is no dispute with regard to the liability of the respondents for payment of compensation. The only issue is as to what should be just and reasonable compensation.

4. The claimants case is that the deceased Imteyaz Hussain was working in Bharat Leather Jacket Factory, New Delhi and he was getting salary of Rs. 6,000/- per month. In support of the earning of the deceased, the claimants examined witnesses but, the Tribunal, holding that no documentary evidence has been produced in support of the earning of the deceased, took the wages of the deceased at Rs. 80/- per day. On the basis of this wages of Rs. 80/- per day, amount of compensation was calculated.

5. From perusal of records, we do not find as to on what basis the Tribunal fixed the daily wages at Rs. 80/-, which was being earned by the deceased. In any view of the matter, the Tribunal ought to have taken at least Rs. 3000/- as monthly income of the deceased. Even if we take Rs. 3000/- as monthly income of the deceased and deduct 1/3rd, the annual dependency comes to Rs. 24,000/-. There is no dispute that the deceased was 26 years of age and died leaving behind young widow, a minor son aged five years and old parents. Even a lesser multiplier of 15 is taken, in our definite opinion, the compensation amount should be assessed at Rs. 3,60,000/-.

6. We, therefore, of the view that the appellants are entitled to Rs. 3,60,000/- by way of compensation together with interest at the rate awarded by the Tribunal.

7. This appeal is, therefore, allowed. The compensation amount is enhanced to Rs. 3,60,000/- together with interest awarded by the Tribunal.

8. It appears that a sum of Rs. 50,000/- was already paid by way of interim compensation. We must clarify here that the amount of compensation, so determined by the Tribunal, shall be deposited, as directed by the Tribunal. However, the enhanced amount of compensation together with interest shall be paid to the widow and minor son of the deceased.