Lakhi Narayan Sonowal Vs. State of Assam and anr. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 168: [dr.arijit pasayat & asok kumar ganguly,jj] compensation - multiplier method held, it involves ascertainment of loss of dependency or multiplicand. choice of multiplier is determined by age of deceased and by calculation as to what capital sum would yield the multiplicand by way of annual interest. section 168: [dr.arijit pasayat & asok kumar ganguly,jj] compensation determination - deceased riding scooter died in accident with bus - he was aged 43 years and earning rs. 12000/-p.m. as contractor applying multiplier of 10 and making 1/3rd deduction claimants would be entitled to compensation of rs.2,40,000/- with interest @ 6% p.a. section 168 :[dr.arijit pasayat & asok kumar ganguly,jj] compensation multiplier method held, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. the choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. in ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. deceased aged 43 years at time of accident and was hawker. multiplier of 10 and rate of interest @ 6% p.a. would be appropriate and not multiplier of 15 and interest rate @ 9% p.a. fixed by high court. compensation was determined at rs.2,00,000/- with interest at 6% p.a. order1. leave granted.2. these appeals are directed against two orders, dated 22nd august, 2007 and 17th september, 2007, passed by the gauhati high court at gauhati respectively in writ appeal no. 298 of 2007 and miscellaneous case no. 3254 of 2007. by the first order, the appellate bench of the high court dismissed the appeal preferred by the appellant for non-prosecution as his counsel failed to appear in court and by the latter order, application seeking recall of order dated august 22, 2007 has been dismissed.3. it appears that on dismissal of the appeal on august 22, 2007, an application for recall of the said order was filed on august 24, 2007, wherein it was pleaded that counsel for the appellant could not appear in court because of the confusion created by the bandh call given by a socio-political organisation, followed by motor strike, which disrupted the normal life. rejecting the plea of the appellant, the division bench observed thus:on 22.8.07 this court functioned normally and the learned advocates appeared in many cases and, therefore, we are not inclined to accept that the learned counsel for the petitioner was prevented by reasons beyond his control.we see no merit in this application. the application is dismissed.4. hence the present appeals.5. we have heard learned counsel for the parties.6. it is true that no court is obliged to adjourn a case because of the difficulty of a counsel and as a matter of fact it is the solemn duty of every court to proceed with the judicial business fixed for the day yet in an appropriate case where no fault lies at the door of the litigant, the court should not be in a hurry to dismiss the case in default or for non-prosecution on account of absence of his counsel. ultimately, it is the litigant who is to suffer the consequences of such an order. in any case the court should be considerate while dealing with an application for recall of dismissal or ex-parte order and if a justifiable cause for non-appearance of the counsel is made out, such an order may be recalled, subject of course to the conditions the court may like to impose.7. having perused the application filed by the appellant for recall of order dated 22nd august, 2007, which has been placed on record, we are convinced that it was a fit case where the appellate bench of the high court should have exercised its jurisdiction and recalled the said order, dismissing the appeal for non-prosecution.8. accordingly, the appeals are allowed, orders dated 22nd august, 2007 and 17th september, 2007 are set aside and writ appeal is restored to its original position for disposal on merits in accordance with law.9. no order as to costs.

Judgment:
ORDER

1. Leave granted.

2. These appeals are directed against two orders, dated 22nd August, 2007 and 17th September, 2007, passed by the Gauhati High Court at Gauhati respectively in Writ Appeal No. 298 of 2007 and Miscellaneous Case No. 3254 of 2007. By the first order, the appellate Bench of the High Court dismissed the appeal preferred by the appellant for non-prosecution as his counsel failed to appear in Court and by the latter order, application seeking recall of order dated August 22, 2007 has been dismissed.

3. It appears that on dismissal of the appeal on August 22, 2007, an application for recall of the said order was filed on August 24, 2007, wherein it was pleaded that counsel for the appellant could not appear in Court because of the confusion created by the Bandh call given by a Socio-political organisation, followed by motor strike, which disrupted the normal life. Rejecting the plea of the appellant, the Division Bench observed thus:

On 22.8.07 this Court functioned normally and the learned Advocates appeared in many cases and, therefore, we are not inclined to accept that the learned Counsel for the petitioner was prevented by reasons beyond his control.

We see no merit in this application. The application is dismissed.

4. Hence the present appeals.

5. We have heard learned Counsel for the parties.

6. It is true that no Court is obliged to adjourn a case because of the difficulty of a counsel and as a matter of fact it is the solemn duty of every Court to proceed with the judicial business fixed for the day yet in an appropriate case where no fault lies at the door of the litigant, the Court should not be in a hurry to dismiss the case in default or for non-prosecution on account of absence of his counsel. Ultimately, it is the litigant who is to suffer the consequences of such an order. In any case the Court should be considerate while dealing with an application for recall of dismissal or ex-parte order and if a justifiable cause for non-appearance of the counsel is made out, such an order may be recalled, subject of course to the conditions the Court may like to impose.

7. Having perused the application filed by the appellant for recall of order dated 22nd August, 2007, which has been placed on record, we are convinced that it was a fit case where the Appellate Bench of the High Court should have exercised its jurisdiction and recalled the said order, dismissing the appeal for non-prosecution.

8. Accordingly, the appeals are allowed, orders dated 22nd August, 2007 and 17th September, 2007 are set aside and writ appeal is restored to its original position for disposal on merits in accordance with law.

9. No order as to costs.