DISTRICT:
SOUTH 24-PARGANAS
IN THE HIGH COURT
AT CALCUTTA
CIVIL APPELLATE
JURISDICTION
F.M.A.T. NO. OF 2014
C.A.N. NO. OF 2014
IN THE MATTER OF:
An appeal Under Section 173 of the
Motor Vehicle Act, 1988 against the
Judgment & Order of award
of
Compensation dtd. 15.05.2013
- And –
IN
THE MATTER OF:
RADHESHYAM SAHA
………..
Appellant
-Versus-
THE NEW INDIA ASSURANCE CO.
LTD. & ANR.
…………. RESPONDENTS
An appeal Under Section 173 of the
Motor Vehicle Act, 1988
against the
Judgment & Order of award of
Compensation dtd. 15.05.2013
Snehasish Sutradhar
Advocate
Bar Association,Room no.14
High
Court, Calcutta
DISTRICT: SOUTH 24-PARGANAS
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
F.M.A.T. NO. OF 2014
C.A.N.
NO. OF 2014
IN THE
MATTER OF:
An appeal
Under Section 173 of the
Motor Vehicle Act, 1988 against
the
Judgment &
Order of award of
Compensation dtd. 15.05.2013
passed by Sri Ajay Kumar
Mukherjee
the Ld. XII Bench, City Civil
Court, Kolkata
in MAC Case No. 548 of 2009
- And –
IN THE MATTER OF:
RADHESHYAM SAHA
Son of Late
Nepal Chandra Saha
Residing at
87/4/2, K.G.Bose
Sarani,
P.S.-Beleghata
Kolkata-
700085
……….. Appellant/Petitioner
(Applicant in the court below)
-Versus-
1. THE NEW INDIA ASSURANCE CO.
LIMITED, a Govt. of India
undertaking
Having its
registered office at 63/1/28,
Sarat Bose Road,
Kolkata- 700025 and
Also carrying on
business from 4, Mango
Lane, Kolkata-
700001
………. Respondent No.1
(Opposite Party No.2 in the court below)
2. MR.DIPANKAR MITRA &
DEBASISH
CHAKRABORTY, residing at 2, Motilal
Colony,
P.S. Rajbari Colony
Kolkata- 700081
……… Respondent No.2
(Opposite Party No.1
in the court below)
The judgment & order of award
compensation out of which this appeal was valued at Rs.2, 36,517/- and
accordingly the present appeal is also valued at the same and the Court Fees
worth Rs. is paid
herewith.
FACTS
OF THE CASE :-
1.
That the appellant/
applicant, instituted one MAC Case No. 548 of 2009 under Section 166 of the
Motor Vehicles Act, 1988 before the Learned XII Bench, City Civil Court,
Kolkata, claiming compensation against the respondents hereinabove for the
injuries sustained by him in a Road traffic accident dated 24.04.2009. The
claimant alleged that on the said date one offending vehicle bearing registration
no. WBS -4439( Private bus) was proceeding along S.N.Banerjee road east to west
in a rash and negligent manner endangering human life and safety and when the
said vehicle reached near Grant Street crossing in front of K.M.C. North gate
it dashed a motorcycle and as a result the motorcyclist/ appellant herein
sustained injuries leading to his 36% permanent disablement. New India
Assurance Company Limited being the respondent No.1 hereinabove was the insurer
of the alleged offending Private Bus being no. WBS -4439 and respondent No.2
was the owner of the vehicle of the alleged offending Private Bus being no. WBS
-4439.
2.
That the case of the appellant/ applicant in brief, is that on 24.04.2009 at about 13.15 hours one offending vehicle bearing registration
no. WBS -4439( Private bus) was proceeding along S.N.Banerjee road east to west
in a rash and negligent manner endangering human life and safety and when
the said vehicle reached near
Grant Street crossing in front of K.M.C. North gate it dashed a motorcycle and
as a result the motorcyclist/ appellant herein sustained injuries and he was
taken to Medical College & Hospital at Emergency and ten days thereafter
the victim was admitted at Divine Nursing Home on 14.05.2009 and discharged on
25.05.2009 and again he was admitted at AMRI Hospital on 12.06.2009 and discharged on 25.06.2009. Due to the
negligence of the driver of the offending vehicle being no. WBS -4439(Private
Bus) was the sole responsible for the said accident. In view of the said
accident New Market P.S. Case no. 108 of 2009 dtd. 24.04.2009 was started u/s
279/338/427 IPC.
3.
That the owner of the vehicle i.e. respondent no.2
hereinabove has not contested the case before the lower Court but the insurer
i.e. New India Assurance Co. has contested the case by filing written statement
denying and disowning inter alia its liability to pay compensation.
4.
That the petitioner/Appellant examined five witnessed
himself as PW1, Bikash Shaw witness as PW2, Dr. Binati Das who issued
disablement certificate witness as PW3, Arun Karel staff of Divine Nursing Home
witness as PW4 and Somnath Bandhyapadhya staff of AMRI Hospital witness as PW5.
The petitioner/appellant exhibited 15(fifteen) documents whereas the opposite
part/respondent nil. The learned lower Court framed eight
issues and taken all
evidence and hold that due to rashness and negligence on the part of the driver
of the private bus being no. WBS -4439 the accident took place and the
opp.party o.2/respondent no.1 hereinabove is liable to compensate the
petitioner/appellant and accordingly allowed the claim application and directed
the opp.party no.2/ respondent no.1 hereinabove to pay a sum of Rs.2, 36,517.00
in that Tribunal within two months from the date of the order but unfortunately
the Ld. Tribunal has not given any interest from the date of filing whereas as
per the provision of Section 171 of Motor Vehicles Act, 1988 your petitioner/claimant
is entitled to get interest from the date of filing.
Being aggrieved the Judgment and order dated
15.05.2013 passed by Sri Ajay Kumar Mukherjee
The Ld. XII Bench, City Civil Court, Kolkata in MAC
Case No. 548 of 2009 begs to prefer this
appeal
On the following
amongst other;
G R O U N D S
A. For that
the Learned Tribunal has wrongly decided that the petitioner/claimant has only
entitled to get compensation within two months from the date of the order
failing which the entire compensation amount shall carry a simple interest
@8.5% p.a. from the date of order whereas your petitioner/appellant is entitled
to get interest from the date of filing.
B. For that
the Learned Tribunal miserably failed to understand that your
petitioner/appellant is entitled to get interest from the date of filing.
C. For that
the Learned Tribunal miserably failed to understand that as per 171 of Motor
Vehicles Act, 1988 where any claims Tribunal allows a claim for compensation
made under this Act, such Tribunal may direct that in addition to the amount of
compensation simple interest shall also be paid at such rate and from such date
not earlier than the date of making the claim as it may specify in this behalf.
D. For that the Learned Tribunal miserably failed
to understand that the interest is not a penalty whereas the
appellant/petitioner is entitled to get simple interest from the date of
filing.
E.
For that the impugned Judgment and order of award
of compensation is otherwise bad, illegal and not in conformity with law and
the same is liable to be modified.
Calcutta
By the appellant through
Dated
Advocate
DISTRICT: SOUTH 24-PARGANAS
IN THE HIGH COURT
AT CALCUTTA
CIVIL APPELLATE
JURISDICTION
F.M.A.T. NO. 952 of 2014
C.A.N. NO. of 2014
IN THE MATTER OF:
An application under Section 5 of
the
Limitation Act.
- And –
IN THE MATTER OF:
RADHESHYAM SAHA
……….. Appellant
-Versus-
THE NEW INDIA ASSURANCE CO.
LTD. & ANR.
………….
RESPONDENTS
An application under Section 5 of
the Limitation
Act.
Snehasish Sutradhar
Advocate
Bar
Association,Room no.14
High Court, Calcutta
DISTRICT:
SOUTH 24-PARGANAS
IN
THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
F.M.A.T. NO. 952 of 2014
C.A.N. NO. of 2014
IN
THE MATTER OF:
An application under Section 5 of
The Limitation Act.
- And –
IN THE MATTER OF:
RADHESHYAM SAHA
Son of Late Nepal Chandra Saha
Residing
at 87/4/2, K.G.Bose
Sarani, P.S.-Beleghata
Kolkata- 700085
………..Claimant/
Appellant/Petitioner
-Versus-
1. THE NEW INDIA ASSURANCE CO.
LIMITED, a Govt. of India
undertaking
Having its
registered office at 63/1/28,
Sarat Bose Road,
Kolkata- 700025 and
Also carrying on
business from 4, Mango
Lane, Kolkata- 700001
……….
Opposite Party /Respondent
2. MR.DIPANKAR MITRA &
DEBASISH
CHAKRABORTY, residing at 2, Motilal
Colony, P.S. Rajbari Colony
Kolkata- 700081
……… Opposite Party /Respondent
To,
The Hon’ble Mrs. Manjula Chellur, Chief
Justice And His Companion Justices of this Hon’ble Court.
The
humble petition of the Appellant
above
named most respectfully –
S H E W E T H
1.
That the appellant/ applicant, instituted one
MAC Case No. 548 of 2009 under Section 166 of the Motor Vehicles Act, 1988
before the Learned XII Bench, City Civil Court, Kolkata, claiming
compensation against the respondents hereinabove for the injuries sustained by
him in a Road traffic accident dated 24.04.2009. The claimant alleged that on
the said date one offending vehicle bearing registration no. WBS -4439( Private
bus) was proceeding along S.N.Banerjee road east to west in a rash and
negligent manner endangering human life and safety and when the said vehicle
reached near Grant Street crossing in front of K.M.C. North gate it dashed a
motorcycle and as a result the motorcyclist/ appellant herein sustained
injuries leading to his 36% permanent disablement. New India Assurance Company
Limited being the respondent/opp.party hereinabove was the insurer of the
alleged offending Private Bus being no. WBS -4439 and second respondent was the
owner of the vehicle of the alleged offending Private Bus being no. WBS -4439.
2.
That the case of the appellant/ claimant in brief, is that on 24.04.2009 at about 13.15 hours one offending vehicle bearing registration
no. WBS -4439( Private bus) was proceeding along S.N.Banerjee road east to west
in a rash and negligent manner endangering human life and safety and when the
said vehicle reached near Grant Street crossing in front of K.M.C. North gate
it dashed a motorcycle and as a result the motorcyclist/ appellant herein
sustained injuries and he was taken to Medical College & Hospital at
Emergency and ten days thereafter the victim was admitted at Divine Nursing
Home on 14.05.2009 and discharged on 25.05.2009 and again he was admitted at
AMRI Hospital on 12.06.2009 and
discharged on 25.06.2009. Due to the negligence of the driver of the offending
vehicle being no. WBS -4439(Private Bus) was the sole responsible for the said
accident. In view of the said accident New Market P.S. Case no. 108 of 2009
dtd. 24.04.2009 was started u/s 279/338/427 IPC.
3.
That the owner of the vehicle i.e. respondent no.2
hereinabove has not contested the case before the lower Court but the insurer
i.e. New India Assurance Co. has contested the case by filing written statement
denying and disowning inter alia its liability to pay compensation.
4.
That the petitioner/Appellant examined five witnessed
himself as PW1, Bikash Shaw witness as PW2, Dr. Binati Das who issued
disablement certificate witness as PW3, Arun Karel staff of Divine Nursing Home
witness
as PW4 and Somnath
Bandhyapadhya staff of AMRI Hospital witness as PW5. The petitioner/appellant
exhibited 15(fifteen) documents whereas the opposite part/respondent nil. The
learned lower Court framed eight issues and taken all evidence and hold that
due to rashness and negligence on the part of the driver of the private bus
being no. WBS -4439 the accident took place and the opp.party no.2/respondent
no.1 hereinabove is liable to compensate the petitioner/appellant and
accordingly allowed the claim application and directed the opp.party no.2/
respondent no.1 hereinabove to pay a sum of Rs.2, 36,517.00 in that Tribunal
within two months from the date of the order but unfortunately the Ld. Court
has not given any interest from the date of filing whereas as per the provision
of Section 171 of Motor Vehicles Act, 1988 your petitioner/claimant is entitled
to get interest from the date of filing.
5.
That the
appellant/petitioner fully entrusted one Ld. Advocate namely Sri
Suvendro Upadhya who conducted the MAC
case being no. 548 of 2009 before the learned Tribunal XII Bench, City Civil
Court, Calcutta but the said Advocate did not advise to the
petitioner/Appellant to file an appeal before the Hon’ble High Court for getting
the interest because the Ld. Tribunal has not given any interest on his
Judgment and order of award of compensation dtd. 15.05.2013.
6.
That after your appellant/petitioner engaged new
Ld. Advocate where he came to know that your petitioner/appellant is entitled
to get interest from the date of filing and after that on 13.06.2014, your
petitioner filed an application for obtaining the certified copy of the Judgment
and order of award of compensation dtd. 15.05.2013 and the said copy were made
ready on 10.07.2014 and subsequently it was handed over to your petitioner by
his Ld. Advocate appearing before the Ld. Tribunal. Soon thereafter, the matter
was forwarded to your petitioner’s Ld. Advocate for filing an appeal at Hon’ble
High Court at Calcutta and ultimately on 18th August, 2014 the
Appeal was filed in the Hon’ble High Court with a delay of 426 days.
7.
Your appellant/petitioner states that for the
aforesaid delay has been caused only due to the utter ignorance as well as
non-instruction from the part of his earlier engaged Ld. Advocate and such
entire happenings was caused due to the ill fate of the petitioner, which was
beyond his imagination and control and also your petitioner has no willful
latches or intentional negligence on his part.
8.
In the facts and circumstances as the aforesaid,
your petitioner acted diligently and was prevented from preferring the appeal
in time.
9.
Your petitioner submits that the aforesaid facts
and circumstances constitute sufficient cause for the delay and unless delay in
preferring the appeal is condoned, your petitioner will suffer irreparable loss
and injury.
10.
This
application is made bonafide and for the interest of justice.
Your petitioner, therefore prays to
Your Lordships that:-
a) A Rule be
issued to opposite parties
to show cause as to why the delay in preferring the Appeal be not
condoned
and the Appeal be registered and upon
showing cause, if any, the Rule may be made
absolute and such further or other order be passed as your Lordship may
deem fit
and proper.
And your petitioner, as in
duty bound, shall ever pray.
A F F I D A V I T
I, Sri Radheshyam Saha, son of Late Nepal Chandra Saha, aged
about 67 years, by faith- Hindu, by occupation- unemployed, residing at 87/4/2,
K.G.Bose Sarani, P.S. Beleghata, Kolkata- 700085 do hereby affirm and say as
follows:-
1.
That
I am the petitioner/appellant of this case and as such I am well acquainted
with the facts and circumstances of the case, I am competent to affirm this
affidavit.
2.
That
the statements made in paragraphs 1 to 7 are true to my knowledge and those
made in paragraphs 8 to 10 are my humble submission to this Hon’ble Court.
Prepared in my office
The Deponent is known to me
Advocate.
Solemnly affirmed before me on
this the day of August,2014.
COMMISSIONER
