In a case claiming compensation under Section 163A of the Motor Vehicles Act, 1988 by the mother of the victim, the general principle of maximum deduction of 50% in a fault liability claim case cannot be applied and deduction cannot exceed one-third as fixed by the statute.

Subhro Kamal Mukherjee, J.

Although the matter is appearing under the heading ‘for orders’, by consent of Mr. Santosh Kumar Das, learned advocate appearing for appellant/claimant and Mr. Kamal Krishna Das, learned advocate appearing for the insurance company/respondent no.1, the appeal is taken up for hearing after dispensation of all formalities.

2. It is pertinent to mention here that the owner of the offending vehicle/respondent no.2 did not contest the claim case in the trial court.

3. Therefore, on the joint prayers of the learned advocates appearing for the contesting parties, formal service of notice of the appeal and the application on the owner of the offending vehicle/respondent no.2 is dispensed with.

4. This appeal is against the judgment and order dated May 20, 2006 passed by the learned Judge, Motor Accident Claims Tribunal at Contai, District – Purba Medinipur, in Motor Accident Claims Case no.1 of 2006.

5. The victim, namely, Santosh Parida, met with an accident on August 1, 2002 and succumbed to his injuries. It is alleged that the offending vehicle bearing registration no. W.B. 33-4165 knocked down the victim and he died instantaneously on the spot.

6. The mother of the victim is the claimant. She filed an application under Section 166 of the Motor Vehicles Act, 1988, praying for compensation of Rs.5,50,000/- (Rupees five lakh fifty thousand) only from the insurance company.

7. The learned judge in the trial court held that the claimant shall be entitled to get a total compensation of Rs.2,32,400/- (Rupees two lakh thirty two thousand four hundred) only and the insurance company was directed to pay such compensation by an account payee cheque to the claimant within two months from the date of the order failing which the claimant would be entitled to get simple interest at the rate of 7.50% per centum per annum on the said amount till realisation.

8. Mr. Santosh Kumar Das, learned advocate appearing for the claimant/appellant, submits that although the application was filed under Section 166 of the said Act, but, it was, in fact, an application under Section 163A of the said Act as the income of the victim was within Rs.40,000/- (Rupees forty thousand) only.

9. We are fortified by a decision of this Court in Shrimati Upasi Singha and others versus The Oriental Insurance Company Limited and others reported in (2010) 4 West Bengal Law Reporter (Calcutta), where a division bench of this Court held that mere caption of an application could not decide the real nature of the same and if it appeared to the Court dealing with such prayer for compensation, the Court has jurisdiction to grant appropriate relief under a different provisions of the Statute. Such wrong caption could not be a ground for rejection of the proceeding.

10. We, therefore, hold that the original application, although captioned under Section 166 of the said Act, was, in fact, an application under Section 163A of the said Act. We, thus, propose to decide the matter on the basis of the principles governed for awarding compensation in a case initiated under Section 163A of the said Act.

11. The claimant deposed herself and she produced two other witnesses. The insurance company produced no witness.

12. The learned trial judge, in our view, rightly found that it was adequately proved that the offending vehicle was involved in the said motor accident on the date, place and at the time as contended by the claimant.

13. The offending vehicle was involved in the accident has been proved beyond doubt. It is, also, proved that the victim succumbed to his injuries. The victim was admittedly 21 years old at the time of his death. He was a bachelor and his mother is the only heir and legal representative to claim the compensation.

14. The learned trial judge, in our view, rightly held that the age of the claimant would be the yardstick to assess the compensation. The claimant was less than 40 years old at the time of accident and the learned trial judge, in our vi