JUDGMENT :

Shampa Dutt (Paul) , J.

Re : IA No.: CAN 1 of 2018 (Old No.: CAN 6347 of 2018)

1. IA No.: CAN 1 of 2018 (Old No.: CAN 6347 of 2018) preferred under Section 5 of the Limitation Act, pending till date is taken up for hearing. By the instant application, the petitioner has prayed for condonation of delay in filing the present appeal. Considering grounds as made out and in the interest of justice, prayer for condonation of delay is allowed.

2. IA No.: CAN 1 of 2018 (Old No.: CAN 6347 of 2018) is thus disposed of.

3. The present appeal has been preferred by the claimants against the judgment and award dated 30^th June, 2012 passed by the learned Judge, Motor Accident Claims Tribunal and the Additional District Judge, 3^rd Court, Nadia, Krishnanagar, in MAC Case No. 399 of 2008, under Section 163A of the Motor Vehicles Act.

4. The Facts :-

“……….. The instant application under Section 163A of M. V. Act was filed by the parents, brother and sister of the deceased, Mithun Mondal, for the compensation amounting to Rs.4,32,400/- for the demise of Mithun Mondal who was aged about 20 years at the time of incident and was a marble- mistry who earned Rs.3,300/- per month. When the said deceased and other passengers on 26.03.2008 at about 03:30 hrs. were returning by a bus being No. WB 51/3493, the said bus was plying indiscriminately with heavy speed along the Krishnanagar-Karimpur metal road and the driver of the said bus pressed sudden brake near the place of Bajitpur Talikhola under P.S Karimpur, as a result the door of the bus opened and the victim and other passengers fell down from the inner side of the said bus and hit a tree. To that effect the victim and other passengers received severe injuries on their persons and victim Mithun Mondal died in the accident on the spot. P.M was duly performed at Saktinagar Hospital. Accordingly, the petitioner being the dependents filed the instant case against the owner of the bus and the Insurance Company of the said bus……………”

5. Opposite Party/National Insurance Company Limited contested the suit by filing W.O., whereas the owner of the bus neither appeared nor filed any W.O. As such the case has been proceeded against the owner of the bus ex parte.

6. The contents of the written objection filed by the Insurance Company is that the application is not maintainable in its present form and prayer. The petitioner has no cause of action to file the instant case. The application is bad for mis-joinder and non-joinder of the necessary party. The Insurance Company took plea that the petitioners are liable to comply with the provision of Section 330 of Motor Vehicles Rules. This O.P does not admit the petitioners’ case. According to the Insurance Company, the claim of the petitioners is excessive, exaggerated and without any basis and the income as alleged by the claimants is not correct and that no such accident occurred as alleged by the petitioners. Accordingly, the petitioners are not entitled to get any compensation as prayed for.

7. The claimants examined two witnesses and proved documents which were marked as Exhibit-1 to 5.

8. The Tribunal finally considering the materials on record held as follows :-

“……… MAC Case No. 399 of 2008

Dated 30.06.2012

……….In that discussion, we can accept the observation (2007) 1 WBLR CAL 348 where the Hon’ble Lordship was pleased to hold that a mason like a marble mistry earns Rs.100/- per day or Rs.3,000/- per month and his annual income will be Rs.31,200/- and ½ of the said amount is required to be excluded. As such the contribution to the family will be Rs.31,200/- ÷ 2 = Rs.15,600/- and considering the age of the victim is 20 and multiplier would be 16. Accordingly, the compensatory amount would be Rs.15,600/- x 16 =2,49,600/. Accordingly, the petitioners no.1 and 2 are entitled to get the said compensation……………

Sd/-

Member, MACT & Addl. District Judge

(3^rd Court), Nadia……..”

9. From the materials on record, it appears that the claimants in the present case are the parents