Ushaben Rajeshkumar Vyas (W/O ... vs Osman Mamad Sama

     C/SCA/2847/2023                              ORDER DATED: 20/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2847 of 2023

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      USHABEN RAJESHKUMAR VYAS (W/O LATE RAJESHKUMAR
                   SHARADCHNDRA VYAS)
                          Versus
                    OSMAN MAMAD SAMA
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Appearance:
MR. HEMAL SHAH(6960) for the Petitioner(s) No. 1,2,3,4,5
for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 20/02/2023
                             ORAL ORDER

1. Mr.Hemal Shah, learned advocate for the petitioners submit that petitioner no.2 has made a prayer for granting him Rs.2,24,500/- as premature withdrawal of the FDR amount, which was deposited after apportionment of compensation granted in MACP No.297 of 2002. Mr.Shah states that application being CMA MACP No.1083 of 2021 was made by the petitioner before the Tribunal, as he is in need of money for constructing residential house. Mr.Shah states that the State Bank of India, Ahmedabad, has sanctioned loan of Rs.20 Lacs for residential purpose in his favour and, petitioner no.2 serves in Issumation Technology Pvt. Ltd., Ahmedabad, and is drawing salary of Rs.45,000/-. He states that the bank has released an amount of Rs.8 Lacs, Rs.6 Lacs and Rs.4 Lacs and the petitioner has to pay principal amount of Rs.13,75,268/- in his loan account, with interest at the rate of 6.80%, while he receives interest at 4.90%. Mr.Shah submits that inspite of having money in FDR, the petitioner is unnecessarily bearing Page 1 of 8 Downloaded on : Tue Feb 21 21:02:58 IST 2023 C/SCA/2847/2023 ORDER DATED: 20/02/2023 burden of more interest to be paid on the loan amount. Mr.Shah submits that prayer was made before the Tribunal concerned at Bhuj-Kachchh for release of amount, however, learned Tribunal rejected the application on 18.9.2021 being CMA MACP No.1083 of 2021 observing that FD is of 12.11.2020 and within ten months from the said period, application has been moved. Further, it is observed that the applicant has received 30% amount of compensation through account payee cheque and the petitioner is serving and, his economic condition is sound. Mr.Shah submits that though decision in the case of A.V. Padma & Ors. Vs. R. Venugopal & Ors., reported in (2012) 3 SCC 378 was cited before the Tribunal, learned Tribunal failed to accept the submission and rejected the prayer.

2. Mr.Shah has placed reliance on the judgment in the case of A.V. Padma & Ors. Vs. R. Venugopal & Ors., reported in (2012) 3 SCC 378 to contend that the Tribunal is required to give a thoughtful consideration to the genuine requirements of the claimant and should avoid mechanical approach ignoring the object and spirit of the Act. A.V. Padma's case (supra) refers to the guidelines issued in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas & Ors., reported in (1994) 2 SCC 176. In Susamma Thomas's case (supra), while approving the judgment of the Gujarat High Court in the case of Muljibhai Ajarambhai Harijan Vs. United India Insurance Co. Ltd., reported in 1982 (1) GLR 756, the Apex Court has offered the following guidelines:-

C/SCA/2847/2023 ORDER DATED: 20/02/2023 "(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;

(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;

(iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid; (iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and

(iii) above, if having regard to the age, fiscal background Page 3 of 8 Downloaded on : Tue Feb 21 21:02:58 IST 2023 C/SCA/2847/2023 ORDER DATED: 20/02/2023 and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;

(v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above;

(vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;

(vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;

(viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated."

C/SCA/2847/2023 ORDER DATED: 20/02/2023

3. In the case of A.V. Padma (supra), while appreciating the guidelines issued in the case of Susamma Thomas (supra), it has been observed as under:-

"7. The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii),

(iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.

8. Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons.

However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the Page 5 of 8 Downloaded on : Tue Feb 21 21:02:58 IST 2023 C/SCA/2847/2023 ORDER DATED: 20/02/2023 case of minors, illiterate claimants and widows and in the case of semi-literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.

9. The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant Page 6 of 8 Downloaded on : Tue Feb 21 21:02:58 IST 2023 C/SCA/2847/2023 ORDER DATED: 20/02/2023 and with a view to ensure the safety of the compensation awarded to him.

10. The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice."

4. In the case of A.V. Padma (supra), the guidelines so issued in the case of Susamma Thomas (supra), has been clarified. Hence, it could be said that sufficient discretion has been given to the tribunal to exercise, considering the need of the applicant-claimant. In case of literate person, the Tribunal is required to give relaxation by not adopting pedantic approach of investing the money in long term FDR without recording reasons for investing the money in long term deposits. It has been observed in the case of A.V.Padma (Supra) that the Tribunal are often taking a very rigid stand and are mechanically ordering, almost in all cases, the amount of compensation to be invested in long term FDRs. The deposited money are of the claimants.

C/SCA/2847/2023 ORDER DATED: 20/02/2023

5. In the present case, petitioner no.2 is an educated person and is having qualification of MCA. A certificate to this effect is also produced on record. Salary slip of petitioner no.2 is also produced and to substantiate the fact that, for residential purpose, he has got loan sanctioned from the State Bank of India. This fact substantiates the need of the petitioner. Learned Tribunal ought to have kept in mind that the amount has been granted for welfare with benevolent object of compensating the claimants, who would be dependents of the deceased and while depositing the money in FDR, the intention would be to safeguard the interest of the claimants, but at the same time, the Tribunal is not required to take a rigid and mechanical approach without understanding the needs and requirements of the petitioner.

6. Thus, taking into consideration the circumstances as pleaded by the petitioner-claimant, the petition is allowed and the petitioner is permitted to have a premature withdrawal of an amount of Rs.2,24,500/- from Fixed Deposit Receipt which was deposited after apportionment of compensation amount granted in MACP No.297 of 2002. Accordingly, this petition is allowed. Direct service is permitted.

(GITA GOPI,J) R.S. MALEK Page 8 of 8 Downloaded on : Tue Feb 21 21:02:58 IST 2023