Samirbhai Ahemadbhai Pijara vs Baroda Gujarat Gramin Bank

    C/SCA/4153/2023                                     ORDER DATED: 07/03/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 4153 of 2023

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                       SAMIRBHAI AHEMADBHAI PIJARA
                                  Versus
                       BARODA GUJARAT GRAMIN BANK
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Appearance:
MR BRAHMBHATT for MR A N KADRI(7990) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 07/03/2023

                                 ORAL ORDER

1. Heard learned Advocate for the petitioner, who states that by way of settlement in the regular pursis, the parties had arrived at a settlement for the compensation amount of Rs.4,15,000/- and accordingly, as per the terms of the settlement, the award was ordered to be drawn.

2. Learned Advocate Mr. Brahmbhatt on behalf of learned Advocate Mr. A.N. Kadri for the petitioner states that after passing the direction of deducting amount towards interim compensation, the learned Tribunal has further ordered for paying 40% of the compensation amount to the claimant by way of Page 1 of 8 Downloaded on : Thu Mar 09 20:45:20 IST 2023 C/SCA/4153/2023 ORDER DATED: 07/03/2023 account payee cheque and 60% amount was ordered to be deposited in a Fixed Deposit Receipt for a period of 5 years with instructions to the Bank not to loan or make any further transactions regarding cash credit. However, the petitioner was made entitled to receive periodical interest.

3. Today, it is submitted that the claimant had made a prayer by moving M.A.C.M.A. on 27.12.2022 for premature withdrawal of the Fixed Deposit Receipt amount on the ground of marriage ceremony of his daughter, which is scheduled to commence from 12.03.2023. Learned Advocate Mr. Brahmbhatt has referred to the decision of the Hon'ble Apex Court in the case of A.V. Padma v. R. Venugopal reported in 2012 SCC 3 378.

3.1. The learned Tribunal rejected the application on the ground that recently the amount was put in the Fixed Deposit Receipt in the name of the claimant. The learned Tribunal has not appreciated the ground of marriage as proper for premature withdrawal of the amount.

C/SCA/4153/2023 ORDER DATED: 07/03/2023

4. Learned Advocate Mr. Brahmbhatt while referring to the decision in the case of A.V. Padma (supra) has contended 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:-

"(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) Page 3 of 8 Downloaded on : Thu Mar 09 20:45:20 IST 2023 C/SCA/4153/2023 ORDER DATED: 07/03/2023 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 semiliterate 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 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 Page 4 of 8 Downloaded on : Thu Mar 09 20:45:20 IST 2023 C/SCA/4153/2023 ORDER DATED: 07/03/2023 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."

5. 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 Page 5 of 8 Downloaded on : Thu Mar 09 20:45:20 IST 2023 C/SCA/4153/2023 ORDER DATED: 07/03/2023 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 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.

C/SCA/4153/2023 ORDER DATED: 07/03/2023

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 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 Page 7 of 8 Downloaded on : Thu Mar 09 20:45:20 IST 2023 C/SCA/4153/2023 ORDER DATED: 07/03/2023 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."

6. Here in this case, the claimant had made a prayer for withdrawal of the amount on the ground of marriage of the daughter and probably the case might have been settled in the Lok Adalat for the very purpose in mind. On going through the records of the case and considering the submissions canvassed and also taking into account the fact that the petitioner would be in need of the amount on account of the marriage of his daughter, this petition is allowed. The applicant is permitted to make premature withdrawal of the Fixed Deposit Receipt bearing No.292769 in connection with Motor Accident Claims Petition No.226 of 2019. Direct Service is permitted.

Sd/-

(GITA GOPI, J) CAROLINE Page 8 of 8 Downloaded on : Thu Mar 09 20:45:20 IST 2023