(Deceased) Satish Chand Sharma ... vs Manoj And Another
2021 Latest Caselaw 4713 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3160 of 2018
 
Appellant :- (Deceased) Satish Chand Sharma And 3 Others
 
Respondent :- Manoj And Another
 
Counsel for Appellant :- Abhishek,Umesh Kumar Singh
 
Counsel for Respondent :- Nishant Mehrotra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

1. Heard Shri Abhishek, learned counsel for appellants and Shri Nishant Mehrotra appearing on behalf of the Insurance Company. None appears for the owner of the vehicle. We had partly allowed the appeal but had kept reasons to be penned later on as the Courts were closing for the Holi Vacations. We now Penn our reasons for allowing the appeal, filed at the behest of claimants who have been put to great injustice by the orders of the ld officers manning the Tribunals, from 2010, while losing sight of the beneficial provisions of Motor Vehicles Act, 1988 (hereinafter referred to as 'Act' ).

2. After the judgment was dictated we directed the office to upload the same on 14.4.2021. But immediately after directing the judgment to upload, we thought of again going through the judgment for our satisfaction when we read the judgment, unfortunately, while going through the manuscript, we found that there were certain repetitions, the paraphrasing was not proper and therefore, we directed the office not to issue the certified copy and delete the same on 14.4.2021 itself and we have corrected the manuscript again without changing the final result. This was necessary so as to maintain a better chronology and make it a more comprehensive and readable judgment. We can say that these changes were necessary to make it a more readable judgment interpreting the provisions of Order 9 Rule 13 of Code of Civil Procedure 1908 herein after referred as C.P.C. and for directing the Tribunals, on the course which they should adopt in such cases.

THE CHANGES CAN BE SAID TO BE MORE OF STYLE IN WRITING SO THIS MENTION AS SOME MIGHT HAVE DOWNLOADED AND READ THE JUDGMENT UPLOADED

3. This appeal, at the behest of the claimant (now deceased) through his legal representatives, challenges the judgment and decree dated 4.5.2018 passed by the Motor Accident Claim Tribunal/Additional District Judge, Court No. 15, Ghaziabad (hereinafter referred to as ''Tribunal') in M.A.C.P. No. 516 of 2005 (Deceased Satish Chand Sharma and others Vs. Manoj and another. The appeal is preferred for enhancement of the compensation awarded under the impugned award and that with a prayer that this Court be pleased to allow the claim petition in toto by exercising powers under section 173 of the Act..

4. Recently the Apex Court in Sudarsan Puhan Vs.Jayanta Ku. Mohanty and another etc.,reported in AIR 2018 SC4662, reiterated the observations made in the case of UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SCC 948, directing that as appeal is continuation of the earlier proceedings, High Court is under legal obligation to decide all the issues raised and decide the lis and decide appeal by giving reasons.

5. Essential facts and chronology of events giving rise to the instant dispute are noted at the outset. We feel it necessary to narrate the chronology of events which would show that the Tribunal has committed illegality in passing the impugned award which requires to be readdressed by this Court in favour of the claimants who represent the estate of the injured who died subsequent to the passing of award and decree in in his favour in the year 2010. The accident occurred on 22.2.2005. The claimant was admitted in hospital from the date of accident and, thereafter was discharged. The claimant filed claim petition on 14.9.2005 after being discharged from hospital. On petition being filed, summons were issued to respondents. Though disputed by owner, the respondent No.1-owner was served with the summons on 13.1.2007 as mentioned by the Tribunal in its judgment dated 27.9.2010. The matter proceeded ex parte against the owner namely Manoj Kumar. The owner and driver of the offending vehicle did not appear before the Tribunal. The Insurance Company sought adjournment till 2008 and did not file their reply. The reply one of denial was filed in the year 2009. The evidences were recorded from 2009 to 2010. On 08.07.2010 the Insurance Company was permitted to contest the petition under Section 170 of the Motor Vehicles Act, 1988. The Tribunal passed award on 27.09.2010 in favour of claimant .The Tribunal came to the conclusion that as the owner did not appear it could not be held that the vehicle was insured on the date of accident i.e. 22.2.2005.It is admitted position of fact that though the policy was produced, the Tribunal passed award only against the owner on 27.09.2010 as no other documents were produced. thereby did not hold respondent No.2 Insurance Company liable to satisfy the award and pay the claimant.

6. The Tribunal vide award dated 27 9 2010 awarded medical expenses for the treatment. In the judgment and award dated 27.09.2010 where all the documents were proved, the Tribunal granted a sum of Rs. 20,16,500/-(rounded up) as medical expenses on the basis of the documents which were produced and awarded a sum of Rs. 63,250/- for not being able to attend the services for 163 days due to injuries, under other head under pecuniary as also non pecuniary damage,did not grant any amount for the future loss or under other admissible heads, and granted only a further sum of Rs. 5.000/- for pain shock and suffering.

7. The next important aspect to be noted for our purpose is that the claimant preferred execution petition being 34 of 2011 against the owner. Notice /summons came to be issued to the owner but the owner did not respond The owner did not appear before the executing court. The owner appeared after two years namely on 16.4.2013 after issuance of attachment warrant against him,the owner filed application under Order 9 Rule 13 of C.P.C. contending that he was never served with any summons/notice and came to know of the proceedings only when the clerk from the office of Tehsildar came with the warrant and hence filed application before the tribunal to set aside the ex parte decree-as his vehicle was insured with respondent no 2 who would be liable to satisfy the decree. The Tribunal in application 14 of 2013 filed not in execution petition but in macp no 516 of 2005 (disposed) granted ex parte stay of execution of warrant and decree on 25 4 2013. The matter thereafter was adjourned from time to time and as the record shows till 2015 except adjourning the matter no further steps were taken and then came to be listed again on 29.4.2016 namely after six years of passing of the decree. The tribunal allowed the application under Order IX Rule 13 of C.P.C. From the said date, the matter again went on being listed and thereafter the legal heirs were added as original claimants. The record shows that when the application was filed in the year 2013, the documents showing that the vehicle was insured were also on record and were produced. The respondent was permitted to file his reply which he filed on 29.11.2016. On 5.1.2017, an application was moved on coming to know that the proceeding was going on. On 30.5.2017 an application was made that the deceased died out of the injuries sustained due to the accident and medical evidence was also filed by the claimants and doctors were examined on oath. The last bill of OPD of 1.8.2013 was also filed. It is an admitted position of fact that to the documents which were filed the Insurance company did not raise any objection. The objection was to the order dated 29.4.2016 which was unfortunately rejected. The claimants filed reply contending that though the vehicle was insured, the Insurance company had taken the stand that the vehicle was not insured. Against the order rejecting the application, the Insurance company requested to stay the orders dated 29.4.2016 and 9.3.2018 as they wanted to challenge the same but from the record we find that there is no challenge either to the said order or the subsequent award dated 4.5.2018 namely the impugned award. The original claimant meanwhile after appearing in response to the application for setting aside the decree, passed away in the year 2013 more particularly on 2.8.2013. The tribunal allowed the application under order 9 Rule 13 of C.P.C. (against a dead person) on 29.7.2016. This order was passed on hearing the advocate of claimant and directed execution petition to be kept on file. The award was set aside. The matter was adjourned from time to time without any orders. After a period of one year, i.e in the year 2017 heirs of the claimant were brought on record. The Tribunal permitted owner to produce documents so as to prove that the vehicle was insured . The tribunal decided the matter afresh by permitting owner to file written statement.

8. It is an admitted position that in the execution petition though served the owner did not appear. The tribunal issued recovery warrants against the owner When warrants were issued and bailiff tried to execute the decree, owner filed an application on 16.04.2013 under Order 9 Rule 13 of C.P.C. and prayed for stay of execution of award. There was no delay condonation application filed with the application requesting to set aside the decree. On 24.05.2013, the Tribunal granted ex-parte stay against execution of decree. The Tribunal directed issuance of notice, after issuance of notice, to the original claimant who was alive is not known whether appeared and filed objections to the said application for review/application for setting aside the award. The matter after granting stay came up for hearing only in the year 2016. The Tribunal passed the order in application filled under Order 9 Rule 13 C.P.C. on 24.05.2013 stayed the recovery proceeding ex parte. The order was passed in Misc. Case No. 14 of 2013 on 29.04.2016, namely after the death of original decree holder. On 2.8.2013 Satish Chandra, the original claimant, had passed away, which shows that the order passed on 29.4.2016 was against a dead person. Despite that, instead of removing this irregularity the application (paper No. 445 Ga) filed by the Insurance Company was dismissed by the tribunal.

9. The moot question is could the decree not have been set aside in part which was the prayer by the owner as the decree was severable , the prayer of the owner could be answered by treating it as objection to decree. The policy and non breach of policy condition could be proved and the insurance company could have been directed to indemnify the injured. The execution application and application to set aside the decree passed against the owner was kept pending and was adjourned and listed in the year 2016 which was again adjourned.

10. An application was filed in the year 2018 by the Insurance Company that the original claimant had died and the order passed on the application under Order 9 Rule 13 C.P.C. in absence of the original claimant was bad in the eyes of law as the order passed in the year 2016 allowing the application under Order 9 Rule 13 of C.P.C. was against a dead person. This application was also rejected by Tribunal. The Tribunal and on oral testimony of doctors who had treated the original claimant and on the testimony of original claimant which was recorded earlier, re decided the entire lis and even came to its own finding and even did not grant the full amount of medical expenses which was earlier granted by tribunal of competent jurisdiction. The reason for reducing the claim was that the documents were not proved and that deceased died due to kidney failure and after prolonged treatment passed away.

11. It is submitted by the counsel for the appellants that the Tribunal was suppose to decide only the liability and not the compensation awarded. Had the tribunal awarded compensation also been decided as per law and or at least granted what the earlier tribunal had granted, the appellants would not have been forced to prefer this appeal for pressing for what is known as just compensation under Section 166 of the Act. The chronology of events would show that the main claimant in his life time had a award and decree passed in his favour and the same had to be executed. The Tribunal on re-appreciation of evidence disallowed majority of the claim amount under the head of medical expenses on the ground that the documents were not proved and granted paltry sum of Rs. 1,19,000/- as medical expenses as against more than twenty lacs spent by the claimant by the time award dated 27.9.2010 was pronounced.

12. We would be obliged to decide as to whether the approach of the Tribunal in awarding compensation by award dated 29.7.2010 and 4.5.2018 can be sustained.

13. The accident occurred on 22.02.2005 is not in dispute and the injured was rushed to hospital where he was treated for injuries received due to accident. The original claimant who was going on his vehicle at 7.45 a.m and was hit by bus bearing No.DL IP 6567 which was being driven by driver rashly and negligently. The said finding of fact does not require any further elaboration as it has attained finality.

14. From the record available which we have minutely perused it is evident that the claim petition was allowed in favour of the original injured claimant when he was alive way back in the year 2010 and the decree was passed against the owner as though policy was produced, as it was not proved to exist on date of accident and that the terms were fulfilled or not was not proved the Insurance Company was not made liable is also bad as the policy papers were valid at the time of accident and hence recovery rights could have been granted or not but we do not go in ti that issue in this appeal as the said finding is not challenged,

15. The Tribunal while deciding the claim petition on 29.7.2010 held that as the injured was in service and his pay package had increased no amount under pecuniary loss was awarded, the documentary evidence was produced as far as medical expenses which came to Rs. 20,84,750/- was the amount, which was rounded up to Rs. 20,16,500/- awarded and loss of five months' salary for(163 days), which came to Rs. 63,250/- and Rs. 5,000/- was added for pain shocks and sufferings was granted

16. As narrated above this decree was sought to be executed against the owner of the vehicle. The difficulty of the original claimant now started because the owner of the vehicle did not bring any documents before the Executing Court in his defence but instead of depositing the amount after a period of three years filed an application being Application No. 14 of 2013 in MACP No. 516 of 2005 for stay and to set aside the decree qua him. even without condoning the delay the learned Tribunal on 24.05.2013 stayed the recovery. It appears that the objections raised by the claimants and the insurance company were not considered by the Tribunal while allowing the application to set aside the decree..

17. With this prelude we decide the lis between the parties and the question of law namely whether the tribunal could due to the prolong litigation re decide compensation already awarded or it was to confine itself to the objection raised by the owner namely that insurance company was to satisfy the decree.

18. The Tribunal which decided the matter in the year 2010 had framed the following five issues and answered the same. The subsequent tribunal decided these issues but gave different reasons

"(१) क्या दिनांक 22-02-2005 को समय ७:४५ बजे प्रातः याची सतीश चंद शर्मा जब अपनी मोटरसाइकिल संख्या UP14P5863 हीरो हौंडा से अपने कार्यालय उत्तर प्रदेश राज्य औद्योगिक विकास निगम ग़ज़िआबाद जा रहा था तो पटेलनगर तिराहे पर पटेल नगर की ओर से आ रही बस सं० DL1P6567 जिसका चालक वाहन को तेजी व लापरवाही से चला रहा था, ने उसकी मोटरसाइकिल में सामने से बायीं तरफ टक्कर मार दी जिसके कारन याची गंभीर रूप से घायल हो गया?

(२) क्या दुर्घटना के समय प्रश्नगत वाहन DL1P6567 विपक्षी संख्या - २ के यहां बीमित नहीं था ? यदि हाँ तो प्रभाव ?

(३) क्या दुर्घटना के समय दुर्घटना से ग्रस्त वाहन संख्या DL1P6567 के चालक के पास वैध एवं प्रभावी लाइसेंस नहीं था? यदि हाँ तो प्रभाव ?

(४) क्या दुर्घटना के समय दुर्घटना से ग्रस्त वाहन संख्या DL1P6567 बस चलाने की वैध परमिट नहीं था ? यदि हाँ तो प्रभाव ?

(५) क्या याची प्रतिकर पाने का अधिकार है यदि हाँ तो कितना व किस पक्ष से?"

19. The Issue No.1 as as can be seen related to the negligence and who was negligent? Whether the driver of the motorcycle No. U.P. 14 P 5863 who was driving Hero Honda was negligent or the driver of the Bus No. DL IP 6567 was negligent? The Tribunal while deciding this lis vide award dated 27.9.2010 held in favour of the claimant but while deciding this issue afresh in the year 2018, it went on to hold that the death was due to dialysis. This finding cannot withstand the judicial scrutiny as it was not within the purview of the tribunal to decide how the claimant died while deciding issue relating to negligence and was beyond the purview of the said issue as the wordings suggest the said observations were unwarranted. However, the final finding is that accident occurred because of rash and negligent driving of the driver of the offending vehicle and no negligence was attributed to claimant)deceased).

20. As far as the Issues No. 2, 3 and 4 are concerned, the Tribunal returned the finding in favour of the claimants and owner and held that the Insurance Company would be liable as the documents subsequently filed by owner proved that there was no breach of policy conditions. The Tribunal while re deciding the case ventured and also to decide Issue No.5 also afresh and decided all other issues afresh and granted compensation to the tune of Rs. 2,02,967/-only with 7%, rate of interest from the date of filing of the claim petition till realisation against owner and insurance company jointly and severely.

21 . This takes us to the crux of the matter, namely whether the tribunal had power to re decide compensation awardable to the claimant who passed away before the decree was recalled or set aside.

22. The learned counsel for the appellant heavily relied on decisions cited herein below so as to contend that the lis even after allowing the application under Order 19 Rule 13 of C.P.C. was between the owner and the Insurance Company . The claimant and thereafter his heirs could not have been put to disadvantage due to efflux of time .It is further submitted that the owner was agitated only qua the party who should satisfy the decree as policy conditions of insurance was not breached and the owner had satisfied the tribunal as early as 2013 when stay was granted against implementation of recovery warrants that insurance company should be saddled with liability. It is further submitted that the reasonings given by the tribunal to reduce the compensation payable is also based on wrong interpretation of the judgments relied as it was proved that deceased died after the award and the subsequent tribunal could not come to the finding that documents were not proved. The decisions relied by the appellants are as follows:-

(1). Sanjiv Mishra Vs. Ramashcharya Verma and others, 2010 (4) T.A.C. 113 (All.);

(2). Madhuben Maheshbhai Patel and Ors Vs. Joseph Francis Mewan & 1 Anr, 2014 LawSuit  (Guj) 2214;     and
 
(3). Samarjeet Singh Vs. Khursheed Khan and others, 2020 (12) ADJ 168. 
 

23. It is submitted by the learned counsel for the appellants that decision rendered in the case of Sanjiv Mishra (supra), Division Bench of this Court has decided two appeals namely one filed by the claimants and other filed by the Insurance Company The appeal of the Insurance Company was dismissed. The order of the Tribunal regarding the compensation was upheld and modified. The factual aspect about injuries and the-compensation payable was considered IT is further submitted that in the decision titled Madhuben Maheshbhai Patel and Ors (supra) is pressed into service as the Division Bench of the Gujarat High Court decided the fact whether subsequent death of injured-claimant would abate the cause of action or right of legal representative would survive and to what compensation they would be entitled. Lastly it is submitted that the entire exercise is bad and against the object of the Act for which learned counsel relies on the decision in Samarjeet Singh(supra). It is further submitted on behalf of the claimants that the deceased passed away because of the after effect of the accident and the cause of death was also attributable to the injuries caused and therefore the finding of fact by the tribunal that the claimant died solely due to kidney failure is bad in eye of law and is based on misreading of the evidence of treating doctors witness no 3 and 4 who have orally deposed and proved medical bills and certificates produced prior to 2010 and later on . Learned counsel for the appellants has submitted that on the basis of the ratio of the judgements relied the claimants who are heirs and legal representatives of the original claimant are entitled to the loss to the estate which would include personal expenses incurred on the treatment and other claims related to the loss to the estate.

24 Per contra, the learned counsel for the insurance company while supporting the judgment of the Tribunal whose judgment is impugned herein relied on decision of Supreme Court in Vijay Singh Vs. Shanti Devi and others, AIR 2017 SC 5672 and has contended that once an ex-parte decree has been set aside, the matter had to be decided afresh.

25. It would be profitable to reproduce paragraphs 9 to 12 of the decision in Sanjiv Mishra (supra):-

"According to us, argument which has been made by the learned Counsel appears to be fallacious. Whether the law is codified or not, is not the subject matter nor the situation is contemplated in the Indian law. Therefore, requirement of the evidence is necessary to come to a conclusion by the Court whether the subsequent injury is independent or consequential to the accident. If it is independent, claim has to be refused. But if it is consequential due to loss of any of his usual skill, which was lost due to accident, Insurance Company cannot shirk the liability.

So far as the total claim is concerned, though this seems to be more than Rs.10 lacs (ten lacs), but the medical expenses is Rs.7,69,296/- (Seven lacs sixty nine thousand two hundred ninety six). Therefore, the claimant only got the compensation of Rs.3,06,000/- (Three lacs six thousand). The accident is of the year 2002. The original order of the Tribunal is of the year 2006. Now it is the year 2010. By the passage of time, much more expenditure might have been incurred which cannot be part and parcel of the claim. Therefore, taking into the totality of the facts, we cannot refuse any compensation on the basis of the order, passed by the Tribunal. Hence, we uphold the order of the Tribunal.

Learned counsel for the appellant-Insurance Company has made his submission with regard to the rate of interest which according to them ought to be at the rate of 6%. We are of the view that the Tribunal has passed the order carrying on the interest @ 6% but when this Court has passed the order in the earlier occasion directed to deposit the entire sum within 60 days, but the Insurance Company instead of depositing the same, only by making an application for recalling the order dated 18.11.2009, they themselves become silent, which does not favour to get reduced rate of interest. Making a recall application itself cannot operate as an order of stay of the order dated 18.11.2009.

Therefore, at this stage, if we grant any relaxation for payment of accruing interest @ 9%, that will be indulgence to the Insurance Company. In further, the interest at the rate of 9%, according to us, now is usual rate of banking interest, therefore, it cannot be said to be excessive. Hence the appeal of the Insurance Company is dismissed on merits."             (emphasis supplied). 
 
 The High Court of Gujarat in case titled Madhuben (supra) held:-
 

"Whether the view taken by the learned Single Judges of this Court in the decisions referred to above as well as decision of the Division Bench in the case of Surpal Singh L. Gohil v. R. M. Savalia (supra), lay down the correct proposition of law regarding applicability of Section 306 of the Succession Act to a claim -application under Section 166 of the MV Act where the claim for compensation is filed for the personal injuries caused to the claimant and during the pendency of the petition, he died a natural death."

26. After a detailed discussion, the Division Bench in case referred to it in Madhuben (supra) has answered the reference holding that claim would be payable to legal heirs where claimant dies as follows:-

"....we are of the opinion that maxim "actio personalis moritur cum persona" on which section 306 of the Succession Act is based cannot have an applicability in all actions even in an case of personal injuries where damages flows from the head or under the head of loss to the estate. Therefore, even after the death of the injured claimant, claim petition does not abate and right to sue survive to his heirs and legal representatives in so far as loss to the estate is concerned, which would include personal expenses incurred on the treatment and other claim related to loss to the estate. Under the circumstances, the issue referred to the Division Bench is answered accordingly....."

(emphasis supplied)

27. It is an admitted position of fact that the petitioner survived for a period of eight years after the accident. The petition was taken up for hearing during that period and award was passed. The position as held by High Court of Gujarat in light of the decisions reported in 1991[1] GLR 352 in the case of Jenabai Wd/O Abdul Karim Musa Vs. Gujarat State Road Transport Corporation, Ahmedabad, the heirs would be entitled to compensation. It would be necessary to note the fact that the deceased at the time of filing of the petition and on date of decision namely 27.9.2010 was alive. The decisions on which reliance can be placed so as to come to the finding as to entitlement and amount admissible would have been decided in case of Shanti Bai and others v. Charansingh Singh and others 1998 ACJ 848 and judgement in case of Saruyaben Harisinghbhai Bilwal v/s. Ataullakhan Mehtabkhan Lalkhan Pathan reported in 2001 [3] G.L.R. 2029. The fact that whether his heirs would be entitled to dependency benefit or the claimant would be entitled to the amount of compensation on the basis of injury sustained in the accident will have to decided by this court. The facts go to show that the claimant was under the constant treatment of doctors till the claimant survived therefore, it can safely be held that the accident caused lot of trauma both to the claimant as well his heirs. There is nexus between the death of the deceased and accidental injury. There is sufficient evidence to the effect that death of the deceased was due to development which took place due to resultant multiple injuries caused by the accident which would show that injuries were the root cause of the death. Therefore, heirs are entitled to compensation. As per oral testimony of the original claimant who was alive and there after the substituted heirs of the deceased namely the original claimant, who passed away after three years of the award but he suffered till end of his life because of this accident and incidental diseases. Reliance on the decision titled Surpal Singh Ladhubha Gohil Versus Raliyatbahen Mohanbhai Savlia in Letters Patent Appeal No. 83 of 2007 ; in First Appeal No. 301 of 1990 decided on December 24, 2008 where the court considered provisions of Section 166, of the Act, read with Order 22 Rule 1 of C.P.C. while considering the maxim "actio personalis moritur cum persona" and its applicability, and, injuries sustained by original claimant. The death of original claimant during pendency of claim petition his legal heirs being brought on record and where the Tribunal held that claimants would not be entitled to compensation since they have no right to continue the proceedings on the death of original claimant, since action for personal injury abates with the death of original claimant. The question whether maxim "actio personalis moritur cum persona" namely that personal right of action abates with the death of the person, can be imported to a social welfare legislation so as to deny the benefits to legal heirs of a deceased claimant, to the advantage of a wrong doer the High Court held that strict application of maxim "actio personlis mortiur cum persona" cannot be imported to defeat the purpose and object of a social welfare legislation like Motor Vehicles Act. Once the status of claimants as legal heirs or legal representatives is conceded and acknowledged, to deny benefit of compensation to them on the ground that injury was personal to the claimant, it will be giving a premium to the wrong doer and it would defeat the very purpose and object of beneficial piece legislation. The question whether injury was personal or otherwise is of no significance so far as wrong doer is concerned and he is obliged to make good the loss sustained by injured, even after death of injured, claim petition does not abate and right to sue survives to his heirs and legal representatives.

28. The decision cited by learned counsel for insurance company in Vijay Singh( supra) will not apply at the out set as it was in execution petition and both the appeals against the ex-parte decree was filed . The execution petition was filed meanwhile and the appellant took the possession. The application of the defendant for setting aside ex-parte decree was allowed throughout which is not the case in our case . We are to consider beneficial peace of legislation where the Tribunal was not even asked to reconsider the question of quantum and interest

29. It can be safely culled out from the record that the main purpose for filing the application under Order 9 Rule 13 C.P.C. by the owner was to see that the liability is mulcted on the Insurance Company and not on them. The decree could have been set aside in part namely qua issue of liability as it was a award which could be set aside in part there was definitely severable decree. The provision of Order 9 Rule 13 of Code of Civil Procedure, 1908 (referred as 'C.P.C.') reads as follows:-

"Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.]

[Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]."

30. In our case Order 9 Rule 13 C.P.C. could not have been made applicable by setting aside the entire decree instead partial modification of decree even in execution could have been resorted to which would have served the purpose of all the litigating parties. Even if during the execution, proceedings it was brought to the notice of the executing court that the vehicle was insured, the liability could have been fastened on the contesting insurance company with whom the vehicle was insured. We may hold that the documentary evidence,which was placed and that part could have be ordered as expeditiously as possible, may on the first hearing before the Tribunal by directing owner to produce all the documents which were subsequently produced,these facts showed that there were no breach of policy conditions and that part of the finding namely Issue Nos. 2 and 3 could have been severed, reviewed and or Order 9 Rule 13 C.P.C. could not have been made fully applicable. Thus, the judgment under challenge is erroneous. Fresh finding of quantum could not have been given on the same set of evidence recorded in the matter .

31. The order of attachment could have been passed, unfortunately, the Tribunal showed over leniency to the judgment debtor namely the owner and granted indulgence. The Tribunal could have decided the issue regarding the liability only afresh and should have decided what is known as just compensation. The judgment, therefore, suffers from vice of non-application of mind. The basic principles of adjudication of claim petition were absent in both the decisions.

32. In this view of the matter, let us see had the decree passed on 27.09.2010 been executed what would have been the position. In the event the decree would have been executed, of course, the claimants would have got the benefit of the decretal amount during the life-time of the original claimant who breathed his last in 2013. Had an illegal stay would not have been granted, what would have been the position. The Tribunal instead of granting stay could have directed the Insurance Company to verify the documents and deposited the amount as per the provisions of the Motor Vehicles Act, 1988 more particularly Section 169 read with Section 170 and further Section 174 of the Act.

33. It is settled position of law that the award of the Claims Tribunal shall be paid by owner or driver of the vehicle in the accident and they would be indemnified by insurer or by all or any of them, as the case may be. Thus, we venture to decide the quantum as the claimant was alive when the first decree was passed. However, he has subsequently passed away and therefore, as far as the enhancement is concerned, we would be guided by the provisions of law and the Section 173 of the Motor Vehicles Act which grants statutory right of appeal, will have to be looked into. The powers of the Appellate Court will have to be exercised so as to do justice. It is clear that on the death of the injured pending appeal, the claim will not be liable to be dismissed. The claim can survive to the legal representatives under the possible heads such as medical expenses, loss of income, loss to the estate of the deceased. The facts in our case are slightly different the reason being that in our case after the decree was passed and after the execution proceeding started, the claimant died after three years namely during the period when the application under Order 9 Rule 13 C.P.C. was pending. As per the practice and procedure the reliability of the witnesses was already accepted in the earlier award which could not have been re-decided

34. The decision in the case of Samarjeet Singh (supra) is though of single judge deciding appeal where similar situation had arisen except the fact of death of claimant. The claimant had preferred appeal against the judgment and award dated 28.5.2019 passed by Motor Accident Claims Tribunal, Kanpur Nagar re-deciding the matter and reducing the compensation from Rs. 3,79,220/- to Rs. 1,19606/- with interest at the rate of 7 per cent from the date of judgment.

35. The facts are similar in the case on hand. The Tribunal re-decided the entire matter on an application moved by the owner of the offending vehicle. Vide judgment and order dated 23rd of November, 2020, this Court has held thus:-

"31. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount.

32. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case."

36. The issue which arises before us is whether a subsequent Tribunal could partially non-suit the claimant on the same set of evidence except the fact that the heirs were joined as claimants without leading fresh evidence and could have completely ignored the findings recorded by the Tribunal of competent jurisdiction? No doubt, the Tribunal will have all the powers of a civil court which is meant for doing complete justice. The question which arises is had the amount been deposited by the judgment debtor, what would have been the situation? The Tribunal committed a mistake rather irregularity by setting aside the award and decree in totality under Order 9 Rule 13 C.P.C. after the death of the original claimant without impleading the legal heirs. The Tribunal further committed an error which is apparent on the face of record by re-deciding the compensation. The only new circumstances were death of the injured claimant and production of documents so as to prove that the vehicle was insured and there was no breach of policy condition.

37. The awards passed by of the Claims Tribunal must be in conformity with the provisions of Section 166 read with Section 169 and 170 of the Act, which reads as follows:-

"166. Application for compensation.-- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made--

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3)                          *     *     *      * 
 
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act."
 
"168. Award of the Claims Tribunal.--
 
(1) ..................................................
 
(2) ..................................................
 
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
 
"Section - 169.  Procedures And Powers Of Claim Tribunals.-
 
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
 
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
 
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.
 
170. Impleading insurer in certain cases.-- Where in the course of any inquiry, the Claims Tribunal is satisfied that --- 
 
(a) there is collusion between the person making the claim and the person against whom the claim is made, or 
 

(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceedings and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made."

38. Reference to and reliance on the decision of the Samarjeet Singh's case (supra) will also go to show that the Tribunal has erred in exercising power under Order 9 Rule 13 of C.P.C. The decisions impugned are not in conformity with the object of the Act. The findings are perverse and do not satisfy the legislative intent of the Act. The claimants were under the impression that the lis was between the owner and the Insurance Company and had the owner deposited the entire amount which he was supposed to, he could have recovered the same from the Insurance Company; if he had proved that there was no breach of policy condition. The primary duty to satisfy the decree is on the driver and owner of the offending vehicle. The only basis of challenge was that the owner had all the documents and therefore, it was the liability of the Insurance Company to indemnify as per the Act. The Tribunal was only under an obligation to direct the payment to be made by the Insurance Company which could have done even in the execution proceedings as the provisions of the Code of Civil Procedure, 1908 were applicable to the Act. The provisions of part - II namely Sections 36 to 74 as well as Order 21 of C.P.C. relates to the payment of money under decree. The process for execution was also stayed without any order directing part compliance of the decree as required under the the provisions of Order 21 Rule 26 C.P.C and that the order staying the execution to the detrimental of the claimant could not have been passed ex parte frustrating the very provision of the Code and Act. The Tribunal acted in a very casual manner by not deciding the matter for a period of five years namely 2013 till 2018.

39. We now consider the question of compensation. The claimant had sustained injuries and the right to claim damages accrued in the year 2005 more particularly on 22.2.2005 the year of accident. The decision in the case of Raj Kumar Vs. Ajay Kumar and another, (2011) 1 SCC 343 will have to be considered on the facts of the present case also as in this case the injured was alive on date the first decision was rendered. Undoubtedly, the compensation in law is paid to restore the person, who has suffered damage or loss in the same position, if the tortuous act or the breach of contract had been committed. The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation. In case of motor accidents the Endeavour is to put the dependents/ claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is, therefore, required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. To put it simply-pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognizes that payment should also be made for non-pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life etc.

40. We would also take upon ourselves to refer to law laid down in Mithusinh Pannasinh Chauhan Versus Gujarat State Road Transport Corporation, 2015 (17) SCC 529; ICICI Lombard General Insurance Company Vs. M.D. Davasia & Anr.; and Lalan D. and Ors. Vs. The Oriental Insurance Company Ltd. (2014) 14 SCC 396; Kirti vs Oriental Insurance Company: 2021 (1) TAC 1 and two decades old decision of Gujarat High Court in Union of India Vs. A.S. Sharma,1993(1)GLH1044 In the case of Kirti (supra) the principle of assessment of compensation even for home maker has been narrated. We may even take guidance from the decision of the Apex Court in Anita Sharma Vs. New India Assurance Company Ltd. reported in (2021) 1 SCC 171 on the point of just compensation and also for the appreciation of pleadings and proof and the standard required for placing reliance on the evidence led both oral and documentary and lastly role of Tribunals in interpreting beneficial legislation. The principles and approach has been highlighted by the apex Court which this Court is bound to apply and mitigate the hardship of person wronged. We feel that the decree was severable and therefore the Tribunal should have set aside only that part of the decree which was challenged. The object and reasons of the said provision is to ensure that parties are not put to such hardship because of the ex part decree. As narrated herein above, the execution could have been decided considering the objection of the owner and that the decree should have been set aside only qua that portion as the remedy was for not making payment though he was the primary debtor but there was a contract of indemnity with the Insurance Company. The relevant consideration was this factor and not the challenge to compensation. The provisions of Order 9 Rule 13 no doubt states that the entire decree be set aside but where the decree is joint and divisible, the whole decree need not be set aside is the view of the Division Bench of the Andhra Pradesh High Court. We feel that the illustration given in the Code of Civil Procedure, 11th Edn on page 1120 in (1960) 2 Andh WR 160 (162 (DB) and the logical and practical approach suggested for such matters would be to set aside that portion of the decree and award for which prayers are made as review is not maintainable and/or review of limited portion of the judgment is permissible. We hold that in future the mode to be adopted would be to set aside the decree qua the findings which are challenged and/or permit objection even in the execution filed by the claimant and/or the Insurance Company where they are given right to recovery from the owner and the owner can prove that there was no breach of policy condition but he was unfortunately not represented before the Tribunal properly and, therefore, we feel that instead of remanding the matter, we decide the lis so that the claimant who are without the fruits of litigation started by their father who later on succumbed to the vagaries of the injuries which though the Tribunal has felt that was not because of this injuries but because of his failure of his kidney. The Doctor has said that the trauma of this accident may have accelerated the problem of kidney. However, we do not delve further into that and propose to decide the lis under Section 173 of the Motor Vehicles Act.

41. In case on hand the injured had to be given a reasonable amount of compensation as there is permanent disablement resulting from the accident this is a finding of fact but both the adjudicating authorities declined to grant compensation as the original claimant was in government service and there was no loss of monetary benefit due to the accident as held by the tribunal This denial is bad as held by High court of Gujarat in the case titled Union of India Vs. A. S. Sharma (supra), the High Court of Gujarat has held that a person has to be compensated for the torturous act and it is this act for which the tortfeasor cannot be benefitted. In our case also the deceased died on 2.8.2013 i.e. three years after the first decree and award were passed in his favour. The finding of the Tribunal in both the awards that as he was a salaried person and as his salary had increased, he was not entitled for loss to estate is bad.

42. The question whether the Tribunal could have revisited and re-decided the issue of compensation will also have to be looked into as this is an appeal under Section 173 of the Act and this Court is obliged to do what is known as complete justice. Whether the order allowing application under Order 9 Rule 13 of C.P.C. passed in the year 2016 was a nullity in the eyes of law as it was passed against a dead person.

43. The subsequent Tribunal even did not consider granting the amount which was already granted to him by the earlier Tribunal on the erroneous finding that the documentary evidence was not proved and that he had died out of natural death. Unfortunately, the Tribunal has mislead itself that it had to decide the issue of quantum also. The pleadings of the owner was not qua the compensation awarded but was qua indemnification and liability and hence, as narrated herein above, had the Tribunal taken a practical approach, it would not have disregarded the earlier medical bills. The injured was admitted in hospital on 25.2.2005 and was being treated, admittedly, up to year 2010, in such situation we have to take into account the period up to 29.7. 2010 when the decree was passed. Whether he was in the fourth stage of kidney problem could not have been evaluated by the learned Tribunal once the earlier Tribunal had held that he was being treated up to 2010. The bills which have already been considered could not have been re-evaluated by the Tribunal though there was no fresh evidence led. The tribunal had already decided on 27.09.2010 holding that the medical bills were admissible to the original claimant.

44. The Tribunal while considering objection in the execution petition, could have considered that the objections raised could be permitted to be raised as per the provisions of C.P.C. and also as per provisions of Section 170 of Act and mulcted the liability on the Insurance Company as per the provisions of the Act. A question arises as to whether the decision of the Tribunal act detrimental to the beneficiary of the beneficial legislation , namely, the claimant? These are the questions which will have to be answered as we could not find from the Commentary as to whether a decree already granted while claimant was alive, be reviewed on the application of the owner and the entire decree could be set aside and a fresh decision could be rendered. So as to do the complete justice,we will have to rely on the principle of granting just compensation and the law enunciated in Madhuben (supra) by the High Court of Gujarat by the Division Bench of High Court of Gujarat headed by His Lordship Justice M.R. Shah, J. (as He then was), the admitted position is that the injured-claimant had fractured both his legs. On 21.06.2005, he was readmitted and was operated. The accident occurred on 22.02.2005. The Tribunal exhibited all the documents being 81G to 289 G which were medical certificates which were proved after recording oral evidence of the claimant and his wife. The Tribunal in its judgment dated 27.09.2010 granted the medical expenses on the basis of these documents.

45. The question which arises is should we set aside the award as the order passed in 2016 was a nullity or decide the lis here so as to do complete justice as the record is before us and now except the legality of compensation has to be decided

46. The order in 2016 allowing application under Order 9 Rule 13 of C.P.C. against a dead person is nullity and is irregularity. We do not propose to remand the matter to the Tribunal as we would decide the lis here itself as 15 years have already elapsed and 9 years have elapsed after the death of the claimant as the Insurance Company has accepted their liability by not challenging the award of the Tribunal. The legal heirs would have spent the amount for medical expenses of their father during his life time. The facts would demonstrate that for no fault of the appellants herein, the Tribunal who could not have refused to grant compensation and practically non suited, the appellants qua injuries and disability incurred due to the vehicular accident The subsequent award shows that the Tribunal took a very hyper technical stand in not granting any compensation as it was of the view that the claimants had failed to prove medical certificates and that no amount for future loss could be granted though the treating doctor was examined on oath and disbelieved the medical certificate produced and though not objected to be read in evidence by any of the parties. The same have been discarded.

47. The injuries which were caused were in the realm of tortuous act. The injured had suffered 40 per cent disability. His pay package was Rs. 11,500/- at the time of the accident. The Tribunal at the first instance while deciding the quantum did not grant what can be said to be the compensation for the tortuous act just on the ground that the injured was a government servant and his pay package had increased.

48. It has been time and again held that trappings of civil and criminal proceedings cannot be applied in a very strict manner. I am fortified in my view by the decisions in Sunita and others Vs. Rajasthan State Road Transport Corporation and Another, 2019 LawSuit (SC)190, Mangla Ram Vs. Oriental Insurance Company Limited and Others, 2018 (5) SCC 656 and Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186. The compensation is ordered to be reassessed in view of the submission made by learned counsel for the appellant and in view of and in view of the decision in F.A.F.O. No.2389 of 2016 (National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016. On the basis of the recent judgments laying principles for ascertaining compensation. The right to compensation would accrue on the date the accident took place, namely, 22.02.2005. The law enunciated in Kirti Vs. the Oriental Insurance Company Limited (supra) that the compensation awarded by a court ought to be just, reasonable and must undoubtedly guided by principles of fairness, equity and good conscious. In our case both the Tribunals had not granted what can be said to be just compensation.

49. We take aid of the observations and ratio laid in Erudhayapriya Vs State Express Transport Corp. Ltd reported in 2020 (2) TAC1.We have perused all the medical reports of the claimant up to 2010 showing the pain of several times being hospitalised for corrective surgery apart from his kidney problem which he developed at the of age of 38 years . The trauma and his chances of promotion were hampered we do not grant the compensation on multiplier method as functional loss is not that much as his job was on but there was permanent disablement as per doctors certificate which has been considered by tribunal but compensation denied . Hence, the findings of the Tribunal in its subsequent judgment being perverse are set aside as far it relates to compensation awarded which is computed in a manner not approved by Apex Court in Anita Sharma (supra).

50. The compensation now to be paid would be determined on the basis of the age of the injured which was 38 years at the time of the accident, he suffered 40 per cent permanent disability and was in permanent government service earning a sum of Rs. 11500/- per month. His medical expenses as granted by the Tribunal in its order dated 29.07.2010 is maintained entirely as all the documents are proved, therefore, the finding to the contrary in the subsequent judgment impugned in this appeal dated 4.5.2018 is bad in the eyes of law and against settled legal principles.

51. The additional amount of five months' salary as actual loss to the estate granted by the Tribunal is also maintained. This takes us to further amount which would be payable to the claimants. We award a lump-sum amount of two lacs of rupees in addition to the compensation as loss to estate and mental harassment to the legal heirs for protracted litigation as they were not supposed to be brought even on record as the lis now was only between owner and the Insurance Company. But non appearing of the owner and a wrong stand taken by the Insurance Company that the vehicle was not insured on 22.02.2005 became detrimental.

52. In view of the above discussion, the amount payable would be Rs.20,16,500 + 63,250 +5,000 being Rs20,84750/ as awarded by the tribunal in its award dated 27.9.2010.The original claimant has passed away hence the family members can be awarded a further sum of two lacs and fifty thousand for loss to estate. Rs. 50000/- for mental trauma and incidental expenses for looking after the deceased after he suffered the injuries. We award a lump sum amount aggregating to total compensation for a sum of Rs.24,00,000/- .(twenty four lacs )

53. The respondents shall jointly and severely pay a sum of Rs. 24,00,000/-(Twenty Four lacs) which is much on the lower side than what would be admissible but as the original claimant has passed away we deem it fit to grant this amount comprising of medical expenses plus actual loss of salary as computed by tribunal in award dated 29.7.2010 and additional amount under other heads.

54. The insurance company having accepted its liability by not challenging the finding of the tribunal deciding that the insurance company is liable under contract of insurance shall deposit the awarded amount after deducting the amount if any deposited pursuant to the impugned award and decree within a period of two months from the date of this order. The insurance company has not challenged its liability nor before this court it is proved or demonstrated that the owner has violated any policy condition. The insurance company has been rightly saddled with liability by the tribunal which finding we affirm.

55. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd.Vs. Mannat Johat and Others, 2019 (2) T.A.C.705 (S.C.) wherein the Apex Court has held as under:

"13.The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5%p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

56. The amount shall carry interest also at the rate of 7.5 per annum from the date of the filing of the claim petition till the date of actual deposit..

57. Since the injured-claimant was in government service, T.D.S.if has to be deducted on pecuniary damages will be deducted as per statutory rules.

58. The amount once deposited be not kept in fixed deposit as the appellants must have borne the medical expenses which we are reimbursing to them after 11 years. Reference to decision in A.V. Padma and others Vs. R. Venugopala and others(2012) 3 SCC 378 can be made where principles for disbursement are given. On monies being deposited apportionment be made as directed by the tribunal.

59. We deem it fit to rely on the Judgment of the Apex Court in the case of A.V. Padma and others Vs. R. Venugopal, 2012 (3) SCC 378 wherein the Apex Court has considered the Judgment rendered in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas and others, AIR 1994 SC 1631. Paras 5 and 6 of A.V. Padma's Judgment read as under:-

"5. 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. 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. 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.

6. In this case, the victim of the accident died on 21.7.1993. The award was passed by the Tribunal on 15.2.2002. The amount of compensation was enhanced by the High Court on 6.7.2006. Neither the Tribunal in its award nor the High Court in its order enhancing compensation had directed to invest the amount of compensation in long term fixed deposit. The Insurance Company deposited the compensation amount in the Tribunal on 7.1.2008. In the application filed by the appellants on 19.6.2008 seeking withdrawal of the amount without insisting on investment of any portion of the amount in long term deposit, it was specifically stated that the first appellant is an educated lady who retired as a Superintendent of the Karnataka Road Transport Corporation, Bangalore. It was also stated that the second appellant Poornachandrika is a M.Sc. degree holder and the third appellant Shalini was holding Master Degree both in Commerce and in Philosophy. It was stated that they were well versed in managing their lives and finances. The first appellant was already aged 71 years and her health was not very good. She required money for maintenance and also to put up construction on the existing house to provide dwelling house for her second daughter who was a co-owner along with her. The second daughter was stated to be residing in a rented house paying exorbitant rent which she could not afford in view of the spiralling costs. It was further stated in the application that the first appellant was obliged to provide a shelter to the first daughter Poornachandrika. It was pointed out that if the money was locked up in a nationalised bank, only the bank would be benefited by the deposit as they give a paltry interest which could not be equated to the costs of materials which were ever increasing. It was further stated that the delay in payment of compensation amount exposed the appellants to serious prejudice and economic ruin. Along with the application, the second and third appellants had filed separate affidavits supporting the prayer in the application and stating that they had no objection to the amount being paid to the first appellant.

7. While rejecting the application of the appellants, the Tribunal did not consider any of the above-mentioned aspects mentioned in the application. Unfortunately, the High Court lost sight of the said aspects and failed to properly consider whether, in the facts and circumstances of the case, there was any need for keeping the compensation amount in long term fixed deposit. "

60. Thus, it goes without saying that, in our case, the oral prayer of learned counsel for the claimants to be considered as the guidelines in A.V. Padma and others (supra) was in the larger interest of the claimants. Rigid stand should now be given way. People even rustic villagers' have bank account which has to be compulsorily linked with Aadhar, therefore, what is the purpose of keeping money in fixed deposits in banks where a person, who has suffered injuries or has lost his kith and kin, is not able to see the colour of compensation. We feel that time is now ripe for setting fresh guidelines as far as the disbursements are concerned. The guidelines in Susamma Thomas (supra), which are being blindly followed, cause more trouble these days to the claimants as the Tribunals are overburdened with the matters for each time if they require some money, they have to move the Tribunal where matters would remain pending and the Tribunal on its free will, as if money belonged to them, would reject the applications for disbursements, which is happening in most of the cases. The parties for their money have to come to court more particularly up to High Court, which is a reason for our pain. Reliance can be placed on Susamma Thomas (supra) in matters where claimants prove and show that they can take care of their money. In our view, the Tribunal may release the money with certain stipulations and that guidelines have to be followed but not rigidly followed as precedents. Recently, the Jammu and Kashmir High Court was faced with similar situation in the case of Zeemal Bano and others Vs. Insurance Company, 2020 TAC (2) 118.

61. In view of the above, the appeal is partly allowed. Award and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondents shall jointly and severally liable to pay compensation and deposit additional amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. It is further directed that on deposit of the amount, the Tribunal shall disburse the entire amount by way of account payee cheque or by way of RTGS to the account of the appellants within 12 weeks from the date the amounts are deposited by the respondents.

62. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein afore mentioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case. A copy of this Judgment be circulated by the learned Registrar General to the Motor Accident Claims Tribunals in the State of Uttar Pradesh for guidance after seeking approval of the Hon'ble the Chief Justice.

63. The record and proceeding be sent back to the Tribunal.

64. We are thankful to both the learned advocates for assisting us.

Order Date :- 26.3.2021 (uploaded on 19.4.2021)

LBY