Manish S/O Madhukar Gajbhiye And 2 ... vs The Oriental Insurance Co.Ltd. ...
2016 Latest Caselaw 5174 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                 
                            NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 4147 OF 2015.




                                                                   
    1. Manish Madhukar Gajbhiye, 
         aged about 27 years, Occupation
         Student,




                                                                  
    2. Umesh Madhukar Gajbhiye,
         aged about 26 years, Occupation
         Student,

    3. Nikhil Madhukar Gajbhiye,




                                               
         aged about 24 years, Occupation
         Student.            
         All residents of Plot No.11, Sai 
         Nagar, Near Hanuman Mandir,
                            
         Amravati Road, Nagpur.                                       ... PETITIONERS

                                               VERSUS

    1. The Oriental Insurance Co. Ltd.,
      

         D.O. 2, Hindustan Colony,
         Wardha Road, Nagpur.
   



    2. S. Sucha Singh s/o Atma Singh,
         aged about Major, Occupation
         Owner, R/o. Section II, Khursipur
         Zone 2, Bhilai, C/o. Chacha 





         Transport Co., T.P. Nagar, Bhilai,
         District Durg, Chhatisgarh State.                          ... RESPONDENTS

                                        ....
    Ms. Monali Pathade, Advocate for the petitioners.
    Smt. M.S. Naik, Advocate for the respondent No.1.





    None for respondent No.2.
                                        ....


                                            CORAM : PRASANNA B.VARALE, J.

DATED : 02ND SEPTEMBER, 2016.

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    ORAL JUDGMENT : 




                                                                                                   
                                                                     
                    Rule.     Rule   made   returnable   forthwith.     Heard   finally   by 

consent of the learned Counsel appearing on behalf of the respective

parties. Smt. M.S. Naik, the learned Counsel waives notice on behalf of

respondent No.1. None for respondent No.2 though he is duly served.

2. By way of present petition, the petitioners are challenging the

order dated 19.11.2014 passed by the learned Member, Motor Accident

Claims Tribunal No.1, Nagpur. Few facts are necessary to be referred to for

better appreciation of the limited controversy involved in the present

petition.

3. The petitioner Nos.1 to 3 are the legal heirs of couple Smt.

Kamal and Madhukar Gajbhiye. Due to the unfortunate accident on

09.07.1999, Kamal and Madhukar lost their lives. The claim petitions were

filed before the Motor Accident Claims Tribunal seeking compensation on

account of death of Kamal and Madhukar. The learned MACT awarded

compensation of Rs.7,52,600/- on account of death of Madhukar and

Rs.1,85,000/- on account of death of Kamal. Being aggrieved by the

judgment and order passed by the learned MACT, the Insurance Company

presented First Appeal Nos.1664 of 2008 and 1665 of 2008 in this Court.

This Court decided both the first appeals by common judgment and order

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dated 28.06.2012. Perusal of the judgment and order of this Court shows

that the Insurance Company had deposited an amount of Rs. 11,77,855/-

against the award of the Claims Tribunal and during the pendency of the

appeals, prayer for withdrawal was made before this Court at the instance

of the claimants and amount to the tune of Rs.1,85,000/- in First Appeal

No. 1664 of 2008 was permitted to be withdrawn. This Court, finding no

favour with the appellant/insurance company, disposed of the appeals

with a direction to the Claims Tribunal to direct the appellant to deposit

the amount and later on recover the same from the original owner of the

vehicle. This Court further observed that before the amount is released,

the executing Court as and when execution proceedings are filed would be

required to take steps as laid down in the case of Pramod Kumar

Agrawal .v. Mushtari Begum and others. The steps enumerated in the said

judgment were reproduced in para 8 of the judgment in the decided first

appeals namely First Appeal Nos.1664 of 2008 and 1665 of 2008.

4. It is the submission of Ms. Pathade, the learned Counsel for the

petitioners that the petitioners presented two applications in respect of

claim petitions for withdrawal of the amount. She further submits that the

petitioners were minors at the time of the accident suffered by their

parents and during the pendency of the proceedings, the petitioners have

attained the majority and the petitioners are prosecuting their studies. It is

further submitted that as the applicants/petitioners were required to pay

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the education fees, tuition fees, expenses for the books, study material etc.,

the loan was obtained to meet the present needs. Ms. Pathade, the learned

Counsel for the petitioners submits that as there was a demand for

repayment of loan and also the petitioners were requiring finances for

their academic career, the applications were submitted for withdrawal of

the amount. She further submits that though the notices were issued by

the Tribunal to the owner of the vehicle, the owner of the vehicle chose not

to appear before the Tribunal. The learned Counsel also submits that even

this Court issued notices to the respondents and respondent No.2 who is

the owner of the vehicle, in spite of notices were served on them by

substituted service, namely by paper publication, by absence, is not

contesting the petition. Ms. Pathade, the learned Counsel submits that the

learned MACT though referred to the judgment and order of this Court and

more particularly the decision of the apex Court in the case of Pramod

Kumar Agrawal .v. Mushtari Begum and others, by adopting hyper

technical approach, rejected the application.

5. Ms. Pathade, the learned Counsel for the petitioners submits

that the learned Tribunal without considering the facts, namely the

petitioners who are in dire need of the finances and for no fault of the

petitioner and as the owner of the vehicle failed to contest the application

in spite of notice issued to him, by observing that unless there is a

compliance of the order as to security, declined to release the payment as

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prayed for by the petitioners. She further submits that the steps as

enumerated in the matter of the judgment of the apex Court in the case of

Pramod Kumar Agrawal .v. Mushtari Begum and others (reported in III

(2005) ACC 357 (SC)), in no way put the claims to prejudice their interest.

The learned Counsel for the petitioners, in support of her submission,

places reliance on the judgments of the Allahabad High Court in the cases

of ICICI Lombard General Insurance Co. Ltd. .v. Sirajuddin (dead) and

others (reported in I (2014) ACC, 958); Pitamber .v. MACT/ADJ, Fatehpur,

Court No.4 and others (reported in II (2014) ACC, 61); and Smt. Bhuri

Riyazuddin and others .v. Smt. Shobha Rani Kashinath Gupta and the

New India Insurance Company Ltd., through Branch.

6. Smt. Naik, the learned Counsel for respondent No.1/Insurance

Company submits that the insurance company had deposited the amount

in this Court while presenting the appeals and subsequently the amount

was transferred to the Claims Tribunal.

7. With the assistance of the learned Counsel appearing on behalf

of the respective parties, I have gone through the material placed on

record. I find considerable merit in the submission of the learned Counsel

for the petitioners. Perusal of the order impugned in the petition shows

that the application presented by the petitioners seeking withdrawal of the

amount is rejected even though the Claims Tribunal refers to the judgment

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and order of this Court in First Appeal Nos.1664 of 2008 and 1665 of 2008

as well refers para 8 of the judgment of this Court. There is merit in the

submission of the learned Counsel for the petitioners that failure of the

owner of the vehicle to contest the application before the Tribunal may not

be the ground to reject the application. Ms. Pathade, the learned Counsel

for the petitioners was also justified in submitting that the steps as

enumerated by the apex Court in the case of Pramod Kumar Agrawal .v.

Mushtari Begum and others (cited supra) are directory in nature for the

insurance company to recover the amount from the owner of the vehicle.

It would be useful to refer to the judgments relied upon by the

learned Counsel for the petitioners. In the matter of Pitamber .v. MACT,

Fatehpur (cited supra), some what identical facts were involved. The

claimants filed application for withdrawal of the amount. The claim

petition was allowed and the insurance company was given right to

recover the amount from the owner of the vehicle. On the basis of the

award, the insurance company deposited the entire decreetal amount.

The claimants moved an application for withdrawal of the amount and the

same was rejected on the ground that the owner of the vehicle had not

provided security to the satisfaction of the Tribunal. The Allahabad High

Court, by referring to the apex Court judgment in the cases of Oriental

Insurance Co. Ltd. .v. Nanjappan and others (reported in AIR 2004 SC

1630); Smt. Sheela Devi and others .v. Additional District Judge, Court

No.4, Gorakhpur (reported in III (2008) ACC 622); Smt. Bhuri and

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others .v. Shobhrani and others (cited supra) and ICICI Lombard General

Insurance Company Ltd. .v. Sirajuddin and others (cited supra), observed

that sufficient protection was granted to the insurance company for

recovery of its amount and there was no reason for not releasing the

amount deposited by the insurance company in favour of the

claimants/petitioners. The Allahabad High Court then in the matter of

Smt. Bhuridevi .v. Smt. Shobha Rani and others (cited supra), observed

thus :

"4. In reply to the aforesaid, the learned Counsel for the oppowite-

party Insurance Co. relied upon the case law of Oriental Insurance Co. Ltd. .v. Nanjappan and Ors. MANU/SC/0122/ 2004 : AIR2004SC1630 and has tried to emphasise that in this

subsequent judgment, the Apex court after following the Baljit Kaur's case (supra) has issued some directions as to the mode

of recovery of the amount paid by the insurer and in that context it has been provided that before the release of the amount deposited before the court by the insurer, the court

shall issue notice to the owner of the vehicle/insured to furnish security of the amount and after this security having been furnished by the insured, the money could be disbursed and released in favour of the claimants.

5. From the aforesaid case law as referred to by the learned Counsel for the parties, it would be evident that in spite of the fact that the insurer is not made liable to compensate the claimants under the policy under Section 149 of the Motor

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Vehicles Act, still the liability of payment, under the law as

developed by the Apex Court in this context, has been assigned to the Insurance Co. At the same time the Insurance Co. has

also been given liberty to recover the said amount from the insured within the provisions of the Motor Vehicles Act itself and without taking the burden of filing a suit for that purpose.

This principle of law was initially propounded in Baljit Kaur's case (supra) and it has been followed in the aforesaid cases referred to by the parties concerned. But in the subsequent

cases more especially in Nanjappan's case (supra) it has also been observed that before releasing the amount under deposit

before the Court the insured/owner of the vehicle shall be issued a notice and he shall be required to furnish security for

the entire amount which the Insurance Co. will pay to the claimants. After that notice the court may direct the attachment of the offending vehicle as part of the security and

could also pass appropriate orders in accordance with law. In case of default it shall be open to the court to direct realization

of the amount from the insured/owner by disposal of security or from any other property or properties of the owner of the vehicle. Therefore, all these modes have been provided by the

Apex Court for the insurer to make recovery from the insured. But from all these directions as given by the Apex Court, the purport is that the court shall not undermine the interest of the claimants for whose welfare the Supreme Court has been

developing this law though all these cases even by interpreting otherwise the liability of the insurer within Section 149 of the Motor Vehicles Act. Thus, what is the crux of the matter in the present case is that the revisionists-claimants cannot be made to suffer even if the insured/owner of the vehicle does not furnish security or does not appear before the court in

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pursuance to the notice issued to him. The burden of

recovering the amount within the provisions of the Act itself has been placed upon the insurer in the aforesaid judgments

of the Apex Court. The claimants who have obtained the award in their favour have not been made to suffer through any observation made by the Supreme Court in these cases.

Thus, in the aforesaid view of the matter, what I feel is that it would be just and proper if the court below is directed to first take resort to the issuance of notice to the insured/ owner of

the vehicle and thereafter only the money under deposit before the court should be released in favour of the claimants."

8. In the present matter, as stated above, on the application

submitted by the petitioners for withdrawal of the amount, notices were

already issued to the respondent/owner of the vehicle. It was the

submission of the learned Counsel for the petitioners that the petitioners/

claimants have already taken steps and the respondent/owner of the

vehicle was avoiding the service, in such a situation, the claimants/

petitioners ought not to have been suffered to an additional burden of

taking further steps for service of the respondent/owner. Ms. Pathade, the

learned Counsel for the petitioners further submits that the intention of

the respondent to avoid the service of the claim petition is also reflected

from the fact that even this Court had issued the notice to the respondent/

owner of the vehicle on 02nd September, 2015 and though by substituted

service, the respondent/owner was served i.e. by issuing paper

publication, the respondent No.2/owner of the vehicle chose not to appear

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even before this Court.

9. There is merit in the submission of the learned Counsel for the

petitioners that if the respondent/owner is avoiding the service with an

intention and purpose is not attending the Claims Tribunal, the petitioners

for the willful act of the respondent/owner may not be subjected to

sufferance for indefinite period. She is also justified in submitting that the

provisions under the Motor Vehicles Act for awarding compensation to the

victims or the legal heirs of the victims are are beneficial provisions and for

the willful default of the respondent/owner, the beneficial object of the act

should not be frustrated.

10. Considering all these aspects, in my opinion, the learned

Counsel for the petitioners has made out a case. The order passed by the

Motor Accident Claims Tribunal impugned in the present petition is

unsustainable. The order passed by the Tribunal is quashed and set aside.

The applicants/petitioners are permitted to withdraw the amount

deposited in the Claims Tribunal under Claim Petition Nos. 902 of 1999

and 903 of 1999. Needless to state that by permission to withdraw the

amount in favour of the petitioners, the respondent No.1/ insurance

company is not prevented from recovering the amount from respondent

No.2 if it wishes to recover the same by way of necessary steps as directed

by the Apex Court in view of the judgments of the Apex Court in the cases

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of Pramod Kumar Agrawal .v. Mushtari Begum and others and Oriental

Insurance Co. Ltd. .v. Nanjappan and others (cited supra).

JUDGE

*rrg.

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