Bombay High Court
Divisional Manager, Future ... vs Nishant S/O Sureshkumar Seth And 2 ... on 26 April, 2021
Bench: S. M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL APPLICATION NO.798 OF 2021
IN
FIRST APPEAL NO.140 OF 2021
Divisional Manager, Future General India Insurance Co-Operative Ltd.
VS.
Nishant S/o Sureshkumar Seth and others
Office Notes, Office Court's or Judge's orders
Memoranda of Coram,
Appearances, court's
orders or directions and
Registrar's orders
Shri Amit M. Kukday, Advocate for the appellant.
Mrs. Uma Anil Bhattad, Advocate for respondent Nos. 1 and 2.
CORAM : S.M. MODAK, J.
DATE : 26.04.2021.
Heard Mrs. Uma Bhattad, the learned counsel for
the original claimants/ present respondent Nos.1 and 2 and
Shri Kukdey, the learned Counsel for the appellant Insurance
Company.
2. The claims Tribunal Nagpur as per the judgment
dated 03rd December, 2020 has quantified the compensation
at Rs.32,44,830/- along with other benefits. The Insurance
Company has deposited of Rs.51,73,558/- on 08th March,
2021.
3. The deceased Amit Seth alongwith his brother
Rahul Seth/ present respondent No.2 were travelling in a
Alto Car from Umrer to Nagpur. There was a head on
collusion in between Alto Car and a truck insured with
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Insurance Company. This position has been denied by the
Insurance Company. According to them, in fact, there was
no head on collusion, but in fact the Alto driver hit the truck
from back side. It is true that the Tribunal in Paragraph
No.26 of the impugned judgment has observed that
"It appears that front portion of the car colluded with back
portion of the offending vehicle". There is also contention
that the present respondent No.2/Rahul Seth, who was
present in the Alto Car, has not entered into the witness box.
Such findings are there in paragraph No.25 of the order and
Amit Seth filed a claim petition during his lifetime. He
succumbed to the injuries on 30th May, 2011. Madhu
continued the claim. She also expired and i.e. how present
respondent Nos.1 and 2 have come on record.
4. The contesting respondents claimed that they
have examined five witnesses to prove each and every
documents. It includes the expenses borne during
hospitalization, the income of the deceased and that is why
there is a prayer for withdrawal of at least 75 % amount.
5. At the same time, the amount of compensation
has to be determined on the basis of settled principles. I
think, the respondent Nos.1 and 2 can be permitted to
withdraw 50 %. At this juncture, I find some force in the
contention on behalf of the Insurance Company. Hence, I
pass the following order:
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ORDER
i) The Application is partly allowed.
ii) Nazir is directed to transfer the 50 % of
Rs.51,73,553/- alongwith accrued interest in the bank
accounts of the respondent Nos.1 and 2 on furnishing
bank details.
6. At this juncture, Smt. Uma Bhattad, the learned
counsel for the respondent Nos.1 and 2 insisted for at least
75% of the amount. She submitted that on hospitalization
more than 20 lakhs have been spent and since 2011 the
claimants have not received any amount except Rs.50,000/-.
She submitted that even handloan was taken. To counter this
submission, Shri Kukdey, the learned counsel invited my
attention to grant of hospitalization expenses of Orange City
Hospital and Asian Institute of Gastroenterology, Hydrabad.
According to him, an amount of Rs.9,72,959/- is granted
towards the expenses of both these hospitals. I also perused
the findings in paragraph No.35. Even though the insurance
company examined Ashish Ghadekar, company could not
prove the reimbursement of these bills through Max Bupa
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Insurance Company.
7. I have also seen issue no.3 about breach of policy
(not holding permit) Even though one witness is examined
by the Insurance Company, the issue was answered against
Insurance Company.
8. There is contention that on this background there
is possibility that apportionment in between the deceased
and Insurance Company as 20% to 80% is likely to change at
the time of disposal of the appeal.
9. Shri Kukdey, the learned counsel for the
appellant even submitted that once the R & P will be
received, this Court will be in a better position to go through
the record. In future also the respondents can claim more.
But I do not think that issue to be kept pending when the
matter is hotly argued.
10. It is true that the deceased survives for few
months and lot of expenses have been incurred on
hospitalization. Hence, I think that the respondents can be
granted withdrawal to the extent of 60 % of the deposit
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amount. Hence, following modified order is issued:
i) Nazir is directed to transfer
60% of the deposited amount of
Rs.51,73,558/- alongwith accrued
interest in the joint bank account of
respondent Nos.1 and 2 on furnishing
bank details and on personal
identification.
to furnish usual undertaking.
iii) The application is disposed
of.
First Appeal No.140 of 2021
Heard.
2. Admit.
3. Call R & P.
4. Smt.Battad, the learned counsel waives notice
for respondent Nos.1 and 2.
5. Fresh notice be issued to the respondent No.3.
JUDGE
Manisha
