Shri.Mahadev Ganpat Barate ... vs Shri.Prakash Balasaheb ...
2021 Latest Caselaw 16807 Bom

                                                                                   42-fast-15626-2017.doc




                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                             FIRST APPEAL (ST.) NO.15626 OF 2017
                                                            WITH
                                              CIVIL APPLICATION NO.1978 OF 2017
VISHAL                                                      WITH
SUBHASH                                       CIVIL APPLICATION NO.1979 OF 2017
PAREKAR
Digitally signed by   Mahadev Ganpat Barate
VISHAL
SUBHASH               (since deceased through LRs)                      ...Applicant/Appellant
PAREKAR
Date: 2021.12.03                 vs.
18:20:03 +0530
                      Prakash Balasaheb Pisal                                ...Respondent

                      Mr. Amol Gatne, for the Applicant/Appellant
                      Mr. Y.G. Thorat i/b. Mr. D.D. Shinde, for Respondent Nos. 1A to 1E.
                      Mr. Devendra Joshi, for the Respondent No. 2.

                                                    CORAM :   N. J. JAMADAR, J.

                                                    DATE :    DECEMBER 03, 2021

                      P.C.:

                      .       The Civil Application No. 1978 of 2017 is preferred for

condonation of delay in preferring the appeal against the order

passed by the Tribunal on an application (Exhibit 35) in Regular

Darkhast No. 16 of 2008 dated 7th March, 2017 whereby the

application preferred by the legal heirs of the Judgment

Debtor/owner of the vehicle for a direction to opponent No. 3/

Insurance Company to deposit the compensation in terms of the

award in MACP No. 143 of 1997 dated 29 th February, 2016, came to

be rejected.

Vishal Parekar, P.A. ...1 42-fast-15626-2017.doc

2. The learned counsel for the applicant invites the attention of

the Court to the judgment and award dated 29 th February, 2016

passed in Claim Application No. 143 of 1997. Clause 2 of the

operative order reads as under:

2. Opponent Nos. 1, legal heirs of opponent No. 2 and opponent No. 3 are directed to pay jointly and severally compensation of Rs. 11,99,050/- (Rs. Eleven Lakh Ninety Nine Thousand Fifty only) (including interim compensation awarded u/s. 140 of the Motor Vehicles Act), along with cost and interest @ 8% per annum, from the date of registration i.e. from 06/02/1997, till realization of entire amount.

3. The learned counsel for the applicant/owner submits that

before passing of the said award, the owner had deposited a sum of

Rs. 21,03,700/- as in an earlier round the insurer /opponent No. 3

was exonerated of the liability to indemnify the insurer. The

Tribunal was of the view that being an executing Court it can not go

beyond the award.

4. Mr. Joshi, learned counsel for the respondent No. 2/ Opponent

No. 3/ Insurer submits that pursuant to the award dated 19 th

February, 2016 the insurer has deposited the balance amount after

adjusting the amount which had already been deposited by the

owner i.e. Rs. 9,40,643/-.

5. In view of the clause 2 of the award dated 19 th February, 2016,

Vishal Parekar, P.A. ...2 42-fast-15626-2017.doc

extracted above, it would be diffcult to accede to the submission

sought to be canvassed on behalf of the insurer that it was liable to

deposit only balance amount. The insurer is statutorily liable to

satisfy the award, and indemnify the insured/owner in terms of the

contract of insurance.

6. In this view of the matter, it would be appropriate if the

respondent No. 2, insurer makes its position clear by fling an

affdavit of its responsible offcer, within a period of two weeks.

7. In case respondent No. 2 decides to deposit the balance

amount in terms of the award so as to make up entire amount of

compensation awarded by the Tribunal, there shall be no necessity

of fling of affdavit.

8. Application be listed for hearing on 21 st December, 2021.

                                         (N. J. JAMADAR, J.)




Vishal Parekar, P.A.                                                        ...3