Bhikubai Soma Koli And Ors vs Bajaj Allianz General Insurance ...
2021 Latest Caselaw 1288 Bom

                                             (1)                              ca789.21

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

          929 CIVIL APPLICATION NO.789 OF 2021
                    IN FAST/11243/2020
               BHIKUBAI SOMA KOLI AND ORS
                          VERSUS
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., THR ITS BRANCH
             MANAGER, AURANGABAD AND ANOTHER

Mr.C.T. Jadhav h/f. Mr. A.D. Pawar, Advocate for the
applicants.
Mr.S.S. Dargad h/f. Mr. S.G. Chapalgaonkar, Advocate for
respondent No.1.

                                       CORAM :      V.L.ACHLIYA,J.
                                       DATED :      19.01.2021
P.C. :-

01.             The applicant has moved this application seeking
withdrawal of amount deposited by the insurance company.


02.             Heard learned counsel for the applicants                                  and
learned counsel representing the insurance company.


03.             In brief, it is contention of learned counsel
for the appellant-insurance company that the appellants
have good case to succeed in appeal.                              It is submitted
that in the FIR the age of the deceased is mentioned as
70 years.            In that view the Tribunal erred in applying
multiplier of 7 for assessment of monetory loss.                                      It is
further        submitted             that   the    vehicle    insured          with       the
appellant was falsely involved in the accident.                                   The FIR



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                                                 (2)                             ca789.21

was lodged 34 days after the accident.                               It is submitted
that in-case, the applicants are permitted to withdraw
the     amount          the          purpose    of    filing     appeal          would        be
frustrated.


04.             To     counter          the    submissions      advanced,            learned
Counsel for the applicants-claimants submitted that in
the post-mortem report the age of the deceased is shown
as 65 years. The Tribunal has acted upon the age shown in
the      post-mortem                 report,     in   absence        of      documentary
evidence showing the age of deceased.                                  In that view,
there is no perversity in the judgment.                                 It is further
pointed out that the Tribunal has considered the delay in
lodging the complaint and the aspect of involvement of
the vehicle and discussed the reasons.                             The appeal filed
is devoid of merit.


05.             On due consideration of submissions advanced and
the     challenge           raised        in    the   appeal,       the      application
deserves to be allowed.                       Hence, the following order :-


                                          O R D E R

i) The application is allowed to the extent of applicant No.1.

ii) The applicant No.1 is permitted to withdraw the amount of Rs.2,00,000/- (Rupees Two

(3) ca789.21

Lakhs) out of amount of Rs.3 lakhs deposited by the appellant - insurance company on furnishing undertaking to the effect that in the event the appeal is allowed and the judgment and order passed by the Tribunal is set aside, the applicant shall re-deposit the amount within eight weeks from passing of such order. The amount be paid to applicant No.1 by transferring the amount in her savings bank account as per particulars of bank account to be furnished.

iii) The Registry shall not insist upon personal attendance of applicant No.1 for withdrawal of amount, if the advocate appearing for the applicants produced documents of identification and verification with bank particulars. So also the Registry may explore the possibility of directing the applicant to appear for verification before the Superintendent of Court at Shirpur.

06. The application is disposed of in above terms.

[V.L.ACHLIYA,J.] snk/2021/JAN21/ca789.21