Bombay High Court
Vijaykumar Devachand Patil And ... vs United India Insurance Co, Ltd Thr ... on 28 July, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
1 CA3497.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
908 CIVIL APPLICATION NO.3497 OF 2021
IN
FA/2101/2020
Shri Vijaykumar Deochand Patil & ors. ...APPLICANTS
VERSUS
The United India Insurance Company Ltd.,
Through The Divisional Manager,
Jalgaon & ors. ..RESPONDENTS
Mr M.M. Bhokarikar, Advocate for applicants;
Mr S.G. Chapalgaonkar, Advocate for respondent No.1;
Mr S.S. Jadhav, Advocate for respondent No.2
CORAM : RAVINDRA V. GHUGE
AND
S.G. MEHARE, JJ
DATE : 28th July, 2021
P.C.
1. By this application, the four original claimants pray for leave to withdraw
the entire amount of Rs.56,19,709/- deposited by the appellant insurance
company in this Court. This Court had passed an order on 22 nd October, 2020
issuing notice to the respondents and subject to depositing of the entire
amount, had granted protection to the appellant, by way of interim relief.
2. We have heard the learned Advocates for the applicants, the original
appellant insurance company and respondent nos.2 to 4.
2 CA3497.21.odt
3. The appellant has raised it's grounds for appeal in the petition, as
under:-.
a) The deceased had rammed a parked truck which was motionless
due to a mechanical fault, from behind. As a consequence of such an
accident, the death had occurred.
b) Element of contributory negligence was, therefore, involved.
c) The Divisional Manager of the insurance company had connived with
claimant no.1 and had prepared a back dated insurance policy to
indicate that the two wheeler used by the deceased was covered by an
insurance scheme.
d) The said Divisional Manager is presently subjected to criminal
investigation and it is stated that the C.B.I. has taken over the said
investigation since a large scale racket of such nature was noticed.
e) Claimant no.1 is the father of the deceased, who was admittedly in
employment and is presently drawing pension.
f) Claimant no.4 is an independent brother of the deceased, who is in
employment and settled in life.
4. The learned Advocate for the applicants has stated that all the
applicants pray for withdrawal of the entire amount that has been deposited.
3 CA3497.21.odt
The learned Advocate has chosen not to answer the Court's query as
regards, whether appellant no.1, being in employment when the accident
occurred and presently drawing pension and applicant no.4 being an
independent person who is in employment, could be entitled to
compensation?.
5. We have gone through the impugned judgment dated 3 rd July, 2020
delivered by the learned Chairman, Motor Accident Claims Tribunal, Jalgaon
in M.A.C.P. No.166 of 2010. We find that the learned Tribunal has taken into
account the element of contributory negligence. It has also considered that
applicant no.1 was in employment. However, the issue of an insurance policy
having been drawn with retrospective effect showing it to be a back dated
policy, has been held against the appellant. So also, without assigning
reasons, all the claimants have been granted compensation.
6. In view of the above and to balance the equities, we are partly allowing
this Civil Application with the following directions:-
a) Applicant no.1 Vijaykumar would be allowed to withdraw an amount of
Rs.40,000/- as consortium amount by tendering an affidavit undertaking
within 15 days in this Court.
b) Applicant no.2 Smt. Shailaja who is the mother of the deceased, would
be permitted to withdraw Rs.7,00,000/- on an affidavit undertaking and
an amount of Rs.7,00,000/- by tendering a solvent surety to the
satisfaction of the learned Registrar (Judicial) of this Court.
4 CA3497.21.odt
c) The widow of the deceased Smt. Swati, applicant no.3 would be
allowed to withdraw an amount of Rs.7,00,000/- on an affidavit
undertaking and a further amount of Rs.7,00,000/- by tendering a
solvent surety to the satisfaction of the learned Registrar (Judicial) of
this Court.
d) Applicant no.4 Manish, for the present, would not be permitted to
withdraw any amount.
e) The affidavit undertaking to be filed by applicant nos.1, 2 and 3 would
mention, by way of an undertaking, that if the decision in the First
Appeal is adverse to these applicants, they would deposit the
withdrawn amount or the excess amount, within eight weeks from the
date of such adverse decision.
[S.G. MEHARE, J.] [RAVINDRA V. GHUGE, J.]
amj
