Bombay High Court
Icici Lombard Gen. Insu. Co. Ltd., ... vs Anuradha Wd/O Prasanna Nerkar And ... on 11 June, 2021
Bench: S. M. Modak
1 CAF 1514.20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Civil Application (F) No.1514/2020 in F.A. St. No.8721/2020
(ICICI Lombard General Ins. V Anuradha Nerkar and others)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Ms Ashwini Athalye, Adv for applicant.
Shri Mandhare, Adv h/f for Shri P.S. Mirache, Adv for resp. nos.1 to 3.
CORAM : S.M. MODAK, J.
DATE : 11-06-2021.
Hearing was conducted through video conferencing
and the learned counsel agreed that the audio and visual quality
was proper.
2. The respondent nos. 1 to 3 are represented by learned
Advocate Shri Mirache. Respondent no.4 is dead when the
proceedings were pending before the Claims Tribunal.
Respondent no.5 is served and filed reply.
3. Heard learned Advocate Ms Athalye for the appellant
and learned Advocate Shri Mandhare holding for Shri Mirache,
Advocate for respondent nos. 1 to 3.
4. It is true that the Hon'ble Supreme Court as per the
order passed on 08-03-2021 in Suo Motu Writ Petition ©
No.3/2020 was pleased to exclude the period from 15-03-2020
till 14-03-2021 while computing the period of limitation. In this
case, the impugned judgment is delivered on 18-12-2019 and
certified copy was delivered on 11-02-2020. The period of 90
days expired during the period directed to be excluded by the
2 CAF 1514.20
Hon'ble Supreme Court. The appellant took sometime for
completing the office procedure. The prayer for condonation of
delay is opposed. I find convincing reason for condoning the
delay. Hence, the delay of 157 days in preferring an appeal is
condoned.
5. Application is disposed of.
First Appeal St No. 8721/2020
Heard.
Admit.
Issue notice to the respondents.
Call R and P.
Learned Advocate Shri Mirache waives notice for
respondent nos. 1 to 3.
There is no need to issue fresh notice to respondent
no.5.
The appellant to serve the copy of appeal memo and
the documents on the respective learned Advocates.
Civil Application (F) No.754/2021
Heard learned Advocate Shri Mandhare for respondent
nos. 1 to 3 and learned Advocate Ms Athalye for the appellant/
Insurance Company.
2. On one hand, contesting claimants are asking for
withdrawal of the entire amount of Rs. 1,55,18,699/- (as
respondent no.4 is dead) whereas on the other hand, the
3 CAF 1514.20
appellant is asking for early final hearing. It is for the reason that
the involvement of two wheeler Bullet has not been
conclusively established. The appellant heavily relied upon the
admission given by respondent-Anuradha in the cross
examination. She has answered -
"while my husband was about to cross the road, one
Car came and gave dash to two wheeler of my husband
due to which my husband fell on the road near the
footpath. I do not know the registration number of Car
which gave dash to two wheeler of my husband."
3. Whereas the contesting respondents claimed that "this
answer during cross examination in response to the question put"
is not supported by the pleadings in the written statement of the
Insurance Company. Learned Advocate for the respondent relied
upon the FIR, police papers and the evidence given by the first
informant before the Court of Magistrate (wherein the criminal
case against the owner of the Bullet is going on). Whereas the
learned Advocate for the appellant emphasized that the burden
of proof lies on the contesting respondents to prove the
involvement of the Bullet driver. There was also an attempt
made to submit about the affidavit of Bullet driver filed before the
Magistrate Court. In which it is stated that in fact one car hit the
two wheeler driven by the deceased and the Bullet driver driving
on the same road and at the same time skidded off due to that
accident. My attention is also brought to the findings given by the
Claims Tribunal about the police papers and also to the admission
given during cross examination.
4. At this stage it may not be proper to make any
4 CAF 1514.20
observation and even prima facie observation about the
involvement of the Bullet driver. Because if any observation is
made it will affect the merits of the matter. I think the Court
will have to balance the right of the parties. The Court is inclined
to take up early final hearing of the matter. At the same time the
interest of the claimants needs to be protected. The earning
member of the family has expired and the accident took place in
the year 2015. So this Court is inclined to allow them to withdraw
25% of the deposited amount on usual undertaking. Hence, the
following order is passed :-
OR DER
(a) The application is partly allowed.
(b) The respondent nos. 1 to 3 are permitted to
withdraw 25% of the deposited amount of
Rs.1,55,18,699/- along with accrued interest on
usual undertaking. They are directed to furnish bank
details.
(c) After withdrawal, remaining amount be invested in
fixed deposit in nationalised bank.
(d) The appellant is directed to file private paper book.
(e) Hearing of the appeal is expedited.
(f) If the appeal is not disposed of within the period of
six months, in that case, the contesting respondents
are at liberty to ask for withdrawal of the more
amount.
(g) It is made clear the none of the parties is entitled to
delay the hearing and will have to to adhere to the
time limit.
5 CAF 1514.20
(h ) Application is disposed of.
(S.M. Modak, J.)
Deshmukh
