Bombay High Court
Shriram General Insurance Co. ... vs Mumtajbee Rashid Khan Pathan And ... on 3 May, 2021
Bench: S. M. Modak
1/4 4 CAF no.851.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL APPLICATION (CAF) NO.851 OF 2021
IN
FIRST APPEAL NO.797 of 2019
Shriram General Insurance Co. Ltd.
VS.
Mumtajbee Rashid Khan Pathan 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 Hitesh Verma, Advocate for the applicant.
Shri M.R. Johrapurkar, Advocate for respondent Nos. 1 and 4.
CORAM : S.M. MODAK, J.
DATE : 03.05.2021.
Hearing was conducted through video
conferencing and the learned counsel agreed that the
audio and visual quality was proper.
2. Heard Shri Verma, learned Advocate for
appellant and Shri Johrapurkar, Advocate for the
contesting respondent/original claimant.
3. On 18th December, 2018 this Court has passed
two orders. First is condoning the delay caused in
preferring an appeal subject to cost of Rs.1,000/- and
second is directing the appellant to file private paper book
within a period of six months and mentioning the result
if the order is not complied. Appeal is directed to be
dismissed if the private paper book is not filed within a
::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 01:01:04 :::
2/4 4 CAF no.851.21.odt
period of six months.
4. The appellant has deposited Rs.1,000/- on 22nd
December, 2018. However, he failed to file private paper
book within a period of six months. The appellant
claimed that he was not aware about second order.
There are versions and counter versions about this order.
The appellant wants take steps for restoration of the
appeal. If it is taken then, issue will be decided at that
time.
5. There is a prayer to call Record and
Proceedings. It is true that in the order dated 18th
December, 2018, even though the appeal is admitted
Record and Proceedings is not called.
6. Call Record and Proceedings.
CIVIL APPLICATION (CAF) NO.851OF 2021
Heard both the sides.
2. On account of marriage of respondent No.2-
Muskan, there is a prayer for grant of permission to
withdraw remaining amount of Rs.16,63,955/-. There is
controversy whether the copy of this application is served
on the appellant or not? Though Shri Verma, learned
Advocate for the appellant has argued on the basis of
available record. The Marriage Invitation Card of Muskan
is filed so also her birth certificate mentioning date of
birth as 6th May, 1999 and birth certificate of female child
dated 21st June, 2001 is filed. The name is not mentioned
::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 01:01:04 :::
3/4 4 CAF no.851.21.odt
in it. However, according to the respondents, it pertains
respondent No.3 Najmin.
3. The present respondent No.6 Ashrafbee
Dilawar Khan Pathan expired on 2nd September, 2019.
Death Certificate is filed. Whereas respondent No.5
Dilawar Khan expired on 16th April, 2016 i.e. prior to date
of the judgment on 6th May, 2016. The surviving
claimants/contesting respondents are the only legal
representatives of both the deceased as contended on
their behalf.
4. The appellant has deposited Rs.24,95,932/-.
Out of that the respondent Nos. 1 to 6 were permitted to
withdraw 1/3 of the amount as per the order dated
7th June, 2018. Liberty was granted to ask for withdrawal
at subsequent stage as and when occasion arises. So
approximately the contesting respondents have
withdrawn Rs.8,00,000/- and certain amount.
5. The contesting respondents have contended
that as the appeal no more survives entire amount has to
be refunded where as the appellant wants to file an
application for restoration. There is also submission that
the entire compensation has been fixed on the basis of
notional income. The notional income considered by the
Tribunal is Rs.15,000/- per month, i.e., Rs.3,500/- per
month for each vehicle plus Rs.4,500/- of a driver
working on the vehicle. According to the appellant this
notional income is on higher side. (It is also not clear as
::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 01:01:04 :::
4/4 4 CAF no.851.21.odt
to how figure of Rs.15,000/-, is calculated.)
6. It is true that as appellant has expressed desire
to take steps for restoration, the entire amount cannot be
allowed to be withdrawn. In the Tribunal judgment, the
Tribunal has apportioned the amount in between the
petitioner Nos. 1 to 6.
7. Considering the entire controversy, I think at
this stage, the respondent Nos. 1 to 4 can be permitted to
withdraw Rs.5,00,000/-. It is allowed considering the
marriage of the respondent No.2. Hence the order:
ORDER
1. Nazar is directed to transfer the
amount of Rs.5,00,000/- in the bank account of
respondent No.1 to 3 on furnishing bank details.
2. Respondent Nos. 1 to 3 are directed to
furnish usual undertaking.
3. The Court has not expressed any
opinion about apportionment in between the
respondent Nos.1 to 4.
4. The Civil Application is disposed of.
(S.M. Modak, J.)
Manisha
