Bombay High Court
Smt.Pournima Manoj Utekar And Anr vs United India Insurance Co.Ltd on 5 May, 2021
Bench: S. K. Shinde
1. CAF 1928-2017 in FA 310-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Civil Application No. 1982 / 2017
in
First Appeal No. 310 / 2017
Smt. Pournima Manoj Utekar and Anr. .. Applicants
Vs.
United India Insurance Co. Ltd. .. Respondent
****
Mr. C.J. Doveson, Advocate for the Applicant and for Respondent
No.1 and 2 in First Appeal.
Ms. Varsha Chavan, Advocate for Respondent (Original Appellant).
****
CORAM : SANDEEP K. SHINDE J.
DATE : 5th MAY, 2021.
(Through Video Conference)
P.C. : -
Heard.
1. Applicants - Original Respondent No. 1 and 2 in subject First
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Appeal are seeking leave to withdraw the amount of compensation,
deposited by the United India Insurance Co. Ltd. in satisfaction of
award 946/2010 drawn by Chairman, MACT Mumbai.
2. Applicant No. 1 is widow and Applicant No. 2 is mother of
deceased Manoj Utekar.
3. The Tribunal vide award dated 23rd March, 2016, awarded
compensation Rs. 17,53,000/- with interest at the rate of 9% per
annum from the date of application till realization.
4. Aggrieved by the subject award, United Company Ltd. has
preferred the appeal.
5. Applicant seeks permission to withdraw part of the
compensation amount.
6. Application is opposed by learned Counsel for United India
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Insurance Company, on the ground that the insurance cover note
produced by the claimants was found fabricated. She has drawn my
attention to Paragraph No. 16 of the impugned judgment. Another
ground urged by the Counsel for Insurance Company is that the
Applicant No. 1 did not enter in the witness box and had not proved
definite income of the deceased Manoj Utekar. It is therefore
contended that the learned Member ought to have awarded the
compensation on the 'Notional Income'.
7. I have perused the Paragraph No. 16 of the impugned
judgment. The learned Member has observed thus;
"Evidence of insurance company is therefore required to be believed
that the cover note on the basis of which claimants are claiming that
vehicle was insured with insurer is possibly a false cover note.
Insurance Company however after noticing this cover note, did not
take any steps to challenge its authenticity and obstructs its use."
8. Thus, in consideration of the observations, the contention of
the learned Counsel for Insurance Company cannot brushed aside.
However, in this case, the husband of Applicant No.1, died in
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vehicular accident in February, 2010. It is informed that at the
relevant time, he was 26 year old. Applicant No.2 is mother and
father of deceased Manoj Utekar was one of the claimants. Thus
parents of the deceased are now senior citizen and have not
independent source of income. Till date, Claimants have not received
compensation, since 2010. The appeal is not likely to be heard in
near future.
9. In consideration of the facts of the case, in my view, to secure
ends of justice, Original Claimant No. 1 is permitted to withdraw Rs.
2 Lacs; Original Claimant No. 2 Manohar Utekar is permitted to
withdraw Rs. 1 Lac and Original Claimant No. 3 Smt. Sunita Manohar
Utekar is permitted to withdraw Rs. 1 Lac.
10. In view of the facts of the case and for the reasons stated, the
application partly allowed and hence the following order;
ORDER
i. The Applicants are permitted to withdraw the compensation
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amount with aforesaid.
ii. The Applicants shall file separate or composite formal
application before the MACT, Mumbai alongwith an Undertaking that
they shall bring back the compensation, in case the impugned award
is set aside with interest as may be directed by this Court, while
disposing of the subject First Appeal.
iii. The learned Member, MACT shall process the application and
release the compensation as stated above to the Applicants,
preferably on or before 31st May, 2021.
iv. The learned Member shall act on authenticated copy of this
order.
11. In consideration of the facts of the case, the appeal be listed
for final hearing in a week commencing from 12th July, 2021.
12. Application is partly allowed and disposed of in the aforesaid
terms.
(SANDEEP K. SHINDE, J.)
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