Nallathambi Bedakanan Nadar And ... vs The New India Assurance Co. Ltd
2021 Latest Caselaw 15857 Bom

                                                                    5-Fa-1371-2013-with-Ia-3288-2021-with-Caf-3738-2013 .doc




                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION

                                           INTERIM APPLICATION NO. 3288 OF 2021
                                                           IN
                                               FIRST APPEAL NO.1371 OF 2013

                        Nallathambi Vedakanan Nadar                                         ...Applicant

                        IN THE MATTER OF :-

                        The New Indian Assurance Co. Ltd.                                   ...Appellant
                              vs.
                        Nallathambi Vedakanan Nadar & Ors.                                  ...Respondents

                        Mr. T. J. Mendon, for the Applicant in Interim Application.
                        Mr. Devendranath S. Joshi, for the Respondent in IA/Original
                        Appellant in FA.


                                                       CORAM :    N. J. JAMADAR, J.
                                                       DATE :     16th NOVEMBER, 2021

                        P.C.:


                        1.                 Heard the learned counsel for the applicant-original

                        claimant           and   the    learned   counsel        for       the        respondent

                        No.1-/appellant-insurer .

                        2.                 This application is preferred for withdrawal of the

                        amount deposited by the appellant-insurer in terms of the

                        impugned Judgment and award dated 17th October, 2012 passed by

                        the learned Member, M.A.C.T. Mumbai.

                        3.                 Mr. Joshi, the learned counsel for the appellant-insurer

                        resisted the prayer on the ground that, the defence of the appellant
           Digitally
           signed by
           SAJAKALI
SAJAKALI   LIYAKAT      Sajakali Jamadar                                                                                ...1
LIYAKAT    JAMADAR
JAMADAR    Date:
           2021.11.17
           13:05:35
           +0530
                                             5-Fa-1371-2013-with-Ia-3288-2021-with-Caf-3738-2013 .doc




is that of no subsisting contract of insurance.

4.                 Mr. Mendon, the learned counsel for the applicant-

claimant joined the issue by inviting the attention of the Court to

the observations of the learned Member in Para No.13 of the

impugned Judgment, wherein, the learned Member has recorded

that, there is prima facie evidence to believe that the auto-rickshaw

involved in the accident was duly insured with the appellant-

insurer.

5.                 The defence raised by the appellant-insurer can be

legitimately considered at the time of final hearing of this appeal. In

the meanwhile, the applicant-claimant can be permitted to

withdraw a portion of the amount of compensation. Hence, following

order :


                                     ORDER

i) The application stands partly allowed.

ii] The applicant-claimant is permitted to withdraw 50% of

the compensation deposited by the appellant/insurer along

with interest accrued thereon till date, subject to furnishing an

undertaking before the tribunal to bring back the amount at

such rate of interest as this Court may decide in the event the

appeal is allowed and it is held that the appellant/insurer is not

Sajakali Jamadar ...2 5-Fa-1371-2013-with-Ia-3288-2021-with-Caf-3738-2013 .doc

liable to pay the compensation.

iii) Interim Application stands disposed of.

                                                (N. J. JAMADAR, J.)




Sajakali Jamadar                                                                                ...3