Bombay High Court
Ameya Abhay Kulkarni vs Reliance General Insurance ... on 5 October, 2021
Bench: Bharati Dangre
sat 21. ia 2701-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2701 OF 2021
IN
FIRST APPEAL NO. 288 OF 2020
Ameya Abhay Kulkarni ...Applicant
In the matter between
Reliance General Insurance Co.Ltd. ...Appellant
vs.
Ameya Abhay Kulkarni & Anr. ...Respondents
Mr.Ajit S. Hodare for Applicant .
Mr.Pandit Kasar for Appellant.
CORAM : BHARATI DANGRE, J.
DATED : 5 OCTOBER 2021
P.C. :
. The claimant, Respondent No.1, moved an application under
Section 166 of the Motor Vehicles Act for award of compensation on
account of grievous injuries and permanent disablement suffered in motor
vehicle accident which took place on 3 October 2015 when he was riding a
motorcycle and another motorcycle driven by Respondent No.2 hit him. He
alleged that the vehicle driven by Respondent No.2 was in high speed and
on account of rash and negligent driving, he sustained an injury.
Respondent No.1 was an indoor patient from 3.10.2015 till 18.10.2015
and was operated for left femur fracture and knee grafting. His claim was
based on the expenses incurred by him in his medical treatment and the
MACT, Thane by an order and award dated 7 October 2019 directed
Digitally
signed by
SANSKRUTI
SANSKRUTI A THAKUR
A THAKUR Date:
2021.10.07
13:15:18
+0530
sat 21. ia 2701-2021
Respondent Nos.1 and 2 to jointly and severally pay a sum of
Rs.16,49,000/- with interest.
2. The insurance company has instituted the present appeal and
under the directions of this court has deposited the amount of
compensation in the MACT which is calculated at Rs.22,24,768/-.
By the Interim Application No.2701/2021, Respondent No.1 seek
withdrawal of the said amount in the wake of the injuries and the
disabilities sustained by him. The submission advanced is to the effect that
though the MACT compensated him on 7 October 2019, till date he has not
received the amount which he is in dire need of, on account of the
disability incurred by him.
3. Counsel for the Appellant oppose the said interim application
on the ground that the Appellant has a point of law in his favour, which he
would argue at the stage of final hearing. The objection, which was raised
before the MACT on behalf of Insurance company, was that the claimant
was not wearing a helmet and was not in possession of a valid driving
licence. When the judgment of the learned Tribunal is perused, the
Tribunal has taken into consideration the latest decision of the Apex Court
in relation of the statutory right of a third party to recover the amount of
compensation so awarded to the injured. Reference is made to to decision
of the Apex Court in Shamanna vs. Divisional Manager, Oriental Insurance
Co.Ltd.1 wherein the principle of 'pay and recover' has been elaborated.
The compensation awarded, prima facie, is based on the factum of just,
equitable and fairness. The Tribunal has also adverted to the claim by
taking into account the hospital charges and the loss of income during the
1 2018 ACJ 2163
sat 21. ia 2701-2021
period of treatment. The doctor, who has treated Respondent No.2, also
stepped into the witness box and deposed that the claimant had sustained
disability to the extent of 40% of the whole body and is unable to carry out
his daily pursuit and not only this, it is certified that the claimant will not
be in a position to drive a vehicle.
Considering the aforesaid facts, which were taken into consideration
while awarding the compensation, the statement of the Applicant in the
interim application that he is in dire need of the amount of compensation
to meet his daily expenditure and he is also required to remit the expenses
of his hospital for treatment, I deem it appropriate to grant the application
and permit the Applicant to withdraw the amount of compensation
deposited by the Appellant in MACP No.563/2016. It is made clear that in
terms of the judgment and award of the Tribunal, an amount of Rs.7 lakhs
is directed to be invested in the Fixed Deposit. Necessarily, the withdrawal
of the amount shall be to the exclusion of Rs.7 lakhs which the Tribunal
shall invest in Fixed Deposit in terms of its order and award dated 7
October 2019. The remaining amount is permitted to be withdrawn by the
Applicant subject to the stipulation that he shall submit a Personal Bond to
the effect that if the appeal is decided against him, he shall be liable for
refund of the said amount.
Subject to the above stipulation, Interim Application No. 2701/2021
is allowed in terms of prayer clause (a).
(SMT. BHARATI DANGRE, J.)
