Bombay High Court
The New India Assurance Co. Ltd. ... vs Nisha Santosh Dawande And Ors on 12 October, 2021
Bench: Bharati Dangre
sat 18. ia 2873-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2873 OF 2021
AND
INTERIM APPLICATION NO. 112 OF 2021
IN
FIRST APPEAL (L) NO. 98471 OF 2020
The New India Assurance Co.Ltd. ...Appellant
vs.
Smt.Nisha Santosh Dawande & Ors. ...Respondents
Ms.Deepika Prabhala i/b. Res Juris for Applicant.
Mr.Nikhil Wagh i/b. Avinash Gokhale for Respondent Nos.1,2,3,5 and 6.
CORAM : BHARATI DANGRE, J.
DATED : 12 OCTOBER 2021
P.C. :
1. By the present application, the New India Assurance Co.Ltd.,
seek stay of the execution, implementation and operation of the judgment
and award dated 25 September 2019 passed by the Motor Accident Claims
Tribunal, Mumbai in MACP 197/2012. Pertinent to note that this is the
second time when the Appellant seek this stay.
2. On 21 January 2021, on Interim Application 113/2021, this
court has stayed the effect and operation of the impugned judgment subject
to stipulation that the entire amount of compensation with interest shall be
deposited in the MACT, Mumbai within a period of four weeks from the
date of passing of the order on the undertaking of counsel for the
Appellant, which was specifically recorded in para 3 of the order. The order
also clarify that if the amount is not deposited within four weeks, ad-
Digitally
signed by
SANSKRUTI A
SANSKRUTI THAKUR
A THAKUR Date:
2021.10.14
14:24:07
+0530
sat 18. ia 2873-2021
interim relief shall automatically stand vacated.
3. In the wake of para 6 of the order passed on 21 January 2021
when the stay in favour of the Appellant stood vacated on account of their
failure to deposit the amount, they have rushed to this court by filing the
present application.
4. Perused the interim application. The reason for not abiding of
the earlier order dated 21 January 2021 is contained in para 3 of the said
application, which reads thus :
"Pursuant thereto, the same was communicated to the
concerned Manager of the Appellant Company. That at
the relevant time, the concerned officers were either
intermittently working or working from home owing to
nation-wide lockdown due to covid-19 pandemic. Thus,
due to oversight, the Applicant could not comply with
the stay order. Due to non-compliance of the said order,
the stay order dated 21.01.2021 stands vacated as on
today."
The further response in the application is non-compliance was
brought to their notice when the matter reached National Lok Adalat and
therefore, fresh stay order is sought.
5. It is trite position of law that a party, who approaches this
court and obtains conditional order, must adhere to the condition imposed
by the court and this is where the precisely the appellants have to follow.
Though an undertaking was given that the entire amount of compensation
with interest would be deposited within four weeks, for the reason stated
in para 3, the amount is not deposited. Now a claim is made for fair play,
sat 18. ia 2873-2021
equity and justice that the application be allowed.
6. Justice is not to be only done to the present Applicant, who
has filed the application, but justice must also be done to the Respondent,
who was awaiting the amount to be deposited, since this court, by order
dated 21 January 2021, also permitted withdrawal of 50% amount and
claimant has been kept back from the said amount but this amount would
otherwise entitle to be withdrawn in the month of February/March 2021
itself. In such circumstances, I am inclined to grant the application and
allow the continuation of stay to the impugned judgment subject to a
condition that in addition to deposit of the amount, as directed by the
order dated 21 January 2021, the Applicant shall makeover the amount of
Rs.25,000/- to the Respondent within a period of one week from today.
7. Learned Counsel for the Appellant undertake that the amount
awarded under the judgment and award dated 25 September 2019 shall be
deposited under MACT, Mumbai within a period of two weeks from today.
On such amount being deposited, the paragraph 7 of the earlier order
dated 21 January 2021 shall revived and the Respondents are at liberty to
withdraw 50% of the amount subject to the same stipulation. As far as
remaining amount is concerned, para 9 of the order dated 21 January 2021
shall govern the parties. On the amount being deposited within a period of
one week from today, there shall be stay to the execution, implementation
and operation of the impugned judgment and award dated 25 September
2019.
INTERIM APPLICATION NO. 112 OF 2021
sat 18. ia 2873-2021
8. Heard learned Counsel for the Applicant and the Respondent.
9. The application seeks condonation of delay of 309 days in
instituting the first appeal, being aggrieved by the impugned judgment and
award dated 25 September 2019 passed by MACT, Mumbai in Claim
Petition No.197/2012.
The delay has occasioned in instituting the appeal is explained in
paras 4 to 6 of the application. Some portion of the delay is also attributed
to the lockdown declared on account of covid-19 pandemic from 3 rd week
of March 2020 and since had continued to remain in force till 31 October
2020.
I am satisfied with the reasons stated in paras 4 to 6 of the
application and I am of the opinion that no prejudice is caused to the
Respondent if the delay is condoned and moreover, the said delay being
bona fide and beyond the control of the Applicant, I deem it fit to allow the
prayer clauses (a) and (b) of the application.
FIRST APPEAL (L) NO. 98471 OF 2020
10. Admit.
11. Learned Counsel waives service for the Respondent.
(SMT. BHARATI DANGRE, J.)
