Shahaji Hindurao Shirtode And Anr vs New India Assurance Co.Ltd., ...
2022 Latest Caselaw 12669 Bom

                                                      14.IA.20510.22 in FAST.94598.2020.doc



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                    INTERIM APPLICATION NO. 20510 OF 2022
                                       IN
                      FIRST APPEAL (ST.) NO. 94598 OF 2020


Shahaji Hindurao Shirtode & Anr.        ...      Applicants

In the matter between

New India Assourance Co. Ltd.           ...      Appellant

           Versus

Shahaji Hindurao Shirtode & Ors.        ...      Respondents



Mr. Kuldeep U. Nikam a/w Prasad Avhad and Om Latpate for the
Applicant.
Ms. Poonam Mittal for the Appellant.


                                  CORAM :      R.I. CHAGLA, J.
                                  DATED :      6th DECEMBER, 2022.


ORDER :

1 Heard the learned Advocate for the parties.

2 By this Interim Application the Applicants are seeking

permission to withdraw entire decreetal amount as deposited by the

Respondents with the District Judge and Member, M.A.C.T., Sangli.

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                                                    14.IA.20510.22 in FAST.94598.2020.doc



3           The Applicants have stated that the execution of impugned

judgment and award had been stayed by order dated 09.11.2020 passed

by this Court upon deposit by the Appellant of the entire amount awarded

with accrued interest with the M.A.C.T. Sangli.

4 The Applicants state that they are in poor financial condition.

The Applicants are the parents of the deceased and after his demise they

have had financial issues. The Applicants are of advance age and find it

difficult to maintain themselves properly. Accordingly, the present Interim

Application has been filed.

5 The learned Advocate appearing for the Appellant has

objected to the withdrawal of the entire amount awarded. She has

referred to the impugned judgment and order passed by the M.A.C.T.

wherein the M.A.C.T. has arrived at inconsistent finding as to the date of

the incident. It is mentioned at the outset that the accident took place on

07.04.2018. However, in paragraph 13 of the impugned judgment and

order it is mentioned that the accident took place on 06.04.2018 when

the Opponent No.1 was riding motorcycle had lost control and by virtue

of which the deceased riding pillion expired.

6 Having considered the averments in the application as well as

the objection raised by the learned Advocate for the Appellant,

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14.IA.20510.22 in FAST.94598.2020.doc

considering that there is no dispute insofar as the deceased having

expired in the accident and the only dispute now raised is as to the date

of the accident, without prejudice to the rights and contentions of the

Appellant in the Appeal, the Applicants are permitted to withdraw the

sum of Rs.9,30,800/-with accrued interest. This is subject to their

furnishing an undertaking that in the event the Appellant succeeds in the

Appeal, the Applicants shall return the amount with interest at such rate

as determine by this Court.

7 It is noted that the M.A.C.T. in the impugned judgment and

order had directed that out of share of each of the Petitioner an amount of

Rs.5,00,000/- be deposited in any Nationalized Bank for a period of 5

years. The Petitioners/Respondents herein are entitled to get interest on

the deposit amount at quarterly rest. The amount of Rs.5,00,000/-

deposited by the Appellant shall remain in Fixed Deposit of Nationalized

Bank till hearing and disposal of the First Appeal.

8 Interim Application is accordingly disposed of.

(R.I. CHAGLA, J.)

Digitally signed by WAISHALI WAISHALI SUSHIL SUSHIL WAGHMARE WAGHMARE Date:

2022.12.08 17:13:39 +0530

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