Divisional Manager, H.D.F.C. ... vs Vaishali Dinkar Aher And Ors
2022 Latest Caselaw 4835 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
                  FIRST APPEAL (ST) NO.3646 OF 2021
                                   WITH
            INTERIM APPLICATION (ST) NO.3649 OF 2021
                                   WITH
            INTERIM APPLICATION (ST) NO.3648 OF 2021


Divisional Manager, H.D.F.C., ERGO         ..     Appellant
General Insurance Co.Ltd., Mumbai

                       Versus

Vaishali Dinkar Aher & Ors.                ..     Respondent


                                   WITH
                 INTERIM APPLICATION NO.1981 OF 2022


Vaishali Dinkar Aher & Ors.                ..     Applicants

                       Versus

Divisional Manager, H.D.F.C., ERGO         ..     Respondent
General Insurance Co.Ltd., Mumbai
                             ...

Ms.Sweta Shah i/b Mr.Abhijit P. Kulkarni for the Appellant.
Mr.Sachin Gite for the Respondents and for the Applicants in
IA/1981/22.
                             ...

                          CORAM: BHARATI DANGRE, J.

DATED : 05th MAY 2022

M.M.Salgaonkar

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P.C:-

INTERIM APPLICATION (ST) NO.3648 OF 2021

1. By the present application, delay of 438 days in fling the First Appeal by the Insurance Company is sought to be condoned.

2. Heard the learned counsel for the applicant and the learned counsel for the respondents/claimants.

On perusal of the application, paragraphs 4 and 5 set out the reasons for the delay in fling the Appeal and on it's perusal it can be seen that the delay is largely procedural and also on account of the Covid pandemic situation and the lock-down imposed throughout the country.

Being satisfed with the bonafdes of the delay, the application is allowed in terms of prayer clause (a).

INTERIM APPLICATION (ST) NO.3649 OF 2021

3. The Insurance Company has already deposited the amount of compensation awarded under the impugned judgment and, therefore, there shall be stay to the effect and operation of the Judgment and Award dated 06/07/2019 passed in M.A.C.P.No.834 of 2014.

4. The application stands disposed off.

M.M.Salgaonkar





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                 INTERIM APPLICATION NO.1981 OF 2022

5. By the present application, the claimants/applicants seek withdrawal of amount of compensation deposited by the Insurance Company before the M.A.C.T., Nashik, being the sum of Rs.46,87,225/-.

6. Heard the learned counsel for the applicants and the learned counsel for the Insurance Company.

The applicants are the legal representatives of one Mr.Dinkar Aher, who met with an accident on account of rash and negligent driving of the Tractor, on 11/11/2013 when he was proceeding on the motorcycle as a pillion rider on Aurangabad-Yeola Road. He succumbed to the injuries sustained by him and this resulted in registration of the crime with the Yeola Police Station.

7. The claimants, being his wife and two children alongwith the mother-in-law, fled the claim petition, seeking compensation on account of his death and it came to be granted under the impugned judgment.

8. The learned counsel for the applicants would submit that the applicants were dependent upon the deceased and applicant Nos.2 and 3 are pursuing their education and, therefore, are in need of the amount for continuing their further education. It is also stated that the amount is very much necessary for day-to-day survival of the applicants and the entire family and, therefore, the withdrawal of the amount is sought for.

9. The learned counsel for the Insurance Company vehemently opposed the application by submitting that the

M.M.Salgaonkar

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appeal has been fled by the Insurance Company contesting the very involvement of the offending vehicle in the accident, which is insured with it.

In any case, this will be a issue to be considered at the time of fnal hearing of the appeal. However, considering that the entire family of the deceased i.e. the applicants are in dire need of money, I am inclined to grant 50% withdrawal of the amount, which has been deposited by the Insurance Company before the Tribunal. The Tribunal shall permit the withdrawal, subject to an undertaking fled by applicant Nos.1 to 3 to the effect that in case, the appeal fled by the Insurance Company is allowed, they shall bring back the amount to the Tribunal alongwith such interest that would be levied at the time of adjudication of the appeal.

The application is partly allowed, by permitting the applicants to withdraw 50% of the amount.

Out of the amount permitted to be withdrawn, let the amount of Rs.5,00,000/- be invested in a Fixed Deposit with the nationalised bank in the name of applicant Nos.2 and 3 for a period of three years. Applicant Nos.2 and 3 are permitted to appropriate the amount of interest accruing upon the Fixed Deposit periodically, which would take care of their educational need.

( SMT. BHARATI DANGRE, J.)

M.M.Salgaonkar