Mr. Karan Pratap Maniar Thr. Next ... vs Bajaj Allianz General Insurance ...
2022 Latest Caselaw 12207 Bom

                                               10-IA 20152.2022 in FA 561.2020.doc


K.S. Jadhav
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                   INTERIM APPLICATION NO. 20152 OF 2022
                                     IN
                        FIRST APPEAL NO. 561 OF 2020

    Karan Pratap Maniar                           ...Applicant /
    Through Mother & Next Friend                  Original Respondent
    Smt. Meera Pratap Maniar

            Versus

    Bajaj Allianz General Insurance Co. Ltd.      ...Respondent /
                                                  Original Appellant
                                  ----------
    Mr. Saumen S. Vidyarthi a/w Mr. Shasvat Vidyarthi, Advocates
    for Applicant.
    Mr. D.S. Joshi, Advocate for Respondent.
                                  ----------

                                  CORAM        : R.I. CHAGLA, J.

                                  DATE         : 28th November, 2022.
    ORDER :

1. Heard learned Counsel appearing for the Applicant.

2. By this Interim Application, the Applicant is seeking

permission to withdraw unconditionally the balance of amount

lying deposited in the Tribunal. The Applicant was permitted to

10-IA 20152.2022 in FA 561.2020.doc

withdraw 50% of Rs.93,51,970/- i.e. the amount deposited by

the Appellant. The impugned Award is to the tune of

Rs.47,89,916/- with interest @ 7.5% thereon from the date of

application till realization and costs vide Judgment and Award

dated 26th November, 2018 rendered by the Member VIII of

Motor Accident Claims Tribunal (hereinafter referred to as

'MACT' for short), Mumbai.

3. The Applicant has filed the present application through his

mother and next friend Smt. Meera Pratap Maniar. The

Applicant is in paralytic condition having suffered traumatic

brain injury resulting in complete paralysis of left side of the

body, loss of hearing and total loss of vision in left eye, thereby

making him 100% disabled, totally and permanently.

4. The Applicant has preferred the present application for

withdrawal of the balance amount with accrued interest lying

deposited in the Tribunal on the ground that subsequent to the

order passed by this Court dated 21st November, 2019

permitting the Applicant to withdraw 50% of the amount

10-IA 20152.2022 in FA 561.2020.doc

deposited by the Appellant, the Applicant is incurring substantial

expenses as he has to be looked after by two attendants for 12

hours each which costs his mother a sum of Rs.20,000/- every

month. This apart, the injured has to undergo physiotherapy

atleast thrice a week that costs Rs.3000/- every week (Rs.1000/-

per session) which comes to Rs.12,000/- per month. His

medication cost also ranges from Rs.5,000/- to Rs.10,000/-. The

Applicant is also susceptible to health complications and would

require hospitalization as the incident occurred when the

Applicant was at young age and he is now 37 years of the age

and has to be operated for Cataract in the eye that costs for

Rs.53,000/- plus other incidental expenses. Thus, on an average,

the aggregate expenditure on inevitable expenses is Rs.45,000/-

to Rs.50,000/-, majority of which are actual expenditure.

5. Learned Advocate appearing for the Applicant has

submitted that the inevitable expenses has been recognized by

the Division Bench of this Court in New India Assurance

Company Limited Vs. Shweta Dilip Mehta (2011 ACJ 489

10-IA 20152.2022 in FA 561.2020.doc

Bombay DB). He has submitted that the expenses for the

Applicant's treatment is for life time and looking to the normal

life expectancy in India as can be seen from various reported

decisions a multiplier of minimum 25 years can be taken on this

count. He has relied upon the decision of Kavita Vs. Deepak,

2012 ACJ 2161 SC in that context. He has submitted that this

Application, which has been made by the Applicant through his

mother and next friend Smt. Meera Pratap Maniar is for

withdrawal of the balance amount deposited in this Tribunal and

which will be utilized solely for the purpose of inevitable

expenses for medical treatment of the Applicant.

6. Learned Advocate appearing for the Appellant has

submitted that substantial amount has already been withdrawn

by the Applicant pursuant to the order of this Court dated 28 th

November, 2019 as the Applicant has been permitted to

withdraw 50% of Rs.93,51,970/- which had deposited by the

Appellant. He has submitted that in the event this Court allows

any further withdrawals, security is required to be provided to

10-IA 20152.2022 in FA 561.2020.doc

the Appellant including undertaking to be furnished by the

Applicant that in the event the Appeal is decided in favour of

Appellant, the withdrawn amount with interest at such rate as

determined by this Court will be returned. Further, the Applicant

should be permitted to utilize any amount allowed to be

withdrawn solely for the Applicant's expenses and for no other

expenses.

7. I have considered the submissions. I have noted that the

Applicant was only 22 years of age when he met with an

accident due to the rash and negligent driving of Motor Car

No.MH-06-M-9701 which belonged to Respondent No.2 and

insured by the Appellant. The Applicant suffered injury which

resulted in complete paralysis of the left side of the body, loss

of hearing and total loss of vision in left eye thereby making

him 100% disabled, totally and permanently. Further, the

Applicant had to undergo medical treatment which is classified

as inevitable expenses, which is continuously being incurred as

set out in Paragraph 3 (h) at Page 7 of the Interim Application.

10-IA 20152.2022 in FA 561.2020.doc

Thus, a case has been made out for permitting further

withdrawal of the amount deposited by the Appellant with the

MACT, Mumbai. The Division Bench of this Court in New India

Assurance Company Limited (supra) has recognized inevitable

expenses. These inevitable expenses in the present case are

required to be incurred for a life time. Hence, considering that

the first appeal has been admitted by this Court on 28 th

November, 2019 and may take time before the first appeal

comes up for hearing, the Applicants are permitted to withdraw

an additional amount from the amount deposited by the

Appellant. This would be subject to necessary safeguards as

directed below. Hence, the following order :

i) The Applicant through his mother and next friend

Smt. Meera Pratap Maniar is permitted to withdraw

additional 20% of the amount deposited by the Appellant

subject to the Applicant's furnishing an undertaking

against disbursement of the additional amount by the

MACT that if the Appellant succeeds in appeal, the

10-IA 20152.2022 in FA 561.2020.doc

Applicant/Original Respondent shall return the amount

with interest at such rate as may be determined by this

Court.

ii) Interim Application is accordingly disposed of.

iii) In view of the first appeal having been expedited by

this Court, the first appeal shall be placed on the weekly

board for final hearing, high on board in the week

commencing from 16th January, 2023.

iv) Liberty to the Applicant/Original Respondent in the

first appeal to file compilation of documents and

authorities within a period of 4 weeks from the date of

this order.

[R.I. CHAGLA, J.]