Reliance Gen. Ins. Co. Ltd. vs Smt Sunita & Ors
2015 Latest Caselaw 2142 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 12th March, 2015

+                                MAC.APP. No.296/2014

      RELIANCE GEN. INS. CO. LTD.             ..... Appellant
                  Through: Proxy counsel for Ms. Shantha Devi
                              Raman, Adv.
                                     Versus
    SMT SUNITA & ORS                        ..... Respondents

Through: Mr. Sudhanshu Tomar, Adv. for R-1 to 4.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The counsel for the appellant seeks adjournment on the ground of

illness of Ms. Shantha Devi Raman, arguing counsel for the appellant. The

counsel for the respondents no.1 to 4 who were the claimants before the

Tribunal (respondents no.5 & 6 being the driver and owner respectively of

the vehicle which had caused the accident) states that the respondents no.1 to

4 have received the amount awarded under the impugned award / judgment

from the appellant even prior to the filing of this appeal by the appellant. He

states that this appeal is thus not maintainable.

2. A perusal of the order sheet in the appeal shows that this Court, while

issuing notice of this appeal on 31st March, 2014, vide ex parte order on the

application of the appellant for interim relief stayed the execution of the said

award / judgment subject to the appellant depositing the entire awarded

amount along with upto date interest accrued thereon with the Registrar

General of this Court and of which 70% was ordered to be released in favour

of the respondents No.1 to 4/ claimants and the rest of the amount was

directed to be kept in an interest bearing deposit.

3. The file noting shows that in pursuance to the said order, no amount

whatsoever has been deposited by the appellant.

4. A perusal of the Memorandum of Appeal does not show any averment

therein, of the appellant prior to preferring the appeal having paid the

awarded amount without prejudice to its rights and contentions and subject

to its right of restitution in the event of succeeding in the appeal. In fact if

that had been the case, the occasion for the appellant to have sought stay of

execution of the impugned award would not have arisen.

5. I am of the opinion that the appellant having unconditionally paid the

awarded amount and having complied with the award / judgment impugned

in this appeal, the appeal is not maintainable.

6. I find that the respondents no.1 to 4 have preferred cross objections /

cross appeal by way of CM No.11475/2014 for enhancement of the

compensation amount.

7. The counsel for the respondents no.1 to 4 states that if the appeal is

not maintainable, he, on behalf of the said respondents withdraws their cross

objections.

8. Accordingly, the appeal is dismissed as not maintainable and CM

No.11475/2014 by way of cross objections / cross appeal is dismissed as

withdrawn.

No costs.

9. The statutory amount of Rs.25,000/-, if deposited in this Court, be

refunded to the appellant together with interest if any accrued thereon.

10. Before the order aforesaid could be signed, Ms. Shantha Devi Raman,

Advocate mentioned the matter. The Advocate for the respondents No.1 to 4

was also sent for.

11. The counsel for the appellant informed that the awarded amount had

not been paid by the appellant voluntarily to the claimants. With the support

of documents, it is shown that upon the appellant having not deposited the

money in accordance with the impugned award / judgment, the Tribunal

issued warrant dated 27th January, 2014 for attachment of the bank account

of the appellant and that it was in pursuance to the said attachment that the

banker of the appellant drew cheques dated 28th January, 2014 for the

awarded amount in favour of the respondent No.1. The counsel thus

contends that this appeal is entitled to be considered.

12. The counsel for the respondents no.1 to 4 , on the basis of the Trial

Court record, demonstrates that the respondents no.1 to 4 had not applied for

execution and the Tribunal, on its own, upon report being put up by the

officer of the Court that the amount had not been deposited, issued the

warrant of attachment aforesaid.

13. I have still enquired from the counsel for the appellant, as to why the

appellant in the memorandum of appeal dated 27th March, 2014 i.e. after

exactly two months from the date when the payment was so made, did not

disclose the said fact and / or state that the appellant is entitled to restitution.

14. The counsel for the appellant blames the same on the official of the

appellant then dealing with the matter and who is stated to have since left. It

is stated that it was owing to a communication gap that while filing the

appeal, the factum of the impugned award / judgment having already been

executed, was not mentioned.

15. I am unable to still hold the appellant entitled to pursue this appeal.

Allowing the appellant to pursue this appeal now would tantamount to

disturbing the state of affairs which has come into existence and which state

of affairs is of the own making of the appellant. The appellant very well

knew of the date by which it was by the impugned award / judgment

required to make the payment. The appellant Insurance Company can also

be safely presumed to have known the consequences of such non-payment

i.e. upon it not depositing the amount in the Tribunal as directed, coercive

steps shall be taken. The appellant, if desirous of preferring the appeal,

ought to have preferred the same within the said time or informed the

Tribunal that it was desirous of preferring an appeal and sought a stay from

the Tribunal. Even when the attachment of the bank account of the appellant

was effected, the appellant did not go to the Tribunal to say it was preferring

the appeal or that monies pursuant to attachment be released subject to its

right of restitution. Not only was the same not done but this appeal itself was

preferred with an application for condonation of 66 days delay in filing

thereof. Considering the nature and intendment of the said provisions of the

Motor Vehicles Act, 1988 to allow an Insurance Company to at its sweet

will prefer an appeal, would be contrary to the legislative spirit. The

appellant allowed the awarded amount to be received by the claimants /

respondents no.1 to 4 in settlement of the award / judgment and the appeal

preferred more than two months thereafter was still born or infructuous on

the date of institution thereof.

16. The counsel for the appellant has contended that as per the impugned

award / judgment, the bulk of the awarded amount is lying in a fixed deposit

and it is not as if, has been paid to the claimants for being required to be

recovered from the claimants.

17. The same also does not persuade me otherwise. Merely because the

Tribunal, for the benefit of respondents no.1 to 4, has directed the awarded

amount to be kept in fixed deposit would not mean that the amount remains

in the domain of the Tribunal. I may also notice that this Court vide ex-parte

order dated 31st March, 2014 on the application of the appellant for interim

relief, while staying the execution of the award subject to deposit by the

appellant of the entire awarded amount in this Court, ordered 70% of the

said amount to be released to the claimants / respondents no.1 to 4 and only

30% of the said amount to be kept in a fixed deposit. The said order has

attained finality. The claimants / respondents no.1 to 4 thus as per the said

order also were required to receive 70% of the awarded amount and cannot

now, even in the event of appellant succeeding in the appeal, be directed to

refund the monies.

18. Section 173 of the Motor Vehicles Act under which this appeal has

been filed also provides that "no appeal by the person who is required to pay

any amount in terms of such award shall be entertained by the High Court

unless he has deposited with it twenty five thousand rupees or fifty per cent

of the amount so awarded, whichever is less, in the manner directed by the

High Court". The same is also indicative of the appeal being maintainable

only when the compensation awarded by the Tribunal is payable. Once the

compensation awarded has been paid, the question of preferring the appeal

does not arise unless the compensation has been paid without prejudice and

reserving the right to appeal against the award / judgment directing payment

of compensation and which has not been done in the present case.

19. This Court in Khem Chand Vs. Tika Ram MANU/DE/4602/2010,

finding that the appeal had been filed after the execution of the decree for

specific performance stood fully satisfied, held that nothing survived in the

appeal. Similarly, a Division Bench of this Court in Punjab National Bank

Vs. Prem De Vastra AIR 2001 Delhi 172 also, finding that the appellant had

made full payment of the decretal amount and decree stood satisfied,

dismissed the appeal as infructuous. A Division Bench of the Karnataka

High Court also in Executive Engineer, I.D., NLBC Division Vs. A.

Prabhakara Reddy MANU/KA/0948/2002, finding that the appellant

Government had paid the whole of the amount due to the respondent when

the appeal was still pending, held the appeal to have become infructuous the

moment the decree was satisfied since no leave of the Court was obtained to

keep the appeal alive. The same has been the view of the High Court of

Patna in Gulab Ram Vs. Ganauri Ram MANU/BH/0221/1996 and of the

High Court of Calcutta in Shiba Prasad Mukherjee Vs. Dhirendra Chandra

Mukherjee MANU/WB/0379/1960 (DB). I see no reason not to apply the

said principles to the present controversy.

20. I have even otherwise also perused the impugned award / judgment.

The claimants are the widow, two minor children and mother of Sh. Sanjeev

Kumar who died in an accident involving a vehicle insured with the

appellant. The said Sanjeev Kumar at the time of his death was 38 years and

5 months of age. Considering the said fact also, I am of the opinion that no

case for entertaining this appeal, after the issue raised therein is no longer

alive and has been allowed to attain finality, is made out. The counsel for

the appellant of course has contended that the increase of 50% in income

taken into consideration by the Tribunal while computing compensation

under the head future prospects, is improper. Reliance in this regard is

placed on New India Assurance Co. Ltd. Vs. Harpal Singh 2014 I ADD

294 and judgment dated 12th January, 2015 in Case No.189/2014 titled

HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi. The challenge to

the award / judgment thus appears to be on this account only and not

otherwise. Such limited challenge also fortifies my opinion of the appeal

being not entitled to be considered on merits. I may in this regard also notice

that I have today in MAC. APP. No.1140/2011 titled ICICI Lombard

General Insurance Vs. Smt. Renu held that increase of 50% in income for

computing compensation under the head "future prospects" cannot be

restricted to government servants / government employees only, who I may

add, are also generally eligible for family pension.

I therefore see no reason to change the opinion formed by me

hereinabove.

RAJIV SAHAI ENDLAW, J

MARCH 12, 2015 „pp/bs/gsr‟ (corrected and released on 19th March, 2015).