Gujarat High Court
Chanchiben Babulal Lilabhai ... vs Hiteshkumar Zaverbhai Chavda on 9 December, 2021
Bench: Hemant M. Prachchhak
C/SCA/3312/2011 JUDGMENT DATED: 09/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3312 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHANCHIBEN BABULAL LILABHAI RAVAL & 6 other(s)
Versus
HITESHKUMAR ZAVERBHAI CHAVDA & 4 other(s)
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Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 1
MR JV JAPEE(358) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,1.5,1.6,1.7
DELETED(20) for the Respondent(s) No. 4
HL PATEL ADVOCATES(2034) for the Respondent(s) No. 1
MR MIG MANSURI(444) for the Respondent(s) No. 5
MR PALAK H THAKKAR(3455) for the Respondent(s) No. 3
RULE SERVED(64) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/12/2021
ORAL JUDGMENT
1. The present petition is filed by the original claimant under
Article 226 of the Constitution of India challenging the impugned
C/SCA/3312/2011 JUDGMENT DATED: 09/12/2021
order dated 18.07.2009 passed by the Motor Accident Claims
Tribunal (Aux.), Sabarkantha at Himmatnagar (hereinafter
referred to as "the Act") below application at Exhibit 8 in
Execution Petition No.504 of 2006 in M.A.C.P. No. 188 of 1995
and allied claim petition with the following prayers.
(A) YOUR LORDSHIPS be pleased to quashed and set aside the
impugned order below Exh.8 passed by the Tribunal in
Execution Application No.504 of 2006 in Motor Accident Claims
Petition No.188 of 1995 passed by the Motor Accident Claims
Tribunal, Sabarkantha at Himmatnagar.
(B) YOUR LORDSHIPS be pleased to issue the writ of mandamus or
any other appropriate writ, order or direction and be pleased
to allow the application under Exh.8 preferred by the petitioner
and be further pleased to issue appropriate directions against
the Insurance Company i.e. the respondent no.3 to pay the
additional amount of interest of Rs.1,43,361/- to the petitioner.
(C) YOUR LORDSHIPS be pleaed to direct the Insurance Company -
the Respondent no.3 to deposit the deficit amount of interest
of Rs.1,43,361/- before the Motor Accident Claims Tribunal,
Sabarkantha at Himmatnagar pending admission, hearing and
final disposal of this petition.
(D) YOUR LORDSHIPS be pleased to grant such other and further
reliefs as may be deemed fit in the interest of justice.
2. Brief facts of the present petition are that on 26.09.1994,
claimants i.e. (i) Chanchiben Babubhai Lilabhai Raval and (ii)
Lakhabhai Jesingbhai Raval were occupied the passengers auto
rickshaw bearing registration no.GQG-9858 and were travelling
towards Prantij from Village: Salal. It is alleged that when the
auto rickshaw reached three kilometers away from Prantij
nearby the field of one Jagdish Gopal Patel at about 1.30 p.m. at
that time, offending vehicle i.e. Maruti Car bearing registration
No.GJ-1-K-2565 came in rash and negligent manner on wrong
side and dashed in front side of the rickshaw, as a result of
which, the claimants sustained grievous and serious injuries. It is
C/SCA/3312/2011 JUDGMENT DATED: 09/12/2021
also alleged that the claimants were transmitted to the Civil
Hospital, Himmatnagar and therefrom referred to Civil Hospital,
Ahmedabad and in spite of being taken a prolonged treatment,
they have sustained permanent functional disability resulting
into loss of earning capacity and total loss of income. Therefore,
the original claimant has preferred claim petition being M.A.C.P.
No.188 of 1995 seeking compensation of Rs.4,15,000/- before
the Tribunal and the Tribunal has allowed the claim petition vide
order dated 19.06.2006. The para-2 of the operative order
passed in said claim petition reads as under.
"The opponents no.2, 3 & 5 do pay jointly and / or severally
the aforesaid awarded amount of compensation to the
claimants along with interest and cost within 30 (THIRTY)
Days from the date of receipt of judgment and award but in
default, they have to bear the interest @ 12% p.a. that too
from the said date of filing. Further, it is ordered that the
claimants will send certified xerox copies of order and
award by R.P.A.D. to the said opponents and their
advocates with a view to enable them to deposit the said
amount of compensation within the said statutory period of
30 days."
2.1 It is alleged that the Insurance Company is required to
deposit the awarded amount within 30 days from the date of
receipt of the judgment and award but the Insurance Company
has failed to bear the interest at the rate of 12% p.a. that too
from the said date of filing. Therefore, the claimant has preferred
Execution Petition No.504 of 2006 in M.A.C.P. No.188 of 1995
and after hearing of both the sides, the Tribunal has dismissed
the Execution Petition vide order dated 18.07.2009 and hence,
this petition.
3. Heard learned counsel appearing for the petitioner, learned
counsel for respondent no.3.
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4. Learned counsel appearing for the petitioner has submitted
that the Tribunal has not considered the fact that respondent
no.3 - Insurance Company has failed in making payment of
interest at higher rate on account of default in depositing the
compensation amount. He has submitted that a clear direction
was issued by the Tribunal in the award that the Insurance
Company was liable to pay the amount of compensation within
30 days from the date of receipt of the copy of the judgment and
award, but in default they have to bear the interest at the rate of
12% p.a., that too, from the date of filing of the claim petition.
He has submitted that as per the direction of the Tribunal, the
claimant has sent the certified copy of the award by registered
post A.D. to the Insurance Company along with letter dated
26.07.2006 which came to be received by the company on
27.07.2006 and, therefore, the Insurance Company was liable to
pay the compensation within one month. He has submitted that
the compensation amount was deposited much later after filing
of the Execution Petition on 13.11.2006 and, therefore, the
claimant is entitled to higher rate of interest at the rate of 12%
p.a. He has submitted that the claimant is entitled to additional
amount of Rs.1,43,361/-.
5. Learned counsel appearing for the respondent - Insurance
Company has submitted that the Tribunal has not committed any
mistake in rejecting the application at Exhibit 8. He has
supported the order passed by the Tribunal and in support of his
submissions, he has relied upon decision of this Court in the case
of Executive Engineer & 1 and Dilipsinh C. Chavda & 17,
reported in 2005 (3 ) G.L.H. 285. He prays for dismissal of the
petition and prays for its confirmation.
C/SCA/3312/2011 JUDGMENT DATED: 09/12/2021
5. It appears from the impugned order that while dismissing
the application at Exhibit 8, the Tribunal has observed in para-5,
which reads as under.
"5. Looking to the aforesaid discussion, the appellant has
not fulfilled the mandatory condition imposed by Tribunal
that "It is ordered that the claimant will sent certified copy
of order and award by R.P.A.D. to the said opponents and
their advocates". So, in my view, claimant is not entitled for
the interest at the rate of 12% after the passing of 30 days
of judgment and award. But, in my view, the applicant has
received entire amount and award with interest of 9%. so,
now there is no question to make procedure against the
opponent No.3 to make payment for so called remaining
amount as per the rate of interest of 12%. Therefore, at this
juncture, I pass the following order in the interest of justice.
ORDER
This application is hereby dismissed with cost.
The amount of original award deposited by opponent No.3
with interest @ 9% which was already withdrawn by the
applicant, so nothing is due against the opponent no.3.
Therefore, aforesaid execution petition is hereby disposed
off accordingly."
6. I have considered the submissions canvassed by the
learned counsel appearing for the parties and perused the
materials placed on record and the decision cited at the bar.
Considering the facts of the present case and the order of the
Tribunal, it appears that the Tribunal has rightly passed the
impugned order and has observed that the amount of
compensation has deposited by Insurance Company with interest
at the rate of 9% which was already withdrawn by the claimant,
so nothing was due against the Insurance Company. Considering
the submissions and the averments made in the petition, I am of
the considered view that no interference is required in the
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petition and the same deserves to be dismissed.
7. In view of the above, the present petition is dismissed. Rule
is discharged. There shall be no order as to cost. Registry is
directed to communicate this order to the Tribunal.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
