Decd. Kantilal Badarbhai Briya ... vs United India Insurance Co. Ltd
2021 Latest Caselaw 17746 Guj

      C/SCA/13733/2021                              ORDER DATED: 25/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13733 of 2021

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             DECD. KANTILAL BADARBHAI BRIYA THROUGH LHS
                                  Versus
                    UNITED INDIA INSURANCE CO. LTD.
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Appearance:
MR. MAULIK M SONI(7249) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7
MR VC THOMAS(5476) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                             Date : 25/11/2021

                              ORAL ORDER

1. The present petition filed under Article 14 and 227 of the Constitution of India with the following prayer.

a) be pleased to quash and set aside order dated 23.09.2019 passed in M.A.C.M.A. No. 269 of 2018 in M.A.C.P. No. 86 of 2011 passed below Exh-1, passed by the Ld. 4th Additional District Judge Dahod as well as be pleased to pass appropriate order and be pleased permit the petitioners to withdrawal amount at the equal share i.e. 7 equals share of Rs. 2,02,993/-;

b) be pleased to appropriate order and be pleased to direct the Ld. 4th Additional District Judge Dahod to decide the appropriate shares / appropriate proportionate of award amount i.e. Rs. 2,02,993/- between the petitioners and thereafter the petitioners may permitted that shares at the earliest;

c) be pleased to allow and pass such orders as thought fit in

C/SCA/13733/2021 ORDER DATED: 25/11/2021

the interest of justice.

2. The petitioner is legal heirs of the deceased Kantilal Badarbhai Bariya interalia claiming Rs. 9,00,000/- towards the compensation under Section 163A of the Motor Vehicles Act. The Hon'ble Tribunal, after considering the oral and the documentary evidence, allowed the claim petition in part and awarded Rs. 2,00,000/- vide judgment and award dated 06.09.2017. The Insurance Company has not challenged the impugned judgment and award by way of filing the First Appeal before this Court and they have accepted the amount. The present petition filed against the judgment and award of the Ld. Tribunal passed in CMA (MACP) No. 269 of 2018 and prayed for disbursement of the amount of compensation. The said application was rejected by the Ld. Motor Accident Claim Tribunal, Dahod vide order dated 23.01.2019.

3. Considering the facts and circumstances of the petitioner, and considering the judgment of this Court in the Special Civil Application No. 11483 of 2015 in the case of Kuntal Maheshkumar Gandhi Vs. Arvind M Gadani and Ors. and the decision rendered by the Hon'ble Apex Court in case of A.V. Padma and others Vs. R. Venugopal and others reported in 2012(1) GLH 442, more particularly para 5 thereof, which read as under:

"5. Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of

C/SCA/13733/2021 ORDER DATED: 25/11/2021

minors, illiterate claimants and widows and in the case of semi- literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money. The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him. The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of 6 compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice."

4. I am of the opinion that the appropriate amount can be disbursed in favour of the present petitioner then the interest of justice can be served. So out of total awarded amount i.e. Rs. 2,00,000/-, Rs. 50,000/- is to be kept in fixed deposit in the name of the applicant's wife and rest of the amount is to

C/SCA/13733/2021 ORDER DATED: 25/11/2021

disburse in favour of the applicant by way of issuing account payee cheque. In view of above, the petition is hereby allowed. The Tribunal is directed to disburse the amount of Rs. 1,50,000/- by way of issuing amount account payee cheque in the name of the first applicant i.e. widow of deceased Surekhaben Kantilal Bariya, after proper verification and the remaining amount of Rs. 50,000/- along with the interest accrued thereon it would be deposited in the name of the applicant No. 1 i.e. widow of deceased Surekhaben Kantilal Bariya, since the other applicants are minor. The application is allowed to the aforesaid extent. The registry is directed to communicate this order to the concerned Tribunal.

(HEMANT M. PRACHCHHAK,J) T. J. Bharwad