Dahyaji Bhikhaji Thakor ... vs Abdurajjak Naththekhan Pathan
2021 Latest Caselaw 17836 Guj

     C/SCA/5574/2020                                 ORDER DATED: 29/11/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5574 of 2020

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            DAHYAJI BHIKHAJI THAKOR (KOLATAR) (KOYATAR)
                               Versus
                ABDURAJJAK NATHTHEKHAN PATHAN
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Appearance:
MR KK THAKKAR(2834) for the Petitioner(s) No. 1,2
MS KIRTI S PATHAK(9966) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1,3
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                 Date : 29/11/2021

                                  ORAL ORDER

1. Rule. Learned advocate Ms. Kirti S. Pathak waives service of notice of rule on behalf of respondent No. 2 i.e. Insurance Company.

2. By way of this petition, the petitioners challenge the order dated 07.10.2019 passed by the Motor Accident Claim Tribunal (Auxiliary) Banaskantha at Palanpur in MACMA No. 861 of 2019 (MACP No. 227 of 2016). Whereby, the Tribunal partly allowed the application for premature encashment of fixed deposit which is lying in the Oriental Bank of Commerce, Palanpur Branch vide No. TDR/UFPL/B 1189449 and TDR/UFPL/B 1189450 dated 06.10.2018 in the name of the present petitioners for the purpose of constructing and renovating their kuchha hut.

3. In support of the application, the petitioners stated before the Tribunal that they are in need of the money for constructing pakka house instead of kuchha hut. They have also shown the

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photographs of the kuchha hut and the construction work for the pakka house to this Court at the time of hearing. They are old aged persons and for that they are in need of the money. Considering the facts on record and the submissions made on behalf of the petitioners, the Tribunal has considered the request and partly allowed application for premature encashment of Rs. 35,000/- to the petitioners in totaling to Rs. 75,000/- are allowed to encash and the remaining amount to be kept in the FDR in the name of the present petitioners.

4. I have considered the submissions made at bar and considered the decision rendered 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 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

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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."

5. In this case, the petitioners are the parents of the deceased and awarded the compensation and the amount of Rs. 3,35,061/-

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was ordered to be kept in the FDR in the name of the present petitioners along with 9% per annum interest accrued. Against the said order, the insurance company has not challenged the award. The insurance company has deposited the said amount, which is already invested in the FDR of the bank i.e. Oriental Bank of Commerce, Palanpur Branch for compensation awarded in MACP No. 227 of 2016. It appears that, the petitioners are old aged persons and they are wanted to construct the pakka dwelling house for them in place of kuchha hut. The petitioners need the amount for their dwelling house. Looking to the amount involved and/or remained in the FDR, it is not served the purpose looking to the amount into such aspects, because any further delay in receiving the amount of compensation may expose the petitioners to serious prejudice or they may even lose their dwelling house for survival of the petitioners.

6. In view of the above position, the present petition is hereby allowed. The impugned judgment and award dated 07.10.2019 passed by the Ld. Motor Accident Claim Tribunal (Auxiliary), Banaskantha at Palanpur in MACMA No. 861 of 2019 is hereby quashed and set aside. The Ld. Tribunal is directed to permit the petitioners to premature encashment of Rs. 1,00,000/- each from their FDR and remaining amount is to be reinvested in the fixed deposit in the nationalized bank within four weeks from the date of receipt of the order of this Court. Rule is made absolute to the aforesaid extent.

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