Usmanbhai Kalekhan Pathan vs Anilbhai Bhailalbhai Nikam
2021 Latest Caselaw 14112 Guj

     C/SCA/18719/2014                             ORDER DATED: 15/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 18719 of 2014

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                      USMANBHAI KALEKHAN PATHAN
                                 Versus
                  ANILBHAI BHAILALBHAI NIKAM & 5 other(s)
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MS KARUNA V RAHEVAR(3818) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1,2,4,5,6
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 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 15/09/2021

                               ORAL ORDER

1. Rule returnable forthwith. Learned advocate Ms. K. V.

Rahevar waives service of notice of rule for and on behalf of

respondent No.3.

2. By preferring this petition, petitioner has challenged the

legality and validity of the order dated 20.08.2012 passed in

Execution Petition No.6/1998 dismissing the Execution Petition

preferred by the petitioner for executing the award dated

22.01.1998 passed by the Motor Accident Claim Tribunal (Main),

Valsad District at Navsari in Motor Accident Claim Petition No.389

of 1987 directing the respondent Nos.1, 2,4, 5 and 6 to pay jointly

and severally a sum of Rs.48,400/­ to the claimants with the

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running interest at the rate of 12 % per annum from the date of

the petition till its realization and pay the cost in proportion.

3. The short facts of the present case may be referred as under:

As per the order passed by Motor Accident Claim Tribunal

(Main), Valsad at Navsari in Motor Accident Claim Petition No.389

of 1987, amount was not paid as per the award by the respective

respondents, Execution Petition No.6 of 1998 was preferred by the

petitioner before the Motor Accident Claim Tribunal in which pursis

below Exh.31 was passed on 20.08.2012 by the respondent No.6 ­

United India Insurance Company Limited stating the fact that the

amount of Rs.57,892/­ was deposited by the company on

24.07.1998 before the Nazir office. Considering the aforesaid facts

mentioned in the pursis filed by the respondent No.6 ­United India

Insurance Company Limited below Exh.31, the Executing Court

came to dispose of the petition vide order dated 20.08.2012.

4. Heard learned advocate for the petitioner and learned

advocate for the respondent No.3.

5. It is submitted that impugned order passed by the Executing

Court in Execution Petition No.6 of 1998 dated 20.08.2012 is

completely contrary to the facts and record of the case. That

affidavit below Exh. 24 was filed by the petitioner in support of the

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Execution petition before the Executing Court. That as per the

award no amount was deposited by the Insurance Company,

however the tribunal has committed an error by believing the fact

that the amount has already been deposited by the respondent

No.6­ United India Insurance Company Limited. It is further

submitted that before passing the impugned order, no verification

was made by the tribunal whether entire amount as per the award

was deposited or not and without verifying the aforesaid aspect,

Tribunal has disposed of the Execution Petition vide order dated

20.08.2012. That in the affidavit filed by the petitioner, it was

clearly mentioned that the respondent No.6 has not deposited the

amount as per the judgment and award but however, Tribunal only

considered the pursish Exh.31 filed by the respondent No.6 and

disposed of the Execution Petition. It is further submitted that

before passing the impugned order, no opportunity was given to

the present petitioner to controvert the statement made by the

United India Insurance Company Limited­ respondent No.6 nor

affidavit filed by the petitioner in support of Execution Petition was

considered. That remaining amount is yet to be recovered by the

present petitioner as per the award passed in favour of the

petitioner i.e. interest amount. Hence, it was requested by learned

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advocate for the petitioner to quash and set aside the order passed

by the Executing Court in Execution Petition No.6 of 1998 dated

20.08.2012 by the Motor Accident Claim Tribunal, Valsad at

Navsari.

6. None is appeared for and on behalf of the respondent

Nos.1,2,4,5 and 6 before this Court, however, notice was served as

per the cause list.

7. Learned advocate appearing for the respondent No.3­ The

Oriental Fire & General Insurance Company Limited has submitted

that no order was passed against the respondent No.3 by the

Tribunal to pay any amount to the present petitioner and

respondent No.3 was exonerated. It is further submitted that in

Execution Petition No.6 of 1998, notice was issued to opponent

Nos.1 and 2 as well as 4,5 and 6 under order 21 Rule 22 of the

C.P.C. vide order dated 20.08.1998. That even no notice was issued

in Execution petition preferred by the petitioner, hence it is

requested by learned advocate appearing for the respondent No.3

to pass necessary order.

8. Having gone through the facts of the present case and

submissions made by learned advocate for the petitioner and

learned advocate for the respondent No.3, it appears from the

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record that in MACP No.389 of 1987, the opponent Nos.1,2, 4, 5

and 6 were directed to pay jointly and severally a sum of

Rs.48,400/­ ( Rs. Forty Eight Thousand Four Hundred Only) to the

applicant with the running interest at the rate of 12 % per annum

from the date of the petition till realization and also pay his cost in

proportion. As no amount was paid by the concerned respondent

or deposited, the petitioner filed an Execution Petition No.6 of

1998 before the Executing Court at Navsari, wherein notice was

issued to opponent Nos.1 and 2 as well as 4,5 and 6 under order 21

Rule 22 of C.P.C. on 20.08.1998. Respondent No.6­ United India

Insurance Company Limited filed its objection vide Exh.9 denying

the contents of the execution application. It was contended that on

04.07.1998, respondent No.6 had deposited Rs.57,892/­ by way of

cheque. It was further contended that remaining amount i.e. 50 %

amount of the award including principle amount, interest and cost

was to be paid by the respondent Nos.1,2 and 3. That respondent

No.3 was responsible to indemnify the respondent No.2. An

affidavit was filed by the petitioner in support of his application

giving necessary details of the amount, which was to be recovered

from the respondent admitting that on 04.07.1998, Rs.57,892/­

was deposited before the Tribunal. Further it appears from the

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record that on 20.08.2012, one pursis was filed by the respondent

No.6 vide Exh.31 that Rs. 57,892/­ was deposited on 24.07.1998

before the office of the Nazir in account No.2963 C No. 146. The

learned Executing Court, vide order dated 20.08.2012, believed the

pusis Exh.31 filed by the respondent No.6 and observed that award

amount was paid to the judgment debtor. As the judgment debtor

was not present to controvert the statement made by the opponent,

petition was disposed of. The way in which execution petition

preferred by the petitioner was disposed of vide order dated

20.08.2012 cannot be approved by this Court. It is admitted fact

that when the order was passed by the Tribunal disposing the

Execution Petition preferred by the petitioner, petitioner was not

present to controvert the statement made in the pursis Exh.31.

Affidavit Exh. 24 was already on record declaring by the petitioner

that out of the awarded amount, Rs. 57,892/­ was deposited by the

respondent No.6 on 04.07.1998 and remaining amount including

the interest of Rs.1,12,288/­ was to be recovered by the petitioner

and total amount of Rs.2,04,579/­ were to be recovered by the

petitioner. It appears that without considering the affidavit filed by

the petitioner and verifying the record whether the entire amount

as per the award was deposited by the respondent or not, Tribunal

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in a hurried manner passed the impugned order disposing the

execution petition preferred by the petitioner, and therefore, this

Court is of the opinion that the impugned order passed by the

Executing Court requires to be quashed and set aside.

10. This petition is hereby allowed. The impugned order passed

by the Motor Accident Claim Tribunal, Valsad at Navsari in

Execution Petition No.6 of 1998 dated 20.08.2012 is hereby

quashed and set aside.

11. The Execution Petition No.6 of 1998 shall be restored with

Motor Accident Claim Tribunal, at Navsari and shall proceed in

accordance with law. Considering the age of the execution petition,

same would be decided by the Tribunal within a period of six

months from the date of receipt of this order. Rule is made

absolute to the aforesaid extent.

(B.N. KARIA, J) SUYASH