Gujarat High Court

Bhaktiben Bhaveshkumar Thakker ... vs Arvind Trikamji Gor on 18 August, 2022

Bench: Gita Gopi

     C/SCA/15729/2022                                     ORDER DATED: 18/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15729 of 2022

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BHAKTIBEN BHAVESHKUMAR THAKKER WD/O DECD BHAVESHKUMAR
                       J THAKKAR
                          Versus
                  ARVIND TRIKAMJI GOR
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Appearance:
MR. HEMAL SHAH(6960) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 18/08/2022

                                  ORAL ORDER

1. The petitioners are challenging the order

dated 17.2.2021 passed in MACMA no.1936 of

2019, whereby the MACT (Aux), Bhuj-Kutch had

partly allowed the application and had

ordered to disburse the awarded amount of

Rs.16,23,318/- which was kept in Fixed

Deposit in the name of Nazir of the District

Court and the enhanced amount of

Rs.2,97,161/- as per the terms and

conditions mentioned in MACP no.696/99.

C/SCA/15729/2022 ORDER DATED: 18/08/2022

2. Learned advocate Mr. Hemal Shah submitted

that the learned Tribunal ought to have

considered the fact that no such directions

were given by the High Court in First Appeal

no.2132 of 2004 with First Appeal no.954 of

2004 which were decided on 29.4.2019. Mr.

Shah submitted that taking into

consideration the length of the litigations

and the fact that the order of again

depositing the amount in the Fixed Deposit

would be onerous and defeating the rights of

the claimants since any such orders for

placing the amount in Fixed Deposit Receipt

should be in consonance with the guidelines

of the Hon'ble Apex Court in the cases of

A.V. Padma & Ors. Vs. R. Venugopal & Ors.,

reported in (2012) 3 SCC 378 and General

manager, Kerala State Road Transport

Corporation, Trivandrum Vs. Susamma Thomas &

Ors., reported in (1994) 2 SCC 176. Mr. Shah

C/SCA/15729/2022 ORDER DATED: 18/08/2022

submits that the learned Tribunal has

adversely observed that the applicant no.3

died on 1.11.2015 during the pendency of the

appeal before this Court and the applicants

had failed to inform and join the legal

heirs of the deceased in the final appeal

and had also failed to produce any pedigree

or any other relevant documents showing the

heirs of the deceased applicant no.3 and

therefore, the learned Tribunal did not deem

it fit to disburse the amount coming to the

share of the applicant no.3-deceased in

favour of the applicants no.4 and 5 - the

widow and the son. Further, the learned

Tribunal had also adversely observed that

the advocate of the applicants had failed to

inform the Court at the relevant point of

time of the minor attaining the majority and

therefore, the learned Tribunal did not deem

fit to grant any amount to the applicant

C/SCA/15729/2022 ORDER DATED: 18/08/2022

no.2. Mr. Shah submitted that it is a matter

of course and self-evident that after

institution of MACP no.696 of 1999, the

applicant no.2, who was aged about 2 years,

with passage of time, would attain majority

and would be entitled for the amount

according to his age on the date of the

order. Further, Mr. Shah submits that the

death of the applicant no.3 inadvertently

could not be informed since the matter was

at large pending before this Court, but the

very fact that all the applicants as the

claimants are family members of the deceased

was self-evident, the very status of the

claimants in the cause title proves the fact

that they are the heirs of the deceased and

therefore, there was no further necessity to

prove the relationship by way of any

pedigree. Referring to the facts, Mr. Shah

submitted that the accident had taken place

C/SCA/15729/2022 ORDER DATED: 18/08/2022

on 25.5.1999 and Bhaveshkumar Thakkar died

at the age of 29. On 22.7.1999, his legal

representatives submitted an application

under Section 166 of the Motor Vehicles Act,

1988 claiming compensation of Rs.51,00,000/-

along with the petition under Section 163A

of the Act claiming Rs.34,09,500/-. On

23.5.2000, a petition under Section 163A of

the Act was allowed and the total

compensation of Rs.21,42,500/- along with

the interest was awarded. Challenging the

same, the insurance Company filed First

Appeal no.2379 of 2000, where Mr. Shah,

referring to Paragraph 10, submits that

necessary directions were given by this

Court for the claimants to file an

undertaking to conduct the Claim Petition

under Section 166 of the Act and were not

permitted to withdraw the application or get

it dismissed for default. Mr. Shah submitted

C/SCA/15729/2022 ORDER DATED: 18/08/2022

that as per the judgment of this Court in

First Appeal no.2379 of 2000 dated

23.1.2002, the petition under Section 166 of

the Act was proceeded and it came to be

decided on 16.4.2004, where the Tribunal was

pleased to award a sum of Rs.34,50,068/-

with a condition to deduct the amount that

was granted as per the order under Section

163A of the Act, which was allowed with

costs and interest. Feeling aggrieved by the

said judgment, the insurance Company filed

First Appeal no.2132 of 2004 and even the

claimants were aggrieved by the judgment and

therefore, they too filed First Appeal

no.954 of 2005. The insurance Company

deposited Rs.16,23,318/-, which was kept in

cumulative FDRs and came to be renewed till

final disposal of First Appeal no.2132 of

2004. Mr. Shah submitted that both the

appeals were decided by a common judgment on

C/SCA/15729/2022 ORDER DATED: 18/08/2022

29.4.2019, where the Court was pleased to

enhance the amount of compensation to

Rs.35,52,484/-.

3. Mr. Shah submitted that necessary documents

have been produced on record to show that

the petitioner no.2 has attained majority

and further the death certificate shows that

petitioner no.3 died on 1.11.2015. Mr. Shah

submitted that the surviving petitioners

should be permitted to recover the amount as

the award under Section 166 of the Act is of

16.4.2004 and First Appeals of both the

parties were disposed of on 29.4.2019 and

the date of the accident is 25.5.1999. Mr.

Shah states that the litigation continued

for about 2 decades without due compensation

amount to be granted to the claimants at

regular intervals.

C/SCA/15729/2022 ORDER DATED: 18/08/2022

4. Mr. Shah submits that by an order of the

Tribunal, total amount of Rs.55,19,134/-

which is calculated along with the interest

was deposited and the learned Tribunal,

after granting 40% of the cash amount again

deposited the rest of the amount in FDR for

a period of 5 years and no cash amount was

even granted to the claimant no.2 though the

facts were brought to the notice of the

Court that he has already attained majority.

He further states that claimant no.4 was

father and claimant no.5 was the brother and

thus, they were not dependents and hence, no

amount was granted as compensation to them.

Hence, he states that the claimants who

would be entitled for the compensation would

be the claimants no.1, 2 and 4 and thus,

states that the cash amount was granted to

the widow of the deceased and mother of the

deceased, while the son of the deceased was

C/SCA/15729/2022 ORDER DATED: 18/08/2022

not granted any amount by way of cheque and

the entire amount has been again deposited

in 5 years' FDR.

5. A.V. Padma's case (supra) refers to the

guidelines issued in the case of Susamma

Thomas (supra). In Susamma Thomas's case

(supra), while approving the judgment of the

Gujarat High Court in the case of Muljibhai

Ajarambhai Harijan Vs. United India Insurance

Co. Ltd., reported in 1982 (1) GLR 756, the

Apex Court has offered the following

guidelines:-

"(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;

C/SCA/15729/2022 ORDER DATED: 18/08/2022

(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;

(iii) In the case of semi-

literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the

C/SCA/15729/2022 ORDER DATED: 18/08/2022

Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;

(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;

          (v)            In the case of widows the
          Claims         Tribunal         should           invariably

follow the procedure set out in (i) above;

(vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied

C/SCA/15729/2022 ORDER DATED: 18/08/2022

about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;

          (vii)      In      all        cases         in        which
          investment        in         long        term         fixed
          deposits    is made           it should             be on
          condition       that     the       Bank      will        not

permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;

          (viii)     In      all            cases        Tribunal
          should     grant         to        the       claimants

liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated."

C/SCA/15729/2022 ORDER DATED: 18/08/2022

6. The litigation on record shows that it has

traveled from Tribunal to High Court and

again to the Tribunal. The length of the

years. The claimants are still waiting to

taste the fruits of the result. The

Tribunal, while disposing MACMA no.1936 of

2019 on 17.2.2021, granted 40% amount to the

widow and mother of the deceased while

denied any amount to the son who as per the

record has already attained majority. Rest

of the amount going in the share of widow