Gujarat High Court
Ushaben Dharmeshbhai Kapadiya vs Indian Bank on 20 October, 2022
Bench: Gita Gopi
C/SCA/21755/2022 ORDER DATED: 20/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21755 of 2022
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USHABEN DHARMESHBHAI KAPADIYA
Versus
INDIAN BANK
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Appearance:
MR MOHSIN M HAKIM(5396) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/10/2022
ORAL ORDER
1. The petitioner No.1 (Ushaben Dharmeshbhai
Kapadiya) - original claimant aggrieved by the order
below Exhibit I in M.A.C.M.A. No.693 of 2022 (in
MACP No.1322 of 2011) dated 17.09.2022 passed by
the learned Motor Accident Claims Tribunal (Auxi.),
Vadodara has filed the present petition.
2. Learned Advocate for the petitioners Mr. Mohsin M.
Hakim submits that the petitioner had preferred an
application before the learned Tribunal seeking
disbursement of the amount invested in her name in
a Fixed Deposit Receipt (FDR) enumerating the facts
and circumstances of the case, i.e. for release of the
house from the mortgage payment, medical expenses
as well as interest accrued on loan and investment in
C/SCA/21755/2022 ORDER DATED: 20/10/2022
Beauty Parlour business. It is submitted that the
necessary documents were produced in support of the
application and the learned Tribunal granted
Rs.9,04,650/- to the petitioner herein initially the
amount, i.e. Rs.21,10,850/- was ordered to be
invested in a FDR for a period of 5 years. Learned
Advocate for the petitioner has produced a copy of
the FDR No.0428217 at Annexure F of the petition,
(Page 60). This Annexure suggests that
Rs.21,10,850/- was placed in FDR in the name of the
petitioner herein. However, it is submitted that said
amount was necessary for the releasing the house
from mortgage, payment of medical expenses, for
payment of the interest on the loan and investments
for the Beauty Parlour business. A claim was made
before the learned Tribunal for premature encashment
of the FDR and the same came to be partly allowed
and an amount of Rs.9,04,650/- was ordered to be
transferred through NEFT/RTGS after proper
verification and identification and rest of the amount,
i.e. Rs.12,10,850/- was ordered to be placed in the
FDR in the name of the petitioner No.1 herein for a
minimum period of 5 years.
C/SCA/21755/2022 ORDER DATED: 20/10/2022
3. It is submitted by the learned Advocate for the
petitioner that after the death of the earning member
of the family, i.e. the husband of the petitioner, all
the women members i.e. the mother-in-law and
minor child and the petitioner as a widow continued
to reside with the family and had shouldered the
responsibility of maintaining themselves and in the
course for financial sustenance, the house came to be
mortgaged and loans were taken for the Beauty
Saloon business and since the amount is now
available to the petitioner for paying of the dues and
thus prayed to release the FDR. It is further
submitted that the learned Tribunal ought to have
considered this aspect and should also have
considered the genuiness of the application since no
prayer was made for releasing the amount lying in
the FDR's of the mother-in-law and minor child.
4. The judgment of the Hon'ble Apex Court in the case
of A.V. Padma & Ors. Vs. R. Venugopal & Ors.,
reported in (2012) 3 SCC 378 stipulates that the
Tribunal is required to give a thoughtful consideration
to the genuine requirements of the claimant and
C/SCA/21755/2022 ORDER DATED: 20/10/2022
should avoid mechanical approach ignoring the object
and spirit of the Act. A.V. Padma's case (supra)
refers to the guidelines issued in the case of General
Manager, Kerala State Road Transport Corporation,
Trivandrum Vs. Susamma Thomas & Ors., reported in
(1994) 2 SCC 176. 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;
(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
C/SCA/21755/2022 ORDER DATED: 20/10/2022
(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 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
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;
C/SCA/21755/2022 ORDER DATED: 20/10/2022
(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."
In the case of A.V. Padma (supra), while appreciating
the guidelines issued in the case of Susamma Thomas
(supra), it has been observed as under:-
"7. The expression used in guideline No. (iv) issued
by this Court is that in the case of literate persons
also the Tribunal may resort to the procedure
indicated in guideline No. (i), whereas in the
guideline Nos. (i), (ii), (iii) and (v), the expression
used is that the Tribunal should. Moreover, in the
case of literate persons, the Tribunal may resort to
the procedure indicated in guideline No. (i) only if,
having regard to the age, fiscal background and
strata of the society to which the claimant belongs
and such other considerations, the Tribunal thinks
that in the larger interest of the claimant and with
a view to ensure the safety of the compensation
awarded, it is necessary to invest the amount of
compensation in long term fixed deposit.
8. 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
C/SCA/21755/2022 ORDER DATED: 20/10/2022
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 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.
9. 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.
C/SCA/21755/2022 ORDER DATED: 20/10/2022
10. 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 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."
In the case of A.V. Padma (supra), the guidelines so
issued in the case of Susamma Thomas (supra), has
been clarified. Hence, it could be said that sufficient
discretion has been given to the tribunal to exercise,
considering the need of the applicant-claimant. In
case of literate person, the Tribunal is required to
give relaxation by not adopting pedantic approach of
investing the money in long term FDR without
recording reasons for investing the money in long
term deposits. It has been observed in the case of
A.V. Padma (supra) that the Tribunal are often taking
a very rigid stand and are mechanically ordering,
almost in all cases, the amount of compensation to be
C/SCA/21755/2022 ORDER DATED: 20/10/2022
invested in long term FDRs. The deposited money are
of the claimants. The literates can prudently exercise
discretion, manage their funds and can individually
decide about systematic planning for investing the
money.
5. Having heard learned Advocate for the petitioner and
on perusing the records of the case, it appears that a
compensation petition was filed by way of M.A.C.P.
No.1322 of 2011 by three of the claimants, i.e. the
widow, minor child and mother of the deceased. The
claim of Rs.34,91,000/- was allowed on 06.12.2021
by the learned Motor Accident Claims Tribunal
(Auxi.), Vadodara. The disbursement order was
passed and the amount accordingly was placed in
FDR and in compliance of the disbursement order
dated 25.04.2022, 70% of the amount coming in the
share of the petitioner (Ushaben) as Rs.21,10,850/-
was ordered to placed in FDR and after the prayer of
premature withdrawal was made, the learned Tribunal
granted an amount of Rs.9,04,650/- to the petitioner
herein and rest of the amount, i.e. Rs.12,10,850/-
was ordered to be placed in a FDR.
C/SCA/21755/2022 ORDER DATED: 20/10/2022
6. Considering the length of the litigation and the
pressing needs of the family, and when the petitioner
has shown genuineness by not claiming any amount
which is coming in the share of the mother-in-law
and minor child, the need to release the house from
mortgage and to pay interest expenses on the
business conducted by her, this Court deems it fit to
grant the prayer made in the petition as non-allowing
the amount falling in the share of the petitioner
would further put up more debts and inconvenience.
7. In view of the aforesaid, the petition is allowed. The
order dated 17.09.2022 in M.A.C.M.A. No.693 of
2022 (in MACP No.1322 of 2011) passed by the
learned Motor Accident Claims Tribunal (Auxi.),
Vadodara is modified and the entire amount invested
in the share of the petitioner - Ushaben and lying in
the FDR by way of FDR No.0428217 with Indian
Bank is ordered to be released to the petitioner
alongwith the interest accrued thereupon.
Direct Service is permitted.
Sd/-
(GITA GOPI, J)
CAROLINE
