Naynaben @ Nisha D/O Tulsibhai ... vs The New India Assurance Company ...
2023 Latest Caselaw 4509 Guj

      C/SCA/9534/2023                         ORDER DATED: 15/06/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 9534 of 2023

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     NAYNABEN @ NISHA D/O TULSIBHAI MISTRI W/O
                 DHARMESHKUMAR DESAI
                            Versus
        THE NEW INDIA ASSURANCE COMPANY LTD.
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Appearance:
MR MAKBUL I MANSURI(2694) for the Petitioner(s) No. 1
MS SABINA M MANSURI(3631) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                          Date : 15/06/2023

                          ORAL ORDER

1. Learned advocate Mr. M. I. Mansuri for the petitioner submits

that the petitioner being an injured minor, had filed claim petition

No. 886 of 1994 and the learned Tribunal had granted Rs.38,650/-

for the accident which had occurred on 25.12.1993. Aggrieved by

the award, the petitioner had preferred the First Appeal No. 3967 of

2019 and the amount came to be enhanced by the judgment and

order dated 15.12.2022.

C/SCA/9534/2023 ORDER DATED: 15/06/2023

2. The learned advocate for the petitioner submitted that after a

long period, the petitioner, who was a minor at the time of accident,

would get the fruits of litigation and since, she wanted to use the

money for her own development and business purpose, she had

moved an application before the learned Tribunal at Godhra for

disbursement of total amount, however, the total amount which was

Rs.7,46,009/- which was deposited along with interest from the date

of application, with the learned Tribunal, the learned Tribunal

permitted only 30% amount, while 70% was ordered to be deposited

in the FDR in Nationalized Bank/ Baroda-Gujarat Gramin Bank of

the petitioner's choice for a period of five years. It is submitted that

the petitioner is a literate lady and she could have rather invested the

amount as per her knowledge and understanding to earn more

interest. Relying upon a decision of the Apex Court in A. V. Padma

& Ors. v. R. Venugopal & Ors., (2012) 3 SCC 378, the learned

advocate for the petitioner submitted that the lady, after a long

period, should be granted money for her own, for business benefits.

It is submitted by the learned advocate for the petitioner relying

upon a copy of Partnership Deed that the petitioner is partner to the

C/SCA/9534/2023 ORDER DATED: 15/06/2023

firm and further to show her own independent business, has also

produced copy of another Partnership Deed, executed on

10.12.2022. It is further contended that the Tribunal is required to

give a thoughtful consideration to the genuine requirements of the

claimant and should avoid mechanical approach ignoring the object

and spirit of the Act.

3. In the case of A. V. Padma (supra), it is observed considering

the fact that after a long battle of litigation, the petitioner could

finally get the compensation amount and considering the fact that the

petitioner is actively involved in the partnership business, she can

prudently exercise her discretion and manage her funds and can

individually decide about systematic planning for investing the

money.

3.1 A. V. Padma's case (supra) refers to the guidelines issued in

the case of General Manager, Kerala State Road Transport

Corporation, Trivandrum v. Susamma Thomas & Ors., (1994) 2

SCC 176. In Susamma Thomas's case (supra), while approving the

C/SCA/9534/2023 ORDER DATED: 15/06/2023

judgment of this Court in the case of Muljibhai Ajarambhai

Harijan Vs. United India Insurance Co. Ltd., 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 semiliterate 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 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

C/SCA/9534/2023 ORDER DATED: 15/06/2023

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;

(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."

3.2 Further, 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

C/SCA/9534/2023 ORDER DATED: 15/06/2023

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 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

C/SCA/9534/2023 ORDER DATED: 15/06/2023

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.

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."

3.3 In the case of A. V. Padma (supra), the guidelines so issued in

the case of Susamma Thomas's case (supra), have been clarified.

Hence, it could be said that sufficient discretion has been given to

the tribunal to exercise, considering the need of the petitioner -

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

C/SCA/9534/2023 ORDER DATED: 15/06/2023

in long term deposits. It has been observed in the decision in A. V.

Padma (supra) that the Tribunals are often taking a very rigid stand

and are mechanically ordering, almost in all cases, the amount of

compensation to be 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.

4. In the present case, since the petitioner lady is doing business

and in support, copy of Partnership Deed is also produced on record,

which substantiate the fact that the petitioner is doing business and

for the purpose, has made prayer for withdrawal. The present

petitioner - claimant would know her own welfare and thus, keeping

in view the guidelines as laid down in Susamma Thomas's case

(supra), and keeping in mind the observations made in the case of

A. V. Padma (supra), if the prayer of the petitioner is not

considered, then it would result into serious injustice and hardship to

the petitioner - claimant.

C/SCA/9534/2023 ORDER DATED: 15/06/2023

5. Thus, taking into consideration the circumstances as pleaded

by the petitioner - claimant, the petition is allowed and the petitioner

is permitted to have a premature withdrawal of the FDR in

connection with the aforesaid claim petition. The total amount so

deposited in the FDR, is ordered to be granted to the petitioner -

claimant along with the interest accrued thereon and the Bank

concerned is directed to pay the amount along with interest so

accrued on the said FDR to the petitioner- claimant on receipt of this

order.

[ Gita Gopi, J. ] hiren /28