Chauhan Suryaben Rangitbhai vs The New India Assurance Company ...
2023 Latest Caselaw 4898 Guj

      C/SCA/10231/2023                          ORDER DATED: 26/06/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 10231 of 2023

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            CHAUHAN SURYABEN RANGITBHAI
                            Versus
        THE NEW INDIA ASSURANCE COMPANY LTD
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Appearance:
MR A R DWIVEDI(11319) for the Petitioner(s) No. 1
MR R G DWIVEDI(6601) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                          Date : 26/06/2023

                           ORAL ORDER

1. Learned advocate Mr. A. R. Dwivedi for the petitioner submits

that the petitioner - claimant has asked for only her share from the

total amount which has been invested in the fixed deposit receipt for

making repairing of the house and necessary estimate of Consulting

Civil Engineer and Contractor - Mr. Vinod G. Parmar, who, through

the Abstract Sheet, had made the costing of Rs.2,95,900/-for the

repairing work, was placed on record in spite of that the learned

Tribunal has failed to appreciate and has disbelieved the same and as

C/SCA/10231/2023 ORDER DATED: 26/06/2023

the learned Tribunal has placed reliance on the photographs of

house, which is a small hut, has also doubted the claimant being

illiterate woman to have gone to the contractor for quotation and the

learned Tribunal has observed that it was only for the purpose of

helping the petitioner.

2. The learned advocate for the petitioner submitted that the

claimant lady is supporting three minors and aged parents-in-law.

After having sufficient amount, she could, at least, pray for having a

suitable house to live in to provide comfort and shelter to all the

other family members. The learned advocate for the petitioner

submitted that the claimant has prayed for her share of money only

and not any other amount which has been invested for the minors

and the parents-in-law. It is submitted that 30% amount, which has

been granted, which includes loss of consortium, is only

Rs.1,56,837/- and that could not met with the requirements of having

suitable place to live in as she was to support her children and the

parents-in-law since they are staying in a small hut. It is submitted

that it is unfortunate that the learned Tribunal could not

C/SCA/10231/2023 ORDER DATED: 26/06/2023

empathetically consider the plight of the people who would need

sufficient place for shelter and for the protection of minors. 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 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. 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

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;

C/SCA/10231/2023 ORDER DATED: 26/06/2023

(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 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

C/SCA/10231/2023 ORDER DATED: 26/06/2023

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."

3.1 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 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

C/SCA/10231/2023 ORDER DATED: 26/06/2023

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 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

C/SCA/10231/2023 ORDER DATED: 26/06/2023

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."

3.2 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. 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.

4. The genuine needs of the claimant are always required to be

appreciated since every person has a right to live with dignity and

also has duty to provide for their children. The petitioner - claimant

being a widow, has responsibility towards family and the Tribunal

C/SCA/10231/2023 ORDER DATED: 26/06/2023

should not have disbelieved the quotation which has been placed on

record only doubting the claimant as being illiterate woman. The

claimant lady has not asked money from the share of minor or the

parents-in-law. It is not always necessary that whole of the amount

should be invested in the FDR, oblivious of the needs of the

claimant. The claimant would have right to provide sufficient

facility for the children and the parents-in-law and a small hut can be

renovated for a spacious house for all the family members. The

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.

5. Thus, taking into consideration the circumstances as pleaded

by the petitioner - claimant, the petition is allowed. The order dated

13.04.2023 passed below Exh. 1 in MACMA No. 293 of 2023 in

Motor Accident Claim Petition No. 1947 of 2017 by the learned

C/SCA/10231/2023 ORDER DATED: 26/06/2023

4th Additional District Judge, Panchmahals at Halol is quashed and

set aside. The petitioner is permitted to have a premature

withdrawal of the FDR in connection with the aforesaid claim

petition. The total amount of the share of the petitioner, 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 /PC-6