Telangana High Court

B Shivaji, Hyd vs R. Naga Raju, Hyd And Another on 21 January, 2025

Author: G. Radha Rani

Bench: G. Radha Rani

          THE HONOURABLE SRI JUSTICE SUJOY PAUL
                            &
         THE HONOURABLE DR. JUSTICE G. RADHA RANI

                 M.A.C.M.A.Nos.473 & 800 of 2017


COMMON JUDGMENT:

(per Hon'ble Dr. Justice G.Radha Rani)

As both these appeals are arising out of the same judgment in

M.V.O.P.No.2153 of 2011, the same are discussed together.

2. M.A.C.M.A.No.473 of 2017 is filed by the claimant seeking

enhancement of compensation while M.A.C.M.A.No.800 of 2017 is filed

by the Insurance Company aggrieved by the quantum of compensation

awarded by the Tribunal in M.V.O.P.No.2153 of 2011 and its liability.

3. The facts of the case in brief are that the claimant was aged

about 21 years. He was a student of B.Tech third year studying in

St.Martin College, Dhulapally. He was also stated to be taking

tuitions for intermediate students part time and was earning

Rs.15,000/- per month. It was further stated that on the occasion of

New Year eve on the intervening night of 31.12.2010 / 01.01.2011 in

the midnight at about 01:00 hours, while the claimant was travelling

as a pillion rider on a Pulsar Motor Cycle bearing No.AP-28-BL-9303

from Kompally towards Suchitra and when reached in front of Cine

Planet, the rider of the motor cycle, the friend of the petitioner

(respondent No.1 in O.P.) drove the vehicle in a rash and negligent

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manner with high speed and applied sudden brakes, due to which the

claimant fell on the road, sustained bleeding injury on head and went

un-conscious. Immediately, he was shifted to KIMS Hospital,

Secunderabad and was admitted as in-patient till 31.01.2011. On

05.01.2011, 11.01.2011 and 14.01.2011, surgical operations were

conducted. It was stated that, his face was disfigured, his movements

were restricted, he sustained permanent disability, his career was

badly affected, he was constrained to leave his education. PS Pet

Basheerbagh, Cyberabad registered a case in Crime No.10 of 2011

under Section 338 of IPC against the rider of the motor cycle.

4. The claimant claimed compensation of Rs.30,00,000/- from the

owner and insurer of the Bajaj Pulsar Motor Vehicle bearing No.AP-28-

BL-9303.

5. The respondent No.1 - owner of the Pulsar motor cycle remained

ex-parte.

6. The respondent No.2 - Insurance Company filed counter

contending that the complaint was lodged at a belated stage on

12.01.2011 at 19:30 hours, though the accident was alleged to have

occurred on 31.12.2010. The hospital record of the petitioner would

reveal that on 01.01.2011 at about 02:00 AM, while he was driving a

two wheeler met with an accident under the influence of alcohol while

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returning from New Year celebrations. It would establish that the case

of the petitioner was stage managed and for the purpose of claiming

compensation, a false case was foisted, by planting the insured vehicle

in connivance with the owner of the vehicle. It was further contended

that the respondent No.1 (owner of the vehicle) was the friend of the

claimant. The said motor cycle was planted in collusion with

respondent No.1. In the case of accidents, when the injured was

shifted to hospital, it was the duty of the concerned medical officer or

the hospital authorities to intimate the same under medico legal case

(for short "MLC") immediately to the concerned Police Station. But

there was no such MLC intimation in the case, as such suspected the

involvement of the insured motor cycle bearing No.AP-28-BL-9303 in

the alleged accident. It was further contended that respondent No.1

(the driver - cum - owner of the said motorcycle) was not holding any

driving license to drive the said motor cycle and contravened the

provisions of Motor Vehicles Act, 1988 as well as Motor Vehicle Rules.

The remand report and charge sheet filed against respondent No.1

also would show that he was not holding any driving license as on the

date of accident. As such, charge sheet was filed under Section 181 of

the Motor Vehicles Act for driving the vehicle without driving license.

As the respondent No.1 committed breach of the terms and conditions

of the policy, the petition was liable to be dismissed.

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6.1. The Insurance Company further called for strict proof of the age,

the claimant being a student of B.Tech third year working as a part

time tutor and that he was earning Rs.15,000/- per month. It also

called for strict proof of the injuries sustained by the claimant and

that he incurred the amounts as alleged by him. The Insurance

Company further contended that the compensation claimed by the

claimant was excessive and prayed to dismiss the claim petition

against the Insurance Company with costs.

7. The injured was examined as PW.1. A Neurosurgeon of KIMS

Hospital, Secunderabad was examined as PW.2. The billing manager

of KIMS Hospital was examined as PW.3 and the member of the

District Medical Board, Khammam, who issued the disability

certificate, was examined as PW.4. Exs.A1 to A13 were marked on

behalf of the claimant. The Senior Executive - Legal of the Insurance

Company was examined as RW.1 and the CMO of KIMS Hospital,

Secunderabad was examined as RW.2. Exs.B1 to B7 were marked on

behalf of the Insurance Company.

8. On considering the oral and documentary evidence on record,

the Motor Accidents Claims Tribunal (for short "Tribunal") considered

that the accident occurred due to the rash and negligent driving of the

motor cycle bearing No.AP-28-BL-9303 by its rider.

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9. The Motor Accident Claims Tribunal considered the income of

the claimant as Rs.15,000/- per month and by adding 50 % of it

towards future prospects, considered the same as Rs.22,500/- and by

applying multiplier "18" and considering the partial and permanent

disability sustained by the claimant as 25 % ascertained the loss of

earnings of the claimant as Rs.12,15,000/-. The Tribunal awarded

Rs.3,30,000/- for the medical expenses incurred by the claimant,

Rs.3,00,000/- for future medical expenses, Rs.1,00,000/- towards

pain and suffering and mental agony and Rs.3,00,000/- for loss of

earnings, Rs.2,00,000/- towards attendant charges, extra

nourishment and travelling expenses and Rs.1,00,000/- for loss of

marital life, Rs.1,00,000/- for loss of amenities in life, Rs.50,000/- for

physiotherapy and in all awarded an amount of Rs.26,95,000/-.

Considering that the rider of the motor cycle drove the vehicle without

driving license, the Tribunal directed the Insurance Company to pay

the awarded amount and to recover the same from respondent No.1.

The Tribunal directed the Insurance Company to pay the said amount

with interest @ 9 % per annum from the date of petition till realization

with proportionate costs and interest.

10. Aggrieved by the said award passed by the Tribunal, the

claimant and the Insurance Company preferred these appeals.

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11. Heard Sri Pallati Chandra Mouli, learned counsel for the

claimant and Sri A.Rama Krishna Reddy, learned Standing Counsel

for the Insurance Company.

12. Learned counsel for the claimant in M.A.C.M.A.No.473 of 2017

contended that the claimant preferred the appeal seeking

enhancement of the award from Rs.30,00,000/- to Rs.50,00,000/-.

I.A.No.1 of 2017 was filed seeking enhancement of claim. As per the

disability certificate issued by PW.4, the appellant sustained 25 %

permanent disability, which was partial and permanent in nature.

But the functional disability was 100 %. The disability certificate was

issued only with reference to orthopedic injuries sustained by the

claimant. The claimant sustained severe head injuries. As per the

evidence of PW.2, the treating doctor in KIMS Hospital, Secunderabad,

the claimant had undergone major surgeries for several times. Due to

lack of knowledge, the claimant could not obtain the disability relating

to head injuries from medical board or from treated doctor. The

claimant was an engineering student - cum - home tutor. His income

was considered as Rs.15,000/- per month. But the Hon'ble Apex

Court in its recent judgment in Atul Tiwari v. Regional Manager,

M/s. Oriental Insurance Company Limited 1 decided on 06.01.2025

had considered the notional income of a B.Tech student, who was

2025 SCC Online SC 29

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similarly placed as that of the claimant as Rs.20,000/- per month.

The Tribunal ought to have awarded an amount of Rs.10,00,000/-

towards pain and suffering. But awarded only a meager amount of

Rs.1,00,000/- and ought to have awarded Rs.3,00,000/- towards loss

of expectation of life and interest ought to have been awarded @ 12 %

per annum instead of 9 % per annum and prayed to enhance the

claim from Rs.30,00,000/- to Rs.50,00,000/-.

13. Learned Standing Counsel representing the Insurance Company

in M.A.C.M.A.No.800 of 2017 on the other hand contended that there

was a delay of 12 days in lodging the FIR. As per Ex.A4, the claimant

was hit by an un-known vehicle and that he was under the influence

of alcohol after attending a New Year celebration. No documentary

evidence was filed by the claimant to show that the claimant was a

student and was earning Rs.15,000/- per month. The Tribunal erred

in awarding an amount of Rs.3,30,000/- when the evidence on record

would show that he availed Arogyasri for his medical treatment. The

Tribunal erred in awarding Rs.3,00,000/- towards loss of earnings

when the multiplier method is adopted for calculating loss of income,

which would amount to awarding twice under the same head. The

alleged accident was a hit and run by an un-known vehicle. The rider

and the pillion rider were under the influence of alcohol. As such, the

Tribunal ought to have dismissed the claim. The interest awarded at

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9 % was on high side. The Tribunal ought to have awarded interest

@ 6 % per annum and prayed to set aside the award and decree

passed in M.V.O.P.No.2153 of 2011 by the Tribunal.

14. As seen from these rival contentions, admittedly, the claimant

travelled as a pillion rider on the Bajaj Pulsar Motor Cycle bearing

No.AP-28-BL-9303. The Pulsar motor cycle was driven by respondent

No.1. As per the claim petition, the motor cycle was not hit by any

vehicle, but while the rider of the motor cycle driving the same in a

rash and negligent manner, applied sudden brakes, due to which, the

pillion rider fell on the road and sustained bleeding injuries on his

head and went un-conscious and he was admitted in KIMS Hospital

immediately. Ex.A1 is the certified copy of the FIR. The complaint

lodged by the father of the injured was enclosed to it. Even as per the

complaint, the motor cycle was driven by its rider in a rash and

negligent manner, due to which, the claimant who was travelling as a

pillion rider fell down, sustained head injury and fell un-conscious.

The delay was also explained by the de-facto complainant that his son

was un-conscious even by the date of lodging the complaint on

12.01.2011 and as he was attending his son, could not lodge the

complaint immediately. Ex.A2 is the final report (charge sheet) filed by

Police of PS Pet Basheerbagh. As per the investigation conducted by

the Police also, the vehicle was not hit by any un-known vehicle, but

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the accident occurred due to the rash and negligent driving by the

rider of the motor cycle, who applied sudden brakes, due to which the

pillion rider fell down and sustained grievous head injuries. It was

also mentioned therein that the injured claimant was a B.Tech

student in St.Martin College, Dhulapally. Ex.A3 is the injury

certificate issued by the Casualty Medical Officer of KIMS Hospital

which would disclose that the claimant was admitted in the hospital

on 01.11.2011 and that he was discharged on 31.01.2011. The injury

certificate also would disclose that the claimant sustained traumatic

CSF rhinorrhoea and diffuse axonal injury. It was recorded in the

history of the accident that he was hit by an un-known vehicle while

travelling on a two-wheeler at around 02:00 AM on 01.01.2011 near

Kompally. This aspect was seriously contended by the learned

Standing Counsel of Insurance Company that the Bajaj Pulsar motor

cycle was hit by an un-known vehicle and got examined RW.2, the

Casualty Medical Officer working in KIMS Hospital to prove the said

fact. RW.2 stated in his evidence that Ex.A3 was issued by one Dr.

K.K. Sai Brahmam and he left the hospital and the said history was

recorded by the doctor basing on the information given by the patient

attendants accompanying the patient. Admittedly, the claimant was

in un-conscious state and he was not in a position to give the details

of the accident. The father of the claimant, who admitted the claimant

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in the hospital was not an eye-witness to the accident. As such, the

same could not be taken as basis for suspecting the claim. As the

Investigating Officer after completing the investigation, filed the charge

sheet holding that the rider of the motor cycle was alone responsible

for the accident for his negligent driving, the manner of the accident

need not be suspected. The delay in lodging the report is also properly

explained by the father of the claimant while lodging the complaint

enclosed to Ex.A1 itself. As such, this Court is of opinion that the

Tribunal had not committed any error in holding that the accident

occurred due to the rash and negligent driving of the rider of the motor

vehicle bearing No.AP-28-BL-9303.

15. However, the charge sheet marked under Ex.A2 would disclose

that the rider of the motor cycle was not holding driving license, as

such, the charge sheet was filed against him under Section 181 of the

Motor Vehicles Act apart from Section 338 of IPC. As the same would

prove that the respondent No.1 - owner - cum - driver of the motor

cycle committed breach of the terms and conditions of the policy by

driving the vehicle without having a driving license, this Court also

does not find any illegality in the award passed by the Tribunal for

"pay and recovery" considering that the claimant was a third party to

the Insurance Policy and the Motor Vehicles Act being a beneficiary

legislation.

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16. With regard to the amount of compensation, it is averred that

the claimant was a B.Tech third year student and no rebuttal evidence

was adduced to disprove the same. As such, notional income has to

be taken into consideration for calculating the loss of earnings. In

B.Ramulamma v. Venkatesh Bus Union, Lingarajapuram,

Bangalore and another 2, the erstwhile High Court of Andhra Pradesh

on considering various judgments of the Hon'ble Apex Court and of

the various High Courts, held that:

36. As far as the students, who are about to complete their course, are concerned, it is very difficult to determine their income. Guess work becomes inevitable. But even for guesswork some rationale has to be followed. Every conclusion must be based on sound reasoning and established legal principles. The parents of the deceased with fond hope impart education to their children. Now-a-

days the educational expenses have been increased. Even if a student secures a seat in EAMCET under Convener quota, the parents have to bear other expenses, such as hostel fees, books, travelling charges etc. Normally, the parents have to spend at least Rs. 70,000/- to Rs. 1,00,000/- per annum to meet the expenses of their children, who are studying B.Tech or M.Tech or similar courses. Of course expenditure incurred for education cannot be taken as basis for determining the income of the deceased students. After completing their

2009 (6) ALT 784

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education, when they may secure a job, what would be their salary and how long they would have continued in their job and how much they would have contributed to their parents are the questions which necessarily depend upon some guess work.

In such circumstances, the evidence of contemporaries or the classmates of those students who have secured job and who are getting regular income can be taken as basis.

52. In view of the present salaries, being earned by the Computer Engineers, there cannot be any doubt to say that the deceased would have earned minimum Rs. 12,000/- to Rs. 15,000/- per month. It has to be seen that now-a-days IV class employees are also getting minimum Rs. 7,000/- to Rs. 10,000/- per month depending upon their service. The Junior Assistants are also getting Rs. 12,000/- to Rs. 15,000/- per month. Therefore, considering the normal scales being earned by the Government employees and also the minimum wage scales fixed to the technical persons, we are of the view that the minimum salary of a technical person, who is holding a bachelor degree in computers or electronics or mechanical, can be taken as Rs. 12,000/- per month. Therefore, the income of the graduates in engineering i.e, B.Tech, cannot be fixed less than Rs. 12,000/- per month, otherwise it amounts to neglecting the ground reality. Similarly those who have completed M.Tech, MCA, MBA, the income of such persons can be fixed a little higher i.e. at Rs. 15,000/- per month. This will take care of

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the additional income which they would have earned in course of their service.

17. Relying on the above judgment, the learned Standing Counsel for

the Insurance Company contended that the notional income of a B.E

graduate can be taken as Rs.12,000/- per month. But in the present

case, the claimant was a student of B.Tech. third year but his notional

income was taken as Rs.15,000/- per month by the Tribunal, which

was more than the income fixed by the High Court of Andhra Pradesh

in the above case, as such the same needs to be reduced.

18. The contention of the learned counsel for the claimant on the

other hand was that the accident in the said case was occurred in the

year 1995. But in the present case, the accident occurred on

31.12.2010 i.e. 15 years later. The Hon'ble Apex Court in Atul Tiwari

v. Regional Manager, Oriental Insurance Company Limited (cited

supra) for the accident occurred on 03.10.2009 considered the

notional income of a student as Rs.20,000/- per month as against

Rs.15,000/- taken by the Tribunal basing on the efflux of time and

changed economic scenario and insisted for taking the notional

income of the claimant as Rs.20,000/- per month.

19. However, in the above case, the Hon'ble Apex Court held that it

was proved that the said claimant was a meritorious student. But, in

the present case, no such evidence was adduced to consider the

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academic excellence or the merit of the present claimant. However, as

the Tribunal considered the notional income of the appellant -

claimant as Rs.15,000/- per month more than the income considered

by the High Court in the case of Ramulamma (cited supra) and an

addition of 50 % of it is also added towards future prospects as per the

judgment of the National Insurance Company Limited v. Pranay

Sethi 3 , we consider that the amount of Rs.22,500/- taken by the

Tribunal as loss of income for assessing the loss of future earnings is

justifiable.

20. The evidence of PW.2, the Neuro Surgeon of KIMS Hospital

would disclose that the claimant sustained an open head injury

(traumatic CSF Rhinorrhea), diffuse axonal injury, multiple fractures

of left side of the skull bones, sub-arachnoid bleeding and bilateral

pleural effusion right more than left, with collapse of right lower limb

of lung. It was also stated by PW.2 that the patient was in coma score

of E-1, M-4 B-1 6/15 (severe head injury). He was admitted in neuro

ICU with ventilator support. He was on antibiotics, anti convulsants

and anti odema measures and was on Ionotropic supports. He

developed CSF Rhinorrhea (Cerebro Spinal Fluid - leak from the nose).

On 05.01.2011, a bicoronal flap surgery and frontal craniotomy was

performed on him. ACF repair with fascialata and pericranium was

(2017) 16 SCC 680

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performed on 05.01.2011. After the surgery also, the claimant was

found to be drowsy, as such a CT-scan brain was done, which

revealed diffuse cerebral edema. For prolonged ventilator support, he

had undergone tracheostomy on 11.01.2011. As he was not showing

any signs of improvement, another surgery i.e. bilateral fronto temparo

craniotomy was performed on 14.01.2011. He stated that the said

injuries were grievous in nature.

21. He further stated that the patient was admitted for second

admission on 02.07.2011 for replacement of skull bone (BFR), which

bone was kept in abdomen wall on 14.01.2011 and was discharged on

12.07.2011. He stated that the claimant required further surgery for

defect in the front skull bones, for which foreign titanium mash was

required, which would cost an amount of Rs.3,00,000/-, as per

Ex.A10. He further stated that the patient could not smell because of

fracture forehead skull base fracture.

22. In the cross-examination, PW.2 also stated that there was

weakness under lower limb at the time of second admission and

discharge. The knee deformity was because of RTA. But the main

injury was that of head and chest. He further stated that it was

compulsory for the patient to undergo further surgery because there

was deformity over the forehead. He stated that he had not mentioned

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in the discharge summary about the lack of sense of smell of patient,

as the patient was in coma at that time.

23. Thus, the evidence of PW.2 would disclose that the claimant had

undergone three surgeries. One on 05.01.2011, second one on

11.01.2011 and third one on 14.01.2011 and craniotomy was

performed on him and the claimant sustained deformity due to

fracture forehead of skull and he was unable to smell because of the

injuries sustained by him to his skull and that he also required

another major surgery with cranioplasty, which would require

Rs.3,00,000/- as per the estimation given by PW.2.

24. Thus, considering the evidence of PW.2, which would disclose

that the claimant was admitted as in-patient in KIMS Hospital from

01.01.2011 to 31.01.2011 and had undergone three surgeries and was

admitted for the second time once again on 02.07.2011 and was

admitted as in-patient for a period of 10 days and was discharged on

12.07.2011 and was in comatose condition for several days and was

on prolonged ventilator treatment, the amount of Rs.1,00,000/-

awarded by the Tribunal towards pain and suffering is considered as

meager. The appellant - claimant ought to have been awarded an

amount of atleast Rs.2,00,000/- towards pain and suffering.

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25. The evidence of PW.3, the billing manager of KIMS Hospital

would disclose that the claimant paid an amount of Rs.3,30,000/-

under Ex.A8. As such, the appellant - claimant was entitled to receive

the said amount towards the actual medical expenses incurred by him.

26. As the evidence of PW.2 would disclose that the claimant

required an amount of Rs.3,00,000/- for further surgery, the Tribunal

rightly awarded an amount of Rs.3,00,000/- for his future medical

expenses, which requires no interference by this Court.

27. The Tribunal awarded an amount of Rs.3,00,000/- towards loss

of earnings. However, as the claimant failed to adduce any evidence

that he was earning as a part time tutor while studying and that he

sustained any actual loss of earnings and the loss of future earnings is

considered basing on a notional income, this Court considers that

there is no necessity to award any amount under this head. As such,

the same is required to be deleted.

28. The evidence of PW.4, the member of the District Medical Board,

Khammam would disclose that the claimant appeared before the

Medical Board on 03.10.2012 and after examining him, he issued the

disability certificate Ex.A9, which was counter-signed by the Medical

Board Chairman. As per Ex.A9, PW.4 stated that the claimant

sustained 25 % disability, which was partial and permanent. As per

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the learned counsel for the claimant, PW.4 being an orthopedic civil

surgeon had issued the disability certificate only assessing the

disability sustained by the claimant to his knee, but not considering

the head injury sustained by him. But if the same was true, the

claimant or the learned counsel for the claimant ought to have

obtained the opinion of PW.2 with regard to the disability sustained by

the claimant basing on the head injuries sustained by him. But the

evidence of PW.2 is silent on the said aspect. He only stated that the

claimant could not smell. The claimant ought to have shown his

entire medical record to PW.4 while obtaining the disability certificate.

As such, it has to be considered that PW.4 after considering the entire

medical record of the petitioner and after making an independent

assessment had only given the disability certificate marked under

Ex.A9 as 25 %.

29. Considering the photograph of the claimant pasted on the

disability certificate also, his head injury appeared to be healed by the

date of issuing the said certificate on 03.10.2012. As such, as the

physical disability sustained by the claimant is assessed by an

experienced doctor, the member of the Medical Board and assessed

the same as 25 % and the evidence of PW.1 is also silent about the

functional disability sustained by him and the difficulties faced by him

in conducting his normal functions, it is considered that the 25 %

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functional disability taken by the Tribunal is also proper. As such, we

do not deem it necessary to interfere with the calculation made by the

Tribunal towards loss of earnings sustained by the claimant.

Considering the judgment of the Hon'ble Apex Court in Sarla Verma

and others v. Delhi Transport Corporation and another 4 , as the

multiplier is taken as "18" and the loss of earnings is calculated as

Rs.22,500/- x 12 x 18 x 25 % = 12,15,000/-, the same is accepted.

30. Considering the prolonged treatment taken by the claimant in a

reputed hospital and as some of his family members might have

attended to him during the above period and might have incurred

amounts for extra nourishment and travelling, the amount of

Rs.2,00,000/- awarded by the Tribunal for all these expenses i.e.

attendant charges, extra nourishment and travelling is considered as

reasonable.

31. As the evidence of PW.2 would disclose that the petitioner had

sustained loss of smell, the amount of Rs.1,00,000/- awarded towards

loss of amenities in life by the Tribunal is also considered as

reasonable. However, as there is no evidence that the petitioner had

sustained any difficulty for performing marriage, no amount ought to

have been awarded by the Tribunal for loss of marital life. As such,

the amount of Rs.1,00,000/- awarded by the Tribunal under the said

(2009) 6 SCC 121

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head need to be deleted. As the evidence of PWs.2 and 4 is also silent

with regard to any physiotherapy required by the claimant and no bills

for physiotherapy were also enclosed by the claimant, the said amount

of Rs.50,000/- awarded by the Tribunal also need to be deleted.

32. As such, this Court considers it reasonable to award the

following amounts under the following heads:

      S. No.            Heads             Amount of Compensation
                                               awarded (in Rs.)
        1.     Loss of Earnings           Rs.12,15,000/-
        2.     Medical Expenses           Rs.3,30,000/-
        3.     Future Medical Expenses    Rs.3,00,000/-
        4.     Pain and Suffering         Rs.2,00,000/-
        5.     Attendant charges, extra Rs.2,00,000/-
               nourishment and travelling
               expenses
        6.     Loss of amenities in life  Rs.1,00,000/-
                  Total (in Rs.)          Rs.23,45,000/-

33. We also consider it appropriate to award interest @ 7.5 % per

annum instead of 9 % interest per annum as awarded by the Tribunal.

34. In the result, M.A.C.M.A.No.800 of 2017 filed by the Insurance

Company is allowed reducing the compensation from Rs.26,95,000/-

awarded by the Tribunal to Rs.23,45,000/- and M.A.C.M.A.No.473 of

2017 filed by the claimant is dismissed confirming the compensation

of Rs.23,45,000/- with interest @ 7.5 % per annum. The Insurance

Company is directed to deposit the above amount within a period of

eight (08) weeks from the date of receipt of a copy of this judgment by

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deducting the amount already deposited by it if any and the claimant

is permitted to withdraw the said amount without furnishing any