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SCA/7162/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7162 of 2010
=========================================================
UNITED
INDIA INSURANCE COMPANYLTD. - Petitioner(s)
Versus
BHAVSUTABEN
DILIPBHAI PATEL THRO. POWER OF ATTORNEY HOLDER & 2 -
Respondent(s)
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Appearance :
MR
MAULIK J SHELAT for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 02/12/2010
ORAL
ORDER
Petitioner-Insurance
Company has challenged an order dated 21.11.2009 passed by MACT
(Main) Anand below application Exh.37 in MACP No.5875/2006 (Old
No.MACP No.2215 of 2003).
Short
facts are as follows:
The
respondents had filed above mentioned claim petition for
compensation for death of Dilipbhai Patel in a vehicular accident.
In the claim petition, the claimants also filed an application under
Section 140 of M.V. Act seeking interim compensation. The claims
Tribunal by its order dated 14th September, 2004 directed
the opponents including the present petitioner – Insurance
Company to deposit before the Tribunal Rs.50,000/- with 9% interest
p.a. from the date of application till payment. It is not in dispute
that pursuant to the said order dated 14th September,
2004, the petitioner-Insurance Company deposited Rs.67,362/- through
cheque dated 16.10.2007 drawn on HDFC Bank Ltd.
Eventually,
the claim petition was decided by the Tribunal. Claimants were
granted compensation of Rs.3,13,000/- with interest of 7.5% per
annum from the date of filing of the claim petition till realization
with proportionate cost. In the said order, the Tribunal clearly
specified that “Interim amount, if any, paid to the claimant
be adjusted at the time of final disbursement”.
Since
the award was not satisfied, the claimants filed execution
proceedings before the Claims Tribunal. In response to the execution
notice, the petitioner-Insurance Company deposited sum of
Rs.4,24,238/- under protest on or around 25.1.2008. It is not in
dispute that while claiming the total amount of Rs.4,24,238/-, the
claimants had not adjusted the interim compensation received from
the Insurance Company under order dated 14th September,
2004 passed by the claims Tribunal. Without adjustment of the said
amount, the Tribunal also disbursed the entire amount of
Rs.4,24,238/- deposited by the Insurance Company.
At one stage,
Insurance Company was considering challenging the award itself,
however, under legal advise directed not to challenge the award.
Eventually, the Insurance Company realizing the error that the
claimants had received certain amount twice filed application Exh.37
on 2.3.2009 before the Claims Tribunal and prayed that the amount of
interim compensation paid by the Insurance Company be returned after
recovery from the claimants. It was on this application that the
Claims Tribunal passed its impugned order dated 21.11.2009.
Application came to be dismissed primarily on the ground that facts
were not brought to the notice of the Tribunal by the Insurance
Company at the relevant time and the present application is filed
long after the disbursement order was also passed. Mainly on these
grounds, the application of the petitioner-Insurance Company came to
be dismissed.
I
have heard learned advocate Mr.Shelat for the petitioner and
Mr.Mehul Vakharia for the respondents.
From
the above factual aspects, it would emerge that undisputably the
claimants had received Rs.50,000/- with cost by way of interim
compensation during the pendency of the main claim petition. While
disposing the claim petition finally, the award of Rs.3,13,000/- by
way of compensation with specified interest and cost, the Tribunal
provided that interim compensation, if already received, will be
adjusted. When the execution application was filed by the claimants,
the amount of interim compensation paid over was not adjusted. The
Tribunal therefore affected recovery of the entire claim and
Insurance Company also unfortunately, though deposited the amount
under protest, did not bring full facts to the notice of the
Tribunal. It is true that there was delay on part of the Insurance
Company. However, delay itself in the facts of the present case
would not defeat the right of the Insurance Company. It was
primarily duty of the claimants also to bring true and full facts to
the notice of the Tribunal. The claimants cannot take an advantage
of their own wrong and plead delay.
By
no means, the claimants can receive any amount twice. They must
suffer adjustment by the interim compensation previously paid. Under
the circumstances, the request of the petitioner is required to be
granted. However, in view of the delay on the part of the Insurance
Company instead of undertaking fresh calculation and also
calculating interest on the amount already paid by way of interim
compensation, by way of rough and ready formula, it is provided that
out of compensation already received by the claimants, Insurance
Company will be entitled to get back sum of Rs.67,362/- paid by way
of interim compensation. Such amount be recovered form the
investments made out of the compensation received by the claimants
taking care to ensure that claimants be put to minimum loss of
interest. This order shall be implemented within 8 (eight) weeks
from today by the Claims Tribunal. Petition is disposed of
accordingly.
(AKIL
KURESHI, J.)
(ashish)
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