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FA/1703/1995 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1703 of 1995
With
CIVIL
APPLICATION No. 2357 of 1995
In
FIRST APPEAL No. 1703 of 1995
=========================================================
ORIENTAL
INSURANCE CO.LTD. & 1 - Appellant(s)
Versus
AYESHABEN
WD/O.ALI MUSA PATEL & 7 - Defendant(s)
=========================================================
Appearance
:
MR
RAJNI H MEHTA for
Appellant(s) : 1 - 2.
MR DJ BHATT for Defendant(s) : 1 - 5.
NOTICE
SERVED for Defendant(s) : 6 - 7.
None for Defendant(s) :
8,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/10/2008
ORAL
ORDER
1. Heard
learned advocate Mr.Parikh for learned advocate Mr.R.H.Mehta for the
appellants and learned advocate Mr.D.J.Bhatt for respondent Nos.1 to
5.
2. In
CA No.2357/1995, on 11.8.1995, this Court has passed following order
:
?SRule.
Ad-interim
stay on condition that the appellants deposit the entire awarded
amount with costs and interest before the Tribunal within four weeks
from today. The amount of Rs.25,000/- deposited in this Court to the
transferred to the Tribunal in the concerned claim case. The Tribunal
to make investments as per the award.??
2.1 In
aforesaid civil application, this Court by order dated 25.9.2008
called for necessary information from the claims Tribunal to clarify
as to whether any amount is deposited by the Insurance Co. and how
much amount is withdrawn by the claimants. This Court has received
the report from the claims Tribunal wherefrom it appears that
respondent claimant has withdrawn Rs.5 lacs on 10.10.1995 and
Rs.6,85,090/- on 1.12.1995 and in all, Rs.11,85,090/- has been
withdrawn by the claimants from the claims Tribunal.
3. In
view of this facts, learned advocate Mr.Parikh for the appellant ?
Insurance Co. submitted that present appeal is filed by appellant ?
Insurance Co. challenging the award in question passed by MAC
Tribunal, Bharuch and now, the appellant ? Insurance Co. is
challenging the limited aspect raising the contention against the
awarded interest by the claims Tribunal @ 15% upon the compensation.
Therefore, he submitted that this Court may consider this limited
challenge raised by Insurance Co.
4. Learned
advocate Mr.Bhatt for the respondents claimants submitted that claims
Tribunal has rightly awarded 15% interest upon the amount of
compensation and for that, the claims Tribunal has not committed any
error in granting 15% interest in favour of claimants.
5. I
have considered the submissions made by both the learned advocates
and also perused the award in question passed by claims Tribunal. The
claims Tribunal has awarded 15% interest upon the amount of
compensation but, nowhere claims Tribunal has discussed this aspect
that on what basis the claims Tribunal has awarded 15% interest upon
the amount of compensation. Therefore, considering the date of
accident ? 7.8.1987, the amount of compensation has been awarded by
claims Tribunal. Therefore, according to my opinion, if this amount
of interest is little bit on higher side and in such circumstances,
in number of cases, the Apex Court has taken into account 10%
interest and passed the order accordingly. In case of Bijoykumar
Dugar v. Bidyadhar Dutta reported in 2006 ACJ 1058, the accident had
taken place on 15.4.1988 and the High Court has enhanced the interest
@ 18% which was reduced by the Apex Court to the extent of 10%.
Therefore, considering the aforesaid decision; date of accident as
well as the facts of this case, when the claims Tribunal has not
discussed the issue at all for granting the interest @ 15%, in my
considered opinion, the interest of justice would best be met, if
instead of 15% interest, 10% interest is awarded to the claimants.
6. Accordingly,
the award of interest passed by claims Tribunal is reduce from 15% to
10% and accordingly, the amount of compensation with interest is to
be worked out and whatever amount required to be refunded by the
claimants after proper verification, the respondents claimants are
directed to refund the same to the appellant ? Insurance Co. by
Account Payee Cheque after a period of six months. Accordingly,
present appeal is partly allowed.
7. The
appellant ? Insurance co. shall file appropriate application
claiming the amount of refund from the respondents claimants before
the claims Tribunal, Bharuch.
8. After
receiving such application from the Insurance Co., the claims
Tribunal Bharuch shall call the respondents claimants and after
hearing the claimants, shall pass appropriate orders on such
application.
9. In
view of the order passed in main first appeal, CA No.2357 of 1995 is
disposed of accordingly.
(H.K.RATHOD,J.)
(vipul)
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