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SCA/4357/2011 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4357 of
2011
===============================================
RASHMIKANT
DAHYALAL SHAH & 2 - Petitioner(s)
Versus
M/S
ORIENTAL FIRE & GENERAL INSURANCE COMPANY LTD. - Respondent(s)
===============================================
Appearance :
MR
GM AMIN for Petitioner(s) : 1 - 3.
MR RITURAJ M MEENA for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 25/04/2011
ORAL ORDER
Mr.
Amin, learned advocate for the petitioners, has submitted that
against the original judgment and decree passed by the
M.A.C.Tribunal, the insurance company had preferred First Appeals
being First Appeal Nos.1466 of 1983 and allied matters. He also
submitted that the said appeals were filed against the judgment and
award dated 17.2.1983 passed in M.A.C.Petition Nos. 157 to 160 of
1981 and 11 to 13 of 1982. He has also submitted that all of the
aforesaid appeals came to be dismissed by the judgment and order
dated 20.6.2007 passed by the High Court in the aforesaid appeals.
He has relied upon the paras-6 and 7 of the said order, which reads
thus:-
“6. In
absence of a plea, issue, argument, discussion and finding by the
learned tribunal, it would not be proper on the part of this Court
to allow the Insurance Company to raise the issue of limited
liability for the first time before this Court.
7. All
the appeals deserve to and are accordingly dismissed. Interim
relief, if any, is vacated. No costs.”
2. He has
submitted that after the aforesaid order was passed, the petitioners
had moved application seeking permission to withdraw the deposited
amount. He has also referred to the remark made by the learned
advocate of the insurance company on the petitioners’ application
dated 7.12.2010 seeking permission to withdraw the deposited amount.
Mr. Amin submitted that the learned advocate for the insurance
company had, by the remark on the application (Exh.15), stipulated
and declared that the insurance company had no objection, if the
permission to withdraw the amount was granted. Mr. Amin has, made
grievance that despite the final order passed by this Court in the
aforesaid appeals and inspite of the fact that the learned advocate
for the insurance company made a stipulation on the application, the
learned Court passed order dated 24.1.2011, which contains below
mentioned directions:-
“O
R D E R
1. Out
of deposited amount by insurance company Rs.7,500/- (Rupees Seven
Thousand Five Hundred Only) be deducted and be paid to the Oriental
Insurance Co. by account payee cheque. Cheque be handed over to
authorized person of the said insurance company on verification.
2. Out
of the remaining amount the deficit Court fees, if any, shall be
recovered from the award amount.
3. From
rest of the deposited amount by the opponents 10% amount be given to
the applicant by account payee cheque after proper verification and
identification.
4. Balance
90% amount be invested in a nationalized bank of the choice of the
applicant as Fixed Deposit for a period of 125 months. Applicant is
entitled to withdraw periodical interest on such FDR. Applicant is
not entitle to create any charge or lien on such FDR except with the
prior permission of the Tribunal.”
The
petitioners are aggrieved by the said directions, more particularly
by the direction that balance 90% of the amount be invested for
further period of 125 months.
3. Mr.
Amin has contended that after the original judgment and order dated
17.2.1983, more particularly after the order in the First Appeals,
the learned Tribunal is rendered functus-officio and
any other directions could not be even passed by the learned
Tribunal. He has also submitted that, in any case, the original
judgment and decree
passed in the claim petitions got merged in the order passed by the
High Court in the resultant appeals and when appeals have been
dismissed, there was no justification to pass the impugned order
dated 24.1.2011. Mr. Amin has requested that the petitioners may be
permitted to withdraw the deposited amount.
4. Mr. Meena,
learned advocate for the insurance company, has submitted that he
needs to find out as to whether any proceedings have been taken out
before the Hon’ble Supreme Court or not and as to whether any orders
have been passed by the Hon’ble Supreme Court or not.
5. So
as to enable the learned advocate for the insurance company to get
necessary information, S.O.
to 3.5.2011
with clarification that any further time will not be granted for the
said purpose.
[K.M.Thaker,
J.]
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