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MCA/2533/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR DIRECTION No. 2533 of 2010
In
FIRST
APPEAL No. 4673 of 2006
=========================================================
TAHERABIBI
MOHAMMADKHA MOGAL & 3 - Applicant(s)
Versus
MUSTUFA
MOHAMMAD MACHHARA & 2 - Opponent(s)
=========================================================
Appearance
:
MR
MTM HAKIM for
Applicant(s) : 1 - 4.
NOTICE SERVED for Opponent(s) :
1,
UNSERVED-EXPIRED (N) for Opponent(s) : 2,
MS AMEE YAJNIK for
Opponent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 24/11/2010
ORAL
ORDER
1. Heard
learned advocate Mr.MTM Hakim for applicants – original
claimants.
2. Learned
advocate Mr.Hakim submitted that applicant No.4 – Hasinabibi
Matbarkha Mogal is the mother of deceased, who expired on 21.1.1998
and death certificate was produced before claims Tribunal, Baroda
vide Exh.35. The claim petition No.1204 of 1996 came to be decided on
15.9.2004. Therefore, learned advocate Mr.Hakim submitted that after
the award has been passed by claims Tribunal, Baroda, one application
was made by claimants vide Exh.41 dated 7.1.2005 (Annexure-C,
Page-18) with a request to delete the name of claimant No.4 –
Hasinabibi Matbarkha Mogal from the award and accordingly, amendment
be made in the said award.
3. The
claims Tribunal, Baroda has passed an order on 7.1.2005 whereby name
of claimant – applicant No.4 – Hasinabibi Matbarkha Mogal is
ordered to be deleted from the award and accordingly, award passed by
claims Tribunal, Baroda is to be handed over to claims Tribunal,
Baroda and thereafter, amendment in the original award is to be made
while deleting the name of claimant No.4 – applicant No.4 –
Hasinabibi Matbarkha Mogal. It is necessary to note that order dated
7.1.2005 is not challenged or objected by the Insurance Co.
4. In
this matter, learned advocate Ms.Amee Yajnik is appearing on behalf
of Insurance Co. Learned advocate Mr.Hakim submitted that when First
Appeal No.4673 of 2006 was preferred by claimants, challenging award
in question passed by claims Tribunal, Baroda, at that occasion name
of claimant No.4 – applicant No.4 – Hasinabibi Matbarkha Mogal
has also been mentioned as appellant No.4. But, by mistake, original
award which has been amended by claims Tribunal, Baroda in pursuance
to order dated 7.1.2005, as referred above, that amended copy of
award was not placed on record by appellants. Therefore, this Court
has passed an order on 3.2.2010 and enhanced the amount of
compensation of Rs.2,42,280/- with 9% interest from date of filing
claim petition till date of realization with proportionate cost from
respondents. Accordingly, aforesaid first appeal is allowed as
mentioned in Para.10 of judgment of this Court. In said judgment,
this Court has permitted withdrawal of rs.50,000/- by account payee
cheque in name of Taherabibi Mohemmedkha Mogal, widow of deceased and
rest of amount is directed to be invested in nationalized bank for a
period of 3 years in name of claimants. But FDR shall remain with
Nazar of claims Tribunal and claimants must get monthly interest from
said invested amount.
5. Subsequently,
one application was made (Annexure-B, Page-16) by claimants on
29.3.2010 with a request to claims Tribunal, Baroda to pay amount of
compensation to claimant Nos.1, 2 and 3 because claimant No.4 –
Hasinabibi Matbarkha Mogal has expired as well as order passed by
claims Tribunal, Baroda dated 7.1.2005 where original award of
compensation has been amended. This application dated 29.3.2010
submitted on 19.7.2010, no order has been passed by claims Tribunal,
Baroda.
6. Learned
advocate Mr.Hakim submitted that claims Tribunal, Baroda has raised a
question that name of Hasinabibi Matbarkha Mogal is not deleted in
the judgment of this Court in FA No.4673 of 2006, therefore, claims
Tribunal, Baroda cannot delete the name of claimant No.4 – Hasinabibi
Matbarkha Mogal because her name is mentioned in the judgment of this
Court.
7. This
question which has been raised by claims Tribunal, Baroda ignoring
the order passed by claims Tribunal, Baroda dated 7.1.2005. Once the
claims Tribunal, Baroda has amended the original award of
compensation by order dated 7.1.2005 vide Exh.41, then question of
raising such query does not arise because the name of claimant No.4 –
Hasinabibi Matbarkha Mogal is already deleted from original award.
But by mistake it has not been deleted by the advocate while filing
first appeal before this Court.
8. Therefore,
it is directed to claims Tribunal, Baroda to comply with first order
passed by claims Tribunal, Baroda at Exh.41 dated 7.1.2005 and
thereafter, to implement the judgment and order passed by this Court
in FA No.4673 of 2006 dated 3.2.2010. Meaning thereby, now because of
the death of mother of deceased – Hasinabibi Matbarkha Mogal,
question of payment to mother of deceased – Hasinabibi Matbarkha
Mogal does not arise. Accordingly, claims Tribunal, Baroda must have
to disburse the amount of compensation in favour of claimant Nos.1, 2
and 3, as and when such occasion arises.
9. In
view of aforesaid observations and directions, present application is
disposed of accordingly. Direct service is permitted.
(H.K.RATHOD,J.)
(vipul)
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