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FA/2624/2004 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2624 of 2004
=========================================================
UNITED
INDIA INSURANCE CO. LTD - Appellant(s)
Versus
PRITESH
NARENDRASINH BHATI & 2 - Defendant(s)
=========================================================
Appearance
:
MS
AVANI S MEHTA for
Appellant(s) : 1,
MR SP MAJMUDAR for Defendant(s) : 1,
RULE
UNSERVED for Defendant(s) : 2,
MR MAHENDRA K PATEL for
Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 13/07/2007
ORAL
ORDER
Upon
hearing Ms. Mehta, learned Counsel for the appellant and Mr.
Majmudar, learned Counsel for the original claimant, it appears that
the contention raised in the appeal as such covered the decision of
this Court dated 30.03.2007 passed in First Appeal No. 1768 of 2007.
Therefore in view of the same similar direction deserves to be
issued. In the said decision this Court observed as under:
?SIt
may be recorded that essential purpose of fixing the payment under
Section 140 of the Motor Vehicles Act is to provide immediate
compensation by way of an interim measure to the injured or the
victim of the accident or the dependents, as the case may be. The
detailed examination of the contention may be at the time when final
award is passed and such an interim order is subject to the final
award. It may be that in very very rare case, this Court may
examine the question of jurisdiction, if it touches to the root of
the matter. However, normally the defence of the Insurance Company
can better be examined at the final award. If such an approach is
not taken and the exercise of power under Section 140 is read to
leave room for a full fledge detailed inquiry, it may frustrate the
very purpose of the interim measure to be provided to the claimant.
Suffice it to say that the Tribunal has to exercise the judicial
discretion at the prima facie stage after considering the material
prima facie. As such, the exercise is undertaken by the concerned
Tribunal in the impugned order hence, I find that the present case
is not such, which may fall in the exceptional category for
interference qua ordering for interim payment by way of an interim
measure.
However,
the grievance on the part of the Insurance Company against the
claimant for refund of the amount in the event it succeeds in the
claim petition, consequently resulting into a situation of no
liability on the part of the Insurance Company, can be sufficiently
taken care of if the claimant at the time of withdrawal of the
amount furnishes the security or surety to the satisfaction of the
Tribunal and even otherwise also, the payment is subject to the
final award. Even on the aspects of abandonment of the claim by the
claimant after having withdrawn the amount or after having received
the interim payment, may not be permissible and therefore, the
grievance raised on behalf of the appellant to the extent of putting
condition upon the claimant to file an undertaking appears to be
reasonable.
It
appears that the above referred decisions of different Benches of
this Court, in certain cases, withdrawal of the payment is permitted
to the extent of 50%, whereas in certain case, the amount is ordered
to be deposited in the Fixed Deposit Receipt and the interest is
made payable. In the impugned orders, the Tribunal has permitted
withdrawal to the extent of 30%, so far as First Appeal No. 1768/07
is concerned and so far as First Appeal No. 1769/07 is concerned,
the Tribunal has permitted 50% of withdrawal and the remaining
amount in both the cases are even otherwise ordered to be invested
to the Tribunal.
Under
the above circumstances, I find that if the withdrawal as ordered by
the Tribunal is permitted on furnishing of solvent surety/security
to the satisfaction of the Tribunal, the same would not prejudice
the rights of the claimant. Similarly, if the undertaking is
ordered to be filed by the claimant as per the decision, the same
also would not be prejudicial to the rights of the claimants since
in any case, the claimant is to proceed with the claim petition for
further compensation.??
Hence,
directions given in the said decision deserves to be granted in the
present appeal.
Hence,
the impugned order of the Tribunal is not required to be interfered
with at this stage. However, the order of the Tribunal shall
continue with the further following directions:
The
Tribunal shall permit withdrawal of the amount upon the furnishing
of solvent surety/security of the equal amount by the claimants.
The
claimants shall also file an undertaking before the Tribunal prior
to the withdrawal of the order to the effect that the main claim
petition shall not be abandoned or shall not be withdrawn or shall
not be permitted to be dismissed in default or for any other cause
by him and the claimants shall pursue the main claim petition on
merits.
5. Subject
to the aforesaid observations and directions, the appeal is
dismissed. The amount deposited by the Insurance Company of
Rs.12,500/- shall be transmitted forthwith to
the Tribunal. Liberty to the claimants to apply if aggrieved by
the observations and directions but before actual withdrawal.
(JAYANT PATEL, J.)
Suresh*
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