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MCA/123/2010 3/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION No. 123 of 2010
In
FIRST
APPEAL No. 710 of 2002
=========================================================
UNITED
INDIA CO. LTD - Applicant(s)
Versus
RAIBEN
GANAPATBHAI NAYEE - Opponent(s)
=========================================================
Appearance
:
MR
VIBHUTI NANAVATI for
Applicant(s) : 1,
MR YM THAKORE for Opponent(s) : 1,
MR AMIT M
BAROT for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 04/02/2010
ORAL
ORDER
Heard
learned advocate Mr. Nanavati on behalf of applicant insurance
company, learned advocate YM Thakore and learned advocate Mr. AM
Barot appearing for opponents.
This
application is preferred by applicant insurance company in respect
to penal interest 12% imposed by Claims Tribunal, Mehsana in MACP
no. 1779/1989 by award dated 20/11/2001. The claims Tribunal has
passed following order in MACP no. 1779/1989. This petition is
partly allowed in favour of applicant no. 1 and 2 and dismissed
against applicant no. 3 and 4. The petitioner no. 1 and 2 shall
recover sum of Rs. 72,000/- with running interest at the rate of 9%
from date of petition till payment and/or realization from opponents
who shall pay said amount. In para 4, direction has been issued as
under:
4. The
opponents are ordered and directed by this Tribunal to deposit said
amount within FOUR MONTHS from the date of this award and if the
Insurance Company would not deposit the awarded amount within FOUR
MONTHS from passing of this award, the applicants shall be entitled
to receive interest at the rate of 12% p.a. from the date of
application till realization.
The
claims Tribunal has directed to insurance company to deposit said
amount as directed by claims Tribunal within four months from date
of this award and if insurance company would not deposit awarded
amount within four months from passing of this award, applicant
shall be entitled to receive interest at the rate of 12% per annum
from date of application till realization.
The
First Appeal no. 710/2002 with First Appeal no. 711/2002 for
challenging common award as referred above passed by Claims
Tribunal, Mehsana by appellant insurance company have preferred
before this Court. This Court has initially admitted appeals on
16/8/2002 and interim relief granted on 9/4/2002 in civil
application no. 2734/2002 which is quoted as under:
1. Heard
Mr. P.V.Nanavaty learned counsel for the applicant – Insurance
Company.
2. Rule returnable on 6/5/2002.
3. It is stated by Mr. Nanavaty learned counsel for the applicant Insurance Company that amount of Rs.25,000/- has been deposited with the Registry of this Court. It is further stated that entire awarded amount together with cost and interest would be deposited within four weeks from today with the claims Tribunal and that execution / operation of the impugned award be stayed.
4. In view of the above statement by Mr. Nanavaty learned counsel for the applicant Insurance Company, on applicant – Insurance Company depositing the entire awarded amount together with cost and interest within four weeks from today, the execution/ operation of the impugned award shall remained stayed till the next date.
5. The amount of Rs.25,000/- deposited with the Registry of this Court, shall be transmitted to the claims Tribunal concerned forthwith.
The
award passed by claims Tribunal, Mehsana has been stayed by this
Court on 9/4/2002. The award passed by claims Tribunal on
20/11/2001. So, within four months appellant insurance company not
able to obtained stayed from this Court but on 9/4/2002 this Court
has stayed award. Therefore, once this Court has stayed award,
question of penal interest 12% is not required to be paid by
appellant insurance company to claimant as directed by claims
Tribunal, Mehsana. The claimant now demanding 12% interest upon
amount of compensation because amount is not deposited within four
months as per direction issued by claims Tribunal, Mehsana. Such
demand made by claimant is not proper because claims Tribunal has no
jurisdiction to grant penal interest in favour of claimant. For
that there is no provision under M. V. Act which gave powers to
claims Tribunal to impose penal interest upon appellant insurance
company. The question of separate challenged to interest by
appellant does not require because entire award has been challenged
wherein two appeals preferred by appellant insurance company.
Therefore,
considering submission made by both learned advocates and also
contention raised by learned advocate Mr. Thakore that no such
contention raised in appeal as well as for that separate application
is required can not be accepted because award has been stayed by
this Court then question of penal interest not required to be paid
by appellant insurance company to claimant.
Therefore,
direction issued by claims Tribunal, Mehsana against insurance
company that amount of compensation if it is not deposited within
four months from the date of award, claimant shall be entitled to
12% interest from date of application till realization can not be
given effect when once this Court has stayed award in question.
Therefore, contention raised by learned advocate Mr. Thakore can not
be accepted. It is made clear by this Court that after order passed
by this Court in first appeal on 24/11/2008, award passed by claims
Tribunal is merged with order of this Court. Therefore, question of
paying 12% interest by insurance company does not arise.
Accordingly,
prayer made in this application in para 8(A) is granted while
condoning delay in filing present application and also direction
issued by Executing Court being claims Tribunal, Mehsana on 4/1/2010
in Execution application no. 210/2009 is also required to be quashed
and set aside as claimants are not entitled 12% interest from
appellant insurance company because this was penal interest awarded
by claims Tribunal for safer side, so, claimant may able to get
amount of compensation as early as possible otherwise, there is no
other purpose to impose such penal interest against appellant
insurance company. With such direction, claimants can not be held
right to receive such 12% interest otherwise they are not entitled
it because claims Tribunal, Mehsana has awarded 9% interest upon
amount of compensation.
Accordingly,
present application is allowed.
(H.K.RATHOD,
J)
asma
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