1 wp4147.15 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 4147 OF 2015. 1. [ENTITY], aged about 27 years, Occupation Student, 2. [ENTITY], aged about 26 years, Occupation Student, 3. [ENTITY], aged about 24 years, Occupation Student. All residents of Plot No.11, Sai Nagar, Near Hanuman Mandir, Amravati Road, Nagpur. PETITIONERS VERSUS 1. The [ENTITY], D.O. 2, Hindustan Colony, Wardha Road, Nagpur. 2. [ENTITY] s/o [ENTITY], aged about Major, Occupation Owner, R/o. Section II, Khursipur Zone 2, Bhilai, C/o. Chacha Transport Co., T.P. Nagar, Bhilai, District Durg, Chhatisgarh State. RESPONDENTS Ms. [ENTITY], Advocate for the petitioners. Smt. [ENTITY], Advocate for the respondent No.1. None for respondent No.2. CORAM : [ENTITY], J. DATED : 02ND SEPTEMBER, 2016. Uploaded on - 06/09/2016 Downloaded on - 07/09/2016 00:18:13 2 wp4147.15 [ENTITY] :
Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel appearing on behalf of the respective parties. Smt. [ENTITY], the learned Counsel waives notice on behalf of respondent No.1. None for respondent No.2 though he is duly served.
2. By way of present petition, the petitioners are challenging the order dated 19.11.2014 passed by the learned Member, Motor Accident Claims Tribunal No.1, Nagpur. Few facts are necessary to be referred to for better appreciation of the limited controversy involved in the present petition.
3. The petitioner Nos.1 to 3 are the legal heirs of couple Smt. [ENTITY] and [ENTITY]. Due to the unfortunate accident on 09.07.1999, [ENTITY] and [ENTITY] lost their lives. The claim petitions were filed before the Motor Accident Claims Tribunal seeking compensation on account of death of [ENTITY] and [ENTITY]. The learned MACT awarded compensation of Rs.7,52,600/- on account of death of [ENTITY] and Rs.1,85,000/- on account of death of [ENTITY]. Being aggrieved by the judgment and order passed by the learned MACT, the Insurance Company presented [CASE NUMBER] in this Court.
This Court decided both the first appeals by common judgment and order 3 wp4147.15 dated 28.06.2012. Perusal of the judgment and order of this Court shows that the Insurance Company had deposited an amount of Rs. 11,77,855/-
against the award of the Claims Tribunal and during the pendency of the appeals, prayer for withdrawal was made before this Court at the instance of the claimants and amount to the tune of Rs.1,85,000/- in [CASE NUMBER] was permitted to be withdrawn. This Court, finding no favour with the appellant/insurance company, disposed of the appeals with a direction to the Claims Tribunal to direct the appellant to deposit the amount and later on recover the same from the original owner of the vehicle. This Court further observed that before the amount is released, the executing Court as and when execution proceedings are filed would be required to take steps as laid down in the case of [PRECEDENT]. The steps enumerated in the said judgment were reproduced in para 8 of the judgment in the decided first appeals namely [CASE NUMBER].
4. It is the submission of Ms. [ENTITY], the learned Counsel for the petitioners that the petitioners presented two applications in respect of claim petitions for withdrawal of the amount. She further submits that the petitioners were minors at the time of the accident suffered by their parents and during the pendency of the proceedings, the petitioners have attained the majority and the petitioners are prosecuting their studies. It is further submitted that as the applicants/petitioners were required to pay 4 wp4147.15 the education fees, tuition fees, expenses for the books, study material etc., the loan was obtained to meet the present needs. Ms. [ENTITY], the learned Counsel for the petitioners submits that as there was a demand for repayment of loan and also the petitioners were requiring finances for their academic career, the applications were submitted for withdrawal of the amount. She further submits that though the notices were issued by the Tribunal to the owner of the vehicle, the owner of the vehicle chose not to appear before the Tribunal. The learned Counsel also submits that even this Court issued notices to the respondents and respondent No.2 who is the owner of the vehicle, in spite of notices were served on them by substituted service, namely by paper publication, by absence, is not contesting the petition. Ms. [ENTITY], the learned Counsel submits that the learned MACT though referred to the judgment and order of this Court and more particularly the decision of the apex Court in the case of [PRECEDENT], by adopting hyper technical approach, rejected the application.
5. Ms. [ENTITY], the learned Counsel for the petitioners submits that the learned Tribunal without considering the facts, namely the petitioners who are in dire need of the finances and for no fault of the petitioner and as the owner of the vehicle failed to contest the application in spite of notice issued to him, by observing that unless there is a compliance of the order as to security, declined to release the payment as 5 wp4147.15 prayed for by the petitioners. She further submits that the steps as enumerated in the matter of the judgment of the apex Court in the case of [PRECEDENT] (reported in III (2005) ACC 357 (SC , in no way put the claims to prejudice their interest.
The learned Counsel for the petitioners, in support of her submission, places reliance on the judgments of the Allahabad High Court in the cases of [PRECEDENT]); [PRECEDENT] (reported in [PRECEDENT]); and Smt. [ENTITY] and others .v. Smt. [ENTITY] and the New India Insurance Company Ltd., through Branch.
6. Smt. [ENTITY], the learned Counsel for respondent No.1/Insurance Company submits that the insurance company had deposited the amount in this Court while presenting the appeals and subsequently the amount was transferred to the Claims Tribunal.
7. With the assistance of the learned Counsel appearing on behalf of the respective parties, I have gone through the material placed on record. I find considerable merit in the submission of the learned Counsel for the petitioners. Perusal of the order impugned in the petition shows that the application presented by the petitioners seeking withdrawal of the amount is rejected even though the Claims Tribunal refers to the judgment 6 wp4147.15 and order of this Court in [CASE NUMBER] as well refers para 8 of the judgment of this Court. There is merit in the submission of the learned Counsel for the petitioners that failure of the owner of the vehicle to contest the application before the Tribunal may not be the ground to reject the application. Ms. [ENTITY], the learned Counsel for the petitioners was also justified in submitting that the steps as enumerated by the apex Court in the case of Pramod Kumar Agrawal .v.
Mushtari Begum and others (cited supra) are directory in nature for the insurance company to recover the amount from the owner of the vehicle.
It would be useful to refer to the judgments relied upon by the learned Counsel for the petitioners. In the matter of [PRECEDENT] (cited supra), some what identical facts were involved. The claimants filed application for withdrawal of the amount. The claim petition was allowed and the insurance company was given right to recover the amount from the owner of the vehicle. On the basis of the award, the insurance company deposited the entire decreetal amount.
The claimants moved an application for withdrawal of the amount and the same was rejected on the ground that the owner of the vehicle had not provided security to the satisfaction of the Tribunal. The Allahabad High Court, by referring to the apex Court judgment in the cases of [ENTITY] .v. [PRECEDENT] and others (reported in AIR 2004 SC 1630); Smt. [ENTITY] and others .v. Additional District Judge, Court No.4, Gorakhpur (reported in [CASE NUMBER]); Smt. [ENTITY] and 7 wp4147.15 others .v. Shobhrani and others (cited supra) and [PRECEDENT] (cited supra), observed that sufficient protection was granted to the insurance company for recovery of its amount and there was no reason for not releasing the amount deposited by the insurance company in favour of the claimants/petitioners. The Allahabad High Court then in the matter of Smt. [ENTITY]devi .v. Smt. Shobha Rani and others (cited supra), observed thus :
"4. In reply to the aforesaid, the learned Counsel for the oppowite-
party Insurance Co. relied upon the case law of [ENTITY] .v. [PRECEDENT] and Ors. MANU/SC/0122/ 2004 : AIR2004SC1630 and has tried to emphasise that in this subsequent judgment, the Apex court after following the [PRECEDENT]'s case (supra) has issued some directions as to the mode of recovery of the amount paid by the insurer and in that context it has been provided that before the release of the amount deposited before the court by the insurer, the court shall issue notice to the owner of the vehicle/insured to furnish security of the amount and after this security having been furnished by the insured, the money could be disbursed and released in favour of the claimants.
5. From the aforesaid case law as referred to by the learned Counsel for the parties, it would be evident that in spite of the fact that the insurer is not made liable to compensate the claimants under the policy under [SECTION] of the Motor
8 wp4147.15 Vehicles Act, still the liability of payment, under the law as developed by the Apex Court in this context, has been assigned to the Insurance Co. At the same time the Insurance Co. has also been given liberty to recover the said amount from the insured within the provisions of the [ACT] itself and without taking the burden of filing a suit for that purpose.
This principle of law was initially propounded in [PRECEDENT]'s case (supra) and it has been followed in the aforesaid cases referred to by the parties concerned. But in the subsequent cases more especially in [PRECEDENT]'s case (supra) it has also been observed that before releasing the amount under deposit before the Court the insured/owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the Insurance Co. will pay to the claimants. After that notice the court may direct the attachment of the offending vehicle as part of the security and could also pass appropriate orders in accordance with law. In case of default it shall be open to the court to direct realization of the amount from the insured/owner by disposal of security or from any other property or properties of the owner of the vehicle. Therefore, all these modes have been provided by the Apex Court for the insurer to make recovery from the insured. But from all these directions as given by the Apex Court, the purport is that the court shall not undermine the interest of the claimants for whose welfare the Supreme Court has been developing this law though all these cases even by interpreting otherwise the liability of the insurer within [SECTION] of the [ACT]. Thus, what is the crux of the matter in the present case is that the revisionists-claimants cannot be made to suffer even if the insured/owner of the vehicle does not furnish security or does not appear before the court in 9 wp4147.15 pursuance to the notice issued to him. The burden of recovering the amount within the provisions of the Act itself has been placed upon the insurer in the aforesaid judgments of the Apex Court. The claimants who have obtained the award in their favour have not been made to suffer through any observation made by the Supreme Court in these cases.
Thus, in the aforesaid view of the matter, what I feel is that it would be just and proper if the court below is directed to first take resort to the issuance of notice to the insured/ owner of the vehicle and thereafter only the money under deposit before the court should be released in favour of the claimants."
8. In the present matter, as stated above, on the application submitted by the petitioners for withdrawal of the amount, notices were already issued to the respondent/owner of the vehicle. It was the submission of the learned Counsel for the petitioners that the petitioners/ claimants have already taken steps and the respondent/owner of the vehicle was avoiding the service, in such a situation, the claimants/ petitioners ought not to have been suffered to an additional burden of taking further steps for service of the respondent/owner. Ms. [ENTITY], the learned Counsel for the petitioners further submits that the intention of the respondent to avoid the service of the claim petition is also reflected from the fact that even this Court had issued the notice to the respondent/ owner of the vehicle on 02nd September, 2015 and though by substituted service, the respondent/owner was served i.e. by issuing paper publication, the respondent No.2/owner of the vehicle chose not to appear 10 wp4147.15 even before this Court.
9. There is merit in the submission of the learned Counsel for the petitioners that if the respondent/owner is avoiding the service with an intention and purpose is not attending the Claims Tribunal, the petitioners for the willful act of the respondent/owner may not be subjected to sufferance for indefinite period. She is also justified in submitting that the provisions under the [ACT] for awarding compensation to the victims or the legal heirs of the victims are are beneficial provisions and for the willful default of the respondent/owner, the beneficial object of the act should not be frustrated.
10. Considering all these aspects, in my opinion, the learned Counsel for the petitioners has made out a case. The order passed by the Motor Accident Claims Tribunal impugned in the present petition is unsustainable. The order passed by the Tribunal is quashed and set aside.
The applicants/petitioners are permitted to withdraw the amount deposited in the Claims Tribunal under [CASE NUMBER]. Needless to state that by permission to withdraw the amount in favour of the petitioners, the respondent No.1/ insurance company is not prevented from recovering the amount from respondent No.2 if it wishes to recover the same by way of necessary steps as directed by the Apex Court in view of the judgments of the Apex Court in the cases 11 wp4147.15 of [PRECEDENT] and [ENTITY] .v. [PRECEDENT] and others (cited supra).
JUDGE *rrg.
12 wp4147.15 C E R T I F I C A T E "I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."
Uploaded by : [ENTITY]. Uploaded on : 06.09.2016.