1 fa673 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.673 OF 2011 Sambhaji Raghunath Patil ...Appellant vs. Mohan Govind Dake & Anr. ...Respondents Mr.Shailesh Chavan i/b Mr.Venkatesh Shastry for the appellant Mr.R.R.Galange for the respondent no.1 CORAM : A.S.OKA,J. DATE : AUGUST 5, 2011 P.C.: 1 Heard the learned counsel for the appellant and the learned counsel for the respondent no.1. Office noting shows that the second respondent has been duly served with the notice. Notice for final disposal was issued by this Court on 19 th June 2011. 2 The challenge in this appeal is to the Judgment and Award dated 8 th April 2010. The appellant is the claimant in a claim petition under section 166 of the Motor Vehicles Act,1988. The claim was filed by him against the respondent nos.1 and 2. An application was made under section 140 of the said Act of 1988 by the appellant. An Award was made in the said application directing the respondents to pay to the appellant a sum of Rs.25,000/-. The said amount was deposited by the second respondent and was withdrawn by the appellant. 3 The claim petition filed by the appellant under 2 fa673 section 166 of the said Act has been dismissed by the impugned Judgment and Award. The challenge in this appeal is to the clause (2) of the operative part of the Award which reads thus : 2 The respondent no.2 is entitled to recover an amount of Rs.25,000/- paid to the claimant with interest at the rate of Rs.7.5 p.c.p.a from the date of deposit of the cheque in the court till the realization of the amount in full. 4 The learned counsel for the appellant submitted that while dismissing the claim petition filed by the appellant, the learned Member of the Tribunal could not have passed order which is an order in the nature of restitution. He submitted that the Award under section 140 of the said Act was an independent Award. He submitted that the involvement of the vehicle of the first respondent has not been disputed and therefore, direction could not have been issued to refund the amount. 5 I have carefully considered the submissions. The second respondent has paid to the appellant a sum of Rs.25,000/- with interest on the basis of the Award made under section 140 of the said Act. Award under section 140 of the said Act is a separate Award which can be subjected to an appeal. In fact, filing of a claim petition under section 140 of the said Act is not a condition precedent for filing the petition under section 166 of the said Act. Unless the said Award made under section 140 of the said 3 fa673 Act was set aside, there was no occasion to pass an order of restitution. The said award has not been set aside. Moreover, while dismissing the claim petition filed by the appellant, such order of restitution could not have been passed in as much as it was for the second respondent to take out appropriate proceedings. Thus, direction contained in clause (2) of the impugned Award is illegal and required to be set aside. 6 Hence, I pass the following order : i) Clause (2) of the operative part of the impugned Judgment and Award dated 8 th April 2011 is quashed and set aside. However, rest of the Award is maintained. ii)Remedy of the second respondent for recovery of the amount of Rs.25,000/- with interest is kept open. iii)Appeal is partly allowed on above terms with no order as to costs. iv)Civil application no.1204 of 2011 does not survive and the same is disposed of. JUDGE