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2018 DIGILAW 231 (GAU)

Oriental Insurance Co. Ltd v. Pranadhan Das

2018-02-07

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : 1. Heard Mr. S. Dutta, learned Senior Counsel assisted by Mr. R. Hazarika learned counsel for the appellant. None appears on call for the respondent No.1 although the names of his learned counsels are reflected in the Cause-list. None appears on call for respondent No.2 upon whom notice was duly served in a substituted manner, by publishing the same in one English daily i.e. The Assam Tribune on 23.08.2012. Hence, the appeal is heard ex-parte against the respondents. 2. This appeal under section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 16.12.2008 passed by the learned Member, MACT, Nagaon in MAC No.749/01. 3. The respondent No.1 is the claimant in the claim petition before the learned MACT, Nagaon, seeking compensation for injuries sustained by him in connection with the road accident which had taken place on 30.06.2001. 4. The case of the respondent No.1 in the claim petition was that he was doing business of wholesale and retailing of stationeries and was having an average monthly income of Rs.6000/- from his business. On the fateful day, he was riding on his motorcycle bearing registration No.AS-01-1796 from Bakalia towards Howraghat. At Kongibasti at around 8 a.m., a Tata Indica vehicle bearing registration No.AS-01-K-5276 coming from the opposite side in a rash and negligent manner, knocked the respondent No.1. As a result of the accident, he suffered grievous injuries leading to his permanent disablement. Having suffered fractures in both legs, which was fastened by a nail, the respondent No.1 had prayed for compensation of Rs.10,00,000/-. It was stated in the claim petition that the insurer of the offending vehicle was the appellant having its office at Shillong under Insurance Cover Book No.505797 valid upto 01.01.2002. 5. The appellant as well as the respondent No.2 i.e. owner of the offending vehicle had filed their respective written statement. The plea of the appellant was that the driver of the offending vehicle was not made a party against whom the allegation of rash and negligent driving was made although it was a necessary party and that the respondent No.1/ claimant was also guilty of contributory negligence. 6. A specific plea was taken in para 20 of the written statement to the effect that the alleged vehicle was not insured by the appellant at the time of the accident. 6. A specific plea was taken in para 20 of the written statement to the effect that the alleged vehicle was not insured by the appellant at the time of the accident. The respondent No.2, in para-9 of his written statement had stated that the vehicle was insured by the appellant having its office at Pulin Bhaban Kealing Road, Shillong vide Policy No.505797 which was valid till 01.01.2002. 7. On the basis of the pleading, the following issues were framed by the learned Tribunal:- 1. Whether the claim petition is maintainable? 2. Whether the accident occurred due to rash and negligent driving of the driver of vehicle No.AS-01/K-5276 (Tata Indica) and whether the claimant sustained grievous injuries in the accident? 3. Whether the claimant is entitled to receive compensation and if so to what extent and who is liable to pay the same? 8. In respect of issue No.1, the learned Tribunal held that though the driver of the offending vehicle should have been impleaded as the opposite party but the failure of the claimant to implead the driver has not resulted in the failure of the claim case. It was held that there is nothing on record to show that the claim petition was not maintainable and the said issues were decided in favour of the respondent No.1/ claimant. 9. In respect of issue No.2, it was held that the respondent No.1 had incurred an expenditure of Rs.59,074/- for his treatment and that he had submitted Accident Information Report (Exbt.1), Medical disability Certificate about 40% deformity (Exbt.2), Medical discharge certificate from the Nursing Home (Exbt.3), Medical Prescription (Exbt.4), Medical Bills and Cash Memos (Exbt.5 to 39) . The learned Tribunal recorded that the respondent No.1 had not submitted his driving licence. The learned Tribunal relied on the evidence of the Doctor (PW-2) as well as respondent No.1 (PW-1) and had opined that the accident occurred due to rash and negligent driving of the driver of the Tata Indica vehicle and the said issue was decided in favour of the respondent No.1. 10. In respect of issue No.3 relying on the documentary evidence, the learned Tribunal arrived at a finding that "since the corum was not formed on that day the percentage of disability of 40% does not arise. 10. In respect of issue No.3 relying on the documentary evidence, the learned Tribunal arrived at a finding that "since the corum was not formed on that day the percentage of disability of 40% does not arise. So ends of justice I consider the percentage of disability is 20%." The learned Tribunal assumed that the monthly earning of the respondent No.1 was not less than Rs.3000/- per month. The total compensation was assessed as follows- Rs.600 X 12 X 17 = Rs.1,22,400/-. In respect of loss of income, a sum of Rs.18,000/- was awarded on account of pain and suffering and a total compensation of Rs.2,22,180/- (Rupees Two lakh twenty two thousand one hundred and eighty only) was awarded. 11. The learned Senior counsel for the appellant has submitted that without any basis the percentage of disability was taken at 20%. Moreover, as per the calculation given by the learned Tribunal the loss of income was assessed at Rs.1,22,400/- and Rs.18,000/- was awarded for pain and suffering and total sum was therefore, Rs.1,40,400/- but the amount awarded by the learned Tribunal was Rs.2,18,180/- which was again without any basis. 12. It is also submitted that the Insurance Policy of the appellant has a 13 digit number and it could not have a 6- digit 505797 in respect of the offending vehicle. In this connection it is also submitted that no issue was framed as to whether the offending vehicle had a valid Insurance Policy, yet the learned Tribunal in respect of its finding in respect of issue No.3 had recorded a finding on fact that the offending vehicle was insured by the appellant at the time of the accident. 13. Reliance has been placed on the case of Oriental Insurance Company Limited Vs. Musstt. Hazira Bibi and others 2008 (2) GLT 463 and New India Assurance Company Limited Vs. Modi Narayanbhai Maganbhai and others, 1986 ACJ 807 and it has been submitted that the appellant could not have given a negative evidence of no policy being available. Moreover, as no was issue framed on the point as to whether or not the offending vehicle stood insured with the present appellant, without determining of such relevant issues, no liability could have been imposed on the appellant. 14. Moreover, as no was issue framed on the point as to whether or not the offending vehicle stood insured with the present appellant, without determining of such relevant issues, no liability could have been imposed on the appellant. 14. It is further submitted that the Insurance Company are responsible bodies and their officers are equally responsible and if the offending vehicle was actually insured then the appellant would not have denied the fact that the vehicle was not insured by them. 15. Upon hearing the learned Senior Counsel for the appellant and on perusal of the materials on record the records it reveals that in the Accident Information Report (Exbt.1) it was disclosed that the offending vehicle was insured that the appellant, the policy number is stated to be nil and cover note number is shown to be as 505797. The respondent No.2 i.e. owner of the vehicle did not produce a copy of the Insurance Policy and merely mentioned in his written statement that his vehicle was insured by the appellant under Policy No.505797 having validity upto 01.01.2002. The copy of Insurance Policy was not produced and/or filed by the respondent No.2. 16. In view of the submissions made by the learned Senior Counsel for the appellant following points of determination arises in the present case:- (1) Whether it was necessary for the learned Tribunal to frame an issue to the effect that whether the offending vehicle stood insured with the insurer on the date of the accident? (2) Whether the finding recorded by the learned Tribunal that "since the Corum was not found on that day the percentage of the disability of 40% does not arise. So ends of justice I consider the percentage of disability is 20%" is sustainable on facts and in law? (3) Whether the injury report (Exbt.2) could be the basis of the award in the present case? 17. Point of determination No.1: It is seen that no Insurance policy or certificate has been produced by the respondent No.2, namely, Md. Sahid Ali. As per his written statement, in para-9 he had stated that the policy number of his vehicle was 505797. The said statement does not inspire any confidence because as per the contents of Accident Information Report (Exbt.-1), in para-9 thereof, the officer-in-charge of Howraghat P.S. had stated in respect of Insurance details as-"Oriental Insurance Co. Ltd., P.No. NIL, Cover Note No.505797. The said statement does not inspire any confidence because as per the contents of Accident Information Report (Exbt.-1), in para-9 thereof, the officer-in-charge of Howraghat P.S. had stated in respect of Insurance details as-"Oriental Insurance Co. Ltd., P.No. NIL, Cover Note No.505797. Pulin Bhabon, Kealing Road, Shillong." The said cover note was neither produced nor proved in connection with the case. The cover note is not equivalent to a certificate of Insurance. In this regard, the relevant provisions of section 147 (4) of the Motor Vehicles Act, 1988 is required to be referred to, as such, it is quoted below:- "147. Requirements of policies and limits of liability:- xxxxx (4) where a cover note issued by the insurer under the provisions of this Chapter or the rules made there under is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe." 18. Para 3 of the case of Modi Narayanbhai Maganbhai (supra) is quoted herein below:- "3. Now, as the appeal is being withdrawn by the appellant, ordinarily I would not have passed a speaking order, but it is necessary to do so for the guidance of the Tribunals. In the present case, neither the claimant not the owner of the vehicle gave any details about the policy of Insurance so as to enable the Insurance Company to trace from their records whether the vehicle was insured with the Insurance Company at any time. It was not possible for the Insurance Company to trace from their records whether the vehicle was insured with the said Insurance Company on the date of this accident, if at all it was insured with the said Company. The Tribunal also did not call upon the owner of the vehicle to produce the policy of insurance or any other document showing that the vehicle was insured or any other document showing that the vehicle was insured on the date of this incident with this Insurance Company. The Tribunal also did not call upon the owner of the vehicle to produce the policy of insurance or any other document showing that the vehicle was insured or any other document showing that the vehicle was insured on the date of this incident with this Insurance Company. In-spite of the fact that no material was produced before the Tribunal showing that the vehicle was insured with the appellant Insurance Company, the learned Tribunal passed an award against the Insurance Company, The relevant contention in this regard has been discussed by the Tribunal at para 8 of the judgment under appeal. The learned Tribunal has observed that the Insurance Company was trying to avoid its liability. The learned Tribunal has also observed that the Insurance Company being a pubic body was expected to act in a fair manner and should not act to avoid its liability by coming out with such a vague allegation. The learned Tribunal has observed that though sufficient time was given to the Insurance Company, the Insurance Company could not trace the policy. The Tribunal has also observed that there was gross negligence on the part of the Insurance Company. The learned Tribunal has taken the view that the Insurance Company did not come forward with a specific say that the vehicle was not insured with them even though sufficient time was given to them to ascertain this fact and, therefore, it cannot be believed that the vehicle was not insured with them. This view of the learned Tribunal, with respect, was not a correct one. The approach of the learned Tribunal was not proper. The Tribunal ought to have called upon the applicant-claimant as well as the owner of the vehicle to give details of the insurance so to enable the Insurance Company to search their records and come forward with a say whether the vehicle was insured with them on the date of the incident or not. It will be very difficult, well-neigh impossible, for an Insurance Company to search their huge records and find out whether a particular vehicle was insured with them unless some material is supplied to the Insurance Company to make search in their records. It will be very difficult, well-neigh impossible, for an Insurance Company to search their huge records and find out whether a particular vehicle was insured with them unless some material is supplied to the Insurance Company to make search in their records. The Insurance Companies have got several branches throughout the country and unless it is known as to with which branch the vehicle was insured and for what period and in whose name, it will be difficult, well-nigh impossible, for the Insurance Companies to search their records to ascertain whether the vehicle was insured with them and hence the Insurance Company naturally cannot come forward with positive statement that the vehicle was not insured with them. Simply because a petition for compensation under the provisions of the motor vehicles act is filed against an insurance Company, it cannot be presumed in absence of some material on record that the vehicle was insured with that Company on the relevant date i.e. the date of accident simply because the petitioner and even owner of the vehicle come forward with a say that the vehicle was insured with a particular Insurance Company on the date of the accident. Instead of finding fault with the Insurance Company, if the Tribunal had called upon the opponent-owner to produce the certificate of insurance or any other document showing that the vehicle was insured with this Insurance Company on the date of the accident, then the owner would have certainly produced the same, as has been done in this appeal. The Insurance Company would have in that case admitted after searching their record that the vehicle was insured with them. I would also like to mention here that it was not proper on the part of the learned Tribunal to have made passing and sweeping observations against the Insurance Company. The Insurance Company was not at all interested in denying the Claim if, in fact, the vehicle was insured with the said Company. Simply because the Insurance Company was not able to trace their records for want of necessary information, it cannot be said that the Insurance Company waned to avoid the liability. The Insurance Company, on the contrary, has been very fair to this extent that no sooner the opponent-owner produced before this Court yesterday the Certificate of Insurance, inquiry was made immediately and today Mr. The Insurance Company, on the contrary, has been very fair to this extent that no sooner the opponent-owner produced before this Court yesterday the Certificate of Insurance, inquiry was made immediately and today Mr. Mehta fairly conceded that no interference was called for with the award passed by the Tribunal in these circumstances and the very fairly withdrawn the appeal, as stated in the beginning. The Insurance Companies are responsible bodies and their officers are responsible officers who cannot have any reason to deny the factum of insurance if the vehicle is, in fact, insured with the concerned Company. It would not be fair to the Insurance Companies and their officers to make observations criticising. Them as was done in the present case by the learned Tribunal I hope that the Tribunals working under the motor vehicles act will make proper approach in such cases and instead of finding fault with the Insurance Companies and their officers and instead of saddling the Insurance Companies with liabilities without any material on record, see that necessary material is brought on record an order is passed against an Insurance Company." 19. This Court is inclined to accept the statement made by the learned Senior Counsel for the appellant that in the absence of materials particularly the Insurance Policy, it would be impossible for the appellant to search their record to ascertain whether the offending vehicle was insured with them or not. In the absence of the policy details, it would be impossible for an officer of the appellant to give a positive statement that the vehicle was definitely not insured with them. Hence, it appears to be a high time when instead of finding fault with the Insurance Companies, the MAC Tribunals should take timely steps for issuance of proper direction to the claimant as well as the owner of the vehicle to disclose the insurance Policy details, if required by issuing interrogatories before the trial begins or by framing the issues as to whether the offending vehicle was insured and the insurer on the date of the accident so as to enable the parties to lead evidence on those issues. It is seen that if the said exercise is not done, the decision in the MAC case does not lead to a complete justice in the claim case in the absence of the policy as because it is quite possible that an award based on the basis of the assumption that the vehicle was insured with the insurer may not be ultimately be sustained in appeal. 20. However, as this Court has arrived at a finding on issue No.1 that the learned Tribunal was required to frame an issue as to whether the offending vehicle stood insured with the insurer at the time of the accident and by keeping in mind that the provisions providing for award of compensation under the Motor Vehicles Act, 1988 being a part of beneficial legislation, it will be in the interest of justice to remand the matter back before the learned MAC Tribunal, Nagaon for a fresh adjudication of the claim of the respondent No.1. It would be relevant to quote paragraphs 8 to 11 of the case of Oriental Insurance Co. Ltd Vs. Musstt. Hazira Bibi & ors, 2008 (2) GLT 463 :- "8. Referring to the decision, in National Insurance Co. Ltd. Vs. Jugal Kishore and Ors. ( AIR 1988 SC 719 ), Mr. Basar, learned counsel for the claimants-respondents, has contended that it is the duty of the Insurance Company to produce the relevant insurance policy in a claim proceeding. 9. While considering the decision, in Jugal Kishore (supra), what needs to be borne in mind is that a decision, even if it be of the Apex Court, cannot be read as a statute and has to be considered in the context of the facts of the given case. In Jugal Kishore (supra), the issue was not as to whether the vehicle stood insured or not; what was questioned was the extent of the liability of the insurance company and it is, in this context, that the Apex Court observed that when the insurance company wishes to take a defence, in a claim petition, that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its statement of defence. Obviously, therefore, when an insurance policy is non- existent, the question of producing such a policy does not arise at all. Obviously, therefore, when an insurance policy is non- existent, the question of producing such a policy does not arise at all. To the facts of the case at hand, thus, the decision, in Jugal Kishore (surpa), has no application at all. (10). What crystallizes from the above discussion is that the impugned award has been passed without determining the question as to whether the offending vehicle stood insured with the present appellant as its insurer on the date of the accident or not, though without determination of this vital question, no liability could have been imposed on the present appellant to pay compensation, which has been determined as payable to the claimants- respondents. (11). Considering, therefore, the matter in its entirety and in the interest of justice, this appeal is partly allowed. The impugned award is set aside and the proceeding is remanded to the learned Tribunal with direction to decide the issue as to whether the vehicle, in question stood insured with the present appellant as insurer on the date of the accident." 21. In view of above discussions, it is held that it was incumbent on the part of the learned Tribunal to frame an issue as to whether the offending vehicle was insured by the insurer at the time of the accident. 22. Point of determination No.2: On a perusal of the medical certificate (Exbt.2), it is seen that the Joint Director, Health Services cum Chairman, Standing District Medical Board had issued a certificate of disability of 40% to the respondent No.1. From the impugned judgment, it is not known how an issue arose whether the Medical Board at the relevant time had a proper corum or not. The basis of arriving at the said finding is not recorded. However, when the finding has come from the learned Tribunal that the Board did not have a proper corum, therefore, while the learned Tribunal was right in disagreeing with the contents of the said Medical certificate, certifying the disability of the respondent No.1 at 40%, but to give a finding of 20% disability, it was required by the learned Tribunal to give its reasoning as to how it arrived at a finding with percentage of disability at 20%. Instead of suddenly arriving at an imaginary figure of 20% disability, the Tribunal is required to keep in mind that for the purpose of awarding compensation, the relevant provisions of Motor Vehicle Act, 1988 is considered to be a beneficial legislation and, as such, a MAC Tribunal is required to give a just and proper compensation for the injured and/ or claimant. 23. Therefore, the learned Tribunal is required to not to be a silent spectator when a medical evidence is tendered regarding personal injuries. The Hon’ble Supreme Court in the case of Rajkumar Vs. Ajay Kumar (2011) 1 SCC 343 , has laid down the guidelines in this regard. Para 11 is thereof quoted below:- "11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim for determining the `just compensation. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmens Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctors opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage." 24. It has been held that the provision of section 168 and 169 of the Motor Vehicles Act makes it evident that the Tribunal does not take the role of a neutral empire as a Civil suit, but as an active explorer and seeker of truth, as such, the Tribunal is required to hold an inquiry into the claim for determining the just and proper compensation. 25. The Hon’ble Apex Court had also stated that while dealing with the present injury case, the Tribunal should preferably equip itself with a medical discretionary and a handbook for every permanent physical impairment (for e.g. manual for evaluation of permanent physical impairment for orthopaedic surgeon prorp by American Academy of Orthopaedic Surgeon or its Indian equivalent or otherwise texts) for understanding the medical evidence and assessing the physical functional disability. It was further held that the Tribunal is required to keep in view the schedule I to the Workmens Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries in the case of Workmen. Therefore, the finding of 20% disability, being dehors any explanation by the learned Tribunal, cannot be sustained. The point of determination No.2 stands answered accordingly. 26. Point of determination No.3: The records of the learned Tribunal reveals that as per the contents of the injury report (Exbt.2), the respondent No.1 was examined by the Standing District Medical Board on 02.07.2007 but the said certificate was issued on 30.11.2007. It is mentioned in the said certificate (Exbt.-2) that the respondent No.1 was "physically handicapped due to chronic osteoarthritis on right ankle/ left knee, deformity of 40%". The document of examination of the respondent No.1 has not been produced. Moreover, there is no X-ray plate and X-ray report on record showing the onset of Osteoarthritis. It is mentioned in the said certificate (Exbt.-2) that the respondent No.1 was "physically handicapped due to chronic osteoarthritis on right ankle/ left knee, deformity of 40%". The document of examination of the respondent No.1 has not been produced. Moreover, there is no X-ray plate and X-ray report on record showing the onset of Osteoarthritis. The record of clinical examination of the respondent No.1 is also not available. It is also not mentioned therein that the said disease happened because of the accident which had occurred on the fateful date. Therefore, the nexus between the illness and the accident has not been established. 27. Therefore, the basis of recording 40% deformity is not available on record. It is further seen that the present claim petition was filed before the learned Tribunal on 19.11.01. Therefore, this document i.e. injury report (Exbt.2) was prepared 6 (six) years after the claim petition was filed and was introduced along with the affidavit filed by the respondent No.1 for the first time on 31.03.2008. The order-sheet of the learned Tribunal does not reflect that any leave was taken from the learned Tribunal to bring the document on record so as to give the appellant due notice to respond to the said certificate for taking their additional defence. There is no doubt that the provisions providing for award of compensation under the Motor Vehicles Act is a beneficial legislation, but that does not mean that the insurer will not have a right to defend any document sought to be introduced at the time along with the evidence of the claimant for the first time and to take the appellant by surprise. It is possible that the notice of the non-vigilant counsel may escape as to the introducing of the new document, which may prevent him to seek the necessary instructions from the insurer, which is a corporate body and acts through a chain of hierchy. 28. Therefore, the Tribunal has the public duty to see that none of the parties are condemned without reasonable opportunity of being heard without bringing them to due notice of accepting the document for the first time in evidence. This Court is constrained to make this aforesaid observation owing to the fact that as on the date of filing of the claim petition, there was nothing to show that the respondent No.1 was suffering from 40% physical disability. This Court is constrained to make this aforesaid observation owing to the fact that as on the date of filing of the claim petition, there was nothing to show that the respondent No.1 was suffering from 40% physical disability. The physical disability was assessed after 7 years from the date of accident and in the said Medical certificate (Exbt.2), there is no indication to link the disease of osteoarthritis with the accident which had taken place as far as back on 30.06.01. Unless, the injury is linked to the accident by a positive evidence, this Court is not inclined to accept the contents of the disability certificate as a proof that the respondent No.1 had suffered the said injuries as a result of the accident. 29. Therefore, in the opinion of this Court the certificate of disability cannot form the basis of the award of compensation in the present case in hand. Thus, the point of determination No. (3) is answered accordingly. 30. Moreover, the impugned judgment quantifies loss of income at Rs.1,22,400/- and Rs.18,000/- for pain and suffering. It is not disclosed how the final award was quantified at Rs.2,18,180/-, as such, the award is not found to be sustainable on facts and in law. Therefore, considering the matter in its entirety and for the ends of justice this appeal stands allowed. Resultantly the impugned judgment and award dated 16.12.2008 passed by the learned Member, MAC Tribunal, Nagaon in MAC No.749/01 is set aside. The said proceeding is remanded back to the learned Tribunal to decide the matter afresh by further framing the issue as indicated above. The learned Tribunal shall permit the parties to give fresh evidence in support of their claim and/ or their respective stand. 31. As the only the appellant is present today, the appellant is directed to appear before the learned MAC Tribunal, Nagaon on 26.03.2018 and by producing a certified copy of this order, shall seek further instructions from the said learned Tribunal. The said learned Tribunal may permit the appellant to withdraw any amount deposited in connection with MAC Case No.749/2001 and if out of the deposited amount any sum has been disbursed to the respondent No.1, the same would be subjected to the outcome of fresh trial upon remand. 32. With the above observations and directions the appeal stands allowed. There shall be no order as to cost. 33. 32. With the above observations and directions the appeal stands allowed. There shall be no order as to cost. 33. The Registry is permitted to reflect the statutory deposit made by the appellant. 34. Return back the LCR.