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2018 DIGILAW 3577 (MAD)

Peran v. M. Ramasamy

2018-10-05

ABDUL QUDDHOSE

body2018
JUDGMENT Abdul Quddhose, J. The instant appeal has been filed by the claimant challenging the findings of the Tribunal under the impugned award dated 05.08.2010 passed by the Motor Accident Claims Tribunal, Sub Court, Bhavani, Erode District in M.C.O.P.No.187 of 2008. The appellant has challenged the award on the ground that the Tribunal ought to have fixed the entire negligence on the part of the second respondent. 2. The brief facts leading to the filing of the instant appeal are as follows: (i) The appellant sustained injuries on 16.04.2007 as a result of an accident caused by two vehicles viz., a bus bearing registration No.TN-33-N-1792 owned by the second respondent/ transport corporation and an unknown lorry. (ii) According to the appellant, he was travelling as a passenger in the bus bearing Registration No.TN-33-N-1792 owned by the second respondent/ transport corporation. While travelling, he was seated at the right side last seat of the bus. When the bus was coming near Pagalayur at about 11.45 a.m., on the East - West of Erode to Tiruppur main road from West to East, the driver of the bus was driving the bus in a very rash and negligent manner without minding the traffic rules with high speed and in a jerky manner from left to right and right to left, turned the bus at left side suddenly and caused the right side (back) body of the bus hit against a lorry coming in the opposite direction. (iii) According to the appellant, as a result of the collision of right side bodies of both the vehicles, the appellant sustained fracture and crush injuries in right arm and shoulder and he also became unconscious. Immediately, the appellant was taken to the Erode Government Hospital and the Doctor in-charge of the hospital attended on the injured and performed surgery on the appellant and he took treatment in the hospital for about a month and also took treatment as an out-patient thereafter. (iv) The appellant preferred a claim before the Motor Accident Claims Tribunal in MCOP.No.187 of 2008 seeking compensation of Rs. 2,00,000/- for the injuries sustained by him as a result of the accident. (iv) The appellant preferred a claim before the Motor Accident Claims Tribunal in MCOP.No.187 of 2008 seeking compensation of Rs. 2,00,000/- for the injuries sustained by him as a result of the accident. (v) The Motor Accident Claims Tribunal, by its award dated 05.08.2010 in MCOP.No.187 of 2008 held that there is composite negligence on the part of the driver of the bus owned by the second respondent/ transport corporation as well as the driver of the lorry which was coming in the opposite direction. (vi) Based on the said findings, the Tribunal directed the second respondent/ transport corporation to pay 50% of the total compensation amount of Rs. 70,000/- i.e., Rs. 35,000/- to the appellant. Since, the owner or insurer of the lorry was not impleaded as a party to the proceedings, no direction has been passed against them in the impugned award. (vii) Aggrieved by the findings of the Tribunal under the impugned award dated 05.08.2010 passed in MCOP.No.187 of 2008, the instant appeal has been filed by the claimant to reverse the finding of the Tribunal and to fasten the entire liability on the second respondent/transport corporation and also for enhancement of compensation. 3. Heard, Mr. C. Kulanthaivel, learned Counsel for the Appellant and Ms. R.T. Sundari, learned Counsel for the second respondent. The first respondent, being the driver of the bus has remained ex-parte before the Tribunal as well as this Court. 4. According to the learned Counsel for the Appellant, the Tribunal ought to have held that the entire negligence is only on the side of the driver of the bus owned by the second respondent/ transport corporation. Further, he would contend that in a case of composite negligence, the appellant has got the right to proceed against any one of the joint tort-feasors and the tort-feasor who has paid the compensation amount to the claimant can recover the same from the other tort-feasor. 5. According to him, in the instant case, the Tribunal ought to have directed the second respondent/ transport corporation to pay the entire compensation amount assessed by the Tribunal to the appellant and permitted them to recover the compensation amount so paid from the other tortfeasor viz., the owner of the lorry who also caused the accident. 6. 5. According to him, in the instant case, the Tribunal ought to have directed the second respondent/ transport corporation to pay the entire compensation amount assessed by the Tribunal to the appellant and permitted them to recover the compensation amount so paid from the other tortfeasor viz., the owner of the lorry who also caused the accident. 6. The learned counsel for the appellant drew the attention of this Court to the judgment of the Hon'ble Supreme Court in the case of Khenyei vs. New India Assurance Co. Ltd. and Others, (2015) 9 SCC 273 . He referred to the findings in the following paragraphs in the said judgment and submitted that in the case of the composite negligence, the claimant has right to choose anyone of the joint tort-feasors for the recovery of the compensation amount and there is no necessity to implead all the joint tort-feasors in the claim petition. "1.Leave granted. In the appeals, the main question which arises for consideration is, whether it is open to a claimant to recover entire compensation from one of the joint tortfeasors, particularly when in the accident caused by composite negligence of drivers of trailer-truck and bus has been found to be 2/3rd and 1/3rd extent, respectively. 2. In the instant cases the injuries were sustained by the claimants when two vehicles-bus and trailer-truck collided with each other. New India Assurance Co. Ltd. Is admittedly the insurer of the bus. However, on the basis of additional evidence adduced, the High Court has come to the conclusion that New India Assurance Co. Ltd. is not the insurer of the trailer-truck, hence is not liable to satisfy 2/3rd of the award. 3. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tortfeasors. In a case of accident caused by negligence of joint tortfeasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tortfeasors in such a case is immaterial for satisfaction of the claim of the plaintiff/ claimant and need not be determined by the court. In such case, the liability is always joint and several. The extent of negligence of joint tortfeasors in such a case is immaterial for satisfaction of the claim of the plaintiff/ claimant and need not be determined by the court. However, in case all the joint tortfeasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter se equities between them at an appropriate stage. The liability of each and every joint tortfeasor vis-a-vis to the plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tortfeasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant. ................ ......... 12. A Full Bench of Madhya Pradesh High Court in Sushila Bhadoriya v. M.P.SRTC has also laid down that in case of composite negligence, the liability is joint and several and it is open to implead the driver, owner and the insurer of one of the vehicles to recover the whole amount from one of the joint tortfeasors. As to apportionment also, it has been observed that both the vehicles will be jointly and severally liable to pay the compensation. Once the negligence and compensation is determined, it is not permissible to apportion the compensation between the two as it is difficult to determine the apportionment in the absence of the drivers of both the vehicles appearing in the witness box. Therefore, there cannot be apportionment of the claim between the joint tortfeasors. 13. The relevant portion of the decision of Full Bench is extract hereunder: (SSC OnLine MP paras 25-28) "25. When the injury is caused as a result of negligence of two joint tortfeasors, claimant is not required to lay his finger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the court to distinguish the act of each joint tortfeasor, liability can be fastened on both the tortfeasors jointly and in case only one of the joint tortfeasors is impleaded as party, then entire liability can be fastened upon one of the joint tortfeasors. In the absence of any evidence enabling the court to distinguish the act of each joint tortfeasor, liability can be fastened on both the tortfeasors jointly and in case only one of the joint tortfeasors is impleaded as party, then entire liability can be fastened upon one of the joint tortfeasors. If both the joint tortfeasors are before the court and there is sufficient evidence regarding the act of each tortfeasor and it is possible for the court to apportion the claim considering the exact nature of negligence by both the joint tortfeasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tortfeasors. In such cases. Joint tortfeasors will be jointly and severally liable to pay the compensation. 26. On the same principle, in the case of joint tortfeasors where the liability is joint and several, it is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them. If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the amount from any one of them. There cannot be apportionment of claim of each tortfeasor in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim. 27. To sum up, we hold as under - (i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue the owner, driver and insurer of both the vehicles. The claimant may implead the owner, driver and insurer of both the vehicles or any one of them. (ii) There cannot be apportionment of the liability of joint tortfeasors. In case both the joint tortfeasors are impleaded as party and if there is sufficient material on record, then the question of apportionment can be considered by the Claims Tribunal. However, on general principle of law, there is no necessity to apportion the inter se liability of joint tortfeasors. 28. Reference in answered accordingly. The appeal be placed before the appropriate Bench for hearing." 14. However, on general principle of law, there is no necessity to apportion the inter se liability of joint tortfeasors. 28. Reference in answered accordingly. The appeal be placed before the appropriate Bench for hearing." 14. In our opinion, the law laid down by the Madhya Pradesh High Court in Sushila Bhadoriya is also in tune with the decisions of the High Court of Karnataka in Ganesh and Arun. However, at the same time, suffice it to clarify that even if all the joint tortfeasors are impleaded and both the drivers have entered the witness box and the Tribunal or the court is able to determine the extent of negligence of each driver that is for the purpose of inter se liability between the joint tortfeasors but their liability would remain joint and several so as to satisfy the plaintiff/claimant. 15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan has held that in case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence hin the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder: (SCC pp.175-51, paras 6-7) "6.' Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person who was injured on account of the composite negligence of those wrongdoers. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person who was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligence and if so, whether he was solely or party responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." The decision in T.O. Anthony v. Karvarnan has been relied upon in A.P.SRTC v. K. Hemlatha. 16. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." The decision in T.O. Anthony v. Karvarnan has been relied upon in A.P.SRTC v. K. Hemlatha. 16. In Pawan Kumar v. Harkishan Dass Mohan Lal, the decisions in T.O. Anthony and Hemlatha have been affirmed, and this Court has laid down that where the plaintiff/claimant himself is found to be negligence jointly and severally, liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. He is entitled to damages not attributable to his own negligence. The law/distinction with respect to contributory as well as composite negligence has been considered by this Court in Machindranath Kernath Kasar v. D.S.Mylarappa and also as to joint tortfeasors. This Court has referred to Charlesworth and Percy on Negligence as to cause of action in regard to joint tortfeasors thus: (Machindranath Kernath Kasar case, SCC p. 212, para 42) "42. Joint tortfeasors, as per 10th Edn. of Charlesworth & Percy on Negligence, have been described as under: 'Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually.... Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.' " ................ ........... 22. What emerges from the aforesaid discussion is as follows: 22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. 22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3. 22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the Court/ Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/ claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings. 22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award." 7. Applying the principles laid down in the above referred judgment, the learned counsel would contend that the Tribunal ought to have fastened the entire liability to pay the compensation on the second respondent/ transport corporation, as the owner of the lorry or insurer of the lorry was not a party to the claim petition filed by the appellant. 8. Further, the learned counsel for the appellant would submit that the compensation awarded by the Tribunal under the impugned award is an inadequate compensation. He submitted that the appellant sustained fracture of right shoulder, upper arms, humerus bones with mal-union and right side shoulder joint bones Osteo Arthritis. 9. According to him, at the time of the accident, the appellant was aged 45 years and was a mason earning a monthly income of Rs. 4,500/-. He submitted that the appellant sustained fracture of right shoulder, upper arms, humerus bones with mal-union and right side shoulder joint bones Osteo Arthritis. 9. According to him, at the time of the accident, the appellant was aged 45 years and was a mason earning a monthly income of Rs. 4,500/-. Further, he would contend that even though the Doctor who was examined as PW-2 assessed the disability of the appellant at 35%, as per the disability certificate Ex.P7, the Tribunal without any basis has assessed the disability of the appellant only at 15% and has awarded a meagre compensation only of Rs. 30,000/- towards the said disability. 10. He would also contend that the compensation awarded under the heads, pain and suffering, medical expenses, nutrition, transport costs, loss of income during the period of treatment is also very low. Further, he would contend that no compensation was awarded under the heads, at tender charges, loss of amenities and future medical expenses. He submitted that the instant appeal has been filed seeking enhancement of Rs. 1,00,000/- as compensation. 11. Per contra, the learned counsel for the second respondent/ transport corporation would submit that the driver, owner and insurer of the lorry which was also involved in the accident is also not a party to the claim petition filed by the appellant. Therefore, according to her, the judgment relied upon by the learned counsel for the appellant reported in (2015) 9 SSC 273 is not applicable to the facts of the instant case. 12. According to her, the driver of the bus owned by the second respondent/transport corporation as well as the driver of the unknown lorry which was also involved in the accident are not joint tort-feasors. In so far as the enhancement of compensation sought for by the appellant is concerned, the learned counsel for the second respondent would contend that the compensation awarded by the Tribunal to the appellant under the impugned award is a just compensation. 13. This Court, after having considered the materials available on record and after examining the impugned award and after hearing the submissions of the respective counsels, observes the following: (a) FIR has been registered only against the driver of the unknown lorry which collided with the bus owned by the second respondent/ transport corporation which resulted in injuries sustained by the appellant. Before the Tribunal, charge sheet has also not been filed by either of the parties as a document and the outcome of the investigation by the police is also unknown. (b) The Tribunal has given a clear finding that the driver of the bus owned by the second respondent/ transport corporation as well as the driver of the unknown lorry are both at fault. Based on the said finding, 50% composite negligence is fastened by the Tribunal on the second respondent/ transport corporation who is the owner of the bus. (c) Admittedly, the appellant has not made the driver, owner or insurer of the lorry as a party to the claim. Further, being a hit and run case, the owner, driver or insurer of the lorry is also unknown. (d) In the case cited by the learned counsel for the appellant reported in (2015) 9 SSC 273, the facts of the case are different. In that case, both the tort-feasors were made as parties to the proceedings, but in the instant case, only one of the tort feasers, viz., the second respondent/transport corporation was made as a party to the claim petition. Further, in the instant case, it is an unknown lorry and the name of the driver, owner or insurer of the said lorry remains unknown. (e) The learned counsel for the appellant has referred to the definition of joint tort-feasors, which is extracted in Paragraph-16 of the judgment cited supra. (f) As seen from the definition, the tort should have been committed in the course of a joint act while pursuing the common purpose agreed between them. But in the instant case, it is a case of an accident and there was no joint act between the driver of the bus as well as the driver of the unknown lorry and therefore the driver of the lorry as well as the driver of the bus cannot be treated as joint tortfeasors. (g) Further, applying the legal maxim Audi alteram Partem, (no party can be condemned unheard), the owner, driver, or the insurer of the unknown lorry cannot be fastened with any liability without being heard. (g) Further, applying the legal maxim Audi alteram Partem, (no party can be condemned unheard), the owner, driver, or the insurer of the unknown lorry cannot be fastened with any liability without being heard. (h) The submission made by the learned counsel for the appellant that the appellant has an option to recover the compensation amount from any one of the tortfeasors is unreasonable and cannot be accepted by this Court, in view of the settled principle of law that no party can be condemned unheard. (i) Therefore, in the considered view of this Court, the Tribunal has rightly assessed the ratio of composite negligence between the second respondent/ transport corporation as well as the unknown lorry and has rightly directed the second respondent/ transport corporation to pay only 50% of the total compensation assessed by the Tribunal under the impugned award. (j) In so far as the enhancement of the compensation sought for by the appellant is concerned, as rightly contended by the learned counsel for the appellant, the compensation awarded by the Tribunal to the appellant is an inadequate compensation. Even though, the Doctor who examined the appellant has assessed the disability at 35%, the Tribunal without any basis on its own has assessed the disability at 15%. The disability certificate produced by the appellant before the Tribunal was marked as Ex.P7 and the PW2 Doctor was also examined as witness. (k) The appellant was a mason at the time of the accident. The age and avocation of the appellant has not been disputed by the second respondent/ transport corporation before the Tribunal. The appellant has sustained fracture on right shoulder upper arm, humerus bone with mal-uniion and right side joint bones Osteo Arthritis. The nature of the injuries sustained by the appellant has not been disputed by the second respondent before the Tribunal. (l) Considering his age and avocation and the nature of injuries sustained, the Tribunal in the considered view of this Court, ought to have awarded a higher compensation towards disability, pain and suffering, nutrition, transport costs and loss of income. Further, the Tribunal under the impugned award has not granted any compensation to the appellant towards attender charges and loss of amenities. 14. Under the impugned award, the Tribunal has awarded only a sum of Rs. 9,000/- as compensation to the appellant towards loss of income calculated for two months. Further, the Tribunal under the impugned award has not granted any compensation to the appellant towards attender charges and loss of amenities. 14. Under the impugned award, the Tribunal has awarded only a sum of Rs. 9,000/- as compensation to the appellant towards loss of income calculated for two months. Being a mason and having sustained fracture of his shoulder, this Court is of the considered view that the compensation towards loss of income should be granted to the appellant for four months instead of two months. Thus compensation for loss of income would be Rs. 4500 x 4 = Rs. 18,000/-. 15. Further, this court hereby fixes the percentage of disability at 35% and hereby enhances the disability compensation at Rs. 70,000/- by calculating Rs. 2000/- per percentage of disability. 16. It is seen that the appellant had sustained crush injuries and fracture on his right arm and shoulder which would certainly caused enormous pain and suffering. Taking into account the said fact, this Court awards Rs. 25,000/- as compensation instead of Rs. 20,000/- under the head pain and sufferings. Further, this Court awards Rs. 5,000/- each towards nutrition, transportation costs, attender charges and loss of amenities. 17. In respect of medical expenses, the compensation awarded by the tribunal of Rs. 10,000/- deserves to be confirmed and the same is undisturbed by this court. 18. In the light of the above observations, this Court is of the considered view that the findings of the Tribunal regarding fastening of liability for composite negligence on the part of the second respondent/ transport corporation shall remain undisturbed, but the compensation awarded under the impugned award is enhanced from Rs. 35,000/- to Rs. 1,38,000/- along with interest at the rate of 7.5% p.a. from the date of claim till the date of realisation. 19. In the result, the Award passed by the Motor Accident Claims Tribunal in M.C.O.P.No.187 of 2008 is enhanced in the following manner: Sl. No. Amount awarded by the tribunal Amount Awarded by this Court For disability fixed at 35% (Rs. 2,000 X 35) Rs.30,000/- Rs.70,000/- Pain and Sufferings Rs.20,000/- Rs.25,000/- Medical Expenses Rs.5,000/- Rs.5,000/- Nutrition Rs.4,000/- Rs.5,000/- Transportation costs Rs.2,000/- Rs.5,000/- Loss of Income (4 months X Rs. No. Amount awarded by the tribunal Amount Awarded by this Court For disability fixed at 35% (Rs. 2,000 X 35) Rs.30,000/- Rs.70,000/- Pain and Sufferings Rs.20,000/- Rs.25,000/- Medical Expenses Rs.5,000/- Rs.5,000/- Nutrition Rs.4,000/- Rs.5,000/- Transportation costs Rs.2,000/- Rs.5,000/- Loss of Income (4 months X Rs. 4,500/- Rs.9,000/- Rs.18,000/- Attender Charges Nil Rs.5,000/- Loss of Amenities Nil Rs.5,000/- Total amount fixed as compensation Rs.70,000/- Rs.1,38,000/- 50% negligence fixed on the hit and run lorry and deducted 50% Total Rs.35,000/- Rs.69,000/- 12. In the result, (i) the Civil Miscellaneous Appeal is partly allowed. No costs. (ii) the finding rendered by the tribunal in fixing 50% composite negligence on the part of the 2nd respondent transport corporation is hereby confirmed. (iii) the compensation awarded by the tribunal is enhanced from Rs. 70,000/- to Rs. 1,38,000/- along with interest at the rate of 7.5% from the date of claim, till the date of realisation. Out of the compensation awarded by this Court, the second respondent/transport corporation is directed to pay the Appellant Rs. 69,000/- being the 50% of the award amount. (iv) The 2nd respondent is directed to deposit the 50% of entire compensation amount awarded by this Court along with interest at the rate of 7.5% per annum from the date of claim, till the date of realisation to the credit of MCOP.No.187 of 2008 before the tribunal, less the amount, if any, already deposited within a period of four weeks from the date of receipt of a copy of this order. (v) On such amount being deposited, the appellant is permitted to withdraw the same on filing an appropriate application.