Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1390 (GUJ)

Janbai Ibrahimsha Shekh (Wd/o Decd Ibrahimsha Osmansha Shekh) v. Karimsha Kasamsha Shekh Saiyad

2022-10-13

GITA GOPI

body2022
ORDER : 1. Mr. Nishiat A.Bhalodi, learned advocate for the petitioners submits that MACP No.1548 of 2015 was filed under Section 163A of the M.V. Act on the death of the husband of claimant no.1 and father of rest of the claimants. 2. Mr. Bhalodi submitted that the matter was actually filed in the year 2010 and was numbered as MACP No.176 of 2010, but since transferred to Anjar, it was renumbered as MACP No.1548 of 2015 and the judgment and award rendered on 30.11.2018, whereby the compensation of Rs.5,42,500/- with interest at the rate of 7% per annum came to be awarded. 2.1 Mr. Bhalodi submits that the Insurance Company thereafter challenged the said order by filing First Appeal No.4947 of 2019, and by an order dated 14.10.2019, the amount was recomputed and Rs.3,82,834/- was granted, and the direction of the Tribunal was modified to the extent that, instead of granting 50% amount the apportionment was granted as 30% cash and rest of the 70% to be invested in the FDR, as indicated by the tribunal with the condition that there would be no premature withdrawal or encumbrances without the express permission from this Court. 2.2 Mr. Bhalodi submits that the application was moved before the Auxiliary Tribunal; however, it was rejected on 30.07.2022. No order on the FDR could be passed by the Tribunal, as directed in the order dated 14.10.2019 that any permission for premature withdrawal or encumbrances could only be granted by this Court. 2.3 Mr. Bhalodi submits that since 2010, the petitioners have waited for the money on the death of the sole bread winner of the family and for an expeditious redressal, the petition was filed under section 163A of the M.V. Act, and thus Mr. Bhalodi submits that the very object of section would be absolved, if the petitioners are not provided early relief and thus submitted that the order of FDR requires reconsideration, since the amount would be necessary for the family for their maintenance and other necessities. Mr. Bhalodi submits that since major five claimants have prayed for the money and as per disbursement very less amount would come in the share of each claimants and thus made prayer for permission of premature encasement of FDR. 3. Mr. Bhalodi has placed reliance on the judgment in the case of A.V. Padma & Ors. Vs. Mr. Bhalodi submits that since major five claimants have prayed for the money and as per disbursement very less amount would come in the share of each claimants and thus made prayer for permission of premature encasement of FDR. 3. Mr. Bhalodi has placed reliance on the judgment in the case of A.V. Padma & Ors. Vs. R. Venugopal & Ors., reported in (2012) 3 SCC 378 , to contend that the Tribunal is required to give a thoughtful consideration to the genuine requirements of the claimant and should avoid mechanical approach ignoring the object and spirit of the Act. A.V. Padma’s case (supra) refers to the guidelines issued in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas & Ors., reported in (1994) 2 SCC 176 . In Susamma Thomas’s case (supra), while approving the judgment of the Gujarat High Court in the case of Muljibhai Ajarambhai Harijan Vs. United India Insurance Co. Ltd., reported in 1982 (1) GLR 756 , the Apex Court has offered the following guidelines:- “(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. United India Insurance Co. Ltd., reported in 1982 (1) GLR 756 , the Apex Court has offered the following guidelines:- “(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn; (ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money; (iii) In the case of semiliterate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid; (iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order; (v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above; (vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; (vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be; (viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated.” 4. In the case of A.V. Padma (supra), while appreciating the guidelines issued in the case of Susamma Thomas (supra), it has been observed as under:- “7. The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit. 8. Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi-literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money. 9. The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money. 9. The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him. 10. The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice.” 5. In the case of A.V. Padma (supra), the guidelines so issued in the case of Susamma Thomas (supra), has been clarified. Hence, it could be said that sufficient discretion has been given to the tribunal to exercise, considering the need of the applicants-claimants. In case of literate person, the Tribunal is required to give relaxation by not adopting pedantic approach of investing the money in long term FDR without recording reasons for investing the money in long term deposits. Hence, it could be said that sufficient discretion has been given to the tribunal to exercise, considering the need of the applicants-claimants. In case of literate person, the Tribunal is required to give relaxation by not adopting pedantic approach of investing the money in long term FDR without recording reasons for investing the money in long term deposits. It has been observed in the case of A.V.Padma (Supra) that the Tribunal are often taking a very rigid stand and are mechanically ordering, almost in all cases, the amount of compensation to be invested in long term FDRs. The deposited money are of the claimants. The literates can prudently exercise discretion, manage their funds and can individually decide about systematic planning for investing the money. Here, in this case, premature withdrawal was made permissible by order of this Court, as observed in F.A. No.4947/2019. 6. Here, in the present case, the widow of the deceased had maintained five children. One of the claimant is still minor. The widow had waited for the compensation amount since the year 2010. The total amount granted is Rs.3,82,834/-with accruing interest on it; 30% amount has been disbursed. The petitioners have prayed for the money deposited in FDR hoping to purchase plot for having their house of ownership and it is stated before the Auxiliary Tribunal that they are staying in the rented house. 7. Considering these facts and the long period of litigation and further the amount, which would come in the share of each claimants, would be nominal, and continuation of FDR may keep the petitioners further in debts. 8. Thus, taking into consideration the needs of the petitioners, the petition is allowed. The FDR in the name of claimant nos.1 to 5 along with interest on it be granted on proper verification, while the amount in the FDR in the name of minor claimant would be kept till the order of the Tribunal or till the period he attains the majority. The amount in the FDR should be transferred in the Bank Account of the claimants on proper verification.