Order in the Appeal:-
Learned advocate Mr. Ajay Mehta submitted that the learned Tribunal has taken into account the future/prospective income in a claim petition preferred under Section-163A in which an account of absence of any evidence regarding income the Tribunal ought to have proceeded on the basis of notional income. He submitted that even after deciding to proceed on the basis of notional income the Tribunal has also taken into account future/prospective income. He also submitted that the Tribunal has further committed error while determining the monthly income in as much as at one stage the Tribunal held that notional income should be treated as Rs.2,500/- per month whereas subsequently the Tribunal has taken into account monthly pay at Rs.4,500/-.
The substance of the appellant's objection brings about a situation that at least so far as determination of notional income at Rs.2,500/- is concerned there is no dispute on side of the appellant and to that extent the award is not disputed. On that basis, the undisputed amount would come to about Rs.3,10,000/-. Therefore, the challenge in the appeal is restricted to the balance amount i.e. Rs.4,62,833/- minus Rs.3,10,000/- i.e. Rs.1,52,833/-.
In this view of the matter, learned advocate Mr. Mehta seeks leave to amend the appeal memo particularly details regarding the Court fees and jurisdiction and also to amend the details in the appeal memo wherever correction may be necessary to clarify that the challenge is limited to Rs.1,52,833/-.
Leave to amend the memo of the appeal is granted.
Considering the aforesaid submissions and objections, Admit.
Order in the Civil Application:-
Rule returnable on 23/6/2010. Until then ad interim relief in terms of para-6(i) on the condition that the applicant-appellant shall deposit entire awarded amount together with interest and cost on or before 5/6/2010. After the deposit is made, taking into account that sum of Rs.3,10,000/- with proportionate interest and cost is undisputed amount, learned Tribunal shall allow the claimant no.1 i.e. the widow of the deceased to withdraw 50% of her share with proportionate cost and interest as per the apportionment determined in the award i.e. 50% of awarded (undisputed part) amount in her favour and the balance 50% amount shall be invested in fixed deposit with any nationlised bank in name of claimant no.1 widow of the deceased, however, the receipt of the fixed deposit shall be maintained with the Tribunal. The said balance amount shall be invested for a period of three years and interest shall be allowed to be paid to the claimant. If by the expiry of three years period the appeal is not decided, it will be open to the claimant to move appropriate application to withdraw balance 50% amount. The release of the invested amount in favour of the claimant no.1 widow would be subject to the orders that may be passed by the Court.
So far as claimant no.3 i.e. mother of the deceased is concerned, she has been awarded 30% of the awarded amount. The claimant no.3 i.e. mother of the deceased is also permitted to withdraw 50% of her share with appropriate interest and cost awarded to her i.e. 50% of 30% of the total awarded (undisputed part) amount. The balance 50% amount of her share also shall be invested in fixed deposit with any nationlised bank in name of claimant no.3 mother of the deceased, however, the receipt of the fixed deposit shall be maintained with the Tribunal. The said balance amount shall be invested for a period of three years and interest shall be allowed to be paid to the said claimant. If by the expiry of three years period the appeal is not decided, it will be open to the said claimant to move appropriate application to withdraw said balance 50% amount. The release of the invested amount in favour of the claimant no.3 mother of the deceased would be subject to the orders that may be passed by the Court.
The entire amount/share awarded to the minor claimant shall be invested in fixed deposit in the name of Nazir of the Court. The said fixed deposit shall be made initially for a period of five years and shall be continued to be renewed until he becomes major. The interest accrued on the said fixed deposit of the minor claimant is allowed to be withdrawn by the mother of the minor claimant (i.e. claimant no.1 widow of the deceased) to be used only for the education of the minor.
The original claimants shall not be allowed to create any charge in any manner whatsoever against the invested amounts.
The deposited amount i.e. Rs.1,52,833/- with proportionate cost and interest shall be invested in cumulative fixed deposit for a period of five years and the same will be continued to be renewed from time to time until final hearing and decision of the appeal.
(K.M.THAKER, J.) (ila) Top