1. The petitioner has taken out present petition for below mentioned relief:
"15(b) Your Lordships may be pleased to passed and order, direction or any other appropriate writ order or direction directing to the M.A.C. Tribunal at Himmatnagar to quash and set aside order dated 12.02.2004 passed by the Ld. Judge of the Motor Accident Claim Tribunal at Himmatnagar in M.A.C.P. No.123 of 1979 and further pleased to be issue a order or direction directing to the Ld. Judge order to be release amount deposited in the above matter in the favor of the petitioner in the interest of justice."
1.1 The petitioner claims to be heir of the judgment -creditor in decision dated 23.8.2002 in First Appeal No.429 of 1983.
2. The controversy raised by the petitioner in present petition lies in narrow compass and the petition can be disposed of with the limited observation.
3. It appears that certain proceedings were instituted before learned Motor Accident Claims Tribunal, which was registered as M.A.C.P. No.123 of 1979. The learned Tribunal decided the said M.A.C. Petition along with other motor accident claims petitions arising from the same accident. The judgment and order by the learned Tribunal was carried in appeal before the High Court by way of First Appeal No.429 of 1983. The said appeal was heard with other first appeals arising from the same judgment, i.e. First Appeal No.188 of 1983 and other connected appeals. The said appeals came to be decided by CAV judgment dated 23.8.2002.
4. After the said judgment, Misc. Civil Application No.121 of 2003 seeking disbursement of the amount deposited by the insurance company, was filed. The said application was disposed of by the Court under order dated 26.2.2003. The observations by the Court in the said order in para 2.3 to para 3 are relevant. The said paragraphs read thus:
"2.3 Being aggrieved and dissatisfied with the said judgement and decree of the Tribunal, the Insurance Company filed appeal being appeal No. 429 of 1983 against the original claimants as well as the owner of the vehicle.
2.4 The aforesaid appeal was heard by this court and by its judgement and order dated 23.8.2002 this court allowed the appeal of the Insurance Company as the passengers were travelling in the truck with the goods and therefore the owner and driver of the vehicle were held liable.
2.5 The present applicants have filed the present application and stated that pursuant to the order of this court 22.3.2002 and 10.5.2002, the Insurance Company has already deposited the amount of Rs. 57,300/- on 30.10.2002. Now the applicants have prayed that the amount deposited by the Insurance Company may be disbursed to the claimants.
2.6 When the application was placed for hearing on 1.2.2003 this court had passed an order that though the application was served on both Mr. Aspi Kapadia, learned advocate for the Insurance Company as well as Mr. Harin P. Raval, learned advocate who appeared before this court, they stated that they have no information about the owner or insurance company had filed appeal. However, with a view to give a chance to the learned counsel, the matter was kept on 14.2.2003 at 4.45 p.m. However, on that day neither Mr. Aspi Kapadia, learned counsel for the Insurance Company nor Mr. Harin Raval appeared. Thereafter, the matter was kept on 26.2.2003.
2.7 The learned counsel for the applicants has invited my attention to the recent judgement of the Hon'ble Supreme Court in the case of KAUSHNUMA BEGUM (SMT.) AND OTHERS VS. NEW INDIA ASSURANCE CO. LTD. AND OTHERS reported in (2001) 2 SCC 9. He submitted that in the said case the accident occurred on 20.3.1986. The vehicle involved in the accident was a jeep. It capsized while it was in motion. The cause of the capsize was attributed to bursting of the front tyre of the jeep. In the process of capsizing the vehicle hit against one Haji Mohammad Hanif who was walking on the road at that ill-fated moment and consequently that pedestrian was crushed and subsequently succumbed to the injuries sustained in that accident. In that view of the matter, the appellants, heirs and legal representatives of the deceased Haji Mohammad Hanif, filed an application before the Tribunal in 1986 claiming Rs. 2,36,000/- as total compensation. The Tribunal dismissed the application but granted interim compensation under Section 140 of the Motor Vehicles Act, 1988. Being aggrieved and dissatisfied with the said order, the appellant filed appeal before the High Court of Allahabad. The High Court of Allahabad also dismissed the appeal. Being aggrieved and dissatisfied with the said order of the High Court, the appellant filed appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court after considering the provisions of the Motor Vehicles Act and the provisions of law, in para 25 of the judgement was pleased to allow the appeal and observe as under:-
"We direct the first respondent Insurance Company to pay the above amount to the claimants by depositing it in the Tribunal. Once such deposit is made, the same shall be disbursed to the claimants in accordance with the principles laid down by this Court in G.M., Kerala SRTC Vs. Susamma Thomas. The appeal is disposed of accordingly."
3. In view of the aforesaid judgement of the Hon'ble Supreme Court, the learned counsel for the applicant has submitted that now the principles laid down by this court is confirmed by the Hon'ble Supreme Court and the Supreme Court also reiterated the same principles and held the Insurance Company as well as the owner of the vehicle liable to pay compensation. In view of the aforesaid circumstances, I direct respondent No. 1 Luhar Jahurbhai Suleman and respondent No. 2 Gulamhussen Mohmadbhai to deposit the decretal amount as per the judgement and decree dated 30.3.1982 passed by the Motor Accident Claims Tribunal and further confirmed by this court in First Appeal No. 429 of 1983 dated 23.8.2002 within four weeks from today. After the amount is deposited by the aforesaid two respondents, the claimants are entitled to withdraw the said amount showing proper identity to the satisfaction of the trial court. As soon as the claimants receive the amount of compensation, the amount which has been deposited by the Insurance Company will be refunded to the Insurance Company. Till the claimants receive the amount of compensation, the amount deposited by the Insurance Company will be retained by the trial court."
5. Subsequently, present petitioner being heir of the appellant - judgment creditor - in decision dated 23.8.2002 (in FA No.429/1983) preferred application before the learned Tribunal and requested the learned Tribunal to disburse the amount (deposited by the insurance company) in their favour.
6. The learned Tribunal, vide order dated 12.2.2004, has rejected the application in view of the decisions of the Apex Court and also of this Court that once the liability to pay is determined by the Court.
7. Aggrieved by the said decision of the learned Tribunal, the petitioner has preferred present petition.
8. Mr.
Anil Thakore, learned advocate has appeared for the petitioner and Mr. Shah, learned advocate has appeared for the respondent insurance company. Other respondents, though served, have not entered appearance.
9. In that view of the matter and after arguing the petition to some extent, learned advocate for the petitioner has submitted that the petitioner will file appropriate execution proceedings before the learned Tribunal. Therefore, present petition is disposed of as withdrawn. In view of the order dated 26.2.2003 in Misc. Civil Application No.121 of 2003. The Court does not find any error in the order passed by the learned Tribunal and therefore, no interference is called for.
10. It is clarified that if the petitioner takes out any proceeding, including any execution proceedings, the same may be decided by the learned Tribunal in accordance with law.
11. The petition accordingly stands disposed of.
(K.M.
Thaker, J.) Bharat* Top