Bombay High Court
Smt. Salama Khatoon Washi Ahemad Khan ... vs United India Insurance Co. Ltd on 20 February, 2024
Author: M.M.Sathaye
Bench: M.M.Sathaye
IA 14275-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 14275 OF 2023
IN
FIRST APPEAL NO. 1480 OF 2019
Salma Khatoon Washi Ahemad Khan and Ors. ...Applicants
In the matter between: ... Appellant
United India Insurance Co. Ltd.
Versus
Salma Khatoon Washi Ahemad Khan and Ors. ...Respondents
SNEHA ****
NITIN Mr. Ashif Husain a/w Deepika Osal, Kaif Ansari for the Applicants.
CHAVAN
Ms. Varsha Chavan for the Respondent/ori. Appellant.
Digitally signed by
SNEHA NITIN
CHAVAN ****
Date: 2024.02.20
15:06:07 +0530
CORAM : M.M.SATHAYE, J.
RESERVED ON : 29 JANUARY 2024 PRONOUNCED ON : 20 FEBRUARY 2024 P.C. :
1. This is an application by Respondent Nos. 1 to 5 (original claimants) in Motor Accident Claims Petition No. 2466 of 2010) filed by them in Motor Accident Claims Tribunal, Mumbai for compensation under Section 166 of the Motor Vehicles Act, 1988 (hereinafter "MV Act") on account of death of Washi Ahemad Khan in a vehicular accident on 10 April 2010.
2. By this application, the claimants are praying for withdrawal of 50% of the amount deposited by the Appellant/Insurance Company along with accrued interest. It is the case of the Applicants Sneha Chavan page 1 /8 ::: Uploaded on - 20/02/2024 ::: Downloaded on - 07/03/2024 01:51:07 ::: IA 14275-23.doc that Applicant No.1 is a widow, Applicant Nos. 2 to 4 are children and Applicant No.5 is father of the deceased Washi. It is submitted that offending vehicle was owned by present Respondent No.6 owner (M/s. Speedy Multimodes Limited) and it was insured with the Appellant/Insurance Company.
3. It is further submitted that the claim application was heard by the said Tribunal, in which under Judgment dated 9 September 2016, the Tribunal directed the Appellant/Insurance Company as well as Respondent No.6 owner to jointly and severally pay compensation of Rs.18,67,500/- to the Applicants along with simple interest @9% p.a. from the date of filing of application till actual realization. It is submitted that the total amount held payable to the Applicants has been apportioned by the Tribunal itself in the ratio of 50% to Applicant No.1 widow, 10% each to Applicant Nos. 2 to 4 children and 20% to Applicant No.5 father of the deceased. It is contended that this judgment of the Tribunal is challenged by the Appellant/Insurance Company in the present first appeal and pursuant to conditional stay order dated 14 November 2017, the Appellant/Insurance Company has deposited total sum of Rs.28,27,006/- with the said Tribunal. It is urged that the Applicants are in urgent need of money as Applicant No.1 is suffering from high sugar and blood pressure as also Applicant No.5 is suffering from old age and Applicant Nos. 2 to 4 require monetary support for their education purpose.
4. The Appellant/ Insurance Company has filed affidavit in reply Sneha Chavan page 2 /8 ::: Uploaded on - 20/02/2024 ::: Downloaded on - 07/03/2024 01:51:07 ::: IA 14275-23.doc opposing the prayer of withdrawal of amount. The application is mainly opposed on the ground that the original claim under the MV Act itself is barred under Section 53 of the Employees' State Insurance Act, 1948 (for short 'ESI Act'). The Applicants have received compensation from the office of Employees' State Insurance Corporation (for short 'ESIC') It is contended that the claimants witness Mr. Vithal Shintre has admitted in cross-examination that deceased Washi was an ESIC member. In letter dated 31 January 2017 issued by ESIC, this fact is confirmed that about Rs.5,86,000/-
have been received by the Applicant Nos. 1 to 4 as dependent benefit paid by the office of ESIC in the form of monthly pension. The copy of the said letter dated 31 January 2017 is placed on record. It is submitted that the deceased Washi Khan's employer at that time had obtained the policy from other Insurance Company. It is submitted that though the Applicants were aware that they got compensation from ESIC, it was suppressed from the Tribunal. It is submitted that the present claim under the MV Act is barred in view of Section 53 of the ESI Act. On these grounds the application is opposed by the Insurance Company.
5. The Applicants have filed rejoinder contending inter alia that the Insurance Company has not taken any defence of bar under Section 53 of the ESI Act before the Tribunal despite the so called admission by the claimants' witness. It is disputed that the Applicants are not entitled to claim compensation under the MV Act. It is contended that the bar under Section 53 of the ESI Act will not apply absolutely. It is admitted that an amount of Rs.2000/- per Sneha Chavan page 3 /8 ::: Uploaded on - 20/02/2024 ::: Downloaded on - 07/03/2024 01:51:07 ::: IA 14275-23.doc month has been received by Applicant No.1 and Rs.1800/- per month has been received by Applicant Nos. 2 to 4 from ESIC, however the amount alleged to be paid to the Applicants under the said letter dated 31 January 2017 is disputed. It is contended that no such large sum is received by them. It is contended that merely because an employee has been granted benefit under ESI Act would not mean that his dependents cannot claim compensation under the MV Act after the death of employee in a vehicular accident. It is further contended that since there is no commonality between benefits under the MV Act and under ESI Act, the provisions of the said two Acts cannot be mixed up to deny compensation under beneficial legislation such as the MV Act. It is contended that the benefits under two Acts are all together different and separate. It is further contended that in any case, Applicant No.5 i.e. father of the deceased has not received any compensation even under ESI Act till date and this is an undisputed position. It is contended that claim is made way back in October 2010 for the death in April 2010 and it has been long 14 years that they have not received any compensation under the MV Act and therefore, it is absolutely necessary that 50% withdrawal is granted as prayed.
6. It is further contended that the Appellant/ Insurance Company has clearly admitted in the appeal as well as in reply that they came to know about the involvement of ESI compensation during the cross-examination of their witness however despite being aware, the Insurance Company has chosen not to raise any such defence before the Tribunal and as such they cannot be permitted to take such Sneha Chavan page 4 /8 ::: Uploaded on - 20/02/2024 ::: Downloaded on - 07/03/2024 01:51:07 ::: IA 14275-23.doc defence at appellate stage. It is contended that therefore, the bar under Order II Rule 2 of the Code of Civil Procedure, would apply. The Applicants have shown clear willingness to file undertaking as may be directed by this Court or to abide by any other terms and conditions that this Court may deem fit to impose.
7. This application gives rise to an interesting question of law about interplay between the MV Act and ESI Act. The learned counsel for the Insurance Company has relied upon a judgments of the Hon'ble Supreme Court in National Insurance Company Limited v/s Hamida Khatoon and Ors - (2009) 13 SCC 361 and Western India Plywood Ltd. Vs P. Ashokan - (1997) 7 SCC 638 and judgment of this Court (Aurangabad Bench) in the matter of Manmahesh v/s Ashish 2020 ACJ 1488. In answer the learned counsel for the Applicants have relied upon two judgments, first of Delhi High Court in the case of United India Insurance Company Ltd. v/s. Vipin kumar and others - 2019 SCC OnLine Del 9802 and second of Punjab and Haryana High Court in TATA AIG General Insurance Co. Ltd v/s Ram Avatar and Ors. - 2017 SCC OnLine P&H 6262. An order of the Hon'ble Supreme Court in the case of Rajkumar Agrawal v/s Vehicle TATA Venture in Civil Appeal No. 4941 of 2022 is also relied upon. In this Order, Hon'ble Supreme Court, after referring to a contrary views taken in Regional Director E.S.I. Corporation & Anr Vs. Francis De Costa & Anr - (1993) Supp.(4) SCC 100 and National Insurance Company v/s Hamida (supra) and Western India Private Limited (supra), matter has been referred to a Bench of an appropriate strength for pronouncement of this aspect.
Sneha Chavan page 5 /8 ::: Uploaded on - 20/02/2024 ::: Downloaded on - 07/03/2024 01:51:07 :::IA 14275-23.doc
8. Prima facie I am in agreement with what has been held by Punjab & Haryana High Court in the matter of TATA AIG General Insurance Co. Ltd v/s Ram Avatar and Ors (supra). After considering the issue of bar u/s. 53 of the ESI Act to proceedings / claim under MV Act from various angles, following is held in para 30 which reads thus :
30. The judgment relied upon by learned counsel for the appellant i.e Hamida Kha-toon's case (supra) does not support the case of the appellant. A bare perusal of the judgment of the Hon'ble Supreme Court in this case shoes that this judgment is based upon discussion of the law realting with the Workmen's Compensation Act, 1923. as mentioned above, the compensation available under provisions of Workmen's Compensation Act has express;y been made alternate to the compensation available to the claimants under Motor Vehicles act.
Therefore, this judgment did not hold the claim petition, per se, to be not maintainable. Rather the Hon'ble Supreme Court in this case only sent back the matter to the MACT concerned to rework out the compensation taking note of Section 53 of the Act.
This judgment is dated 13 December 2017. But, the Order of Hon'ble Supreme Court in Rajkumar Agrawal's case (supra) is dated 19 January 2023. Therefore in view of the fact that this aspect of bar u/s 53 of the ESI Act to proceedings under MV Act is referred by Sneha Chavan page 6 /8 ::: Uploaded on - 20/02/2024 ::: Downloaded on - 07/03/2024 01:51:07 ::: IA 14275-23.doc Hon'ble Supreme Court to a Bench of appropriate strength for authoritative pronouncement, I find it appropriate to refrain from passing an order on application by Applicant Nos.1 to 4, for the time being and it is left open to be decided by this Court at appropriate time. I say so because even partial withdrawal of amount has a hurdle of bar u/s. 53 of ESI Act as it goes to the maintainability of the claim itself.
9. However, so far as Applicant No. 5 (father of deceased) is concerned, admittedly he is not a beneficiary and has not received any amount from ESIC on death of his son and therefore the bar u/s. 53 has no application to his claim. In that view of the matter, since he is held entitled to 20% of the awarded amount, I find it appropriate in the facts of this case to permit him to withdraw 50% of 20% i.e. 10% of the impugned Award amount alongwith accrued interest thereon.
10. Hence following Order :
(A) The Applicant No. 5 is permitted to withdraw 10% of amount deposited by the Appellant Insurance Company in concerned Motor Accident Claim Tribunal, Mumbai alongwith accrued interest thereon, on filing undertaking in this Court within 3 weeks from today, that he will bring back the amount withdrawn with interest, as may be directed by this Court at the time of final hearing.
(B) The prayer of Applicant Nos. 1 to 4 of withdrawal of amount is kept pending to be decided at appropriate time in future.
All questions including facts and law related to them are kept open.
Sneha Chavan page 7 /8 ::: Uploaded on - 20/02/2024 ::: Downloaded on - 07/03/2024 01:51:07 :::IA 14275-23.doc Liberty granted to Applicant Nos. 1 to 4 to move this application.
11. All concerned to act on duly authenticated/digitally signed copy of this order.
[M.M.SATHAYE,J.] Sneha Chavan page 8 /8 ::: Uploaded on - 20/02/2024 ::: Downloaded on - 07/03/2024 01:51:07 :::