Bombay High Court
Bharti Axa General Insurance Company ... vs Smt Dipti Anil Gupta And Ors on 22 December, 2022
Author: K. R. Shriram
Bench: K. R. Shriram
Digitally signed
by SANDHYA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDHYA BHAGU
WADHWA
BHAGU Date:
WADHWA 2022.12.23
17:04:43
+0530
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.319 OF 2019
Bharti Axa General Insurance
Company Limited .. Appellant
v/s.
Smt. Dipti Anil Gupta & Ors. .. Respondents
...
Mr. Nikhil Mehta i/b. KMC Legal for appellant.
Mr. T.J. Mendon for respondent nos.1 to 3.
...
CORAM : K. R. SHRIRAM &
KAMAL KHATA, JJ.
DATED : 22ND DECEMBER, 2022.
P.C. :
1. Mr. Mehta states that an affidavit of one Sachin Gore, Legal Manager of appellant affirmed on 20th November 2022 will be filed in the registry during the course of today, which confirms the service on respondent no.5 by way of publication. Mr. Mehta states that substituted service has been effected pursuant to order dated 15 th November 2022 passed by this Court.
2. We accept that service has been effected. Mr. Mehta submitted 1/3
908.fa-319-19(civil).doc wadhwa that it is appellant's case that the accident happened due to negligence/reasons attributable to the assured, and therefore, appellant is entitled to recover from the assured the amount payable to the legal heirs of the deceased.
3. Mr. Mehta states that the trial Court did not grant that liberty to appellant to claim the amount payable to the legal heirs from the assured and hence, this appeal.
4. Therefore, in our view, that should not be come in the way of the legal heirs of the claimant from getting what is payable to them because if Mr. Mehta succeeds in this appeal, he will be able to claim that amount from the assured. At the same time, if Mr. Mehta fails in this appeal, he will not be able to recover the amount payable to the legal heirs from the assured but certainly the legal heirs should not be barred from withdrawing the amount lying to their credit in the Motor Accident Claim Tribunal (MACT).
5. The law has been laid down by the Apex Court in Shamanna & Another v/s. Divisional Manager, The Oriental Insurance Co. Ltd. & Ors. 1 Since the law is clear, we find that there is no bar for legal heirs withdrawing the entire amount. Therefore, we permit the legal heirs to 1 Indian Kanoon - http://indiankanoon.org/doc/18742498 2/3
908.fa-319-19(civil).doc wadhwa withdraw the amount deposited by appellant and the tribunal shall release the balance amount together with accumulated interest, within three weeks of receiving the application.
6. We make it clear that the order permitting the legal heirs to withdraw the amount will not come in the way of appellant making out a case within appeal against the assured that, the trial Court erred in not granting the order of Pay and Recover from the assured. The appeal would be considered on its own merits.
7. In view of the service effected as noted above, appeal be listed for final hearing on 19th January 2023.
8. All parties to act on authenticated copy of this order.
9. The amount of Rs.25,000/- together with accumulated interest, deposited vide order dated 19 th January 2018 by appellant, be also transferred to the MACT if not done already, and that amount can also be released to the legal heirs as mentioned in paragraph no.5 above.
Registry to transfer the amount, if not already transferred, within two weeks from the date order is uploaded.
(KAMAL KHATA, J.) (K.R. SHRIRAM, J.)
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