Partly allowed

Supriya Suhas Khanolkar and Ors. v. Icici Lombard General Insurance Limited

Bombay HC28 Aug 2012CAF/1706/2012

Case brief

AI extract

What is this about?

On an application by original claimants seeking withdrawal of funds deposited by the insurer, the court ruled that applicants could withdraw 25% of the deposited amount immediately. Pending the appeal on liability, the remaining funds were directed to be invested in a fixed deposit by the lower tribunal.

What did the court decide?

Applicants allowed to withdraw 25% of deposited amount; remaining amount directed to be invested in fixed deposit by the Motor Accident Claims Tribunal.

Supriya Suhas Khanolkar and Ors. Vs Icici Lombard… — Motor Accident Claims | Bombay HC (2012)

25 caf 1706.12.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION NO.1706 OF 2012 IN

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FIRST APPEAL (STAMP) NO.34231 OF 2011

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Office Notes, Office Court's or Judge's orders. Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders

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Mr. Jayant J. Bardeskar for the Applicants. Mr. Nikhil Mehta i/b M/s. KMC Legal Venture for Respondent no.1.

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CORAM : K.K.TATED, J. DATE : 28/08/2012

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PC :

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1 Heard the learned counsel for the Applicants.

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2 This Application is preferred by original claimants for withdrawal of the amount deposited by the Respondent no.1 – ICICI Lombard General Insurance Co. Ltd. pursuant to the order passed by this court (Coram: A.V. Nirgude, J.) on 23^rd December, 2011 in Civil Application no.5354 of 2011.

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3 The learned counsel appearing on behalf of the Applicants states that the accident took place on 1st May, 2009 and at that time, deceased Suhas Vinayak Khanolkar was working as constable in the Police Department. At that time, he was drawing the salary to the tune of Rs.12,975/. He states that the trial court after considering the evidence on record held that his dependency comes to Rs.8,650/ per month. The trial court has taken multiplier of 8. He states that the learned Member, Motor Accident Claims Tribunal, Sindhudurg at Oros has directead original Opponent nos.1 and 2 to pay jointly and severally a sum of Rs.8,05,000/ excluding No Fault Liability of Rs.50,000/ along with interest at the rate of 8% per annum from the date of the Claim Petition, till the satisfaction of the dues.

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4 The learned counsel for the Applicants

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states that applicant no.1/original claimant no.1 is wife of deceased who is household and applicant no.2/original claimant no.2 is daughter of deceased who is taking her education. He states that for day to day purpose and for education purpose they require some amount and therefore, they preferred the present Civil Application.

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5 On the other hand, the learned counsel appearing on behalf of Respondent no.1 – ICICI Lombard General Insurance Co. Ltd. vehemently opposed the present Civil Application. First, he states that First Appeal is not admitted and therefore, this Civil Application on behalf of original claimants for withdrawal of the amount is not maintainable. Secondly, he states that there is a delay in preferring the First Appeal. Civil Application for condonation of delay is pending. Therefore, present Civil

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Application is not maintainable. Thirdly, he states that Respondent no.3 is owner of the vehicle is not served. He preferred Civil Application for substitute service on Respondent no.3. Therefore, unless and until Respondent no.3 is served, the Applicants are not entitled to withdraw any amount. Fourthly, he submits that the trial court in para 15 of the judgment held that on the date of accident, the driver was holding the license to drive the light motor vehicle whereas on the date of accident he was driving heavy motor vehicle (Tempo). Therefore, there is a breach of policy. In view of the breach, the ICICI Lombard General Insurance Company is not liable to pay compensation to the original claimants. On the basis of these submissions, Respondent no.1 states that there is no substance in the present Civil Application and the same to be dismissed.

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6 After hearing both the sides, it is to be

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noted that the present First Appeal is pending for admission. This court granted stay in favour of Respondent no.1 – original Insurance Company on the condition that they have to deposit the entire decretal amount before the Motor Accident Claims Tribunal, Sindhudurg at Oros. Because of stay, it is not possible to the Applicants to execute the decree. Therefore, they are entitled to file the present Civil Application. 7 Other contentions made by the learned counsel appearing on behalf of the Respondent no.1 that Respondent no.3 is owner of the vehicle is not served, they preferred an Application for substitute service and service is awaited on Respondent no.3. It is to be noted that the learned Member, Motor Accident Claims Tribunal, Sindhudurg at Oros has directed ICICI Lombard General Insurance Co. Ltd. as

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well as Owner of the vehicle to pay jointly and severally the amount of compensation to the Applicants. Therefore, it is not necessary to wait for the service on Respondent no.3 – owner of the vehicle.

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8 Another contention raised by the learned counsel for the ICICI Lombard General Insurance Company Ltd. that on the date of accident the Drier of the vehicle was not holding valid license to drive the heavy motor vehicle.

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9 It is to be noted that the learned Member, Motor Accident Claims Tribunal, Sindhudurg at Oros has framed issue no.3 to that effect that “whether there was breach of conditions of insurance policy at the time of accident.” The said issue answered by the Motor Accident Claims Tribunal, Sindhudurg at Oros against the ICICI Lombard General Insurance Company Ltd. Therefore, that

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issue can be decided at the time of final hearing of First Appeal, if it is admitted.

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10 In view of the above facts and circumstances, I am of the opinion that the applicants – original claimants are entitled to withdraw a part of the amount deposited by the ICICI Lombard General Insurance Company Ltd.. Hence, following order:

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a) Applicant nos.1 and 2 – original claimants are entitled to withdraw 25% of the amount deposited by Respondent no.1 before the Motor Accident Claims Tribunal, Sindhudurg at Oros without furnishing any security.

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b) Learned Member, Motor Accident Claims Tribunal, Sindhudur at Oros is directed to invest remaining amount in fixed deposit in any nationalised bank initially for a period of one year and the same to be continued till further orders.

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katkam

25 caf 1706.12.doc

8 25 caf 1706.12.doc 12 Civil Application is disposed of accordingly.

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(K.K.TATED, J.)

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Supriya Suhas Khanolkar and Ors. v. Icici Lombard General Insurance Limited

Case brief

What is this about?

What did the court decide?

Supriya Suhas Khanolkar and Ors. v. Icici Lombard General Insurance Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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