Allowed

The New India Assurance Company Limited v. Motor Accidents Claims Tribunal and Anr.

Kerala HC1 Mar 2017WP(C)/3994/2008

Case brief

AI extract

What is this about?

The High Court held that while Order XXI Rule 1 CPC is not applicable to Tribunals, the principle of Sections 59 and 60 of the Indian Contract Act mandates adjusting payments against interest first unless otherwise instructed. As the instruction for appropriation was a disputed matter of fact, the Writ was allowed, setting aside the Tribunal order and remanding the matter for fresh consideration b

What did the court decide?

The impugned order of the Tribunal was set aside. The matter was remanded to the Tribunal to determine, after notice to the second respondent, whether the petitioner issued any instruction regarding t

The New India Assurance Company Limited Vs Motor… — Motor Accident Claims | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

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WP(C).No. 3994 of 2008 (A)

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PETITIONER:

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THE NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAYAM NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.

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BY SRI.MATHEWS JACOB (SENIOR ADVOCATE) ADV.SRI.P.JACOB MATHEW

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RESPONDENTS:

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1. THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM.

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2. MERCY RACHEL JACOB, W/O.LATE THOMAS JACOB, KUTTICKAL HOUSE, MUTHOOR P.O., KUTTAPPUZHA VILLAGE, THIRUVALLA.

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R1 BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR

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R2 BY ADV. SRI.JACOB ABRAHAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 3994 of 2008 (A)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P1.	TRUE COPY FILED BY	OF THE	THE 2ND	EXECUTION PETITION DATED 14.9.2004 RESPONDENT.
EXT.P2.	TRUE COPY FILED BY	OF THE	THE PETI	OBJECTION AND STATEMENT OF ACCOUNTS TIONER.
EXT.P3.	TRUE COPY 1ST RESPO	OF NDEN	THE T.	ORDER DATED 26.9.2007 BY THE

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

C.R.

DEVAN RAMACHANDRAN, J.

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============================== W.P.(C)No.3994 of 2008

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============================== Dated this, the 01^st day of March, 2017.

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J U D G M E N T

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There is an award passed by the Motor Accidents Claims Tribunal, Kottayam, in O.P.(M.V.)No.507/1988 in favour of the second respondent herein. There is no dispute as regards the award. There is no dispute as to the quantum either. The only question is as to how the payments made by the petitioner against such award into the court has to be appropriated and accounted for.

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According to the petitioner, the payments made by them into court should be first appropriated against the principal and then to the interest. Whereas, the second respondent maintains that in the absence of any specific instruction by the Insurance Company while making such payment, the amount should be first adjusted against the interest and later to the principal.

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The stand of the second respondent was accepted by the Tribunal which passed Ext.P3 order,

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W.P.(C)No.3994 of 2008 : 2 :

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directing the Insurance Company, the petitioner herein, to remit an additional amount of Rs.5,00,000/-. This order has been impugned by the Insurance Company in this writ petition.

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I have heard the learned Senior Counsel Shri.Mathews Jacob assisted Smt.Preethy R.Nair, appearing on behalf of the petitioner and Shri.Jacob Abraham, the learned counsel appearing on behalf of the second respondent.

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The only issue in this writ petition, as I have already noticed above, is as to how the payments made by the Insurance Company will have to be appropriated and accounted for by the court below. The petitioner challenges Ext.P3, because, according to them, the order has been issued under order XXI Rule 1 of the C.P.C. and they assert that this provision was not applicable to proceedings before the Tribunals, at least at the time when the accident took place. I am not sure, that this submission would really have a practical effect on the issues raised in this writ petition. This is because, even in

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W.P.(C)No.3994 of 2008 : 3 :

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the absence of Order XXI Rule 1 of the C.P.C., when amounts are paid into court under an award, the court will have no other option, but to adjust it first against the interest and then against the principal, unless the person making such payment intimates the manner in which the amounts will have to be appropriated. This is the mandate of Sections 59 and 60 of the Indian Contract Act and any payment even in the absence of Order XXI Rule 1 of the C.P.C., would obviously be guided by it. Therefore, the only issue is as to whether the petitioner, while making payments, had indicated the manner in which the amounts have to be appropriated by the court below. If there had been no such instruction, then, obviously, Ext.P3 would become irreproachable. It is contended by the second respondent that there was no such intimation, but it is asserted by the learned Senior Counsel for the petitioner that they had indicated their specific preference of appropriation while making such payment.

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Since the question as to whether the petitioner had intimidated the manner in which the amounts had to

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W.P.(C)No.3994 of 2008 : 4 :

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be appropriated is itself a disputed question of fact, I do not think it will be justified for this Court, acting under Article 226 of the Constitution of India to delve into it or to consider it or conclude upon it. This is a matter which will have to be considered by the Tribunal.

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I, therefore, set aside Ext.P3, but direct the

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Tribunal to consider the claim statement of the second respondent afresh with specific reference as to whether while making payment into court, by the petitioner Company, any instruction had been placed on record by them as to the manner in which such payments have to be appropriated.

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Since this writ petition has been pending before this Court for the past more than 9 years, it is only appropriate that the court below complete this exercise as afore-directed, within a period of one month from the date of receipt of a copy of the judgment.

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At this time, the learned counsel for the second respondent points out that according to him, no such instruction had been made by the petitioner Company.

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W.P.(C)No.3994 of 2008 : 5 :

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He says that had there been any such, his client ought to have been given notice of the same by the court and that

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she would have, thereafter, had an option of accepting the money or refusing it. He therefore, says that the court below while considering the issue afresh will also give her an opportunity to refuse payment, if any instruction has been made by the petitioner Company as asserted by them. This being a mandate of law, obviously, the court below will have to issue notice to the second respondent in such event and give her such option as is available to her under the law to refuse or accept the

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payment and thereafter, quantify the balance.

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Writ petition is ordered as above. No costs.

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Sd/-

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DEVAN RAMACHANDRAN, JUDGE.

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Bb/08/03/2017

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[True copy]

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P.A to Judge

The New India Assurance Company Limited v. Motor Accidents Claims Tribunal and Anr.

Case brief

What is this about?

What did the court decide?

The New India Assurance Company Limited v. Motor Accidents Claims Tribunal and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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