Allowed

Sharmila v. Icici Lombard General Insurance Co.Ltd.

Kerala HC11 Dec 2018OP (MAC)/114/2018

Case brief

AI extract

What is this about?

This petition under Article 226 challenges the Motor Accident Claims Tribunal's order rejecting an application for premature withdrawal of compensation deposited in fixed funds. The petitioner seeks relief based on medical treatment needs for infertility. The High Court sets aside the Tribunal's order and directs a reconsideration.

What did the court decide?

Set aside the Tribunal's order rejecting the withdrawal application; direct the Tribunal to reconsider the matter within two months.

Sharmila Vs Icici Lombard General Insurance Co.Ltd. — Insurance | Kerala HC (2018)

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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 ANIL K.NARENDRAN

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TUESDAY, THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940

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OP (MAC).No. 114 of 2018

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AGAINST THE ORDER/JUDGMENT IN OP(MV) 357/2012 of M.A.C.T OTTAPPALAM

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PETITIONER:

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SHARMILA,

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AGED 46 YEARS, W/O SUBHASH K. R., RESIDING AT VALIYAVEETTIL HOUSE, AMBALAPARA POST, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADVS. SRI.R.SREEHARI SRI.SACHIN VYAS

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RESPONDENT:

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ICICI LOMBARD GENERAL INSURANCE CO.LTD. ICICI LOMBARD HOUSE, 414 VEERASAVARKAR MARG. NEAR SIDDHI VINAYAKA TEMPLE, PRABHADEVI, MUMBAI - 400025

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THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 11.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP(MAC) 114 OF 2018 2

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JUDGMENT

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The petitioner, who is the claimant in O.P.(MV)No.357 of 2012 on the file of the Motor Accidents Claims Tribunal, Ottappalam, has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P9 order dated 13.06.2018 of the Tribunal in I.A.No.1507 of 2018 in O.P.(MV)No.357 of 2012. I.A.No.1507 of 2018 was one filed by

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the petitioner, seeking an order for premature release of the compensation awarded in O.P.(MV)No.357 of 2012, which is deposited in fixed deposit. The Tribunal by Ext.P9 order dated 13.06.2018 rejected the said application. Ext.P9 order reads thus;

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“Heard. Medical certificate shows the treatment for infertility. The amount is deposited as directed by High Court. She had already received almost `.12,00,000/- that too prematurely on application. There is no record showing the progress in the treatment and no certificate from the doctor regarding the expenses required for continuing the treatment.

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The petitioner is remarried and her husband is also capable of meeting the expenses. Hence the petition is dismissed.”

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On 01.10.2018, when this original petition came for

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OP(MAC) 114 OF 2018 3

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admission, urgent notice by speed post was ordered to the respondent, returnable within three weeks.

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Heard the learned counsel for the petitioner. Despite

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service of notice, none appears for the respondent Insurer.

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The sole issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P9 order dated 13.06.2018 of the Tribunal in I.A.No.1507 of 2018 in O.P.(MV)No.357 of 2012.

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The learned counsel for the petitioner, after referring to the averments in the affidavit accompanying to I.A.No.1507 of 2018 would point out that the petitioner is undergoing infertility treatment and she had already spent Rs.10,95,431/- towards medical expenses. The learned counsel for the petitioner would place reliance on Ext.P6 discharge summary and Ext.P7 medical certificate dated 16.4.2018. The learned counsel would submit that the petitioner is prepared to produce the medical bills before the Tribunal for reconsideration of I.A.No.1507 of 2018.

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In Jyni v. Raphel P.T. [(2016) 2 KLT (SN 40) Case

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No.32] , a Division Bench of this Court held that, in Kerala State Road Transport Corporation v. Susamma Thomas (1994

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OP(MAC) 114 OF 2018 4

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(2) SCC 176) the Apex Court laid down certain guidelines to be followed in the matter of investment of the compensation awarded by the Tribunal, in order to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation. However, in A.V.Padma v. R.Venugopal (2012 (3) SCC 378) the Apex Court deprecated the mechanical approach of the Tribunals in ordering deposit of the compensation amount in long-term fixed deposit, without considering genuine requirements of the claimants and ignoring the object and spirit of the guidelines as laid down in Susamma Thomas' case (supra) . In A.V.Padma's case (supra) the Apex Court clarified the guidelines laid down in Susamma Thomas' case (supra) , by observing that sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. The Apex Court clarified further that, the above guidelines were issued by the Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some

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OP(MAC) 114 OF 2018 5

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fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money and that, the guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits.

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Having considered the submissions made by the learned counsel for the petitioner, this Court finds that I.A.No.1507 of 2018 filed by the petitioner for premature withdrawal of the compensation amount deposited in fixed deposit requires reconsideration at the hands of the Tribunal, taking note of the law laid down in the decision referred to supra and the medical records, bills, etc. to be produced by the petitioner in support of the averments in the affidavit accompanying to I.A.No.1507 of 2018.

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In the result, this original petition is disposed of by setting aside Ext.P9 order dated 13.06.2018 of the Motor Accident Claims Tribunal, Ottappalam in I.A.No.1507 of 2018 in O.P. (MV)No.357 of 2012 and the Tribunal is directed to reconsider the matter and pass orders thereon, strictly in accordance with law, taking note of the medical records, bills, etc to be produced

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OP(MAC) 114 OF 2018 6

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by the petitioner in support of the averments in the affidavit accompanying to that interlocutory application, and also the law laid down in the decision referred to supra; as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment, with notice to the petitioner and also to the respondent Insurer.

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Sd/-

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ANIL K. NARENDRAN JUDGE

OP(MAC) 114 OF 2018

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	PHOTOCOPY OF COMMON AWARD PASSED IN O.P(MV) NOS. 293, 297, 357 AND 393 OF 2012 OF MAC TRIBUNAL, OTTAPALAM DATED 15.12.2014
EXHIBIT P2	PHOTOCOPY OF DOCUMENT NO.867/2015 OF SRO OTTAPALAM.
EXHIBIT P3	PHOTOCOPY OF THE ORDER PASSED IN IA.1290/2015 IN OP(MV) NO.357/2012 OF MACT OTTAPALAM DATED 30.4.2015.
EXHIBIT P4	PHOTOCOPY OF THE JUDGMENT IN OP(MAC) NO.1279/2015 OF THIS HONOURABLE COURT DATED 5.6.2015.
EXHIBIT P5	PHOTOCOPY OF MARRIAGE CERTIFICATE ISSUED BY VANIYAMKULAM GRAMA PANCHAYAT.
EXHIBIT P6	PHOTOCOPY OF DISCHARGE SUMMARY DATED 17.1.2017 ISSUED BY SAROJA NURSING HOME, THRISSUR.
EXHIBIT P7	PHOTOCOPY OF THE CERTIFICATE ISSUED BY CRAFT HOSPITAL AND RESEARCH CENTRE, KODUNGALLUR.
EXHIBIT P8	CERTIFIED COPY OF THE AFFIDAVIT AND APPLICATION IA NO.1507/2018 IN OP(MV) NO.357/2012 OF MACT OTTAPALAM.
EXHIBIT P9	CERTIFIED COPY OF THE ORDER IN IA NO.1507/2018 IN OP(MV)NO.357/2012 OF MACT OTTAPALAM DATED 13.06.2018.

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RESPONDENT'S EXHIBITS:NIL

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TRUE COPY

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P.A. TO JUDGE

Sharmila v. Icici Lombard General Insurance Co.Ltd.

Case brief

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Sharmila v. Icici Lombard General Insurance Co.Ltd.

Case brief

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