Sushma M. v. Cholamandalam M.S. General Insurance Company Limited and Motor Accidents Claims Tribunal, Kasaragod District

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940** ## **OP (MAC).No. 10 of 2019** **AGAINST THE AWARD IN OPMV 89/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD, DATED 15-06-2013** ## **PETITIONER:** **SUSHMA M., AGED 35 YEARS, W/O. LATE HARIHARAN, KOTTRACHAL, OZHINJAVALAPPU P.O., NILESWARAM, KASARAGOD DISTRICT, PIN - 671 314.** **BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM** ## **RESPONDENTS:** **1 THE GENERAL MANAGER, CHOLAMANDALAM M.S. GENERAL INSURANCE COMPANY LIMITED, DARE HOUSE, 2ND FLOOR, NBC BOSE ROAD, CHENNAI 600001.** **2 MOTOR ACCIDENTS CLAIM TRIBUNAL, KASARAGOD DISTRICT.** **R1 - SRI.P.JACOB MATHEW - STANDING COUNSEL** **THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 05.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (MAC).No. 10 of 2019** **2** ## **JUDGMENT** The petitioner is the claimant in OP(MV) No.89 of 2009 on the file of the Motor Accidents Claims Tribunal, Kasaragod, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation, on account of the death of her husband N.C.Hariharan, in a motor accident which occurred on 15.04.2007 at Thane in Kannur District. The Tribunal passed an award for Rs.4,54,000/-, which was enhanced by this Court in Ext.P2 judgment dated 19.10.2017 in MACA No.2018 of 2013. The petitioner has already received the compensation originally awarded by the Tribunal. After Ext.P2 judgment of this Court in MACA No.2018 of 2013, the petitioner filed Ext.P3 execution petition claiming a total sum of Rs.12,04,360/-. Now the grievance of the petitioner is that though the 1[st] respondent insurer deposited a cheque towards the enhanced compensation awarded in MACA No.2018 of 2013, the Tribunal has returned the same, stating various reasons like amount not deposited, case bundle sent to High Court, etc. Therefore the petitioner has moved this Court, invoking the supervisory jurisdiction under Article 226 of the Constitution of India, seeking an order directing **OP (MAC).No. 10 of 2019** **3** the 2[nd] respondent Tribunal to take Ext.P3 on file and proceed with the same. The petitioner has also sought for an order directing the 2[nd] respondent Tribunal to stop the practice of returning the cheque already submitted by the judgment debtors, on account of minor difference in the cheque amount and the awarded amount. 2. On 30.01.2019 when this original petition came up for admission, the learned counsel for the petitioner sought time so as to enable him to file an application to correct the typographical mistakes in the original petition. On 01.02.2019, I.A.No.1 of 2019 filed by the petitioner for correction was allowed. 3. On 04.02.2019, when this original petition came for further consideration, the 1[st] respondent insurer was represented by counsel. Registry was directed to forward a copy of this original petition to the Motor Accidents Claims Tribunal, Kasaragod and to get a report from the Tribunal. Pursuant to that order, the report dated 12.2.2019 of the Tribunal is placed on record, which reads thus: - “The petitioner herein is the 1[st] claimant in OP(MV)No.89/2009 on the file of the Motor Accidents Claims Tribunal, Kasaragod. This court as per the award in OP(MV) 89/09 awarded an amount of **OP (MAC).No. 10 of 2019** **4** Rs.4,54,500/- as compensation to the petitioners. As per the judgment dated 19.10.2017 in MACA No.2018/13, the Hon'ble High Court of Kerala enhanced the compensation awarded by this Tribunal by a further sum of Rs.6,54,000/- with interest at the same rate as awarded by the Tribunal, from the date of claim petition till realization. The counsel for 3[rd] respondent in OP(MV) 89/2009 and MACA.2018/2013 submitted two cheques for Rs.1,28,322 each and three cheques for Rs.2,56,664.00 each (total amount of Rs.10,26,636.00) on 04.07.2018. As per the judgment in MACA 2018/13, the 3[rd] respondent had to deposit a sum of Rs.11,38,105.00 including interest as on 04.07.2018. The amount deposited by the 3[rd] respondent was found deficient. The cheques presented on 04.07.2018 were returned to the 3[rd] respondents to cure the above defect. In connection with the returning of execution petition, I may report that it was presented before this court on 07.07.2018 as per Register of Details of documents and Court Fees (CR.31). I am not in a position to verify the reason for returning the E.P as no material is available in the bench section. The copy of the E.P attached with the OP does not reveal that portion where in the reason were noted. The staff of this Tribunal might have returned the execution petition for curing some defects out of which might be that the non-availability of case records which were sent to High Court for reference in MACA 2018/13. **OP (MAC).No. 10 of 2019** **5** I may submit that every petition filed before this Tribunal is being subjected to thorough verification before numbering. I may also submit that every execution petition filed in this section after verification is being handed over to the account section to verify whether the award amount is deposited or not. In the particular case the endorsement that "cheques returned" might have made by the account clerk. This endorsement is made purely for administrative purpose to confirm that the Execution Petition is not otiose. There have been several instance of Insurance Companies including the Insurance Company arrayed as respondent No.1 in OP(MAC) 10/2019 producing the cheques without adding interest till date of deposit. This Tribunal which is bound to ensure that accident victim and claimants do not suffer any loss was compelled to return the cheques. In the present case also, this Tribunal acted in the interest of the claimant petitioner while returning the cheque and to ensure that she does not loss Rs.1,11,529.00 because of the Re-recalcitrance of the Insurance Company.” 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the 1[st] respondent insurer. 5. From the pleadings and materials on record, the report of the Tribunal dated 01.02.2019 and also the submissions made **OP (MAC).No. 10 of 2019** **6** by the learned counsel on both sides, this Court finds that in Ext.P3 execution petition, the 2[nd] respondent insurer has deposited cheques towards the enhanced compensation awarded by this Court in Ext.P2 judgment in MACA No.2018 of 2013. As on 04.07.2018, the insurer has to deposit a sum of Rs.11,38,105/- including interest. The total amount deposited by the insurer by way of five cheques was only Rs.10,26,636/-. For the reason that, there is a deficiency of Rs.1,11,529/-, the Tribunal returned the cheque to the insurer. Feeling aggrieved, the petitioner is before this Court in this original petition seeking various reliefs. 6. When the deficiency in the amount deposited is around Rs.1,11,529/- the petitioner cannot contend that the Tribunal has returned the cheques on account of a minor difference in the cheque amount. However, it has to be noticed that by returning those cheques, the disbursement of additional compensation amounting to Rs.10,26,636/- to the claimants is delayed for no fault of their own. 7. It is well settled that court should not succumb to the procedural wrangles and tangles, hyper technicalities and niceties. The effort should be to adduce the cause of justice and **OP (MAC).No. 10 of 2019** **7** settle the dispute once for all. In **N.K.V.Bros.(P)Ltd. v. Karumai Ammal [(1980)3 SCC 457]** the Apex Court held that the court should not succumb to niceties, technicalities and mystic maybes. 8. On account of return of the cheques, the petitioner, who is one of the claimants, is denied payment of the enhanced compensation awarded by this Court in Ext.P2 judgment. Therefore, the Tribunal, instead of returning the cheques for Rs.10,26,636/- ought to have accepted the same and recorded partial satisfaction of the enhanced compensation in terms of Ext.P2 judgment, with a further direction to the insurer to produce cheque or cheques for the balance amount, within a time limit to be specified. If such a course was adopted, the claimants could not have any grievance. 9. The learned Senior Counsel for the 1[st] respondent insurer would submit the insurer shall deposit fresh cheques for the entire amount towards enhanced compensation together with the interest, in terms of Ext.P2 judgment, within two weeks from the date of receipt of a certified copy of this judgment. 10. In such circumstances, this original petition is disposed of by recording the submission made by the learned **OP (MAC).No. 10 of 2019** **8** Senior Counsel for the 1[st] respondent insurer that the insurer shall deposit fresh cheques for the entire amount towards the enhanced compensation together with interest, in terms of Ext.P2 judgment of this Court, within two weeks from the date of receipt of a certified copy of this judgment. On such remittance being made, the Tribunal shall disburse the said amount to the claimants in terms of the award. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** SPR **OP (MAC).No. 10 of 2019** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORIGINAL PETITION IN O.P(MV) NO.89 OF 2009.** **EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT IN MACA NO.2018 OF 2013 DATED 19.10.2017.** **EXHIBIT P3 THE TRUE COPY OF THE UNNUMBERED E.P. FILED BEFORE THE 2ND RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL.**