Jhitaribai vs Kendar and Another

A.M. Sapre, J.—This is a revision filed by the claimant Jhitaribai u/s 115 of the C.P.C. against an order dated 11.2.2005 passed by the M.A.C. Tribunal, Jhabua, arising out of a motor claim case No. 115/2000, decided by the said Tribunal on 2.11.2004.

Short facts are these. The petitioner was a claimant. She filed a claim petition u/s 166 of the Motor Vehicles Act claiming compensation for the injuries sustained by her in a motor accident against respondent Nos. 1 and 2 being claim case No. 115/2000. The Tribunal partly allowed the claim petition by award dated 2.11.2004 and awarded a sum of Rs. 35,000 along with interest payable thereon @ 9% from the date of the application till realisation to the petitioner. In the award, the Tribunal directed the Insurance Company i.e., respondent No. 2 to pay the awarded sum to the claimant and then recover the awarded sum from the respondent No. 1 i.e., insured of the vehicle i.e., Kendar.

The claimant i.e., petitioner herein thereupon filed an execution application for execution of aforesaid award and wanted to recover the awarded amount from the Insurance Company, which had been deposited by the Company in the Tribunal. However, by the impugned order, the Tribunal did not allow the claimant to withdraw the money and instead directed that unless and until the insured i.e., owner of the vehicle by name Kendar (respondent No. 1) does not furnish security for the entire awarded sum, the amount would not be released in favour of the claimant. It is against this condition/direction imposed by the Tribunal, the claimant has felt aggrieved and filed this revision.

Having heard learned Counsel for the petitioner and having perused the record of the case, I am inclined to allow the revision and set aside the order insofar as it relates to the condition for furnishing of security by insured is concerned as a condition precedent for withdrawal of the money by the claimant.

In my considered view in the facts and circumstances of the case, the law laid down in 2004 ACJ 421, Oriental Insurance Co. v. Nandiappan and Ors. may not strictly apply. It is for the reasons that firstly in the facts of this case, the Tribunal while passing the main award in question dated 2.11.2004 did not pass or/and impose any such direction. Secondly, a direction to furnish security should have formed part of the impugned award itself. Thirdly, the executing Court could not modify the award passed by the Tribunal by imposing any condition; but it could only execute the award as it is when put for execution. Fourthly, it being a well settled principle of law that the executing Court/Tribunal cannot go beyond the award decree nor can modify it fully applies to the facts of the case and lastly since a direction to furnish security was not a part of the main award in question out of which this execution application arose and, hence, the executing Court should not have imposed any condition regarding furnishing of any security by the owner, i.e., insured (respondent No. 1) which as per the record has not so far been furnished though more than 2 years have passed, causing injury to the claimants because she is unable to reap the fruits of the award though passed in her favour.

Looking to these distinguishing features of the case on facts, I am inclined to allow the revision and while setting aside the order dated 11.2.2005 passed by the M.A.C. Tribunal. Jhabua, delete the imposed condition. As a result, it will not be now necessary for the owner i.e., insured (respondent No. 1) to furnish security as directed. Accordingly, the claimant is held entitled to withdraw the awarded amount so deposited by the Insurance Company who in turn will be entitled to recover the same in terms of the award dated 2.11.2004 passed in claim case No. 115/2000 in the same proceedings against the insured, etc. in accordance with law.