AI Structured Summary
Not yet generated for this judgment
Judgment
Pursuant to an earlier order dated November 03, 2016, the appellant/insurer has secured the entire awarded amount together with interest less the statutory deposit. The statutory deposit is endorsed to have been made. Pursuant to service, Mr. Mondal, learned advocate for the claimants/respondents 1 to 3 as well as Ms. Santra, learned advocate for the respondent no.6/New India Assurance Company Limited appeared. The claimants/respondents 1 to 3 have made an application for withdrawal of Rs. 12,00,000/- being C.A.N. 695 of 2017.
It appears from the submissions made on behalf of the appellant/insurer that the principal ground of challenge in this appeal is that the driver of the truck in question was not holding a valid driving licnece at the time when the accident occurred but at the same time it appears from the records that there is nothing to show when the licnece in question expired.
The learned advocate appearing on behalf of the appellant/insurer urged that contributory negligence was a factor in the accident and further that his client has challenged that the truck was being driven in a rash and/or negligent manner.
The appeal will of course be heard. But sofar as C.A.N. 695 of 2017 is concerned, it appears to us at this stage that there is a prima facie case for withdrawal of 50% of the amount, which has been secured, on the ground of balance of convenience and inconvenience, which appears at present to be heavily tilted in favour of the claimants/respondents 1 to 3. Accordingly, if any application is made by the claimants/respondents 1 to 3 for withdrawal of the percentage of the award mentioned above before the learned Registrar General of this Court, appropriate order shall be passed as expeditiously as possible but preferably within a period of four weeks from date.
This order is made subject to an undertaking being given by the claimants/respondents 1 to 3 that in the event the order under appeal is not sustained, they shall be bound to either refund the entire amount or make refund of such amount by which the award is modified or reduced. With the aforesaid directions C.A.N. 695 of 2017 stands disposed of.
The ad-interim order of stay granted earlier on the stay application filed by the appellant/insurer stands modified to the above extent. The application for stay being C.A.N. 1042 of 2016 is also hereby disposed of in terms of the above modification.
Since the claimants/respondents 1 to 3 are represented by Mr. Mondal, learned advocate and on behalf of respondent no.6/New India Assurance Company Limited Ms. Santra, learned advocate appears, formalities for service of notice of appeal on them stands dispensed with. However, requisites shall be put in by the appellant/insurer within a week from date for effecting service of notice of appeal on the respondents 4 and 5/ owner and driver of the truck respectively.
Let the lower court records be called for by special messenger at the cost of the appellant/insurer. Such cost should be deposited by the appellant/insurer within a week, failing which the lower court records be called for in the usual course. Upon receipt, the concerned department shall examine the lower court records and if found complete shall serve notice of arrival thereof upon the learned advocate on record for the appellant/insurer.
Liberty to mention the appeal for hearing as and when the appeal becomes ready for hearing as regards service and otherwise. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.