Pola Gourinaidu vs National Insurance Co. Ltd.

D.S.R. Varma, J.—This Civil Revision Petition is filed against the order in I.A. No. 1342 of 1999 in MV OP No. 672 of 1997, dated 31-8-1999 on the file of the Additional District Judge''s Court, Vizianagaram, refusing the relief sought by the petitioner to withdraw an amount of Rs. 75,000/- besides eligible amounts, from out of the total compensation amount granted in favour of the petitioner-injured.

Heard the learned Counsel for the petitioner.

The record reveals that O.P. No. 672 of 1997 was filed by the petitioner, the same was decreed and a total compensation of Rs. 1,34,660/-, together with interest at 12% p.a., and proportionate costs was awarded which comes to Rs. 1,74,346/-. The said MV OP was disposed of on 29-12-1998. Subsequently, in compliance with the said order, it appears that the total compensation amount of Rs. 1,74,346/- has been deposited by the respondent.

The petitioner filed I.A. No. 1342 of 1999 seeking permission of the Court to withdraw an amount of Rs. 75,000/- from out of the said total compensation of Rs. 1,74,346/- on the ground that he had borrowed a sum of Rs. 75,000/- from outsider to perform the marriage of his daughter on 2-5-1999, which costed him about a lakh of rupees, and in that connection he borrowed an amount of Rs. 75,000/- from one of his villagers by executing a demand promissory note dated 30-4-1999. He further states that he was in Hospital for about 8 months in connection with his treatment and incurred nearly Rs. 80,000/- towards operation and medical expenses. The petitioner therefore prays the lower Court to permit him to withdraw an amount of Rs. 75,000/- together with eligible amounts for meeting medical expenses and for discharging the promissory note debt.

The petitioner in support of his claim filed an affidavit given by one Marrapu Sivvunaidu, s/o. late Ramulu, wherein the deponent states that the petitioner had borrowed a sum of Rs. 75,000/- on 30-4-1999 towards marriage expenses of his daughter and executed a demand promissory note in his favour, agreeing to pay the said sum with interest at 24% per annum. The petitioner has also filed a Photostat copy of the promissory note executed by him before the lower Court.

The lower Court, however, disbelieved the said promissory note. While disbelieving the promissory note debt, the lower Court observed that the promissory note was executed even prior to the disposal of the O.P. and further, the said promissory note was not expected to be in the possession of the petitioner-debtor. However, the lower Court observed that it is only a Photostat copy of the promissory note, which was filed before it.

A perusal of the record reveals that O.P. No. 672 of 1997 was disposed of on 29-12-1998. Admittedly, the petitioner met with an accident in the year 1997 and was hospitalized for a considerable period of time, for about 8 months nursing the injuries he received in the accident. It is further revealed that it is only a Photostat copy of the promissory note dated 30-4-1999 that was filed before the lower Court. To support his indebtedness under a promissory note, the petitioner has also filed the affidavit of the person who lent the amount under demand promissory note. In these circumstance?, the observation of the lower Court that the petitioner had filed only Photostat copy of the promissory note which was not expected to be in possession of the borrower is not tenable. There is nothing unusual, in filing a Photostat copy of the promissory note, particularly in the light of the affidavit filed by the creditor supporting the amount advanced to the petitioner.

It is to be noted that though the total compensation was Rs. 1,74,346/-, the request of the petitioner is only to withdraw a sum of Rs. 75,000/- together with eligible amounts. It is further to be noted that the O.P. No. 672 of 1997 was disposed of on 29-12-1998 and the said order has already become final, since no appeal has been preferred by the respondents. In this revision even after service of the notice, the respondent did not choose to enter its appearance and contest the matter. In fact, in the lower Court also there was no contest offered by the respondent when the petitioner sought withdrawal of the amount.

It is also pertinent to note that the petitioner is the only beneficiary who was seriously injured in the accident with 65% permanent disability. Though it is not pleaded by the petitioner, this Court cannot ignore the extent of his fitness to attend to normal daily cooly work. Therefore, I do not see any scope for misutilisation of the amount that is sought to be withdrawn by the petitioner and withheld by the lower Court.

Therefore, the above facts show that the need of the petitioner has been substantially made out and the necessity to withdraw the amount can be termed as an emergent as contemplated under Clause VIII of the guidelines framed by the apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , and thus the order of refusal passed by the lower Court is not justified in view of the facts and circumstances narrated above.

Further, there is no reason to disbelieve the averments made by the petitioner in his affidavit before the lower Court that he had incurred some expenditure and to meet the same, he executed a promissory note. If the debt contracted by the petitioner under the demand promissory note is not paid on demand, the same would result in filing of a Civil Suit by the creditor and recover the same through due process of law. Thus it is the duty of the Court to take note of the genuine expenses incurred by the petitioner, after carefully examining the same and avert any such undesirable contingency and real hardship. In the instant case, I do not find any reason to disbelieve the version put forth by the petitioner in his affidavit.

In view of the facts and circumstances as discussed above, I am of the considered view that the lower Court is not justified in refusing to grant the relief sought by the petitioner in I.A. No. 1342 of 1999 of MV OP No. 672 of 1997. Accordingly, the order under revision is liable to be set aside, and it is accordingly set aside.

However, the lower Court is directed to consider claim of the petitioner only to the extent of Rs. 75,000/-, inasmuch as the other eligible amounts, as claimed by the petitioner have not been quantified, nor explained in any manner. Therefore, the claim to withdraw the amount shall be restricted only to the extent of Rs. 75,000/-as quantified by the petitioner, together with costs as was granted by the trial Court.

With the above direction, the Civil Revision Petition is disposed of at the stage of admission.