Ghelaji Mathurji Thakor and ors. Vs. Gsrtc - Court Judgment

Excerpt:
- - the la appearing for the petitioners submit that, from the report of the court, commissioner, it is crystal clear that, the back wall of the house is in a worst condition, which may fall at any time, therefore, the house is not worth to live at all. 34,572/- plus interest accrued thereon and the amount shall be deposited in trial court at ahmedabad and should be paid to the contractor directly, who constructs/repairs the house of the petitioner, on production of certificate of construction and the trial court on being satisfied with the same.ordersharad dave, j. 1. with consent of the las for the parties, the matter is heard finally.2. the petitioner/original applicant-claimants, has filed this revision application against the order passed by the mact, (aux) ahmedabad, in macp no. 787 of 1997 rejecting the application below exh. 35 for making payment for reconstruction of the house. it is the case of the applicant that, the wife of the application no. 1 and mother of applicant nos. 2 to 4. died in a vehicular accident, for which an amount of rs. 1,20,800/- was awarded with 12% interest and cost. thereupon, after some time. the said amount of compensation was deposited in the tribunal. as per the modified order of the tribunal, each of the petitioner would be entitled to 25% share of the amount of compensation and out of the amount coming to the share of the petitioner nos. 2 to 4, being 75% of the same should be invested in a nationalised bank for a period of 7 years. the petitioner no. 1. being husband of the deceased, was paid rs. 10,000/- whereas, petitioner nos. 2 & 3 (since minor at relevant time ) who on their attaining majority were also paid rs. 10,000/- which in all rs.30,000/- has already been paid to the petitioner nos. 1 to 3.3. it is the case of the petitioner that, his old ancestral house is in a dilapidated condition and is required to be repaired for which, rs. 1,20,000/- is expected expenses as per the estimate given by the zeel construction, engineers and contractors dtd. 28-9-2001. the court commissioner was also appointed to note down the position of the house who has also given his map and report dt. 11-1-2001. the advocate for the appellant produced a xerox copy of the estimate of m/s. zeel construction and a report of the court commissioner, along with two fixed deposit receipts of the allahabad bank, lal darwaja branch, 'ahmedabad, while disallowing the application of the applicant, for withdrawal of rs. 1,20,000/-to the present applicants, the ld. trial court has discussed the judgment in case of general manager, kerala state road transport corpn. v. sushma thomas reported in air 1994 sc 1831 and came to a conclusion that, payment can be made for effecting purchases of any movable or immovable properties such as agriculture equipments, rickshaw, etc., to earn living and not for any other purposes and thereby, rejected the petition.3. dissatisfied with the said order, the petitioners have filed this revision application. the la appearing for the petitioners submit that, from the report of the court, commissioner, it is crystal clear that, the back wall of the house is in a worst condition, which may fall at any time, therefore, the house is not worth to live at all. when the applicants are having their own money, the court should have been taken liberal views, as the petitioners want for construction of their own house. at the most, the court should make the payment directly to the contractor, by an a/c payee cheque, so that, court's apprehension that the amount will not be spent for the purpose, for which it has been withdrawn will be survived. it is further submitted by the la for the petitioner that out of these two fds, one is in the name of petitioner no. 1, husband of the deceased, worth rs. 34,572/- and another is in the name of the minors worth rs. 1,03,716/-. in the circumstances, submission of the petitioner that this is a fit case, wherein, the trial court judge has erred in not appreciating the difficulties faced by the petitioners and therefore, this court should interfere and pass order allowing the petitioners to withdraw the amount.4. i have perused the certificate of estimate issued by m/s. zeel construction co. and also the report of the court commissioner, and xerox copies of two fdrs. i have also perused the trial court's order and i am of the opinion that, the ld. trial court judge has erred in not exercising the jurisdiction vested in him.5. in case of sushama (supra), the apex court has held that, in a case of compensation, for death, it is appropriate that, the tribunals do keep in mind the principles enunciated by the apex court in case of union corpn. v. union of india, reported in (1991) 4 scc 584 air 1992 sc 248 in the matter of appropriate investment, to safeguard the feed from being flittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. in that case, approving the judgment of the gujarat high court in muljibhai ajarambhai harijan, v. united india ins. co. reported in 1992 (1) guj lr 756, this court has issued (i) to (viii) guidelines. the ld. trial court judge relied on ii guideline wherein, there is reference of lump sum payment. i am of the opinion that, after the words agriculture implement, rickshaw, the apex court has used the word 'etc.' therefore, list is not complete. so that, to construct/repairs the house, can also be included. what court is required to do after making payment is to see that, the amount disbursed is actually utilised for the purpose, for which it is granted.6. now in the instant case, i am of the opinion that, if out of two fdrs. keeping aside the fdr in the name of 3 children, petitioner nos. 2 to 4 if the fdr in the name of the present petitioner no. 1, is ordered to be encashed and kept in the custody of nazir/registrar, till the petitioner produce the certificate of construction before the trial court, i am of the opinion that, the purpose would be served and money will be used if the certificate is produced by the petitioner no. 1. therefore, this court feel it necessary to interfere with the order passed by the trial court, by ordering for setting aside the order passed by the trial court rejecting the appellants' application and partly allow the application to the tune of rs. 34,572/- with interest accrued thereon.7. therefore, i am constrained to interfere with the order passed by the ld. trial court, in dismissing the application, given by the applicant for withdrawal of the amount. it is hereby ordered that the applicant no.1, is entitled to encash the fd for rs. 34,572/- plus interest accrued thereon and the amount shall be deposited in trial court at ahmedabad and should be paid to the contractor directly, who constructs/repairs the house of the petitioner, on production of certificate of construction and the trial court on being satisfied with the same.8. the concerned bank is hereby directed to issue pay order to the name of the registrar/nazir, city civil court on production of f.d. by the appellant no. 1, herein, by encashing the fd no, 5840283, dt. 25-10-2001, standing in the name of ghelaji muljibhai thakore, with the aforesaid direction to the bank to act as per the order of this court, with the aforesaid direction, this matter is partly allowed and accordingly disposed of, rule made absolute.

Judgment:
ORDER

Sharad Dave, J.

1. With consent of the LAS for the parties, the matter is heard finally.

2. The petitioner/original applicant-claimants, has filed this Revision Application against the order passed by the MACT, (AUX) Ahmedabad, in MACP No. 787 of 1997 rejecting the application below Exh. 35 for making payment for reconstruction of the house. It is the case of the applicant that, the wife of the application No. 1 and mother of applicant Nos. 2 to 4. died in a vehicular accident, for which an amount of Rs. 1,20,800/- was awarded with 12% interest and cost. Thereupon, after some time. the said amount of compensation was deposited in the Tribunal. As per the modified order of the Tribunal, each of the petitioner would be entitled to 25% share of the amount of compensation and out of the amount coming to the share of the petitioner Nos. 2 to 4, being 75% of the same should be invested in a nationalised bank for a period of 7 years. The petitioner No. 1. being husband of the deceased, was paid Rs. 10,000/- whereas, petitioner Nos. 2 & 3 (since minor at relevant time ) who on their attaining majority were also paid Rs. 10,000/- which in all Rs.30,000/- has already been paid to the petitioner Nos. 1 to 3.

3. It is the case of the petitioner that, his old ancestral house is in a dilapidated condition and is required to be repaired for which, Rs. 1,20,000/- is expected expenses as per the estimate given by the Zeel Construction, Engineers and Contractors dtd. 28-9-2001. The Court Commissioner was also appointed to note down the position of the house who has also given his map and report dt. 11-1-2001. The advocate for the appellant produced a xerox copy of the estimate of M/s. Zeel Construction and a report of the court Commissioner, along with two fixed deposit receipts of the Allahabad Bank, Lal Darwaja Branch, 'Ahmedabad, While disallowing the application of the applicant, for withdrawal of Rs. 1,20,000/-to the present applicants, the Ld. Trial Court has discussed the judgment in case of General Manager, Kerala State Road Transport Corpn. v. Sushma Thomas reported in AIR 1994 SC 1831 and came to a conclusion that, payment can be made for effecting purchases of any movable or immovable properties such as agriculture equipments, rickshaw, etc., to earn living and not for any other purposes and thereby, rejected the petition.

3. Dissatisfied with the said order, the petitioners have filed this Revision Application. The LA appearing for the petitioners submit that, from the report of the court, Commissioner, it is crystal clear that, the back wall of the house is in a worst condition, which may fall at any time, therefore, the house is not worth to live at all. When the applicants are having their own money, the Court should have been taken liberal views, as the petitioners want for construction of their own house. At the most, the Court should make the payment directly to the contractor, by an A/c Payee Cheque, so that, court's apprehension that the amount will not be spent for the purpose, for which it has been withdrawn will be survived. It is further submitted by the LA for the petitioner that out of these two FDs, one is in the name of petitioner No. 1, husband of the deceased, worth Rs. 34,572/- and another is in the name of the minors worth Rs. 1,03,716/-. In the circumstances, submission of the petitioner that this is a fit case, wherein, the trial Court Judge has erred in not appreciating the difficulties faced by the petitioners and therefore, this Court should interfere and pass order allowing the petitioners to withdraw the amount.

4. I have perused the certificate of estimate issued by M/s. Zeel Construction Co. and also the report of the Court Commissioner, and xerox copies of two FDRs. I have also perused the Trial Court's order and I am of the Opinion that, the Ld. Trial Court Judge has erred in not exercising the jurisdiction vested in him.

5. In case of Sushama (supra), the Apex Court has held that, in a case of compensation, for death, it is appropriate that, the Tribunals do keep in mind the principles enunciated by the Apex Court in case of Union Corpn. v. Union of India, reported in (1991) 4 SCC 584 AIR 1992 SC 248 in the matter of appropriate investment, to safeguard the feed from being flittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. In that case, approving the judgment of the Gujarat High Court in Muljibhai Ajarambhai Harijan, v. United India Ins. Co. reported in 1992 (1) Guj LR 756, this court has issued (i) to (viii) guidelines. The Ld. Trial Court Judge relied on II guideline wherein, there is reference of lump sum payment. I am of the opinion that, after the words agriculture implement, rickshaw, the Apex Court has used the word 'etc.' Therefore, list is not complete. So that, to construct/repairs the house, can also be included. What Court is required to do after making payment is to see that, the amount disbursed is actually utilised for the purpose, for which it is granted.

6. Now in the instant case, I am of the opinion that, if out of two FDRs. keeping aside the FDR in the name of 3 children, petitioner Nos. 2 to 4 if the FDR in the name of the present petitioner No. 1, is ordered to be encashed and kept in the custody of Nazir/Registrar, till the petitioner produce the certificate of construction before the Trial Court, I am of the opinion that, the purpose would be served and money will be used if the certificate is produced by the petitioner No. 1. Therefore, this Court feel it necessary to interfere with the order passed by the Trial Court, by ordering for setting aside the order passed by the Trial Court rejecting the appellants' application and partly allow the application to the tune of Rs. 34,572/- with interest accrued thereon.

7. Therefore, I am constrained to interfere with the order passed by the Ld. Trial Court, in dismissing the application, given by the applicant for withdrawal of the amount. It is hereby ordered that the applicant No.1, is entitled to encash the FD for Rs. 34,572/- plus interest accrued thereon and the amount shall be deposited in Trial Court at Ahmedabad and should be paid to the contractor directly, who constructs/repairs the house of the petitioner, on production of certificate of construction and the Trial Court on being satisfied with the same.

8. The concerned Bank is hereby directed to issue pay order to the name of the Registrar/Nazir, City Civil Court on production of F.D. by the appellant No. 1, herein, by encashing the FD No, 5840283, dt. 25-10-2001, standing in the name of Ghelaji Muljibhai Thakore, With the aforesaid direction to the bank to act as per the order of this Court, With the aforesaid direction, this matter is partly allowed and accordingly disposed of, Rule made absolute.