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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3867 OF 2017 [ARISING FROM SPECIAL LEAVE PETITION (C) NO.4009 OF 2017]

ORIENTAL INSURANCE CO LTD APPELLANT(S)

                               VERSUS

BABY RADHIKA GUPTA AND ANR RESPONDENT(S)

J U D G M E N T KURIAN, J.

Leave granted.   2. This  is  an  appeal  filed  by  the appellant/insurance  company  aggrieved  by  the  order passed by the High Court declining to interfere with the order passed in execution by the Motor Accident Claims Tribunal. 3. The  respondents  filed  an  application  for compensation  before  the  Motor  Accident  Claims Tribunal,  Delhi.   The  Tribunal  awarded  a  total compensation in the sum of Rs.44,50,000/- along with interest @ 9% from the date of filing of the petition till  its  realization.   The  appellant/insurance company went in appeal before the High Court and the

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same was reduced to Rs.5,82,132/-. 4. During the pendency of the appeal before the High Court, the respondents were permitted to withdraw 80% of the amount deposited in Tribunal and the remaining 20%,  with  accrued  interest,  was  withdrawn  by  the appellant/insurance company.  While disposing of the Appeal No.239 of 2004, the High Court, in paragraph 25, held as under:-

“25. Vide  interim  order  dated 13.7.2004,  appellant  insurance  was directed to deposit entire compensation amount  in  the  Tribunal.   80%  of  the deposited  amount  was  directed  to  be released  to  the  respondent/claimants. It is hereby directed that balance 20% of  deposited  amount  together  with accrued interest thereon be returned to the appellant insurance company.  It is further held that insurance company is held entitled to recover the excess sum from  the  respondents  which  has  been released  in  the  favour  of  the respondents.”

5. Thereafter, the respondents moved this Court in Civil Appeal No.7736 of 2009, which was disposed of by  judgment  dated  24.11.2009  enhancing  the  total compensation  to  Rs.15,70,892/-.   With  the  above modification on the amount, the appeal was disposed

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of  with  a  direction  to  the  appellant/insurance company to pay the balance amount to the respondents within four weeks with interest @ 9% per annum. 6. Finding that the respondents have withdrawn much more  than  what  they  would  have  been  entitled  to, going  by  the  order  passed  by  this  Court,  the appellant insurance company filed an appeal seeking recovery  of  the  interest  portion  on  the  principal amount  drawn  in  excess  of  what  they  have  been actually entitled to. 7. No  doubt,  the  appellant  has  made  out  a  case, since  there  was  liberty  given  to  the appellant/insurance company to recover the excess sum payable to the respondents.  However, having regard o the peculiar facts of this case, we are of the view that  this  is  an  eminently  fit  case  to  invoke  our jurisdiction under Article 142 of the Constitution of India for the reason that the deceased employee died at the age of 32 years and the claimants having not been  granted 50%  of enhancement  in the  salary, no amount was given to the minor towards loss of love, care and protection and further that for consortium only an amount of Rs.25,000/- was paid. 8. Hence,  having  regard  to  the  peculiar  facts  of this  case,  we  dismiss  this  appeal,  leaving  the question of law open.

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9. Pending  application(s),  if  any,  shall  stand disposed of. 10. There shall be no orders as to costs.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [R. BANUMATHI]  

NEW DELHI; MARCH 09, 2017.

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