National Insurance Company Ltd. V. Ishwar Dass Garg and Another

CMPMO/259/2018

AI Insights

The case involves the National Insurance Company Ltd. as the petitioner, contesting a decision made by the MACT-III, Solan, which directed the insurer to release a sum of Rs. 19,931 to the claimants. The insurer challenged this decision, leading to the present petition. The court referenced a previous judgment (CMPMO No. 376 of 2016) which set a precedent for similar cases, directing the Income Tax Officer to refund TDS to the insurance company and the company to pay the balance amount of compensation along with any interest received from the Income Tax Department to the claimants. The court noted the absence of the Income Tax Department in the current proceedings and highlighted the necessity of its inclusion in the array of respondents for a complete and fair adjudication.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 798298 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 01-05-2019
• Assessment Year: misc
• Other Referred Cases: Oriental Insurance Company Ltd. Versus Satya Devi and others
• Laws Referred To: Order 21 Rule 11(2) C.P.C
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: VINAY KUTHIALA; VANDNA KUTHIALA
• Assessee Lawyers: DIVYANI SHARMA
• Keywords: Execution petition; Impleaded; Income Tax Department; Insurance; Claimants
• Section: 11(2); 21

Judgement Text

" IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 259 of 2018 Decided on : 1.5.2019 National Insurance company Ltd. …..Petitioner Versus Ishwar Dass Garg & another ….Respondents. Coram: The Hon’ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting?1 For the petitioner: Ms. Divyani Sharma, Advocate. For the respondents: Mr. Vinay Kuthiala, Sr. Advocate with Ms. Vandna Kuthiala, Advocate. Sureshwar Thakur, J (oral) The learned MACT­III, Solan, upon a petition, cast under the provisions of Order 21 Rule 11(2) C.P.C, allowed the execution petition, and, also directed the insurer, to, release a sum of Rs. 19931/­ vis­a­vis the claimants. The insurer, is aggrieved therefrom, hence, has filed the present petition before this Court. 2. Given this Court, in a judgment recorded, on, 30.6.2017 in CMPMO No. 376 of 2016 titled as Oriental Insurance Company 1 Whether reporters of the local papers may be allowed to see the judgment? -2- Ltd. Versus Satya Devi and others, appended with the present petition, as Annexure P­5, making the hereinafter extracted directions, hence, in consonance therewith, alike directions are meted, upon, the litigants hereat, except, the liability, of, interest visited upon them, qua principal sums:­ “6. In view of above discussion, this petition is disposed of directing respondent No. 5 Income Tax Officer, Ward No. II, Mandi to refund the TDS to the petitioner/Insurance Company within ten weeks from date of receiving information thereof, which shall be supplied by petitioner/Insurance Company within two weeks from today, as per Rules applicable and petitioner company is also directed to make payment of balance amount of compensation along with interest, if any received by it from the Income Tax Department to the claimants/respondents, within four weeks from the date of receipt of refund, failing which petitioner company shall also be liable to pay interest @ 9% perannum on the said amount with effect from 5.1.2016 till payment/deposit. Petition is disposed of in aforesaid terms. Interim -3- order dated 3.10.2016 passed in CMP No. 8043 of 2016 also stands vacated in above terms. The Motor Accident Claims Tribunal, Bilaspur is directed to proceed further accordingly.” 3. Noticably, the Income Tax Department, was not arrayed, as a party, by the learned Executing Court, and obviously the array of litigants, was not thereat complete, despite, it being both a necessary, and, a proper party, nor, also the apt version, as would, emerge from the Income Tax department, did not hence emerge therefrom. Even if the version, as may come, forth from the Income Tax Department, may, ultimately suffer the ill­fate, of, it being axed, given the pronouncement made, in CMPMO No.376 of 2016 supra, (i) nonetheless, for enabling the inclusion, of, the Income Tax Department, in the array of co­respondents, dehors no scribed motion being made therebefore, by the litigants thereto it was yet incumbent upon the learned Executing Court, to, suo moto ensure its occurrence, in, the memo of parties. Even if the aforesaid infirmity is cured by this Court, under, previously recorded order(s), hence this Court may not be constrained, to, direct an order of -4- remand, being made vis­a­vis the learned Executing Court, for, enabling, it, to after completing the array of all proper litigants, AND, its thereafter making an order afresh upon the apt executing petition, AND, in consonance with verdict supra. However, hereafter all the learned MACTs concerned, are, directed to, positively ensure that in matters alike herewith, the income tax department is impleaded as a party, in the array, of, co­respondents. Copy of this order be circulated to all concerned. Pending applications, if any, also stand disposed of. (Sureshwar Thakur) 1st May April, 2019 Judge (kck) "