Rajendra Ban vs Motor Accident Claim ...
2013 Latest Caselaw 7230 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.2
 

 
Civil Misc. Writ Petition No.39671 of 2010
 

 
Rajendra Ban					........     Petitioner
 

 
Vs.
 

 
Motor Accident Claim Tribunal/U.D.J. 
 
& Another	                      		........    Respondents
 

 
With
 

 
Civil Misc. Writ Petition No.62595 of 2009
 

 
Rajendra Ban					........     Petitioner
 

 
Vs.
 

 
Motor Accident Claim Tribunal/A.D.J. 
 
& Another	                      			........    Respondents
 

 

 
******************
 

 
Hon'ble Tarun Agarwala,J.

An accident occurred on Haridwar Nazibabad road wherein a Motorcycle dashed into a parked truck resulting in the death of one person and injury to the other person. The heirs of the deceased filed a Claim Application No.432 of 2007 before the Motor Accident Claims Tribunal, Muzaffarnagar. The injured person also filed a Claim Application No.130 of 2008 before the same Tribunal. In Claim Application No.432 of 2007, the Tribunal gave an award dated 6th November, 2008 directing the insurance company to pay Rs.1,79,500/- along with interest to the claimants. In this award issue no.4 was decided leaving it open to the insurance company to recover the amount from the owner of the vehicle.

In so far as Claim Application No.130 of 2008 is concerned the Tribunal gave an award dated 7th March, 2009 directing the insurance company to pay a sum of Rs.3,24,173/- along with interest to the claimants. In this award, the Tribunal did not give any direction to the insurance company to recover the amount from the owner of the vehicle.

Against this award dated 7th March, 2009, the insurance company filed First Appeal From Order No.1967 of 2009 before the High Court. The Appellate Court did not find any fault in the impugned award holding that no case was made out in favour of the insurance company. The appeal was, however, disposed of permitting the insurance company to make an appropriate application for the purpose of recovery of amount, if any, from the owner of the vehicle. The Appellate Court directed that in the event, such an application is filed, the Tribunal would dispose of the same within three weeks. For facility, the direction of the Appellate Court dated 1st July, 2009 is extracted hereunder:

"... In totality, we do not find any case in favour of the insurance company. The appeal is treated to be disposed of granting liberty to the appellant-insurance company to make an appropriate application in the selfsarne proceeding before the tribunal within a period of one week from this date for the purpose of recovery of amount, if any, from the owner and in case such an application is filed, upon sufficient notice and giving fullest opportunity of hearing to the parties, tribunal will dispose of the same within a period of three weeks thereafter but under no circumstance the payment of compensation to the claimant will be stalled. Accordingly, the appeal is disposed of at the state of admission, however, without any order as to cost..."

Pursuant to the aforesaid direction, the insurance company filed an application purported to be under Section 174 of the Motor Vehicles Act, 1988 seeking permission to recover the amount as per the award from the owner of the vehicle. The Tribunal, after hearing the parties concerned, passed an order dated 3rd June, 2010 directing the recovery of the amount as per the award from the owner of the vehicle. The owner, the petitioner, being aggrieved by the said order, has filed Writ Petition No.39671 of 2010.

A similar application for recovery against the owner was also filed in Claim Application No.432 of 2007 in which an order was also passed directing recovery of the amount from the owner. The petitioner, being aggrieved, filed Writ Petition No.62595 of 2009. Both the writ petitions have been connected and are being decided together.

Heard Sri A.D. Saunders, the learned counsel for the petitioner and Sri Vinay Khare, the learned counsel for the Insurance Company.

The learned counsel for the petitioner submitted that no recovery right was given to the insurance company in the operative portion of the award and, therefore, no such application could be filed by the insurance company for recovery of the amount under Section 174 of the Motor Vehicles Act.

The learned counsel for the petitioner submitted that it is only the amount in the operative portion of the order that can be recovered and any observation made elsewhere in the body of the judgment is only an obiter dicta and that no right accrues to the insurance company nor can the insurance company take such advantage pursuant to such observation by filing an application for recovery under Section 174 of the Motor Vehicles Act. The learned counsel submitted that the operative portion of the award is a decree and only the amount mentioned in the decree can be recovered and since the decree did not mention the fact that the amount could be recovered from the owner, no such right accrued upon the insurance company to file such an application nor did the Tribunal had any jurisdiction to entertain or pass orders on such application.

On the other hand, the learned counsel for the Insurance Company submitted that a specific finding has been given by the Tribunal on issue no.4 in the award passed in Claim Application No.432 of 2007 permitting the insurance company to recover the amount from the petitioner. Pursuant to the said finding, the application under Section 174 of the Motor Vehicles Act was maintainable and the order passed therein was rightly passed. The learned counsel submitted that since similar finding was required to be given in the second Claim Application No.130 of 2008 and since the same was not given by the award, the High Court while disposing of the appeal permitted the insurance company to move an appropriate application before the Tribunal for recovery. Based on such direction, the application was filed, which was maintainable and the Tribunal passed the order in accordance with law.

In order to appreciate the submission of the rival counsel for the parties, it would be appropriate to refer to the provision of Section 174 of the Act of 1988, which is extracted hereunder:-

"174. Recovery of money from insurer as arrear of land revenue.-- Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue."

The aforesaid provision makes it apparently clear that an application is required to be filed before the Tribunal for recovery of the amount as per the award as arrears of land revenue. The amount must be due under the award, which would entitle a person to recover the amount as arrears of land revenue.

In the award dated 6th November, 2008 passed in Claim Application No.432 of 2007, issue no.4 was decided against the owner of the vehicle, namely, that the insurance company was directed to pay the amount to the claimant since the vehicle was insured and further leaving it open to the insurance company to recover the amount from the owner of the vehicle. In the operative portion of the award, the Tribunal directed the insurance company to pay the amount awarded to the claimants. The contention of the petitioner that since the operative portion did not give any direction to the insurance company to recover the amount from the owner, such application could not be filed under Section 174 of the Act of 1988.

The submission of the learned counsel for the petitioner is patently erroneous. The award as a whole is required to be implemented and under the operative portion of the award, the amount awarded has to be recovered as arrears of land revenue. The finding on issue no.4 has not been attacked or challenged by the owner of the vehicle, namely, the petitioner in an appropriate appeal. The said award along with its findings has become final and binding upon the petitioner.

No doubt the Tribunal becomes functus officio the moment it gives an award but gets limited jurisdiction to entertain an application. In the instant case, since the Tribunal permitted the insurance company to recover the amount from the owner of the vehicle, that limited right was given to the insurance company to file an appropriate application under Section 174 of the Act of 1988. The application filed by the insurance company was thus maintainable and a correct order was passed by the Tribunal. The Court does not find any illegality in the said order or in the award and, consequently, the Court is of the opinion that there is no merit in Writ Petition No.62595 of 2009 and is consequently, dismissed.

With regard to the award dated 7th March, 2009 passed in Claim Application No.130 of 2008, the Court finds that the Tribunal only directed the insurance company to pay the awarded amount to the claimants and did not issue any direction for recovery of the amount from the owner of the vehicle on account of breach of policy. The appeal filed by the insurance company before the High Court failed. The insurance company did not get any relief and only permitted the insurance company to file an appropriate application, if any, for recovery against the owner. Such direction of the Court did not mean that an application could be filed, even where no such direction was given by the Tribunal for recovery. The order of the Appellate Court did not mean that the application of the insurance company under Section 174 of the Act of 1988 would become maintainable.

In the instant case, the Court finds that under the award dated 7th March, 2009 the amount due from any person under the award was only against the insurance company and, consequently, such application, if any, can only be filed for recovery against the insurance company. Since no right was given to the insurance company to recover the amount from the owner, the application of the insurance company under Section 174 of the Act of 1988 was not maintainable. The order passed by the Tribunal dated 3rd June, 2010 was without jurisdiction and cannot be sustained.

There is another reason for the Court to arrive at this conclusion, namely, that an order passed under Section 174 of the Act of 1988 would amount to modification of the award, which in the instant case cannot be permitted, inasmuch as the said award has been affirmed by the appellate court in the appeal filed by the insurance company.

For the reasons stated aforesaid, the Writ Petition No.62595 of 2009 fails and is dismissed. The order dated 3rd June, 2010 is quashed and the Writ Petition No.39671 of 2010 is allowed.

In the circumstances of the case, parties shall bear their own cost.

Date:2.12.2013

Bhaskar

(Tarun Agarwala, J.)