Beela U v. Reshma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **OP (MAC).No. 119 of 2017** ## **E.A.NO.21/2016 IN EP NO.98/2014 IN OPMV 576/2012 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **PETITIONER :** **BEELA U AGED 44 YEARS, D/O LALITHA BALAN RESIDING AT KALASAMKANDI HOUSE, HEMMANCHERY VILLAGE,KOYILANDY, KOZHIKODE.** ## **BY ADV. SRI.B.SAINU** ## **RESPONDENTS:** |**1**|**RESHMA**| |---|---| ||**AGED 22 YEARS, W/O LATE BAIJU, PURAKKATTIL**| ||**HOUSE,VAVAD, KODUVALLY, KOZHIKODE-673572.**| |**2**|**VAISALI (MINOR)**| ||**D/O LATE BAIJU, PURAKKATTIL HOUSE,VAVAD, KODUVALLY,**| ||**KOZHIKODE-673572.**| |**3**|**VAISHNAV (MINOR)**| ||**D/O LATE BAIJU, PURAKKATTIL HOUSE,VAVAD, KODUVALLY,**| ||**KOZHIKODE-673572.**| ||**MINORS 2 AND 3 REP.BY MOTHER/NEXT FRIEND RESHMA,**| ||**W/O.LATE BAIJU**| |**4**|**MALU**| ||**W/O PRABHAKARAMN, 154A KANDALAMMAL HOUSE, KODUVALLY**| ||**KOZHIKODE, PIN:673 572.**| |**5**|**SASINDRA RAJ K**| ||**AGED 47, S/O BABY ALIAS SARASWATHI, KALASAMKANDI**| ||**HOUSE, CHEMMANCHERY VILLAGE,KOYILANDY KOZHIKODE**| ||**PIN-673 304.**| **OP (MAC).No. 119 of 2017** **2** ***ADDL.R6 TO R8 IMPLEADED** **ADDL.R 6 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIAT** **ADDL.R 7 THE DEPUTY TAHASILDAR (REVENUE RECOVERY), VADAKARA, KOZHIKODE – 673 122** **ADDL.R 8 THE VILLAGE OFFICER, CHEMMANCHERY VILLAGE, KOYILANDY, KOZHIKODE – 673 072** **ADDL.R6 TO R8 ARE IMPLEADED AS PER ORDER DATED 22.11.17 IN IA 2116/17** **BY ADV. SMT.DENNIS VARGHESE SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 30.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (MAC).No. 119 of 2017** **3** ## **JUDGMENT** The petitioner filed E.A.No.21 of 2016 in E.P.No.98 of 2014 in O.P.(M.V.)No.576 of 2012 on the file of the Motor Accidents Claims Tribunal, Kozhikode, which was a claim petition filed by respondents 1 to 4 herein, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Baiju, the husband of the 1[st] respondent; father of respondents 2 and 3; and the son of the 4[th] respondent, in a motor accident, which occurred on 07.11.2010 involving Innova Car bearing registration No.KL-56/2626 owned by the 5[th] respondent, who is none other than the husband of the petitioner. At the time of accident, the said vehicle was driven by one Ganeshkumar. Since the vehicle was not having a valid insurance policy at the time of accident, the Tribunal, while awarding compensation, permitted the claimants to proceed against the 5[th] respondent herein, who is the registered **OP (MAC).No. 119 of 2017** **4** owner of the said vehicle and also Ganesh Kumar,the driver of that vehicle. 2. In the execution proceedings, the movables in the house of the 5[th] respondent were sought to be proceeded against. At that juncture, the petitioner, who is the wife of the 5[th] respondent, filed a claim petition as E.A.No.21 of 2016 under Order XXI Rule 58 of the Code of Civil Procedure, 1908, seeking an order to adjudicate and determine her objections as regards to the movable properties in item No. 2 onwards in the attachment schedule in E.P.No.98 of 2014. After considering the rival contentions, the Tribunal by Ext.P5 order dated 24.11.2016, rejected E.A.No.21 of 2016 imposing a cost of Rs.5,000/- each payable to decree holders 1 to 4 and the decree holders were directed to produce sale paper for proclamation of sale of attached item Nos. 2 to 9 forthwith. The petitioner is before this Court in this original petition, invoking the supervisory **OP (MAC).No. 119 of 2017** **5** jurisdiction of this Court under Article 227 of the Constitution of India, seeking the following ## relief; _“Order directing the respondents 2 to 4 to refrain from proceeding against the movable properties of the petitioner for recovery of dues from the 5[th] respondent and instead proceed against 5[th] respondent's very valuable property INNOVA Motor Car bearing Regn.No.KL56-2626 admittedly worth over Rs.9,00,000/- which is readily available in the custody of the Garnishee the Koduvally Police, Kozhikode.”_ 3. On 22.11.2017, when this original petition came up for consideration along with I.A.No.2116 of 2017 for impleading additional respondents 6 to 8, this Court allowed that interlocutory application and issued notice by speed post to the additional respondents, returnable in two weeks. 4. On 05.12.2018, when the matter came up for consideration along with W.P.(C).No.33264 of 2017, this Court passed the following order; _“Despite service of notice, none appears for the claimant and this Court has already appointed Sri.V.P.K.Panicker the learned counsel as Amicus_ **OP (MAC).No. 119 of 2017** **6** _Curiae._ _2. On 30.11.2018 when W.P.(C)No.33264 of 2017 came up for consideration along with O.P. (MAC)No.119 of 2017, this Court passed the following order in that writ petition;_ **==> picture [316 x 541] intentionally omitted <==** **----- Start of picture text -----**<br> |||||||| |---|---|---|---|---|---|---| |“The recovery proceedings initiated against| |the petitioner is based on an award passed| |by the Motor Accidents Claims Tribunal,| |Kozhikode|dated|14.03.2013|in|O.P.| |(MV)No.551 of 2012. The said award is one| |against|the|petitioner|herein,|who|is| |arrayed as the 1|[st]|respondent, being the| |owner of the offending Innova car bearing| |registration No.KL-56/2626 and against the| |additional 6|[th]|respondent herein, who is the| |2|[nd]|respondent before the Tribunal, who was| |driving|the|vehicle|at|the|time|of| |accident.|Ext.P4|award|passed|by|the| |Tribunal is one against the petitioner and| |the additional 6|[th]|respondent herein. As per| |the award, the amount has to be realised| |from|the|petitioner|herein|and|the| |additional 6|[th]|respondent since, at the time| |of accident, the vehicle was not having a| |valid insurance policy.| |2.|The pleadings and materials on record| |would|show|that|the|additional|6|[th]| |respondent|is|the|Circle|Inspector|of| |Police in Crime Branch.| |3. The learned Government Pleader shall| |get instructions from respondents 2 and 3| |as to whether any requisition from the| **----- End of picture text -----**<br> **OP (MAC).No. 119 of 2017** **7** _Tribunal is received for initiating revenue recovery proceedings against the petitioner and also against the 6[th] respondent and if so, the reason for not taking any revenue recovery proceedings against the additional 6[th] respondent.”_ _3. Pursuant to the said order, the learned Senior Government Pleader, on instructions, would submit that the requisition received from the Motor Accident Claims Tribunal, Kozhikode, in O.P.(MV)No.576 of 2012 is to initiate recovery proceedings against the petitioner in W.P.(C)No.33264 of 2017, who is the registered owner of the offending vehicle, and no requisition is received to initiate recovery against the additional 6[th] respondent, who was driving the said vehicle at the time of accident._ _4. The Registry shall get a report from the Motor Accident Claims Tribunal, Kozhikode, as to the reason for not taking any recovery steps against additional 6[th] respondent (the 2[nd] respondent in O.P.(MV)No.551 of 2012), who was driving the motor vehicle, especially when the award dated 14.3.2013 is one passed against both registered owner and driver of the vehicle.”_ 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for additional respondents 6 to 8 and also the learned Amicus Curiae. **OP (MAC).No. 119 of 2017** **8** 6. The sole issue that arises for consideration in is as to whether the petitioner is entitled for the relief sought for in this original petition, i.e., an order refraining respondents 2 to 4 from proceeding against the movable properties of the petitioner for recovering the dues from the 5[th] respondent, instead of proceeding against the 5[th] respondent's Innova Car bearing registration No.KL-56/2626, which is in the custody of Koduvally Police in Kozhikode District. _7_ . In **Shalini Shyam Shetty v. Rajendra** **Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference **OP (MAC).No. 119 of 2017** **9** under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 8. In **Sobhana Nair K.N. v. Shaji S.G.Nair** **(2016 (1) KHC 1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is **OP (MAC).No. 119 of 2017** **10** palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 9. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, it is well settled that the exercise of the supervisory jurisdiction under Article 227 of the Constitution of India is to ensure that the courts subordinate to this Court, over which this Court is exercising supervisory jurisdiction, acts within the framework of this Court. This Court, in exercise of the powers under Section 227 of the Constitution of India, is not sitting in appeal over the orders passed by the subordinate courts. 10. In the instant case, the petitioner who is none other than the wife of the judgment debtor, moved a claim petition before the Tribunal as E.A.No.21 of 2016 under Order XXI, rule 58 of the Code of Civil Procedure. The said **OP (MAC).No. 119 of 2017** **11** Execution Application now stands rejected by Ext.P5 order dated 24.11.2016 of the Tribunal. In this original petition the petitioner has not challenged Ext.P5 order of the Tribunal by seeking appropriate reliefs. In Ext.P5 order, the Tribunal found that, the oral testimony of the petitioner as PW1 is not sufficient to establish the fact that attached Item Nos.2 to 9 does not belong to the 5[th] respondent. Though she has deposed that the movables were purchased by her father, she failed to adduce any reliable materials to prove the said fact. Moreover, it was brought out during the cross examination of PW1 that the household affairs are taken care by the 5[th] respondent and that they are residing in the property owned by her mother-in-law, who is no more. After considering the materials on record, the Tribunal in Ext.P5 order arrived at a conclusion that the petitioner failed to produce sufficient materials to establish that the properties attached does not belong to the **OP (MAC).No. 119 of 2017** **12** 5[th] respondent and her attempt is to help the 5[th] respondent to evade payment of compensation to the claimants. 11. One of the main contention raised by the petitioner in this original petition is that when the Innova Car bearing registration No.KL56/2626, which is worth more than Rs.9,00,000/-, is readily available in the custody of Koduvally Police, the decree holders are not justified in proceeding against the movables under attachment in E.P.No.98 of 2014. 12. Pursuant to the order passed by this Court dated 05.02.2018 in W.P.(C).No.33264 of 2017 (a writ petition filed by the husband of the petitioner, who is the registered owner of the Innova Car seeking the very same relief sought for in this original petition), an additional affidavit has been filed on behalf of the Deputy Tahsildar (Revenue Recovery), Vatakara, producing therewith the photographs of the Innova Car, which is kept in the premises of **OP (MAC).No. 119 of 2017** ## **13** the Commandant of Police, Armed Reserve Police Camp at Keezhariyur Village of Koyilandy Taluk. A bare perusal of the aforesaid photographs would show that the vehicle has sustained extensive damage in the accident and it can only be sold as scrap. Despite the said fact, the petitioner, who is none other than the wife of the 5[th] respondent, who is the registered owner of that vehicle, has filed this original petition with an averment that the Innova Car involved in the accident, which is worth more than Rs.9,00,000/- is readily available for the decree holders to proceed against. In the result, this original petition fails and the same is, accordingly, dismissed. ## **Sd/-** ## **ANIL K.NARENDRAN,JUDGE** AV/1/2 **OP (MAC).No. 119 of 2017** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF PETITIONER'S CLAIM PETITION EA 21/16 IN OPMV 576/12 MACT KOZHIKODE.** **EXHIBIT P2: TRUE COPY OF PETITIONERS PROOF AFFIDAVIT. EXHIBIT P3: TRUE COPY OF PETITIONER'S COUNTER OBJECTIONS TO RESPONDENTS PETITION. EXHIBIT P4: TRUE COPY OF GIST OF SUBMISSIONS BY PETITIONER'S COUNSEL. EXHIBIT P5: TRUE COPY OF ORDER DATED 24.11.2016 BY MACT, KOZHIKODE DISMISSING EA 21/16.**