Muhammad Shan v. The Deputy Tahasildar, Kothamangalam Taluk; The Village Officer, Varappety Po, Kothamangalam; The Oriental Insurance Co., Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940** ## **WP(C).No. 5321 of 2019** ## **PETITIONER:** **MUHAMMAD SHAN AGED 32 YEARS S/O SYSHA 87 (9/42), MAROTTICKAL HOUSE, KOZHIPPILLY KOTHAMANGALAM.** **BY ADVS. SRI.L.RAM MOHAN SRI.M.AUBREY ABRAHAM ISAAC** ## **RESPONDENTS:** |**1**|**THE DEPUTY TAHASILDAR,**| |---|---| ||**KOTHAMANGALAM TALUK, ERNAKULAM-686691.**| |**2**|**THE VILLAGE OFFICER**| ||**VARAPPETY PO, KOTHAMANGALAM,**| ||**ERNAKULAM-686691.**| |**3**|**THE ORIENTAL INSURANCE CO., LTD**| ||**COCHIN BRANCH REPRESENTED BY ITS MANAGER-682016.**| |**R1&R2**|**SRI MANU RAJ K.J.- GOVERNMENT PLEADER**| |**R3**|**SMT K.S.SANTHI- STANDING COUNSEL**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 5321 of 2019** -2- ## **JUDGMENT** The petitioner was arrayed as the 2[nd] respondent in O.P. (MV) No.445 of 2009 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, a claim petition filed by the legal representatives of one Raju, who met with a road accident on 03.06.2008, while riding a bicycle from Muvattupuzha to Kothamangalam. At the place of accident, he was hit by an autorickshaw bearing registration No.KL-445239, driven by the 1[st] respondent before the Tribunal. The petitioner was arrayed as the 2[nd] respondent in that claim petition, being the registered owner of that autorickshaw. The Tribunal, by Ext.P1 award dated 03.09.2013, awarded a total compensation of Rs.2,77,000/- to the claimants, together with interest at the rate of 8% per annum from the date of claim petition, i.e., from 10.06.2009 till realisation with proportionate cost. The 3[rd] respondent insurance company was directed to deposit the award amount before the Tribunal and the insurer was permitted to recover the said amount from the petitioner herein and his assets, on a **WP(C).No. 5321 of 2019** -3- finding that, since the petitioner and driver of the autorickshaw failed to produce the driving licence and fitness certificate, there is violation of the conditions of insurance policy. 2. In terms of Ext.P1 award passed by the Tribunal, the 3[rd] respondent insurer deposited the award amount together with interest and cost, which has already been disbursed to the claimants. Based on an order passed by the Tribunal invoking Section 174 of the Motor Vehicles Act on an application made by the 3[rd] respondent insurer, for initiating revenue recovery proceedings against the petitioner, Ext.P4 demand notice has been issued by respondents 1 and 2. Feeling aggrieved by the said demand notice, the petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 demand notice dated 27.10.2018. 3. As held by this Court in **Subaida v. Deputy Tahsildar (RR), Thrissur District and others [2019(1) KHC SN 7: ILR 2019(1) Kerala 393]** , if a person is **WP(C).No. 5321 of 2019** -4- aggrieved by an award passed by the Tribunal under Section 168 of the Act, he has to challenge the same in an appeal filed under Section 173 of the Act, after complying with the statutory mandate of the first proviso to sub-section (1) of Section 173, subject to the time limit prescribed in the second proviso to that sub-rule. The challenge to an order passed by the Tribunal (other than an award passed under Section 168) has to be one invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The challenge to such an order of the District Judge, as the Motor Accidents Claims Tribunal, has to be made under Article 227 of the Constitution of India and not under Article 226. Being part of the district judiciary, the District Judge acts as a court and the order passed by him is an order of the subordinate court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction, which is supervisory in nature. 4. In **Subaida's case supra** , this Court held further **WP(C).No. 5321 of 2019** -5- that, as per Section 174 of the Motor Vehicles Act, 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 order of the Claims Tribunal under Section 174 of the Act, to initiate revenue recovery, based on an application made by the person entitled to the amount as per the award, is also an order against which remedy under Article 227 of the Constitution of India can be availed. In an O.P.(MAC) filed under Article 227 of the Constitution of India, the petitioner can seek a time bound disposal of any interlocutory applications filed after the award passed by the Claims Tribunal and stay of operation of the order of the Claims Tribunal under Section 174 of the Act, and all recovery proceedings initiated pursuant to that order. For seeking such reliefs, it is for the petitioner to file an O.P.(MAC) under Article 227 of the Constitution of India. On the other hand, if **WP(C).No. 5321 of 2019** -6- a person against whom revenue recovery proceedings are initiated by issuing a demand notice pursuant to the order of the Claims Tribunal under Section 174 of the Act requires only time for payment of the dues in monthly instalments, he can approach this Court in a writ petition filed under Article 226 of the Constitution of India, with the person entitled to the amount as per the award and also the revenue officials in the party array. 5. Viewed in the light of the law laid down in the decision referred to _supra_ , conclusion is irresistible that, the petitioner, who is a party in O.P.(MV) No.445 of 2009 cannot challenge Ext.P4 demand notice dated 27.10.2018 issued by the 1[st] respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in the absence of any challenge made against the order passed by the Tribunal under Section 174 of the Motor Vehicles Act, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, within the permissible limits. **WP(C).No. 5321 of 2019** -7- 6. Now, the petitioner has already moved MACA No.418 of 2019 before this Court challenging Ext.P1 award and the same is pending consideration. Therefore, it is for the petitioner to seek an interim stay of recovery proceedings in that appeal filed under Section 173 of the Motor Vehicles Act. He cannot invoke writ jurisdiction under Article 226 of the Constitution of India, seeking an order of stay of recovery proceedings, till the disposal of MACA No.418 of 2019. 7. In the result, this writ petition fails and the same is accordingly dismissed; however, without prejudice to the aforesaid right of the petitioner. It is made clear that the dismissal of this writ petition will not stand in the way of the petitioner pursing Ext.P5 application, which is now pending consideration before the 2[nd] respondent. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 5321 of 2019** -8- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AWARD IN O.P.(MV) NO. 445/09 DATED 3/9/13 ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA. EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 13/2/19 EXHIBIT P3 TRUE COPY OF THE LICENSE PARTICULARS EXHIBIT P4 TRUE COPY OF REVENUE RECOVERY NOTICE EXHIBIT P5 TRUE COPY OF LETTER DATED 8/2/19 RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE**