Rajesh S v. Deputy Tahsildar (RR), Nellannad Village Office, New India Assurance Co. Ltd., Attingal, and Shibukumaar K

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** ## **WP(C).No. 27093 of 2018** **AGAINST THE ORDER/JUDGMENT IN OPMV 332/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL** ## **PETITIONER :** ## **RAJESH. S** **NOW AGED 45 YEARS, S/O.SREEDHARAN, 12/2,S.V.NIVAS , MANDAPAKUNNU, KOTTUKUNNAM, P.O. VENJARAMOODU, THIRUVANANTHAPURAM DISTRICT, REP.BY HIS POWER OF ATTORNEY HOLDER, SANTOSH KUMAR, AGED 44 YEARS,S/O.SOMAN,KIZHAKKEVILA PUTHEN VEEDU, MANDAPAKUNNU, KOTTUKUNNAM, P.O. VENJARAMOODU, THIRUVANANTHAPURAM DISTRICT.** ## **BY ADV. SRI.G.SUDHEER (THURAVOOR)** ## **RESPONDENTS:** ||**1**|**THE DEPUTY TAHSILDAR (RR)**| |---|---|---| |||**NEDUMANGAD TALUK, NEDUMANGAD, THIRUVANANTHAPURAM**| |||**DISTRICT-695006.**| ||**2**|**THE VILLAGE OFFICER,**| |||**NELLANAD VILLAGE OFFICE, NELLANAD, THIRUVANANTHAPURAM**| |||**DISTRICT-695006.**| ||**3**|**THE MANAGER,**| |||**NEW INDIA ASSURANCE CO.LTD,BRANCH OFFICE,**| |||**ATTINGAL,THIRUVANANTHAPURAM DISTRICT-695101.**| |***ADDL. **|**R4**|**SHIBUKUMAR K,**| |||**S/O. KRISHNAPILLAI, PUNARTHAM VEEDU, VADHYARUKONAM,**| |||**PALAMKONAM P.O,**| |||**THIRUVANANTHAPURAM DISTRICT 695 101.**| |||**ADDITIONAL RESPONDENT NO. 4 IMPLEADED AS PER ORDER**| |||**DATED 21.08.2018 IN I.A.NO.1 OF 2018**| **WP(C).No. 27093 of 2018** **2** **BY ADVS. SRI.ALEXANDER GEORGE SRI.JOY JOSEPH (MANAYATHU) SMT.K.K.NESNA** **BY SRI. BIMAL K.NATH, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 27093 of 2018** **3** ## **JUDGMENT** The petitioner was arrayed as the 1[st] respondent in O.P.(M.V.).No.332 of 2007 on the file of the Motor Accidents Claims Tribunal, Attingal, which is a claim petition filed by one Sameer, who sustained injuries in a motor accident, which occurred on 07.12.2006 while he was riding a motorcycle bearing Registration No.KL-01/L6032 from Vattapara to Vembayam. When the motorcycle reached in front of Vettinadu Petrol bunk, a jeep bearing registration No.KL-01/N-6453 came from the opposite direction, hit against the motorcycle and thereby the claimant fell down and sustained injuries. The petitioner herein was arrayed as the 1[st] respondent in the claim petition, he being the registered owner of the jeep. The additional 4[th] respondent herein, who was the 2[nd] respondent in the claim petition, was the driver of the said jeep. Before the Tribunal, the petitioner and the additional 4[th] respondent were set ex-parte and the Tribunal passed **WP(C).No. 27093 of 2018** **4** Ext.P2 award for a sum of Rs.1,07,042/- together with interest at the rate of 9% per annum from 15.03.2007 and cost of Rs.2,000/-. On a finding that, at the time of accident, the additional 4[th] respondent was not having a valid driving license and that, the jeep was not having valid fitness certificate and permit, the insurer of the jeep, the 3[rd] respondent herein, was given recovery right, to proceed against the owner and driver of the jeep. 2. Pursuant to Ext.P2 award, the insurer paid the amount of compensation together with interest and cost to the claimant, by depositing the said amount before the Tribunal. Thereafter, the insurer made a request before the Tribunal for initiating revenue recovery proceedings, by invoking the provisions under Section 174 of the Motor Vehicles Act, 1988. Pursuant to that request, the Tribunal issued orders for initiating revenue recovery proceedings, based on which, the 1[st] respondent Deputy Tahsildar has issued Ext.P1 revenue recovery notice. 3. Now, the petitioner is before this Court in this writ **WP(C).No. 27093 of 2018** **5** petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 revenue recovery notice dated 14.06.2018 issued by the 1[st] respondent and a writ of mandamus commanding respondents 1 and 2 not to proceed further as per Ext.P1 notice for attachment of the property mentioned therein. 4. On 09.08.2018, when this writ petition came up for admission, the petitioner was directed to implead the 2[nd] respondent in O.P.(M.V.)No.332 of 2007 as additional respondent in the writ petition. Pursuant to that order, the petitioner filed I.A.No.1 of 2018. This Court by order dated 21.08.2018 allowed that interlocutory application, thereby impleading the 2[nd] respondent in the claim petition as the additional 4[th] respondent in this writ petition. 5. On 21.08.2018, this Court admitted the matter on file and the learned Senior Government Pleader took notice for respondents 1 and 2. The learned Standing Counsel took notice for the 3[rd] respondent insurer. This **WP(C).No. 27093 of 2018** **6** Court issued urgent notice by speed post to the additional 4[th] respondent, returnable within three weeks. This Court has granted an interim stay of all further proceedings pursuant to Ext.P1 recover notice for a period of one month. The said interim order, which was extended from time to time, is still in force. 6. On 13.12.2018, when this writ petition came up for consideration, during the course of arguments, it has come out that the petitioner has already challenged Ext.P2 award in O.P.(M.V.)No.332 of 2007 by filing MACA No.2274 of 2018. 7. On 18.12.2018, when this writ petition came up for further consideration, the learned counsel for the petitioner submitted that MACA No.2274 of 2018 is yet to be listed before the appropriate Bench. 8. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 2, the learned Standing Counsel appearing for the 3[rd] respondent insurer and also the **WP(C).No. 27093 of 2018** **7** learned counsel appearing for the additional 4[th] respondent. 9. As already noticed, the challenge made in this writ petition is against Ext.P1 demand notice issued by the 1[st] respondent. Ext.P1 notice is one issued by the 1[st] respondent based on the direction issued by the Motor Accident Claims Tribunal, Attingal in O.P.(M.V.).No.332 of 2007. The said order is one issued by the Tribunal in exercise of the powers under Section 174 of the Motor Vehicles Act, 1988. 10. As held by this Court in **Subaida v. Deputy Tahsildar (RR), Thrissur District and others (2019 KHC 24)** , if a person is 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 **WP(C).No. 27093 of 2018** **8** (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. 11. In _**Subaida's case (supra),**_ this Court held further 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 **WP(C).No. 27093 of 2018** **9** 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 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 **WP(C).No. 27093 of 2018** **10** 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. 12. 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 to Ext.P2 award cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging Ext.P1 demand notice issued by the 1[st] respondent, which is one issued based on an order passed by the Tribunal in exercise of its powers under Section 174 of the Motor Vehicles Act. The remedy open to the petitioner is to pursue the appeal filed under Section 173 of the Motor Vehicles Act, which is now pending consideration as MACA No.2274 of 2018 and seek appropriate interim order in that appeal. In such circumstances, this writ petition is dismissed; however, without prejudice to the right of the petitioner to pursue MACA No.2274 of 2018 filed challenging Ext.P2 **WP(C).No. 27093 of 2018** **11** award and seek appropriate interim relief. The interim order dated 21.08.2018 granted in this writ petition shall continue for a period of one month, so as to enable the petitioner to seek appropriate interim relief in MACA No.2274 of 2018. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/23/2 **WP(C).No. 27093 of 2018** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 1ST RESPONDENT DATED 14.6.2018.** **EXHIBIT P2 TRUE COPY OF AWARD PASSED BY THE LEARNED MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL IN OP(MV) NO.332/2007 DATED 10.7.2015** **EXHIBIT P3 TRUE COPY OF THE REGISTRATION PARTICULARS WITH RELATED TO THE VEHICLE BEARING REG.NO,KL-01/N6453,ISSUED BY THE KERALA MOTOR VEHICLE DEPARTMENT.** **EXHIBIT P4 TRUE COPY OF THE ORDER IN IA.NO.7605/16 IN O.P.NO.332/2007 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL, DATED 15.11.2016.**