Rajesh v. Deputy Tahsildar, Karunagappally Taluk, Kollam District and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940** ## **WP(C).No. 1651 of 2019** ## **PETITIONER:** **RAJESH, AGED 40 YEARS** **S/O BALAKRISHNAN,KOTTUNGAL HOUSE,PADA NORTH, KARUNAGAPPALLY, KOLLAM DISTRICT.** **BY ADV. SRI.ARUN MATHEW VADAKKAN** ## **RESPONDENTS:** **1 THE DEPUTY TAHASILDAR, KARUNAGAPPALLY TALUK,KOLLAM DISTRICT 690 518 2 THE VILLAGE OFFICER, KARUNAGAPPALLY VILLAGE,KOLLAM DISTRICT 690 518 3 THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO.LTD, DIVISIONAL OFFICE,THIRUVALLA-689 101** ## **ADDL.R4 MARYKUTTY CHACKO** **AGE NOT KNOWN, W/O CHACKO, KONNATHU STANLY BHAVANAM, VETTIYARR MURI, VETTIYAR VILLAGE, ALAPPUZHA DISTRICT-690557.** ## **ADDL.R5 K M CHACKO** **AGE NOT KNOWN, S/O MATHAN, KONNATHU STANLY BHAVANAM, VETTIYARR MURI, VETTIYAR VILLAGE, ALAPPUZHA DISTRICT-690557. (ADDL.R4 AND R5 ARE IMPLEADED AS PER ORDER DATED 21/01/2019 IN IA.NO.01/2019)** **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER ; SMT K.S.SANTHI - STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **WP(C).No. 1651 of 2019** ## **JUDGMENT** The petitioner, who is arrayed as the 2[nd] respondent in OP(MV) No.851 of 2011 and 852 of 2011 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikkara, which are claim petitions filed by additional respondents 4 and 5, i.e, one Marykutty Chacko and her husband K.M Chacko, who sustained injuries in a motor accident which occurred on 09.10.2010, while riding a scooter bearing registration No.KL04/V-4783. At the place of accident, the scooter was hit by a tempo van bearing registration No.KL-23/A-2349, driven by one Jerrin John. The petitioner is the registered owner of the said tempo van. Before the Tribunal, the petitioner and the driver of the tempo van were set ex parte. 2. The Tribunal passed Ext.P2 common award dated 18.07.2017 awarding a total compensation of Rs.43,291/(Rupees Forty Three thousand two hundred and ninety one only) in O.P.(MV) No.851 of 2011, together with interest at the rate of 7.5% per annum from the date of petition, i.e, 3 ## **WP(C).No. 1651 of 2019** 10.10.2011 till realisation. As per the award, if the petitioner fails to deposit the award amount within 90 days, the claimant will be entitled to realise the award amount together with the interest at the rate of 12% per annum from the date of award till realisation. In O.P.(MV) No.852 of 2011, Tribunal passed an award for Rs.80,059/- (Rupees Eighty thousand and fifty nine only) together with interest at the rate of 7.5% per annum from the date of petition. i.e.10.10.2011 till realisation. As per the award, if the petitioner fails to deposit the award amount within 90 days, the claimant will be entitled to realise the award amount together with the interest at the rate of 12% per annum from the date of award till realisation. The 3[rd] respondent herein, who was arrayed as the 3[rd] respondent insurer in O.P.(MV) No.852 of 2011 was absolved from the liability since registration number of the vehicle and period of validity were not mentioned in Ext.A11 copy of insurance policy. 3. After Ext.P2 award, the claimants approached the Tribunal by invoking the provisions under Section 174 of the 4 ## **WP(C).No. 1651 of 2019** Motor Vehicle Act 1988 for initiating revenue recovery proceedings against the petitioner. Based on the orders passed by the Tribunal, respondents 1 and 2 have initiated revenue recovery proceedings by issuing Ext.P1 demand notice. On receipt of Ext.P1 demand notice, the petitioner has approached this Court in this writ petition under Article 226 of the Constitution of India seeking the following reliefs: - _(i) Issue a writ in the nature of Certiorari, or any other writ, order or direction, calling for the records leading to Exhibits P1 and quash Exhibit P1._ - _(ii) To stay the proceedings pursuant to Exts.P1 to a reasonable period so as to enable the petitioner to contest I.A.No.5614/2018 in OP(MV) No.851/2011 which is stands posted to 26.02.2019._ 4. On 21.01.2019, when this writ petition came for admission, the claimants in OP(MV) Nos.851 and 852 of 2011 were impleaded as additional respondents 4 and 5. Thereafter, this Court issued urgent notice on admission by speed post to additional respondents 4 and 5, returnable within three weeks. This Court granted an interim order of stay, which reads thus: > “ _There will be an interim stay of recovery proceedings pursuant to Ext.P1 demand notice for a period of one month on condition that the petitioner deposits a sum of Rs.7,500/- each in OP(MV) Nos.851 and 852 of 2011 on the file of the Additional Motor Accident Claims Tribunal, Mavelikkara, within two weeks from this_ 5 ## **WP(C).No. 1651 of 2019** _date, for disbursement to the respective claimants, in terms of the award. The payment made by the petitioner in terms of this order will be without prejudice to his contention that the 3[rd] respondent insurer is liable for payment of compensation to the respective claimants.”_ 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 2 and the learned Standing Counsel for the 3[rd] respondent. Despite service of notice, none appears for respondents 4 and 5. 6. 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 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 6 ## **WP(C).No. 1651 of 2019** 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. 7. 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 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 7 ## **WP(C).No. 1651 of 2019** 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 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. 8. In view of the law laid down by this Court in the 8 ## **WP(C).No. 1651 of 2019** decision referred to supra, the remedy open to the petitioner is to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India in case there is any delay on the part of the Tribunal in considering the I.A No.5614 of 2018 filed by the petitioner seeking and order to set aside Ext.P2 ex parte award. Without challenging the order passed by the Tribunal under Section 174 of the Motor Vehicle Act, 1988 ordering revenue recovery, the petitioner, who is a party to Ext.P2 award, cannot challenge the consequential demand notice issued by respondents 1 and 2, i.e, Ext.P1 demand notice. The learned counsel for the petitioner would submit I.A.No.5614 of 2018 filed by the petitioner is now listed before the Tribunal on 26.02.2019. 9. In such circumstances, without prejudice to the right of the petitioner to pursue that interlocutory application and to move this Court invoking supervisory jurisdiction under Article 227 of the Constitution of India in case there is delay on the part of the Tribunal in disposing of I.A No.5614 of 2018 in O.P.(MV) No.851 of 2011, this writ petition is dismissed. 9 ## **WP(C).No. 1651 of 2019** However, the interim order granted by this Court shall continue for a period of one month so as to enable the petitioner to work out his remedy before appropriate forum. **Sd/-** **ANIL K.NARENDRAN JUDGE** PV 10 ## **WP(C).No. 1651 of 2019** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE DEMAND NOTICE UNDER**| |---|---| ||**SECTION 34 OF THE REVENUE RECOVERY ACT**| ||**DATED 28.3.2018 ISSUED BY DEPUTY**| ||**TAHSILDAR KARUNAGAPPILLY TALUK**| |**EXHIBIT P2**|**TRUE COPY OF THE COMMON AWARD DATED**| ||**18.7.2017 IN OP(MV) NO. 851/2011 AND IN**| ||**OP(MV) 852/2011**| |**EXHIBIT P3**|**TRUE COPY OF THE REVIEW PETITION**| ||**NUMBERED AS IA 5614/2018 PENDING BEFORE**| ||**THE ADDL.MACT MAVELIKKARA.**| |**EXHIBIT P4**|**TRUE COPY OF THE MOTOR INSURANCE**| ||**CERTIFICATE CUM POLICY SCHEDULE OF**| ||**VEHICLE BEARING REGISTRATION NO KL 23 A**| ||**2349**| ## **RESPONDENTS' EXHIBITS: NIL** **\\TRUE COPY//** **PA TO JUDGE** ## **PV**