Sasindra Raj K v State of Kerala 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** ## **WP(C).No. 33264 of 2017** ## **PETITIONER :** **SASINDRA RAJ K,AGED 51 YEARS, S/O.BABY ALIAS SARASWATHI,KALASAMKANDI HOUSE, CHEMMANCHERY VILLAGE,KOYILANDY, KOZHIKODE.** ## **BY ADV. SMT.DENNIS VARGHESE** ## **RESPONDENTS:** - **1 THE STATE OF KERALA,REP. BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DEPUTY TAHSILDAR (REVENUE RECOVERY),VATAKARA, KOZHIKODE-673101** - **3 THE VILLAGE OFFICER, VILLAGE OFFICE, CHEMANCHERY, KOYILANDI, KOZHIKODE-673305.** - **4 THE STATION HOUSE OFFICER S.H.O,KODUVALLY POLICE STATION, KODUVALLY,KOZHIKODE. CR. FIR NO.482/2010 PIN-673572** - **5 KHADEEJA,W/O.UMMER,504, ALAMOPURAYIL-12, KODUVALLY, KOZHIKODE- 673 572.** **ADDITIONAL 6TH RESPONDENT IMPLEADED AS PER ORDER IN I.A.NO.18885/2017 IN WPC(C)NO.33264/2017 DATED 22.11.2017** - **6 GANESH KUMAR,S/O KUMARAN NAIR, AGED 36 YEARS, NADAYIL HOUSE, P.O.KONOTTU, KUMARAMANGALAM, KOZHIKODE, PIN643001.** **BY GOVERNMENT PLEADER SMT.MABLE C KURIAN BY SMT.K.V.RESHMI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 33264 of 2017** **2** ## **JUDGMENT** The petitioner is the owner of an Innova Car bearing registration No.KL-56/2626, which is the offending vehicle in O.P.(M.V.)No.551 of 2012 on the file of the Motor Accidents Claims Tribunal, Kozhikode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the legal heirs of one Ummer, who met with a road accident on 07.11.2010, involving an Innova Car bearing registration No.KL56/2626 owned by the petitioner and driven by the additional 6[th] respondent. At the time of accident, the vehicle was not having a valid insurance policy. Therefore, in Ext.P4 award dated 14.03.2013, the Tribunal held that the owner and driver are jointly and severally liable to pay a sum of Rs.5,09,000/- to the claimants together with interest at the rate of 8% from the date of petition with proportionate cost. The petitioner has filed this writ **WP(C).No. 33264 of 2017** **3** petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to take revenue recovery steps and proceed against the vehicle, i.e., Innova Car bearing registration No. KL-56/2626 worth more than Rs.9,00,000/- and refrain from personally harassing the petitioner and his family vis-a-vis their household properties. The additional relief sought for, by way of amendment, is a declaration that in the light of the certificate issued by the Tribunal under Section 174 of the Motor Vehicles Act in O.P. (M.V.).No.551 of 2012, respondents 2 and 3 are to be interdicted from concentrating the revenue recovery proceedings on the petitioner alone and that, they are not justified in excluding the driver of the offending vehicle, who is the additional 6[th] respondent herein. 2. On 22.11.2017, when this writ petition came up for consideration along with **WP(C).No. 33264 of 2017** **4** I.A.No.18885 of 2017 for impleading the additional 6[th] respondent, this Court allowed that interlocutory application and issued notice by speed post to the additional 6[th] respondent, returnable in two weeks. 3. A statement has been filed on behalf of the 2[nd] respondent Deputy Tahsildar, followed by an additional affidavit of the said respondent dated 29.09.2018. The additional 6[th] respondent has also filed a counter affidavit. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the additional 6[th] respondent. 5. Recovery proceedings initiated against the petitioner is in terms of an order passed by the Motor Accidents Claims Tribunal, under Section 174 of the Motor Vehicles Act for recovering the award amount in O.P.(M.V.)No.551 **WP(C).No. 33264 of 2017** **5** of 2012. The award passed by the Tribunal has attained finality. The revenue recovery proceedings initiated against the petitioner, who is the 1[st] respondent in that claim petition, based on an order passed by the Tribunal under Section 174 of the Act, can be interfered with by this Court only in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, as held by this Court in _**Subaida v. Deputy Tahsildar (RR), Thrissur [2019 (1) KHC (SN.7) Page No.11]**_ . 6. In this writ petition, the petitioner has not challenged the demand notice issued by the revenue recovery officials in terms of the order passed by the Tribunal under Section 174 of the Motor Vehicles Act. The petitioner has filed this writ petition seeking an order to proceed against the Innova Car, before taking recovery steps against the movables and other assets, which are being proceeded against based **WP(C).No. 33264 of 2017** **6** on the orders of the Tribunal. 7. E.A.No.21 of 2016 filed by the petitioner's wife under Order XXI, Rule 58 of the Code of Civil Procedure, 1908 in E.P.No.98 of 2014 in O.P.(M.V.).No.576 of 2012, another claim petition under Section 166 of the Motor Vehicles Act arising out of the very same accident, has already been rejected by the Tribunal, by its order dated 24.11.2016. O.P. (MAC)No.119 of 2017 filed before this Court by the petitioner's wife seeking an order not to proceed against the movables in the house, and to proceed against the Innova Car, has already been dismissed by a separate judgment. 8. Pursuant to the order of this Court dated 05.02.2018 in this writ petition, the photographs of the damaged Innova Car is placed on record as Ext.R2(a), along with an additional affidavit of the 2[nd] respondent. A bare perusal of the said photographs would show **WP(C).No. 33264 of 2017** ## **7** that the vehicle is in a damaged condition, which has sustained extensive damages and it can only be sold as scrap. Despite the said fact, the petitioner, who is the registered owner of that Innova Car, has filed this writ petition with an averment that the said vehicle involved in the accident, which is worth more than Rs.9,00,000/-, is readily available for the claimants to proceed against. The amount awarded by the Tribunal is Rs.5,09,000/-, which has to be paid together with interest and cost. Therefore, the petitioner is not legally entitled to the first relief sought for in this writ petition. 9. As far as the additional relief sought for by way of amendment is concerned, from the report dated 21.12.2018 received from the Motor Accidents Claims Tribunal, Kozhikode, in I.A.No.3902 of 2016 filed by the 5[th] respondent herein, the request for initiating revenue **WP(C).No. 33264 of 2017** ## **8** recovery for the award in O.P.(M.V.)No.551 of 2012 was sought for only against the petitioner, who is the registered owner of the vehicle. 10. The reason for not seeking recovery proceedings against the additional 6[th] respondent herein, who was the driver of the offending vehicle, who was also held jointly and severally liable to pay compensation awarded by the Tribunal, is not discernible from the pleadings and materials on record. The 5[th] respondent, who was the 1[st] claimant in O.P. (M.V.).No.551 of 2012 has not chosen to enter appearance. The petitioner has also not chosen to implead the other claimants in O.P. (M.V.)No.551 of 2017 as parties to the writ petition. 11. In the absence of an order initiating recovery steps against the additional 6[th] respondent, it is not for this Court to **WP(C).No. 33264 of 2017** **9** interfere in the matter, invoking the writ jurisdiction under Article 226 of the Constitution of India. In the result, this writ petition fails and the same is accordingly dismissed. **Sd/-** ## **ANIL K.NARENDRAN,JUDGE** AV/2/2 **WP(C).No. 33264 of 2017** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF FORM 1 RR NOTICE BY RESPONDENTS 2 AND 3 TO THE PETITIONER, NO.H-225/16-17 C4 48672/2016 DATED 21.1.2017 NOW DEMANDING PAYMENT OF RS. 6,85,182/-** **EXHIBIT P2 TRUE COPY OF THE REQUISITION DATED 20.9.2017 BY PETITIONER TO RESPONDENTS 2 AND 3.** **EXHIBIT P3 TRUE COPY OF FIR NO.482/2010 OF KODUVALLY POLICE STATION (KOZHIKODE)** **EXHIBIT P4 TRUE COPY OF JUDGMENT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE IN OP(MV)NO.551/2012**