Shameer v. Joshy Lavyson

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` TUESDAY, THE 30[TH] DAY OF AUGUST 2022 / 8TH BHADRA, 1944 ``` ``` OP (MAC) NO. 83 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 155/2022 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA ``` ## **`PETITIONER/RESPONDENT/RESPONDENT:`** ``` SHAMEER AGED 36 YEARS S/O. MUHAMMED, VANIYAMPURAYIL HOUSE, MUTTOM P.O., CHALLAVAYAL, THODUPUZHA TALUK, IDUKKI DISTRICT - 685 587. ``` ``` BY ADVS. GEORGE MATHEW PRAVEEN S. STEPHY K REGI SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. M.D.SASIKUMARAN DIPU JAMES ``` ## **`RESPONDENT/PETITIONER/PETITIONER:`** ``` JOSHY LAVYSON AGED 42 YEARS S/O. LAVY, CHETTIYKKAL HOUSE, THUDANGANADU P.O., KANYAMALA, MUTTOM, THODUPUZHA, IDUKKI - 685 587 ``` ``` SRI.NIMOD ``` ``` THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 30.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (MAC) NO. 83 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** The present Original Petition under Article 227 of the Constitution of India is directed against the order dated 09.05.2022 passed in I.A.No.2 of 2022 in O.P.(MV) No.155 of 2022 by the Motor Accidents Claims Tribunal, Thodupuzha allowing the application of the claimant by directing the petitioner owner of the offending vehicle to furnish security of Rs.9,91,000/purported to be an order under Order 38 Rule 5 of the Code of Civil Procedure. 2. In respect of an accident taken place on 16.10.2021 at 7.45 AM whereby the respondent/claimant while riding a scooter bearing registration No.KL-38-J-1292 when reached Urakunnu junction met with an accident of a Goods Van Mahindra & Mahindra bearing registration No.KL-38-B-2142 and sustained injuries ie., appearing deformity left leg, fracture of Tibia Fibula Shaft left have become a disabled and claimed a compensation of Rs.9 lakhs vide petition dated 18.01.2022. Vide Ext.P2 interim application bearing No.2 of 2022 was also preferred by the claimant on the ground ``` OP (MAC) NO. 83 OF 2022 ``` ``` 3 ``` that the offending vehicle had no valid insurance at the time of the accident and the petitioner being the registered owner has an intention to dispose off the assets and it would be very arduous for the petitioner to seek the execution of the award proposed to be passed at an appropriate time and therefore sought the intervention of the Court for passing a conditional order as per provision prescribed under Order 38 Rule 5 of the Code of Civil Procedure. 3. Sri.George Mathew, learned counsel appearing on behalf of the petitioner submitted that learned MACT, did not wait for the service of notice on the application upon the petitioner herein, passed the impugned order. He submitted that provisions of Order 38 Rule 5 as per the provisions of Rule 395 of the Kerala Motor Vehicle Rules, 1989 is not applicable much less Rule 391A inserted vide notification dated 24.11.2018 as it pertains to only release of the vehicle involved in an accident by a Magistrate whereas the Magistrate is empowered to direct the owner of the vehicle to furnish a security in the absence of any insurance policy and insurance. ``` OP (MAC) NO. 83 OF 2022 ``` ``` 4 ``` 4. On the other hand, learned counsel appearing on behalf of the respondent though do not deny that the strict provisions of the Code of Civil Procedure as per the Rule 391 would not abide but the principle carved out therein would be applicable. In order to counter the contention of counsel representing the petitioner, relied upon following two judgments of Supreme Court and one of the High Court. i 2010 (2) SCC 607 titled as _**Jai Prakash**_ v. _**M/s. National Insurance Company Limited and Others.**_ ii Judgment dated 13.09.2018 in Civil Appeal No.9936 – 9937 of 2016 [2018 (2) TNMAC 479] - iii 2008 (4) KLT 899 titled as _**S.P.Vasukumar Pillai**_ v. _**The Motor Accidents Claims Tribunal and Others.**_ 5. It is contended that in the judgment in _**Jai Prakash**_ the interest of the victims or injured met with an accident with a vehicle without insurance policy have been taken into consideration on the patron of Rule 6 of the Delhi Motor Vehicle Rules by issuing General directions to the Central Government to issue directions to the State Government for introduction of the ``` OP (MAC) NO. 83 OF 2022 ``` ``` 5 ``` Rules in their Local Motor Vehicle Rules. Since it was not done the controversy again came up for ponderance before the Supreme Court in _**Usha Devi and Another**_ v. _**Pawan Kumar and Others**_ wherein while observing the directions contained in _**Jai Prakash**_ and the fact that the notification have come into force, the matter was disposed of with a further direction that in case the amendments are not incorporated the same should be issued by the Government of NCT of Delhi keeping in view the decision of _**Jai Prakash and Others**_ . The Single Bench of this Court in _**S.P.Vasukumar Pillai**_ v. _**The Motor Accidents Claims Tribunal And Others**_ by noticing the provisions of Sections 165 to 176 of the Motor Vehicles Act, held that in view of Rule 394, it is within in the domain of the Tribunal to order attachment of the property before passing the award in appropriate cases. 6. I have heard the learned counsel for the parties and appraised the paper book. It would be relevant to reproduce Rule 391A introduced in the Rules by notification dated 24.11.2018, Rule 394 and 395 of the Kerala Motor Vehicle Rules, 1989: **(391A. Prohibition against release of motor** ``` OP (MAC) NO. 83 OF 2022 ``` ``` 6 ``` **vehicle involved in accident.-** (1) No Court shall release a motor vehicle involved in an accident resulting in death or bodily injury or damage to property, when such vehicle is not covered by the policy of insurance against third party risks taken in the name of owner or when the owner fails to furnish copy of such insurance policy despite demand by investigating police officer, unless and until the owner furnishes sufficient security to the satisfaction of the Court to pay compensation that may be awarded in a claim case arising out of such accident. (2) Where the motor vehicle is not covered by a policy of insurance against third party risks, or when the owner of the motor vehicle fails to furnish copy of such policy in circumstance mentioned in sub-rule (1), or owner fail to furnish sufficient security as provided in sub-rule (1), the motor vehicle shall be sold off in public auction by the Magistrate having jurisdiction over the area where accident occurred, on expiry or three months of the vehicle being taken in possession by the investigating police officer, and proceeds thereof shall be deposited with the Claims Tribunal having jurisdiction over the area in question, within fifteen days for the purpose of satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident].” ## **394. Enforcement of an award of the Claims Tribunal.-** (1) Without prejudice to its power under Section 174 of the Act, the Claims Tribunal shall for the purpose of enforcement of the award, have all the powers of a Civil ``` OP (MAC) NO. 83 OF 2022 ``` ``` 7 ``` Court in the execution of a decree under the Code of Civil Procedure, 1908 as if the award were a decree for payment of money passed by such Court in a Civil suit. (2)The claims Tribunal may institute suo motu execution proceedings if the amount of compensation awarded is not paid before the expiry of the period for payment stipulated in the award and the case shall be called on a date to be fixed in the award for the purpose. ## **395.Code of Civil Procedure to apply in certain cases.-** The provisions of Rules 9 to 13 and 15 to 30 of Order V, Rules 16 to 18 of Order VI, Order IX, Rules 3 to 10 of Order XII, Nules 1 to 21 of Order XVI, Rules 1 to 3 of Order XXIII and Order XXVI of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to the proceedings before the Claims Tribunal. 7. On perusal of Rule 391A, it is evident that no court will release the vehicle involved in the accident in case of a death or bodily injury or damage to the property, when such vehicle is not covered by the insurance policy. The concerned Magistrate while dealing with the application for release of the vehicle would direct the owner of the vehicle to furnish adequate security to protect the interest of the proposed claimants. Rule 395 has been introduced to preclude the Motor Accident Claims Tribunal to specify the ``` OP (MAC) NO. 83 OF 2022 ``` ``` 8 ``` applicability of the provisions of the Code of Civil Procedure in certain matters but not under Order 38 Rule 5. The single Bench of this Court in _**Vasakumar Pillai**_ (supra) while noticing Rule 394 had left with the discretion of the Tribunal to pass the order of the attachment. The same reads as under: “13. Could it, then be said that attachment of property before passing the award affected the substantive or valuable right of the petitioner?. In the Law Lexicon by P.Ramanatha Aiyar, the word "substantive" is given the following meaning:- "Of or relating to a matter of substance as opposed to form or procedure; affecting rights, duties or, causes of actions, existing in its own right, specifically of or relating to a substantive crime". The object of attachment before judgment is to make the property of the defendant available for execution of the decree that may be passed in the case. Attachment before judgment prevents a decree from becoming infructuous. It is an effective check on any attempt on the part of the defendant to defeat the realisation of the decree that may be passed against him. The nature and character of an attachment before judgment came for consideration before this Court in Ittaman Nair v. Andy (1951 KLT 601). It was held:- ``` OP (MAC) NO. 83 OF 2022 ``` ``` 9 ``` "An attachment prior to a decree is not an attachment for the enforcement of the decree but it is a step taken merely for the purpose of preventing the debtor from delaying or obstructing such enforcement when the decree subsequently passed shall be sought to be executed. An attachment after decree is, on the other hand, an attachment made for the immediate purpose of the carrying the decree into execution, and it presupposes an application on the part of the decreeholder to have his decree executed. Thus an attachment before judgment has not the same effect as an attachment in execution, although it is not necessary to reattach the property in execution when it has been attached before judgment." Attachment before judgment differs from an attachment in execution, the former being a step in aid of execution while the latter is a process in execution itself. Going by Section 64 of the Code, attachment does not take away any substantive right of the defendant over property nor, confer right on the attaching creditor. Attachment only prevents private alienation of the property. Even an alienation of the property in violation of an order of attachment is not void altogether. Private alienation after the attachment is made only makes such alienation void as against the claims of the attaching creditor under the decree that may be passed. The responsibility of the Tribunal is not merely to pass an award. It has also the responsibility to ensure successful execution of the award. The Tribunal must render assistance to the victim of the accident to reap the fruits of litigation by its process and not obtain a barren award. If under Rule 394 of ``` OP (MAC) NO. 83 OF 2022 ``` ``` 10 ``` the Rules it is within the power of the Tribunal to attach and sell the property of the person against whom award has been passed in realisation of the amount in execution of the award, then, notwithstanding that the provision of Order 38 of the Code regarding attachment before judgment is not specifically rendered applicable to the Tribunal under Rule 395, it must be deemed to have been invested with the ancillary power to preserve and make available the property for execution. The power to attach and sell the property in execution of the award carries with it by necessary implication the power to use all reasonable means to make that power effective. When a victim of motor accident satisfies the Tribunal that the tortfeaser, with intent to defeat or obstruct the execution of the award that may be passed against him is about to dispose of or remove the whole or portion of his property from the local limits of its jurisdiction, the Tribunal cannot throw up its arms in despair and plead that the power to prevent such fraudulent disposition or removal of the property is not expressly conferred on it. The Tribunal should have the power to apply the provisions of the Code so far as it is not in conflict with any of the provisions of the Act or the Rules made thereunder, and so far the application of the provisions is not barred expressly or by implication, to render justice and to achieve the purpose for which it has been constituted. Rule 394 of the Rules enables the Tribunal, for enforcement of its award, to exercise the powers of a Civil Court in execution of a decree. Exercising the power of the Civil Court to order attachment of the property before passing the award is not prohibited either expressly or by implication, instead, it only aids and ``` OP (MAC) NO. 83 OF 2022 ``` ``` 11 ``` promotes the power conferred on the Tribunal under Rule 394. In S.M.Banerji v. Sri Krishna Agarwal (AIR 1960 SC 368) Subba Rao J. (as his Lordship then was) observed:- "Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish their effectiveness and defeat the very purpose for which they are constituted." 14. It is not as if for the mere asking the Tribunal would or should exercise the power to order attachment. There are inbuilt safeguards in Order 38 Rule 5 of the Code itself as could be seen from the provision that it is only when, ".........., the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, - (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court," (underline supplied) that the Court would direct the defendant to furnish security or to appear and show cause why he should not furnish security and in the meantime direct conditional attachment of the whole or any portion of the property. Tribunals must zealously guard against the provision being misused by the parties before it. Judicial wisdom and circumspection must guide the Tribunals in the exercise of its powers. No party to ``` OP (MAC) NO. 83 OF 2022 ``` ``` 12 ``` the proceeding before the Tribunal can claim to have a valuable or substantive right to dispose of or remove the whole or any portion of his property from the local limits of the jurisdiction of the Tribunal with intent to defeat or delay the execution of the award that may be passed against him. 15. Viewed in the above perspective and in view of Rule 394 of the Rules it is within the power of the Tribunal in my view, to order attachment of the property before passing the award in appropriate cases. The view taken by the learned Single Judges of Bombay High Court in Mansingh Sajjusingh v. Sudhir Ganpatrao Girdhari, Andra Pradesh High Court in Duvvuru Siva Kumar Reddy v. Malli Srinivasulu and the of Madhya Pradesh High Court (Indore Bench) in Laxman singh v. Parmanand Damani (referred supra) support that view.” 8. The tenor of the findings is couched in respect of cases where the interest of the victim/injured is being protected by issuing an order of attachment before the judgment. However, as far as the proceedings of the Motor Accidents Claims Tribunal is concerned, it is yet to be decided as to how much compensation a victim would be entitled to. The Tribunal cannot be swayed away from the claim made in the award and entertain the application in the manner and mode as it has been done by ordering the owner to furnish a security of Rs.9,90,000/-, as the findings of the Tribunal would be based upon the preponderance of both oral ``` OP (MAC) NO. 83 OF 2022 ``` ``` 13 ``` documentary evidence like disability certificate, statement of the claimant, medical record etc as well as the fact that whether it was the case of contributory negligence of owner. The view expressed by the Supreme Court in _**Jai Prakash**_ was with an intention to protect the interest of the affected parties involved in accidents with a vehicle without insurance policy. After considering all the facts, issued the following directions: “27. The Central Government may consider amendment of the Second Schedule to the Act to rectify the several mistakes therein and rationalize the compensation payable thereunder, repeatedly pointed out by this Court [See U.P. State Road Transport Corporation v. Trilok Chandra- 1996 (4) SCC 362, and Sarla Verma (supra)]. Securing the compensation to the victims of accidents involving uninsured vehicles 28. Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. The appropriate Governments may consider ``` OP (MAC) NO. 83 OF 2022 ``` ``` 14 ``` incorporation of a rule on the lines of Rule 6 of the Delhi Motor Accident Claims Tribunal Rules, 2008 in this behalf. ## CONSEQUENTIAL DIRECTIONS 29. The Supreme Court Registry is directed to send copies of this order to (i) Chief Secretaries and Director Generals of Police of all States, and (ii) Registrar-Generals of all High Courts, for compliance with the directions. The suggestions made may be placed before the Central Government by the learned Solicitor General. Registry may receive and put up any other suggestions. List for further directions on 7.1.2010.” 9. Since similar matter was also pending in the supreme Court since 2008 whereas the appeals in _**Jai Prakash**_ were of 2005, noticing the fact that the previous Bench of Supreme Court had already issued directions, the Hon’ble Supreme Court in _**Usha Devi**_ (supra) disposed of the aforementioned claim in the following manner: “Though direction was issued to all the State Governments to incorporate such a rule yet it appears that no steps have been taken so far. In view of the aforesaid, we direct that a copy of the order passed today be communicated to the Chief Secretaries and the Director Generals of Police of all the States and the Registrar Generals of all the High Courts to see that such a rule is introduced if already not done, so that the victims of an accident get some compensation. They ``` OP (MAC) NO. 83 OF 2022 ``` ``` 15 ``` may file their response within six weeks. Needless to say that the compensation in hit and run cases will also apply to such cases. Let the matter be listed on 16.05.2018.” In pursuance of the aforesaid order, certain States have issued notifications which have the same effect as that of the Notification issued by the Govt. of NCT of Delhi. Other States are in the process of issuing such notifications. 5. In view of the aforesaid, we do not intend to keep the appeals pending. We direct the Chief Secretaries of each of the States to bring out necessary notification, if not already done, on the lines of the notification issued by the Govt. of NCT of Delhi keeping in view the decision in Jai Prakash (supra). The said exercise shall be completed within twelve weeks hence. 6. Before we part, we must record our appreciation for the submissions advanced with concern and anxiety by Ms. Radhika Gautam, learned counsel appearing for the appellants. 7. With the aforesaid directions, the appeals stand disposed of. There shall be no order as to costs.” 10. Rule 391A in view of the directions aforementioned had been introduced vide notification dated 24.11.2008 to the existing Rule in pari materia to Rule 6 of the Delhi Motor Vehicle Rules. But same deals only with regard to the powers of the Magistrate to deal with the application for release of the vehicle and if found the ``` OP (MAC) NO. 83 OF 2022 ``` ``` 16 ``` vehicle being used without insurance policy, impose conditions upon the owner of the vehicle to furnish security. 11. Even perusal of the provisions of Rule 394, it only pertains to the enforcement of the award for the purpose of execution of the decree, thus, I beg to differ with the findings rendered by the Single Bench of this Court in _**Vasakumar Pillai**_ (supra) empowering the Tribunals to invoke provisions of Order 38 Rule 5 by taking the aid of the aforementioned Rule, as not a good law. Even otherwise, much water has flown. There has been a reference of Section 195 of the Motor Vehicles Act, 1988 which pertains to imposition of minimum fine under certain circumstances, which has been omitted by Act of 32 of 2019. Section 196 has been introduced by Act 32 of 2019 which reads as under: ## _**196. Driving uninsured vehicle-**_ Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 146 shall be punishable for the first offence with imprisonment which may extend to three months, or with fine of two thousand rupees, or with both, and for a subsequent offence shall be punishable with imprisonment for a term which may extend ``` OP (MAC) NO. 83 OF 2022 ``` ``` 17 ``` to three months, or with fine of four thousand rupees, or with both. 12. Section 196 deals with the punishment of three months with fine of Rs.2000/- and for subsequent offence, an imprisonment for a term which may extend to three months in respect of the persons whoever be found to be driving a motor vehicle in contravention of the provisions of Section 146. Section 146 mandatorily requires the owner of the vehicle to insure the vehicle against the third party risks. Rule 395 of MV Act extracted above excludes the applicability of certain provisions of Code of Civil Procedure to be applicable in proceedings under the Motor Vehicles Act. Order 38 Rule 5 of the CPC does not fall within the purview of Rule 395. Thus learned MACT ought not to have assumed the jurisdiction of a civil court for entertaining or accepting the application of claimant in passing an attachment before judgment. Accordingly, the impugned order is set aside. Original Petition stands allowed. Neither the MACT nor this Court has been apprised as to whether the owner of the offending vehicle while seeking the ``` 18 ``` ## **`OP (MAC) NO. 83 OF 2022`** release of the vehicle had submitted sufficient security in terms of Rule 391A or not and thus the said question is ordered to be left open. Sd/- **AMIT RAWAL JUDGE** nak ``` OP (MAC) NO. 83 OF 2022 ``` ``` 19 ``` ## **`APPENDIX OF OP (MAC) 83/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit1 ``` ``` TRUE COPY OF PETITION DTD. 18.01.2022 IN O.P. (MV). NO. 155 OF 2022 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA ``` ``` Exhibit P2TRUE COPY OF PETITION IN I. A. NO. 2 OF 2022 IN O.P. (MV). NO. 155 OF 2022 DTD. 12.03.2022 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA Exhibit P3TRUE COPY OF ORDER DTD. 09.05.2022 IN I. A. NO. 2 OF 2022 IN O.P. (MV). NO. 155 OF 2022 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA Exhibit P4TRUE COPY OF ADVISORY NO. RT- 11036/35/2020/MVL DTD. 30.09.2021 ISSUED BY MINISTRY OF ROAD TRANSPORT AND HIGHWAYS (MORTH), GOVERNMENT IF INDIA ```