Sijumon v. New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940** ## **OP (MAC).No. 96 of 2018** **OP(MV)No.1738/2009 of M.A.C.T.,ERNAKULAM** ## **PETITIONER:** **SIJUMON AGED 33 YEARS, S/O. LAKSHMANAN, ATTATHADATHIL HOUSE, KUMBALANGI P.O., KOCHI.** **BY ADVS. SRI.ANOOP JOSEPH SMT.K.K.DAJULA SMT.K.V.RAJESWARI SMT.NEETHU SATHEESH SMT.SAIPOOJA SMT.ZERENE LINDA MITCHEL SRI.K.B.ARUNKUMAR** ## **RESPONDENTS:** - **1 NEW INDIA ASSURANCE COMPANY LTD. KANDAMKULATHY TOWERS, M.G. ROAD, ERNAKULAM, KOCHI - 682011.** **2 KUNJALI THEVAN AGED 73 YEARS, W/O. THEVAN, RESIDING AT KODIYATTU KAROTU HOUSE, FACT COLONY, PUTHENCRUZ P.O., KUNNATHUNADU TALUK, ERNAKULAM - 682308.** **3 MUHAMMED ASHRAF S/O. PAREED, KOLLAPARAMBIL HOUSE, ANAKOODU KARA, THODUPUZHA P.O., THODUPUZHA, IDUKKI DISTRICT - 685584.** ## **BY SRI.ZIYAD RAHMAN** **THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 28.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(MAC)No.96 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner was the 2[nd] respondent in O.P. (MV)No.1738/2009 on the file of the Motor Accident Claims Tribunal, Ernakulam, which was a petition filed under Section 166 of the Motor Vehicles Act, 1988, by the 2[nd] respondent herein, which arises out of the motor accident involving a motorcycle owned by the petitioner and ridden by the 3[rd] respondent. The Tribunal passed an award in favour of the 2[nd] respondent claimant. Since the rider of the motorcycle was not having a valid driving license, the 1[st] respondent herein, who is the insurer of that vehicle, was given recovery right against the petitioner and also the 3[rd] respondent. Now the petitioner is before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P4 order dated 22.5.2018 of the Tribunal ## **O.P.(MAC)No.96 of 2018** ## **:-3-:** in I.A.No.9274/2017. The said interlocutory application was one filed by the 1[st] respondent herein, who is the insured of the vehicle, for issuance of certificate under Section 174 of the Motor Vehicles Act for initiating revenue recovery proceedings through the District Collector to recover the award amount together with interest and cost from the petitioner and also the 3[rd] respondent. By Ext.P4, the Tribunal issued a certificate enabling the District Collector to recover the amount as per the award. During the pendency of I.A.No.9274/2017, the petitioner filed I.A.No.1061/2018, seeking an order to keep in abeyance the revenue recovery proceedings initiated at the instance of the 1[st] respondent insurer. The said interlocutory application was dismissed for want of records. 2. Heard the learned counsel for the ## **O.P.(MAC)No.96 of 2018** **:-4-:** petitioner and also the learned Standing Counsel for the 1st respondent Insurance Company. 3. The sole issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P4 order dated 22.5.2018 of Motor Accident Claims Tribunal, Ernakulam, in I.A.No.9274/2017 in O.P. (MV)No.1738/2009 and also on Ext.P5 order dated 22.5.2018 in I.A.No.1061/2018 in I.A.No.9274/2017 in O.P.(MV)No.1738/2009. 4. At the time of accident, the petitioner was the registered owner of the offending motorcycle. The said fact is not in dispute. ## 5. In **Naveen Kumar v. Vijay Kumar and others** **==> picture [437 x 13] intentionally omitted <==** considering the principle underlying the provisions of sub-section (30) of Section 2 of the Motor Vehicles Act, 1988, where a registered owner of a ## **O.P.(MAC)No.96 of 2018** ## **:-5-:** motor vehicle, despite transferring/selling his vehicle to another person continues to be reflected in records of Registering Authority as owner of that vehicle, he would be treated as owner of the vehicle for purposes of MV Act and would not stand absolved of his liability as owner under the said Act. To hold otherwise would be to defeat the salutary object and purpose of the Motor Vehicles Act, 1988. The Apex Court held further that for the purpose of the Motor Vehicles Act, the person whose name is reflected in the records of the Registering Authority is the owner. The owner within the meaning of sub-section (30) of Section 2 of the said Act is liable to compensate and the mandate of the law must be fulfilled. 6. Now the contention raised by the learned counsel for the petitioner is that as the direction contained in the award passed by the Tribunal is ## **O.P.(MAC)No.96 of 2018** ## **:-6-:** one enabling the 1[st] respondent herein, who is the insurer, to recover the compensation amount together with interest and cost from the petitioner who is the registered owner and also the 3[rd] respondent herein, who was the rider of the motorcycle, the liability of the petitioner and the 3[rd] respondent has to be apportioned in the ratio of 50:50 and the petitioner need to pay only 50% of the total demand and the remaining 50% has to be recovered from the 3[rd] respondent, who was the rider of the motorcycle. When the liability of the petitioner and the 3[rd] respondent is joint and several and when the petitioner is the registered owner of the said vehicle, I find absolutely no reason to interfere with Ext.P4 order of the Tribunal whereby the recovery certificate has been issued to the District Collector, Ernakulam. 7. Similarly, no interference is also ## **O.P.(MAC)No.96 of 2018** **:-7-:** warranted on Ext.P5 order dated 22.5.2018 in I.A.No.1061/2018, since the relief sought for in that interlocutory application was to keep in abeyance the recovery proceedings initiated against the petitioner. Admittedly, the award passed by the Tribunal has attained finality in the absence of any challenge made by the petitioner. The petitioner, who has not chosen to challenge the award in O.P.(MV)No.1738/2009, by invoking the appellate remedy available under Section 173 of the Motor Vehicles Act, cannot raise any legal or tenable challenge against the revenue recovery proceedings initiated in terms of that award. If there is any dispute between the petitioner and the 3[rd] respondent as to the extent of liability, it has to be adjudicated before the appropriate forum at appropriate time and that is not a ground to interfere with the recovery proceedings initiated ## **O.P.(MAC)No.96 of 2018** ## **:-8-:** under the Revenue Recovery Act in terms of the award passed by the Tribunal. 8. In **Shalini Shyam Shetty v. Rajendra Shankar** **Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. ## **O.P.(MAC)No.96 of 2018** ## **:-9-:** 9. In **Jai Singh v. Municipal Corporation of** **Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It ## **O.P.(MAC)No.96 of 2018** ## **:-10-:** is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It can not be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 10. In **Sobhana Nair K.N. v. Shaji S. G. Nair [2016 (1) KHC 1]** , a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that, in proceedings ## **O.P.(MAC)No.96 of 2018** ## **:-11-:** under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 11. Viewed in the light of the law laid down in the decisions referred to supra, I find absolutely no grounds to interfere with Ext.P4 order dated 22.5.2018 in I.A.No.9274/2017 and Ext.P5 order dated 22.5.2018 in I.A.No.1061/2018, invoking the supervisory jurisdiction of this Court under ## **O.P.(MAC)No.96 of 2018** ## **:-12-:** Article 227 of the Constitution of India. In the result, this original petition fails and the same is accordingly dismissed. Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/1.12.18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PETITION FILED BY THE RESPONDENT NO.1 HEREIN BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM.** **EXHIBIT P2 TRUE COPY OF THE PETITION AS I.A.NO.1061 OF 2018 IN I.A.NO.9274/2017 IN O.P.(MV) 1738/2009.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 26.02.2018 FILED BY RESPONDENT NO.1 HEREIN TO I.A.NO.1061 OF 2018 IN I.A.NO.9274/2017 IN O.P.(MV) 1738/2009.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 22.05.2018 IN I.A.NO.9274 OF 2017 IN O.P.(MV) 1738/2009.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 22.05.2018 IN I.A.NO.1061/2018 IN I.A.NO.9274/2017 IN O.P.(MV) 1738/2009.**