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2009 DIGILAW 534 (KAR)

Mohammad Iyub v. Muzaheed Pasha

2009-07-22

ANAND BYRAREDDY

body2009
Judgment :- (This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying quash the order dated 8.09.2005 passed in Ex.No.38/2004 (i.e. in MVC No.942/2002) by the Civil Judge (Sr.Dn.) and MACT, Kunigal vide Annexure –A and etc.,) Heard the Counsel for the petitioner. The respondents who are served remain unrepresented. 2. The facts of the case are as follows: The petitioner was a claimant before the Motor Accidents Claims Tribunal, seeking compensation in respect of the injuries suffered in a motor accident. The respondent was the owner of the vehicle at the time of accident. The claim was allowed after contest. The insurer of the vehicle was absolved of liability. There was an award against the respondent in a sum of Rs.3,91,301/-. The respondent failed to satisfy the award. The petitioner had sought to execute the award and filed an execution petition claiming as a decree-holder before the Tribunal and sought for attachment and sale of movable and immovable properly of the respondent and for arrest of the respondent and detention in civil prison. Notice of the petition having been served – the respondent appeared and claimed that he had no movable or immovable property- and possessed no means to pay the decretal amount. The vehicle involved had been seized by the financier and taken away. On hearing the parties, the execution petition was dismissed. A revision petition was filed before this Court in the first instance against the said order but was subsequently withdrawn with liberty to file this petition. 3. It is contended by Shri S.K. Venkata Reddy that in the absence of material to demonstrate that the motor vehicle was confiscated by the financier for reason of nonpayment of instalments, the Tribunal was not justified in dismissing the execution petition. On the other hand, the respondent having violated the terms of an indemnity bond executed at the time of seeking delivery of the vehicle during pendency of the proceedings, had engineered the disposal of the vehicle in favour of a third-party only in order to deprive the petitioner of recovering compensation amount by the attachment of any property of the respondent, including the said vehicle. The Court was hence not justified in absolving the respondent of a blatant violation of the order of the Court especially in the face of circumstance that there were no documents produced before the Court to evidence the fact that the vehicle was seized by an alleged financier for default in payment of instalment of the purchase price. It is contended that the petitioner who has suffered serious physical disability on account of the injuries suffered in the accident, the amount awarded is to compensate and alleviate the suffering of the petitioner and to sustain his livelihood – the respondent being granted a reprieve by the dismissal of the execution petition on the ground that the respondent does not have the means to pay the decretal amount with a direction to the petitioner to seek recovery if and when the respondent acquires property capable of satisfying the award has resulted in injustice, and hence the petitioner seeks an appropriate direction. 4. The respondent who has been served remain unrepresented. The situation as faced by the petitioner herein is a recurring feature, whereby, the claimants, who were awarded compensation by the Motor Accidents Claims Tribunal are unable to recover the amount when the motor vehicle concerned is not covered under an insurance policy and the owner of the vehicle pleading his inability to meet the liability on the ground that he is without means to pay. At times, the claim is genuine and at other times. It may not be so. The claimant in any event is helpless when the court stays its hand accepting the contention of the owner of the vehicle as in the present case on hand. As seen from the provisions of the Motor Vehicles Act, 1988, read with the provisions of the Karnataka Motor Vehicles Rules, 1989, read with the provisions of the Code of Civil Procedure, 1908, the same is found wanting in a fool-proof mechanism to enable an aggrieved claimant from recovering the compensation that is awarded to him. Section 166 of the Motor Vehicles Act, 1988, enables the claimant to seek compensation before the Tribunal in respect of the injuries suffered in a motor accident or as the legal representative of a deceased victim. Section 166 of the Motor Vehicles Act, 1988, enables the claimant to seek compensation before the Tribunal in respect of the injuries suffered in a motor accident or as the legal representative of a deceased victim. Section 168 lays down that when an award is passed by the tribunal on a claim, the person who is required to pay in terms of the award shall, within 30 days of announcement of the award, deposit the entire amount awarded as directed by the tribunal. Section 169 which provides for the procedure and powers of the Tribunals declares that the tribunal shall have all the powers of a civil court for the purpose of taking evidence and for such other purposes, as may be prescribed. Section 174 provides for recovery of money under an award and enables the tribunal to issue a certificate for the amount to the Collector, who may proceed to recover the same in the same manner as arrears of land revenue. Rule 249 of the Karnataka Motor Vehicles Rules, 1989, provides for the form of judgment and award of compensation. Rule 250 provides for the payment of interim compensation. Rule 251 provides for the procedure for disbursement of interim compensation. Rule 253 incorporates the powers that may be exercised by the tribunal under the provisions of the Code of Civil procedure 1908. It is significant that Sections 51 and 57 of the Code of Civil Procedure, 1908 are not included. Rule 254 provides for the procedure in holding an enquiry and specifies the provisions of the Code of Civil procedure, 1908 which are made applicable. Order XXI is included. 5. In this background, it is to be kept in view, that the procedure for recovery of sums due under a judgment and decree in respect of a dispute for recovery of money or under a contractual obligation flows from a substantive right, whereas the recovery of compensation in respect of an injury or a death in a motor vehicle accident is by virtue of the social-beneficial legislation providing for payment of compensation. The procedure for recovery, however, remaining the same does not advance the object of the Motor Vehicles Act, when faced with a situation as in the present case on hand. There is hence a serious need for enactment of legislative provisions, specifically for the recovery of compensation payable on a claim under the Motor Vehicles Act. The procedure for recovery, however, remaining the same does not advance the object of the Motor Vehicles Act, when faced with a situation as in the present case on hand. There is hence a serious need for enactment of legislative provisions, specifically for the recovery of compensation payable on a claim under the Motor Vehicles Act. Therefore, given the overwhelming case-law, which has normally leaned favour of a judgment-debtor who is without means and not readily resorting to take recourse to coercive measures such as committing the judgment-debtor to a Civil Prison and the Code of Civil Procedure, 1908, itself limiting any such detention in Civil Prison to a maximum of three months and that too, in rare and few cases, an effective and efficacious mechanism for recovery of compensation in motor accident claims is the need of the hour. A provision akin to Section 161 of the Motor Vehicles Act providing for payment of compensation in hit and run motor accidents, ought to be incorporated to provide for cases where the judgment-debtor is not in a position to satisfy the award of compensation, for the claimant to fall-back upon and especially, when the victim suffers from physical disability and is unable to fend for himself. A social obligation is cast on the State to provide for such a measure. It is also to be noticed that in a case where an uninsured vehicle is involved and the standing of the owner or the user of the vehicle is not known, the vehicle itself is the most proximate asset, in respect of which, the claimant in a motor vehicle accident could proceed. Notwithstanding that the vehicle may have been under the use of a person other than owner for hire or otherwise, a charge ought to be fastened on the vehicle, disabling any disposal of the vehicle to protect-claimants such as the petitioner from recovering some portion of the compensation by bringing the vehicle to sale. There is no such legal provision available which would operate to ensure the recovery of money by bringing such a vehicle to sale. In any event, the lacunae as pointed out requires to be supplied by legislation. There is no such legal provision available which would operate to ensure the recovery of money by bringing such a vehicle to sale. In any event, the lacunae as pointed out requires to be supplied by legislation. Hence, though there is a little scope for interference by this court in the impugned order, the Registry is directed to send a copy of this order to the Secretary, Ministry of Law and Justice (Legislative Department), Government of India, New Delhi, the Secretary, Department of parliamentary Affairs and Legislation, Government of Karnataka and the Chairman of the Law Commission of India, in order that there may be an initiation of a process to bring about legislation in this regard. The petition stands disposed of.