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2010 DIGILAW 478 (JK)

State Road Transport Corp. , J&K v. Motor Accidents Claims Tribunal, J&K

2010-08-27

Mansoor Ahmad Mir

body2010
1. As common questions of facts and law are involved in both the petitions, therefore, I deem it proper to dispose of both the writ petitions by a common order. 2. By the medium of these writ petitions the petitioner has sought quashment of order dated 11.12.2002 passed by respondent no.1 in execution proceedings in file nos.38/Misc/Execution and 117/Execution/Misc. Brief facts 3. Two claim petitions came to be filed by claimants before the Motor Accidents Claims Tribunal, Udhampur-respondent no.1 herein, came to be allowed and petitioner herein being the owner of offending vehicle came to be saddled with the liability. 4. During the pendency of both the claim petitions, the writ petitioner herein filed an application for arraying insurer-respondent no.7 as a party to the claim petitions in the array of non-applicants, came to be granted vide order dated 15.11.1995 subject to payment of Rs.500/- as costs, but failed to do so despite availing sufficient opportunities. Accordingly the said application came to be rejected vide order dated 20.1.1996. Thereafter the Tribunal allowed the claim petitions vide judgment and award dated 31.1.1996. Feeling aggrieved the petitioner questioned the said award by the medium of appeals, CIMA Nos.86/96 and 92/96, on the ground that the award amount was excessive and that the insurance company being the necessary party was not arrayed before the Tribunal and Tribunal failed to summon the said insurance company, came to be dismissed vide judgment and order dated 13.9.2000. Thereafter the claimants in both the claim petitions filed execution petitions before the Tribunal. The writ petitioner herein again raised the plea that insurer of the vehicle has to indemnify. The Tribunal after examining the material rejected the plea vide order dated 11.12.2002, impugned herein. Feeling aggrieved the petitioner has questioned the same by the medium of writ petitions in hand. 5. The writ petitions merit to be dismissed on the following grounds: i. That the petitioner has not questioned the awards by the medium of these petitions, but what is questioned is the orders passed by the executing court in the execution proceedings. The petitioner had failed to array the insurance company as a party despite granting opportunity by the Tribunal and ultimately applications came to be rejected. The petitioner also raised this plea in the memo of appeals while questioning the award before this Court, but came to be turned down. The petitioner had failed to array the insurance company as a party despite granting opportunity by the Tribunal and ultimately applications came to be rejected. The petitioner also raised this plea in the memo of appeals while questioning the award before this Court, but came to be turned down. Thus in the given circumstances how the petitioner can be allowed to raise the plea which has already been rejected and decided against it by the Tribunal and upheld by this court and if these writ petitions would be allowed that would amount to setting aside of the awards and the judgment of this Court. ii. The plea which is raised and decided by the Tribunal and upheld by this Court cannot be taken as a ground in the execution proceedings and the order passed in execution proceedings cannot be challenged by the medium of writ petition. The executing court cannot go behind the decree. My view is fortified by the judgment of this Court in National Insurance Company v. Mohammad Shaban Dar, 2009 (1) KLJ 54. It is apt to reproduce para 9 & 11 herein : "9. No such provision is contained in the Act or in the rules which provides that final award can be modified during the execution proceedings on any motion moved by interested/aggrieved parties. 10............. 11. Section 149 of the Act provides that it is the duty of the insurer to satisfy the award but subject to the defence/defences contained in it. The defence/defences can be used as a weapon to avoid the liability. In this background, tribunal has to record and specify who has to satisfy the award while passing the award." Learned counsel for petitioner while relying upon a judgment of Supreme Court in Urmilla Pandey v. Khalil Ahmad, AIR 1994 SC 2405 , argued that even after a lapse of 25 years the insured was permitted to produce the insurance copy before the Apex Court and insurer was saddled with the liability. The said judgment is not applicable to the case in hand because that was an appeal pending before the Supreme Court and appeal is continuation of the proceedings, but in the instant case the appellate court, i.e., this Court has already upheld the award and rejected the plea of petitioner vis-a-vis arraying the insurance company as a party and saddling with the liability. iii. iii. The Writ Court cannot upset the award which has attained finality without questioning the same on any ground, if at all available. In terms of sections 147 and 149 of Motor Vehicles Act, 1988, the insurer has a right of defence which it cannot raise and prove now in the execution proceedings and that will amount to putting the cart before the horse. The proceedings have already come to an end and the award has attained finality. iv. The petitioner has not questioned the order and judgment of this Court passed in the appeals, though it had a remedy available at that particular point of time. 6. Thus in the given circumstances the writ petitions are not maintainable and the same merit to be dismissed. Accordingly the same are dismissed. 7. A copy of the judgment be placed on the file of OWP No.562/2003. 8. Send down the record along with the copy of judgment.