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2013 DIGILAW 589 (KER)

Kuruvilla v. Jijo Joseph

2013-07-12

THOMAS P.JOSEPH

body2013
ORDER Thomas P. Joseph, J. 1. These unnumbered appeals arise from the awards passed by the Motor Accident Claims Tribunals allowing the insurance company to recover the amount from the appellants on payment of the same to the claimants for (alleged) violation of policy conditions. The Registry has raised objection that the appellants should comply with the first proviso to S. 173(1) of the Motor Vehicles Act 1988 (for short, "the Act") since they are aggrieved by the awards and are challenging the same. 2. According to the learned counsel the direction issued by the Tribunal for payment of the amount is to the insurance company though it is given a right of recovery of the amount from the appellants. The learned counsel submits that though in Sridharan v. Prasad ( 2011 (3) KLT 19 ) the Division Bench has taken the view that even when the direction is to the insurance company to pay the amount (with a right of recovery of the amount from the insured) the appellant should comply with the first proviso to S. 173(1) of the Act, the question has been referred to a Larger Bench for a decision as per a later decision of the Division Bench dated 03.08.2011 in M.A.C.A. No. 168 of 2006. The learned counsel also argue that for the said reason and since the decision in Trolochan Singh v. Kanta Devi ( (2000) 9 SCC 222 ) is not properly considered by the Division Bench in Sridharan v. Prasad (supra), until the reference is answered the appellants are not liable to comply with the first proviso to S. 173(1) of the Act. 3. I am unable to accept the said contention of the learned counsel. The Division Bench in Sridharan v. Prasad (supra) has referred to and considered the decision in Trolochan Singh v. Kanta Devi (supra) to hold that the decision in Abdul Rahiman v. Rajan ( 2004 (2) KLT 1113 ) does not lay down the correct law. The decision in Sridharan v. Prasad (supra) has to be followed until it is overruled by a Larger Bench or by the Supreme Court. 4. The appellants cannot take shelter under the reference order in M.A.C.A. No. 168 of 2006 and refuse to comply with the first proviso to S. 173(1) of the Act in the light of the decision in Abdul Rahiman v. Rajan (supra). 4. The appellants cannot take shelter under the reference order in M.A.C.A. No. 168 of 2006 and refuse to comply with the first proviso to S. 173(1) of the Act in the light of the decision in Abdul Rahiman v. Rajan (supra). The reason is that an order of reference is not a decision, nor has it any binding force. It is only a tentative opinion expressed by the learned Judge making the reference as to the correctness of the former decision. Since a reference order is not a decision, it is not to be published even, except when it forms part of the final judgment (see Kannappan v. R.T.O., Ernakulam ( 1988 (1) KLT 902 ). It follows that so long as the decision in Sridharan v. Prasad (supra) holds the field, parties aggrieved by the awards of the Motor Accident Claims Tribunals and preferring appeals are bound to comply with the first proviso to S. 173(1) of the Act. 5. The objection raised by the Registry is upheld. The learned counsel for the appellants seeks time for compliance of the first proviso to S. 173(1) of the Act. They are granted three weeks time.