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2014 DIGILAW 215 (JK)

Gh. Nabi Shah v. United India Insurance Co. Ltd.

2014-05-20

BANSI LAL BHAT

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1. This Civil Revision petition has been directed against the order dated 25th April, 2014, formulated by the Presiding Officer of the Motor Accidents Claim Tribunal, (for short, `Tribunal'), Pulwama, in execution petition titled Untied India Insurance Co. Ltd. v. Ghulam Nabi Shah, on the grounds taken in the memo of Revision petition, in terms whereof the petitioner herein has been committed to civil prison initially for a period of three months for not reimbursing the Insurer-Respondent herein, in respect of an award passed in a claim petition titled Mst. Zeba and others v. United India Insurance Co. Ltd. and others decided on 24.03.2007. 2. The factual matrix attending the passing of award dated 24.03.2007 may briefly be noticed. 3. One Ghulam Mohammad Bhat died on account of fatal injuries sustained in a road traffic accident involving use of offending vehicle bearing registration No. JKQ-941 plied by one Mehraj-ud-din Ganai, rashly and negligently. The accident occurred on 28.11.2000 at General Bus Stand, Pulwama. The claim petition filed by legal representatives of the deceased Ghulam Mohammad Bhat was not contested by the driver and owner of the offending vehicle despite notice to them. The insurer denied the averments made in the claim petition but admitted factum of offending vehicle being insured with the insurer. On consideration of the oral and documentary evidence adduced before the Tribunal, the award for an amount of Rs.7,88,000/- with interest was passed in favour of the claimants. The Tribunal found that the driving licence of the driver, Mehraj-ud-din Ganai was fake. Adopting the pay and recovery mechanism, the Tribunal directed the respondent-Insurer to satisfy the award giving liberty to it to recover the award amount from the owner of the offending vehicle, who is the revision petitioner herein. 4. The award having been satisfied, the Insurer-Respondent approached the Tribunal seeking recovery of the award amount from the insured, revision petitioner. It appears from the impugned order dated 25.04.2014, that the petitioner appeared before the Tribunal but failed to show cause why award money be not recovered from him. It appears that the petitioner adopted a stubborn attitude before the Tribunal which appears to have been construed as an act of defiance by the Tribunal, and the Tribunal directed lodging of petitioner in civil prison initially for a period of three months. It appears that the petitioner adopted a stubborn attitude before the Tribunal which appears to have been construed as an act of defiance by the Tribunal, and the Tribunal directed lodging of petitioner in civil prison initially for a period of three months. Thus, on the face of it, it appears to have been done as a legally permissible coercive measure so as to compel the petitioner to cough-up the money in order to reimburse the insurer. 5. Learned counsel for the petitioner submits that the issue as regards liability of petitioner to reimburse the insurer is yet to be adjudicated upon and the Tribunal has exceeded its jurisdiction by treating the application of Insurer for recovery as an execution petition. It is further submitted that insurer has failed to establish before the Tribunal that the driving licence of the Driver was ineffective or invalid. It is further submitted that the driver was holding a valid and effective driving licence which has been renewed by ARTO, Kashmir, and the award was passed in ex-parte. Therefore, the impugned order is said to be not in accordance with the provisions of law. 6. I have heard learned counsel for the petitioner and have given my thoughtful consideration to the points involved in the Revision Petition. 7. On a cursory look at the award passed by the Tribunal dated 24.03.2007, it appears that the Tribunal has recorded finding in regard to fakeness of the driving licence of Driver Mehraj-ud-din Ganai after coming to the conclusion that there was conclusive evidence to establish that the driving licence of driver Mehraj-ud-din Ganai purportedly issued by Licensing Authority, Solan, Himachal Pradesh, was not a valid licence but a fake one. It was on the basis of this finding that the pay and recovery mechanism was adopted by the Tribunal giving liberty to the Insurer to recover the award amount from the petitioner after having satisfied the award. Thus, it is difficult to agree with learned counsel for the petitioner when he contends that the issue regarding validity and effectiveness of driving licence of driver Mehraj-ud-Din Ganai has not been adjudicated upon. Thus, it is difficult to agree with learned counsel for the petitioner when he contends that the issue regarding validity and effectiveness of driving licence of driver Mehraj-ud-Din Ganai has not been adjudicated upon. At the sametime, it appears that the Tribunal has taken a hasty decision in directing lodgement of the petitioner in civil prison for his failure to reimburse the insurer by departing from the procedure embodied under Section 174 of the Motor Vehicles Act, 1988, which postulates issuance of a certificate for award amount to the Collector, who has to recover the same in the same manner as the arrears of land revenue. In the aforesaid proposition, I am fortified by the judgement of the apex Court in a case National Insurance Co. Ltd. v. Swaran Singh reported in 2004 SCC (Cri) 733. 8. In the aforementioned backdrop and in view of the facts narrated above, this Civil Revision Petition is admitted to hearing. 9. Notice, returnable within ten days. Notice in the CMP also, returnable within the same period. Steps for service latest by day after. List in the week following next in the regular cause list. In the meantime, it is provided that the petitioner shall be released from civil prison on furnishing executable security in an amount of Rs. 12,42,000/- to the satisfaction of the Registrar Judicial, High Court of J&K, Srinagar, executed by two sureties. It is further provided that the petitioner shall remain present in person in the Court on each and every date of hearing without any fail.