Allowed

Ashiyana Mamad Sama v. Arvindbhai Prahlad Premjiyani

Gujarat HC19 Jun 2018SCA/2484/2018

Case brief

AI extract

What is this about?

This order allows a special civil application where the High Court set aside the Tribunal's dismissal of a prayer to secure recovery of compensation. The Court held that respondents, liable for a motor accident, were attempting to dispose of property to avoid execution of a future decree. The High Court instead of direct attachment, restrained the sale of the respondents' properties until the main

What did the court decide?

Petition allowed; Tribunal restrained from disposing of property; Respondents directed not to sell properties or create liens on them until disposal of main claim.

Ashiyana Mamad Sama Vs Arvindbhai Prahlad Premjiyani — Motor Accident Claims | Gujarat HC (2018)

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C/SCA/2484/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 2484 of 2018

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ASHIYANA MAMAD SAMA

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Versus ARVINDBHAI PRAHLAD PREMJIYANI

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Appearance:

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MR.HIREN M MODI for the PETITIONER(s) No. 1 MR.HIREN M MODI(3732) for the PETITIONER(s) No. 2,3,4,5,6,7 MR NILESH M SHAH(780) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 19/06/2018 ORAL ORDER

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1.Heard learned advocate Mr. Hiren M. Modi for the
petitioners and learned advocate Mr. Nilesh M. Shah
for the respondents. Perused the record.

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2.The petitioners herein are legal heirs of victim
of a road accident. They have preferred Motor
Accident Claim Petition No.44 of 2015 before Motor
Accident Claims Tribunal, Kachchh at Bhuj on
31.1.2015 because of accidental death of one Mamad
Kana Sama, who was hit by a Maruti Car bearing
registration No.GJ-5PP-4931 on 17.1.2015 when he was
walking on a road near Mota-Paiya Village in Taluka:
Bhuj of Kachchh District. He received grievous
injuries on head, which resulted into his death and
therefore, present petitioners being his legal heirs
and dependents have claimed an amount of
Rs.55,00,000/- as compensation.

¶14

3.It is undisputed fact that all the vehicles in
India need to be insured minimum for third party risk
by its owner, but unfortunately, it seems that

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Page 1 of 16

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C/SCA/2484/2018 ORDER

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present respondents being driver and owner of the
above vehicle have failed to follow such statutory
provision in getting their vehicle insured. If such
vehicle is insured, then, ultimately liability would
rest upon the insurance company. Thereby, driver and
owner would not have to bother for payment of
compensation, but in the present case, when
respondents No.1 and 2, who are driver and owner
respectively, have failed to insure their vehicle,
they are also responsible to pay compensation to the
legal heirs of the victim, because of death of a
pedestrian by their vehicle. Though respondents are
free to take all the defence, both in criminal case
against the driver as well as the present claim in
the main claim petition, at this stage, prima facie
there is no dispute that there was a vehicular
accident as discussed herein above, wherein Mamad
Sama has expired. Therefore, prima facie, respondents
are liable to pay compensation to the heirs and
dependents of such deceased. For such liability, the
other issue is regarding ownership of the vehicle
when respondents have come forward with a plea that
respondent No.2 is not the owner of the vehicle, but
he has sold it to respondent No.1. Thereby, in any
case, respondent No.1 is both driver and proposed
owner, whereas, respondent No.2 is registered owner
of the vehicle and therefore, they both would be
jointly and severally held liable to pay compensation
to the petitioners. So far as the ownership of the
vehicle in question is concerned, petitioners have
produced on record of the trial Court, a registration

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Page 2 of 16

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C/SCA/2484/2018 ORDER

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certificate (RC) book of the vehicle involved in the
accident. Whereas, respondents have produced a
writing for selling the vehicle at Mark 16/1 before
the Tribunal. Petitioners have produced certified
copies of such documents produced on record of the
Tribunal, which are to be taken on record of this
petition. Perusal of the RC Book now makes it clear
that vehicle in question is registered in the name of
respondent No.2 herein; whereas, by placing the
writing regarding sale of such vehicle, respondent
No.2 has tried to prove that vehicle has been sold by
him to respondent No.1 on 21.10.2014. However, the
perusal of such writing makes it clear that it is not
completing the sale transaction of the vehicle
between two parties when it is categorically
disclosed in such writing that only Rs.20,000/- has
been paid by respondent No.1 to respondent No.2, as
an agreement entered into for the sale transaction,
and remaining amount is to be paid within six months.
It is also stated in the same writing that formality
of transferring the vehicle by signing the T.T.O.
Form, which is a prescribed form under Motor Vehicle
Rules for transferring the vehicle, to be signed only
if the remaining amount is paid. Therefore, in any
case, such writing cannot be considered as a sale
transaction of the vehicle by respondent No.2 in
favour of respondent No.1 and till respondent No.2 is
registered owner, as per the registration certificate
issued by the Regional Transport Officer, copy of
which is on record, it cannot be stated that
respondent No.2 is not liable for such vehicle.

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Page 3 of 16

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C/SCA/2484/2018 ORDER

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4.A reference to the judgment of Navinkumar Vs.
Vijay Kumar reported in (2018) ACJ 677 would be
relevant wherein the Hon’ble Supreme Court of India
has recently held that - “the definition of the
expression ‘owner’ in Section 2(30), it is the person
in whose name the motor vehicle stands registered
who,for the purposes of the Act, would be treated as
the ‘owner’. However, where a person is a minor, the
guardian of the minor would be treated as the owner.
Where a motor vehicle is subject to an agreement of
hire purchase, lease or hypothecation, the person in
possession of the vehicle under that agreement is
treated as the owner. In a situation such as the
present where the registered owner has purported to
transfer the vehicle but continues to be reflected in
the records of the registering authority as the owner
of the vehicle, he would not stand absolved of
liability. Parliament has consciously introduced the
definition of the expression ‘owner’ in Section
2(30), making a departure from the provisions of
Section 2(19) in the earlier Act of 1939. The
principle underlying the provisions of Section 2(30)
is that the victim of a motor accident or, in the
case of a death, the legal heirs of the deceased
victim should not be left in a state of uncertainty.
A claimant for compensation ought not to be burdened
with following a trail of successive transfers, which
are not registered with the registering authority. To
hold otherwise would be to defeat the salutary object
and purpose of the Act. Hence, the interpretation to
be placed must facilitate the fulfilment of the

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Page 4 of 16

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C/SCA/2484/2018 ORDER

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object of the law. In the present case, the First
respondent was the ‘owner’ of the vehicle involved in
the accident within the meaning of Section 2(30). The
liability to pay compensation stands fastened upon
him.”

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5.Thereby, now, when there is direct decision of
Hon’ble the Supreme Court of India confirming that
where the registered owner had purported to transfer
the vehicle, but continues to be reflected in the
records of the transferring authority as the owner of
the vehicle, he would not stand absolved of his
liability to pay compensation. The attempt of the
respondents to avoid their liability, stand
frustrated and thereby, at this stage, since this
petition is against interim application and against
interim order, at least it is to be observed that
prima facie,respondents are liable to pay
compensation to the petitioners as driver and owner
respectively of the vehicle involved in the accident
and therefore, petitioners are entitled to
appropriate reliefs in appropriate applications so as
to secure the recovery of the amount of compensation
that may be awarded in their favour by the Tribunal.

¶28

6.However, at present, we are concerned with the
impugned order dated 20.7.2017 below Exh.9 in such
M.A.C.P. No.44 of 2015 whereby the Tribunal has
rejected the application filed by the present
petitioners seeking an order of attachment of
respondents’ land so as to secure the recovery of
amount of compensation that may be awarded in their

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Page 5 of 16

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C/SCA/2484/2018 ORDER

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favour. If we peruse such application, it becomes
clear that petitioners have categorically disclosed
in such application that since respondents are liable
to pay compensation to them, there is every
possibility of passing of award against them in such
application, but while executing such decree, there
is every possibility that respondents would put
forward a plea of insolvency so as to avoid the
execution of award against them and thereby, awarding
the compensation in their favour would be a paper
decree only. After discussing the details of the
land, it is however contended that respondent No.2,
is trying to dispose of his properties so as to make
the proposed award in their favour as a paper decree,
which cannot be executed. Therefore, petitioners have
prayed to attach the properties of the respondents;
whereas, while deciding such application, the
Tribunal has mainly relied upon the contention by the
respondents in their reply at Exh.19. The respondents
have taken a stand in such reply that vehicle in
question is sold to respondent No.1, who is none, but

¶32

the son of his elder brother. In view of such
statement, considering the factual details discussed
herein above regarding sale transaction, prima facie
it seems that respondents have tried to avoid their
liability by making a show that vehicle is sold
within the family without actual transaction and and
with an endorsement that it would be only transferred
after six months and only after the remaining amount
is paid. Therefore, as aforesaid, there is no
question in such plea and submission by the

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Page 6 of 16

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C/SCA/2484/2018 ORDER

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respondents. The second issue raised by the
respondents is regarding application of provisions of
Order XXXVIII Rule 5 of the Civil Procedure Code when
they have endorsed in their reply that it is a reply
against the application under Order XXXVIII Rule 5 of
the CPC. However, if we peruse the application by the
petitioners at Exh.9, petitioners have nowhere
disclosed any such provision. It is settled legal
position that disclosure of provision of procedural
law is not much material, but in any case, here it is
quite clear on record that petitioners have nowhere
claimed that they are seeking relief under Order
XXXVIII Rule 5 of the CPC, but it is the case of the
respondents that pursuant to Order XXXVIII Rule 5 of
the CPC and pursuant to judgment of Hon’ble Supreme
Court of India, which are relied upon and referred by
the respondents, the provisions of Order XXXVIII Rule
5 of the CPC is not applicable in present case. The
perusal of impugned order makes it clear that the
Tribunal has guided itself by the reply filed by the
respondents while they are referring and relying upon
some Supreme Court judgments. However, Tribunal has
failed to realise that this is not a litigation where
strict procedural rule or other laws are applicable.
It is well-known that this is a benevolent
legislature in favour of the victims of road
accident, considering the fact that, practically,
they are not litigants, since they have not entered
into any transaction and thereby, they have no
dispute with either side, which can be resolved based
upon particular provisions in such litigations. The

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Page 7 of 16

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C/SCA/2484/2018 ORDER

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claimants are mainly victims of road accident by
vehicles wherein the general principle of tort is
applicable that the tortfeasor has to compensate the
victim. When we have to follow this basic principle
of law, it is quite clear and obvious that court has
also to see that the award of compensation may not be
a mere show or a paper decree and that fruit of the
award for compensation is available to the victims.
To fulfill such criteria, the Tribunals are entitled
to pass appropriate orders and that was the basic
purpose of creating such legislature, whereby such
litigations are required to be dealt with by the
Tribunal and not by Civil Court. For the purpose,
separate enactment is legislated and it is being
followed.

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7.In view of such situation, strict provision of
law and rules would not be applicable and therefore
what is required to be seen in all such cases is a
simple proposition that innocent victims should get
compensation and that procedural laws and tortfeasors
should not be able to frustrate the cause for
awarding compensation to victims of road/vehicular
accident.

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8.Therefore, all the contentions of respondents so
also the observation and findings by the Tribunal in
impugned order in favour of the respondents, cannot
be relied upon or cannot be taken as a stand to
reject the prayer by the petitioners whereby they
have simply prayed the Tribunal to see that the award
of the Tribunal may not result into paper decree

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Page 8 of 16

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C/SCA/2484/2018 ORDER

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only. However, when respondents are relying upon some
judgments and referring some statutory provisions, it
would be appropriate to refer and answer those
issues.

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9.The respondents are relying upon certain
judgments, submitting that all such judgments confirm
that there cannot be an order of attachment before
judgment, when there is unsecured debt. It is further
submitted that when petitioners could not plead or
prove any of the action of the respondents to confirm
that they are going to dispose of their property,
there cannot be an order under Order XXXVIII Rule 5
of the CPC. However, in given facts and
circumstances, there is no substance in such
submissions for the reasons assigned hereinafter with
reference to cited case and provision of law.

¶45

The bare perusal of Order XXXVIII Rule 5 of the CPC makes it clear that the court, in our case the Tribunal, if satisfied by affidavit or otherwise at any stage of litigation, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,—

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(a) is about to dispose of the whole or any part of
his property, or

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(b) is about to remove the whole or any part of his
property from the local limits of the jurisdiction of
the court,

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The court may direct the defendant, within a
time to be fixed by it, either to furnish security,
in such sum as may be specified in the order, to
produce and place at the disposal of the court, when
required, the said property or the value of the same,

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Page 9 of 16

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C/SCA/2484/2018 ORDER

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or such portion thereof as may be sufficient to
satisfy the decree, or to appear and show cause why
he should not furnish security.

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The court may also in the order direct the
conditional attachment of the whole or any portion of
the property so specified. Therefore, the basic
submission of the respondents that there must be
secured debt, has no substance when text and language
of the statute is quite clear that court can at any
stage and when it is satisfied by affidavit or
otherwise about the intention of the defendants to
obstruct or delay the execution of any decree that
may be passed against him, the court is empowered to
pass appropriate order under this rule. Thereby, the
provisions of law nowhere distinguishes that decree
is for what kind of debt and for which purpose and
therefore, court has inherent, absolute and wide
power to pass appropriate orders only when court is
satisfied that defendants are intending to obstruct
or delay the execution of any decree that may be
passed against him and when defendant is about to
dispose of or remove the delay or any part of the
property for such propose.

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11.As discussed herein above, though impugned order
and application is not under Order XXXVIII Rule 5 of
the CPC, the Tribunal has otherwise inherent powers
to pass appropriate order to confirm that its award
would be properly executed and therefore, there is no
need of any provision of law for passing such order.

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12.Whereas respondents are relying upon (2008)2 SCC

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Page 10 of 16

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C/SCA/2484/2018 ORDER

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302 – Raman Tech And Process Engg. Co. And Anr. Vs.
Solanki Traders, which is also disclosed in pleading
and in impugned order by the Tribunal. However, bare
reading of such judgment makes it clear that therein
the Hon’ble Supreme Court of India has dealt with the
provisions of Order XXXVIII Rule 5 of the CPC with
reference to civil litigation between the parties.
The dispute between the parties was regarding payment
of amount of cheque given by the defendants towards
payment of bill amounts when cheques were
dishonoured, wherein the defence of the defendants
was to the effect that they are not liable to make
such payment. Wherein also, while confirming that
there cannot be an order under Order XXXVIII Rule 5
of the CPC, the Hon’ble Supreme Court of India has
observed that “The Scheme of Order XXXVIII and the
use of the words ‘to obstruct or delay the execution
of any decree that may be passed against him’ in Rule
5 makes it clear that before exercising the power
under the said Rule, the court should be satisfied
that there is a reasonable chance of a decree being
passed in the suit against the defendant. Thereby, in
fact there is no clarity regarding nature of debt,
but when there is a clear defence by the defendants
in cited case that they are not liable to make the
payment, the trial Court has observed that in absence
of possibility of decree against the defendants,
order under Order XXXVIII Rule 5 of the CPC, cannot
be passed. However, that is not the case before us.
As discussed herein above, inasmuch as when there is
no dispute regarding vehicular accident, driven and

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Page 11 of 16

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C/SCA/2484/2018 ORDER

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owned by the respondents, there is no chance to deny
compensation to them to be paid by driver and owner
of such vehicle in principle and actual payment is to
be made by the insurance company only because of
contractual liability by the insurance company that
it would reimburse the owner in such cases, but
otherwise, the basic liability to pay the
compensation certainly rests upon the tortfeasor,
being driver and master of the vehicle. The burden
and liability of the insurance company as insurer of
the vehicle is only entitled to the contract of
insurance. Otherwise, such liability is only upon the
driver and owner of the vehicle in question and
therefore, there is least chance with the respondents
so as to escape from the liability to pay
compensation to the victim of the road accident,
wherein their vehicle is involved by their negligent
act.

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13.Rest of the four judgments being – (1) Bharat
Tobacco Co. Vs. Maula Saheb A Jamadar reported in
1980 AIR (Guj) 202; (2) L.V. Bhujanga Rao Vs. Ch.
Venkateswara Rao & Ors. reported in AIR 1993 Madras
246; (3) Citizens Co-operative Bank Limited Vs.
Harshadkumar M. Mashru reported in 2003(4) GLR 3547;
and (4) Rajasthan Cylinder and Container Ltd. and
Anr. Vs. Essar Steel Ltd. reported in 2009 AIR (Guj)
116, with due respect, are of equal Bench of Single
Judge and therefore, since none of those cases are
related to Motor Accident Claim Petitions like the
present one, they are not directly applicable and
concerned with the cause for which the present

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Page 12 of 16

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C/SCA/2484/2018 ORDER

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litigation and order is passed by the Tribunal so
also by this court and therefore, those judgments are
not applicable at all.

¶65

14.However, bare perusal of such judgments make it
clear that in all such judgments, the Single Judge of
concerned court has dealt with the provisions of
Order XXXVIII Rule 5 only and with due respect, in
some judgments, the observations are beyond the basic
provisions of Order XXXVIII Rule 5 that the party
seeking an order of attachment, must place material
on record, which would satisfy the court that
respondent/defendant is disposing of the whole
property, when Order XXXVIII Rule 5 of the CPC
categorically makes it clear that such fact can be
disclosed even by affidavit. It is undisputed that in
present case, petitioners have disclosed such fact
that respondents are trying to dispose of such
property. In my view, such disclosure is enough to
restrain the defendants from making the proposed
award or decree as a paper decree. It is also clear
and obvious from cited cases that in all those cases,
there is contractual relationship between the parties
and thereby, practically, parties have to abide by
that contract in their dispute pertaining to recovery
of some money and therefore, whether there would be
decree in favour of the plaintiff or not, would rest
upon the consideration of factual details of that
contract, which is not required in the present case.

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15.As discussed herein above, this is a simple case
where the claimants have no role to play to fix the

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Page 13 of 16

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C/SCA/2484/2018 ORDER

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liability of the respondents, but it was the
negligent and tortuous act of the respondents
themselves, which resulted into creating their
liability to pay compensation to the innocent victim
of road/vehicular accident. With due respect, it is
also to be considered that in one of the judgment it
is observed that the court must act with utmost
circumspection before issuing an order of attachment
so that the power vested in the court is not abused
by an unscrupulous litigant as a weapon of oppression
against the opposite party, but at the same time, it
cannot be ignored that such provision is there in the
CPC and so far as petition under Motor Vehicles Act
is concerned, and so far as writ jurisdiction is
concerned, the courts are having inherent powers to
take appropriate decision to see that ultimately,
provision of law or order of law and rules prevail.
Thereby, it can also be argued that allowing the
respondents to deal with their properties means
permitting them to frustrate the cause of law and
rules and right of the innocent victim for getting
compensation. Therefore, all such conceptual and
logical arguments can be made on both the sides, but
what is required to be seen is the basic and bare
provision of law, which is discussed herein above,
whereby it is clear that the language of Order 38
Rule 5 of the CPC is very much clear, which nowhere
says that there must be some evidence to prove that
respondents are trying to dispose of its property,
but this specifically and clearly confirms that it is
only to the satisfaction of the court when it is

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Page 14 of 16

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C/SCA/2484/2018 ORDER

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brought to it by any other mode i.e. by the mode of
an affidavit that respondents may dispose of his
property to make the decree useless, the court is
permitted to pass appropriate orders.

¶73

16.In one of the above cited judgment, there is an
issue regarding a person who has stood as a surety
and therefore, it is clear that there is no such case
before us; whereas in another case, again it is a
dispute regarding guarantee and therefore, all such
judgments are not applicable in the present case.

¶74

17.In view of above facts and circumstances, I am
of the clear opinion that Tribunal has erred in
dismissing the application at Exh.9 filed by the
claimants, who had tried to get an order to secure
recovery of amount of compensation from the
respondents when respondents have tried to come
forward with a plea that respondent No.2 has sold his
vehicle to respondent No.1, who is no one else but
son of his elder brother, that too with a disclosure
that vehicle would be transferred only after full
payment is made and thereby, it is clear that they
want to make a show before the court that respondent
No.2 is not registered owner and therefore, there is
prima facie evidence to show that respondents are
trying to avoid an award against them. If it is so,
there is reason to believe that they would dispose of
their property to avoid the execution of award, which
would ultimately be passed against them. It is also
clear on record that petitioners have place on record
the certified copy of complaint, panchnama of the

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Page 15 of 16

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C/SCA/2484/2018 ORDER

¶77

place of incident, inquest panchnama, and the same
confirm that accident has occurred by vehicle No.GJ-
5PP-4931, which is driven by respondent/opponent No.1
and owned by respondent/opponent No.2. Thereby, there
is least chance for them to avoid an award against
them and therefore, there is reason to believe that
if they are permitted to dispose of their property,
they will do so, so as to avoid execution of the
award. However, at this stage, it would be
appropriate to modify the prayer in favour of the
petitioners, whereby, instead of direct attachment of
properties of respondents, let there be a specific
direction that respondents are hereby restrained from
selling their properties, which is referred in
application at Exh.9 before the Tribunal or to create
any lien on it till the disposal of the main claim
petition.

¶78

18.The petition is allowed to the aforesaid extent
and is disposed of.

¶79

19.Direct service is permitted.

¶80

(S.G. SHAH, J)

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BINOY B PILLAI

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Page 16 of 16

Ashiyana Mamad Sama v. Arvindbhai Prahlad Premjiyani

Case brief

What is this about?

What did the court decide?

Ashiyana Mamad Sama v. Arvindbhai Prahlad Premjiyani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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