Disposed

Ravikumar v. the Deputy Tahsildar (Revenue Recovery)

Kerala HC7 Mar 2019WP(C)/42183/2018

Case brief

AI extract

What is this about?

The High Court held that a party cannot challenge a demand notice issued under Section 174 of the Motor Vehicles Act via Article 226; such remedy lies under Article 227. The petition to clarify the interim deposit was dismissed, and the writ was allowed in principle to ensure recovery proceeds only upon final appellate resolution.

What did the court decide?

I.A.No.1/2019 disposed; Rs.5,000 paid to insurer; Rs.25,000 retained pending appeal; writ petition dismissed.

Ravikumar Vs the Deputy Tahsildar (Revenue Recovery) — Motor Accident Claims | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY ,THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940

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WP(C).No. 42183 of 2018

PETITIONER:

RAVIKUMAR

AGED 73 YEARS

S/O.UNNI MENON, 2/147, PADMALAYAM, CHENDAMANGALAM, PARAVUR TALUK, ERNAKULAM DISTRICT.

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BY ADVS.

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SMT.N.DEEPA SRI.K.SUJAI SATHIAN

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RESPONDENTS:

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1 THE DEPUTY TAHSILDAR (REVENUE RECOVERY) PARAVUR TALUK, ERNAKULAM DISTRICT - 683 513.

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2 THE VILLAGE OFFICER CHENDAMANGALAM VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT - 683 512.

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3 THE ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE, EBINZEN GARDEN, KOCHI - 682 024.

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4 DEEPU VARGHESE S/O.VARGHESE, PALLIPPATTU HOUSE, NEAR KIZHAKKE PALLI, ANGAMLY, ERNAKULAM DISTRICT - 683 572.

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5 SABU

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S/O.PAULOSE, AGED ABOUT 42 YEARS, VADANCHERRY HOUSE, NEAR KURISSADI KAPPELA, PARIYARAM - MAMBRATHODE, PARIYARAM, THRISSUR - 680 721.

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BY ADV. SRI.K.G.CLEETUS

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SRI PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER SMT K.S.SANTHI-STANDING COUNSEL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.42183 of 2018

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J U D G M E N T

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The petitioner, who is the registered owner of a 2005 model Toyota Car bearing registration No.KL07/AW-15, which is the offending vehicle in O.P. (MV)No.1497/2006 on the file of the Motor Accident Claims Tribunal, Attingal, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 demand notice dated 11.5.2018 issued by the 1 st respondent Deputy Tahsildar and a writ of mandamus commanding respondents 1 and 2 to keep in abeyance the revenue recovery proceedings based on Ext.P6 notice for a period of three months, so as to enable the petitioner to challenge Ext.P4 award dated 20.1.2015 in O.P.(MV)No.1497/2006 before this Court.

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2. On 21.12.2018 when this writ petition came up for admission, this Court passed the following

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W.P.(C)No.42183 of 2018

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order;

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“The learned Senior Government Pleader takes notice for respondents 1 and 2. The learned Standing Counsel takes notice for the 3^rd respondent insurance company. Issue urgent notice by speed post to respondents 4 and 5, returnable within three weeks.

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On a query made by this Court, the learned counsel for the petitioner would submit that, as on the date of the accident, the petitioner was the registered owner of the offending vehicle in O.P.(MV)No.1497 of 2006 on the file of the Motor Accident Claims Tribunal, Attingal, as per the certificate of registration of that vehicle.

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There will be an interim stay of all further proceedings pursuant to Ext.P6 demand notice for a period of one month on condition that the petitioner deposits a sum of Rs.30,000/with the 1^st respondent within two weeks from this date, without prejudice to his contentions in this writ petition.

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On such remittance, the 1^st respondent shall disburse the said amount to the 3^rd respondent insurer.”

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3. On 17.1.2019 when this writ petition came

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W.P.(C)No.42183 of 2018

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up for consideration, it was submitted by the learned counsel for the petitioner that the petitioner has already complied with the conditions stipulated in the order of this Court dated 21.12.2018, by depositing the sum of Rs.30,000/-. The said interim order, which was extended on 17.1.2019 was in force till 17.2.2019.

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4. Now the petitioner has filed I.A.No.1 of

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2019, seeking an order to clarify the interim order

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dated 21.12.2018 to the extent that the amount deposited by the petitioner shall not be disbursed to the 3 rd respondent Insurance Company, and to treat the deposit so made by the petitioner before the 1 st respondent as the deposit under Section

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173(1) of the Motor Vehicles Act, 1988.

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5. Heard the learned counsel for the

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petitioner, the learned Senior Government Pleader

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appearing for respondents 1 and 2, the learned

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Standing Counsel for the 3 rd respondent Insurance

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W.P.(C)No.42183 of 2018

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Company and also the learned counsel appearing for respondents 4 and 5.

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6. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 demand notice, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. Admittedly, Ext.P6 demand notice is one issued by the 1 st respondent Deputy Tahsildar, pursuant to an order passed by the Tribunal on an application filed by the 3 rd respondent insurer, under Section 174 of the Motor Vehicles Act, to

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initiate revenue recovery proceedings, in terms of Ext.P4 award passed by the Tribunal.

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As held by this Court in Subaida v. Deputy

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Tahsildar (RR), Thrissur District and others [2019(1) KHC SN 7 : ILR 2019(1) Ker 393] , if a

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person is aggrieved by an award passed by the Tribunal under Section 168 of the Act, he has to

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W.P.(C)No.42183 of 2018

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challenge the same in an appeal filed under Section 173 of the Act, after complying with the statutory mandate of the first proviso to sub-section (1) of Section 173, subject to the time limit prescribed in the second proviso to that sub-rule. The challenge to an order passed by the Tribunal (other than an award passed under Section 168) has to be one invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of

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India. The challenge to such an order of the

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District Judge, as the Motor Accidents Claims Tribunal, has to be made under Article 227 of the

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Constitution of India and not under Article 226.

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Being part of the district judiciary, the District Judge acts as a court and the order passed by him is an order of the subordinate court against which remedy under Article 227 of the Constitution of

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India can be availed on the matters delineated for

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exercise of such jurisdiction, which is supervisory

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W.P.(C)No.42183 of 2018

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in nature.

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8. In Subaida's case supra , this Court held further that, as per Section 174 of the Motor Vehicles Act, where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to

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the amount, issue a certificate for the amount to

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the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue. The order of the Claims Tribunal under Section 174 of the Act, to initiate revenue recovery, based on an application made by the person entitled to the amount as per the award, is also an order against which remedy under Article 227 of the Constitution of India can be availed. In

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an O.P.(MAC) filed under Article 227 of the Constitution of India, the petitioner can seek a

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time bound disposal of any interlocutory

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applications filed after the award passed by the

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W.P.(C)No.42183 of 2018

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Claims Tribunal and stay of operation of the order of the Claims Tribunal under Section 174 of the Act, and all recovery proceedings initiated pursuant to that order. For seeking such reliefs, it is for the petitioner to file an O.P.(MAC) under Article 227 of the Constitution of India. On the other hand, if a person against whom revenue

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recovery proceedings are initiated by issuing a demand notice pursuant to the order of the Claims

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Tribunal under Section 174 of the Act requires only time for payment of the dues in monthly instalments, he can approach this Court in a writ petition filed under Article 226 of the Constitution of India, with the person entitled to

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the amount as per the award and also the revenue officials in the party array.

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9. Viewed in the light of the law laid down in the decision referred to supra, conclusion is

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irresistible that the petitioner, who is a party to

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W.P.(C)No.42183 of 2018

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Ext.P4 award in O.P.(MV)No.1497/2006, cannot challenge Ext.P6 demand notice issued by the 1 st respondent, which is one issued pursuant to an order of the Tribunal in exercise of its powers under Section 174 of the Motor Vehicles Act, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.

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10. In I.A.No.1/2019, the petitioner is seeking

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certain clarifications. By order dated 21.12.2018, this Court granted stay of recovery proceedings pursuant to Ext.P6 demand notice for a period of one month on condition that the petitioner deposits a sum of Rs.30,000/-. The petitioner has deposited the said amount and the interim order was in force

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till 17.2.2019.

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11. The petitioner has filed M.A.C.A.No. 537/2019 before this Court challenging Ext.P4 award, under Section 173 of the Motor Vehicles Act. The question as to whether the amount deposited by

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W.P.(C)No.42183 of 2018

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the petitioner in terms of the interim order of this Court dated 21.12.2018 can be treated as the statutory deposit under Section 173(1) of the Motor Vehicles Act, has to be decided with in that appeal, for which the petitioner has to move appropriate interlocutory application in that appeal. A clarification to that effect cannot be granted in this writ petition.

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12. The fact that the petitioner was served with a copy of the notice in O.P.(MV)No.1497/2006 by the Tribunal is not in dispute. Going by the averments in this writ petition, on receipt of notice from the Tribunal, he contacted the 4 th respondent and thereupon he was informed that the 4th respondent will make all arrangements to defend the case properly. Relying on Ext.P1 agreement dated 11.7.2006, the petitioner would contend that

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he sold the vehicle in question to the 4 th respondent, before the date of accident, who had

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agreed to clear the dues with the financier and to change the R.C. particulars of the vehicle immediately.

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13. The fact that, as on the date of accident,

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the petitioner was the registered owner of the vehicle in question is not in dispute. Therefore, on receipt of notice from the Tribunal, the petitioner should have entered appearance and filed written statement raising appropriate contentions. Showing scant regard to the process issued by the Tribunal, the petitioner remained absent. Such callous attitude of the petitioner has necessitated the filing of this writ petition in which the respondent Insurer has to engage a lawyer. In such circumstances, I deem it appropriate to order that out of Rs.30,000/- deposited in terms of the order of this Court dated 21.12.2018, Rs.5,000/- shall be

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paid to the 3 rd respondent Insurer towards cost

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within two weeks from the date of receipt of a

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W.P.(C)No.42183 of 2018

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certified copy of this judgment. The remaining amount of Rs.25,000/- shall be retained by the Tribunal, awaiting orders in the interlocutory applications filed in M.A.C.A.537/2019 challenging Ext.P4 award in O.P.(MV)No.1497/2006. I.A.No.1/2019 is disposed of as above.

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As already noticed, the petitioner has already moved M.A.C.A.No.537/2019 challenging Ext.P4 award and the said appeal along with the C.M.Application for condonation of delay, interlocutory application for stay, etc. are pending before this Court. In such circumstances, without prejudice to the right of the petitioner to pursue M.A.C.A.No.537/2019 and

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seek appropriate interim relief against the recovery proceedings, this writ petition is dismissed.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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ami/

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W.P.(C)No.42183 of 2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 4TH RESPONDENT DATED 11/07/2006. EXHIBIT P2 A TRUE COPY OF THE CLAIM PETITION, O.P. (MV) NO.1497/2006 FILED BEFORE THE HON'BLE MACT, ATTINGAL DATED NOVEMBER, 2006. EXHIBIT P3 A TRUE COPY OF THE PETITION, E.P.NO.75/2017 IN O.P.(MV) NO.1497/2006 ON THE FILE OF THE HON'BLE MACT, ATTINGAL DATED 23/02/2017.

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EXHIBIT P4 A TRUE COPY OF THE AWARD DATED 20/01/2015 IN O.P.(MV) NO.1497/2006 ON THE FILE OF THE HON'BLE MACT, ATTINGAL.

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EXHIBIT P5 A TRUE COPY OF THE ORDER DT.18/08/2017 IN E.A.NO.153/2017 IN E.P.NO.75/2017 IN O.P.(MV) NO.1497/2006 ON THE FILE OF THE HON'BLE MACT, ATTINGAL. EXHIBIT P6 A TRUE COPY OF THE RR NOTICE IN FORM NO.1 DATED 11/05/2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE RECEIPT, DATED 4.1.2019

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RESPONDENTS' EXTS: NIL

Ravikumar v. the Deputy Tahsildar (Revenue Recovery)

Case brief

What is this about?

What did the court decide?

Ravikumar v. the Deputy Tahsildar (Revenue Recovery)

Case brief

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