Madras High Court
Icici Lombard Gic Ltd vs M/S.N.S.K.Builders on 30 March, 2015
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.3.2015 CORAM THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA C.R.P.NPD (MD) No.192 of 2015 ICICI Lombard GIC Ltd rep. By its Manager Legal Tiruchirapalli (Insurer of crime vehicle). ... Petitioner Vs M/s.N.S.K.Builders ... Respondent Petition filed under Article 227 of the Constitution of India seeking direction to the Honourable Motor Accident Claim Tribunal (Additional District Judge), Pudukottai dated 27/10/2014 to number the E.A.S.R.No.116 of 2014 in M.C.O.P.No.453 of 2007. !For petitioner ... Mr.V.Bharathidasan ^For respondent ... No appearance :ORDER
The petitioner is the second respondent in M.C.O.P.No.453 of 2007.
2. M.C.O.P.No.453 of 2007 was filed by the petitioner therein under Sections 140, 141, 142 and 166 r/w. 3 of the Motor Vehicles Act to pass an award of Rs.50,000/- as compensation with interest and costs.
3. By an order dated 21/4/2011, the Motor Accidents Claims Tribunal, Pudukottai had passed the decreetal order as follows:-
?1. That the claim petition be and the same is hereby allowed in part and the second respondent is hereby allowed in part and the second respondent is hereby ordered to pay the petitioner a compensation of Rs.25,000/- (Rupees Twenty five thousand only) with interest at 7.5% p.a., from the date of the numbering of the petition I.e., 16/8/2007 till date of realisation with costs.
2. That the second respondent shall deposit the amount into Court within 30 days hereof.
3. That the second respondent is at liberty to recover the amount from the first respondent.
4. That the award amount shall be deposited in any Nationalised Bank for a period of three years.
5. That the petitioner is entitled to refund of excess Court fee Rs.62.50/- period of three years.
6. And that the second respondent do pay the petitioner, a sum of Rs.2,222/- being the cost of this petition.?
4. As per clause 3, the second respondent is at liberty to recover the amount from the first respondent, who is the owner of the property.
5. Accordingly, E.A was filed by the petitioner herein for issuance of recovery certificate under Section 174 of the Motor Vehicles Act. As the first owner of the vehicle remained ex parte, the petitioner had to contest the M.C.O.P on the ground that were available to the insured as according to Law. An award of Rs.25,000/- with interest at the rate of 7.5% was passed and the insurer was directed to recover the same from the first respondent therein/owner of the crime vehicle. As per the award, the petitioner also had deposited the award amount with costs by way of a cheque bearing No.149129 dated 30/5/2011 for Rs.34,301/- towards full satisfaction.
6. In recovery of the said amount from the owner of the vehicle, the petitioner had filed E.A.S.R No.116 of 2014 for issuance of recovery certificate under Section 174 of the Motor Vehicles Act. The said application was returned on the following reports:-
?1. This petition has to be filed Order 21 Rule 11 CPC execution format to be filed.
2. Amount deposit receipt original or copy has to be filed.
3. Batta memo has to be filed.
Time 30 days.?
7. The Civil Revision Petition has been filed challenging the said returns.
8. Heard the learned counsel for the petitioner and there is no appearance for the respondents.
9. Section 174 of the Motor Vehicles Act is as follows:-
?Recovery of money from insurer as arrear of land revenue ? 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 the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue.?
10. Section 38 of the Code of Civil Procedure deals with the Courts by which the decree may be executed. A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
11. From the conjoint reading of both the provisions, it is the Court or the Tribunal which passes the decree or the award that can execute the decree. So far as the Motor Vehicles Act is concerned which is a special enactment, whether the general provision as contained in the Code of Civil Procedure, is made applicable? On the constitution of the Motor Accident Claims Tribunal, it cannot be said the Civil Courts' jurisdiction is ousted. The Tribunal also has some functions and duties in the same manner as a Civil Court is expected to do. No doubt, the award can be executed as a decree under Order 21 of the Code of Civil Procedure and the decree holder has a right to seek a certificate under Section 174 of the Motor Vehicles Act. But to obtain such a certificate whether the execution has to be levied.
12. On a reading of Section 174 of the above said Act, an inevitable conclusion can be reached that a legislature has conferred limited power of a Civil Court to a claims Tribunal for the purpose of adjudication of compensation. However, it has prescribed a mode of recovery of money from any person under an award. Such recovery is to be made from the insurer by the Collector and not the Civil Court as laid down in Section 174 of the Motor Vehicles Act as recovery of money under the Act is an arrears of land revenue. However, the said provision is silent about how the same will be recovered from the owner of the offending vehicle or from any other person or the authority. In the process of recovery, a Civil Court decree can be enforced by detaining the judgment debtor in a civil prison or by attaching his property and bringing it to sale. But when an award is to be executed, it can only be enforced by the Collector as an arrears of land revenue.
13. From the above, two distinct modes of recovery have been prescribed both under the Code of Civil Procedure and under the Motor Vehicles Act. The legislature has in unambiguous terms had prescribed the mode of execution of an award of the Tribunal in Section 174 of the Act. The Rules of interpretation demands that the construction of Section 174 of the Act provided in the special enactment should be followed to the exclusion of the general provisions of the Code of Civil Procedure in terms of execution of a decree. Therefore, the Motor Vehicles Act intended to recover only through the Collector as an arrears of land revenue in terms of Section 174 of the Motor Vehicles Act and not by civil detention of the judgment debtor. In such definite distinction, the Motor Accidents Claims Tribunal is bound to issue a certificate on the basis of the award. If such a recovery certificate is not issued as envisaged by Section 174 of the Motor Vehicles Act, the same will be frustrated as that is not an intention of the legislature.
14. A plain reading of Section 174 of the Motor Vehicles Act, it is clear that a specific mode of recovery of money has been prescribed. Therefore, in the absence of any special provision for mode of execution, the Tribunal has to issue the certificate for the amount on application made to it by the person entitled to the same. He cannot be directed to go to the Civil Court and adopt the procedure prescribed therein which is not an intention of the legislature. The same view was taken by this Court in paragraph 6 of the judgment ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, rep. By ITS MANAGER, MUMBAI Vs. 1. PARVATHI AND 2 OTHERS and the same is extracted as under:-
?The Tribunal has returned the application stating that the Insurance Company is permitted to recover the award amount with interest and costs from the first respondent by initiating execution proceedings directly and therefore, this petition seeking for issuance of certificate under Section 174 of the Motor Vehicles Act is not maintainable. It is clear from Section 174 of the Act that a right is conferred upon any person including the Insurance Company who is entitled to the amount for getting a certificate under Section 174 of the Motor Vehicles Act provided that a direction in its favour has been made in the award. The same view is reiterated in the decision reported in 2009 ? 3 TAC ? 645 ? ALL (Surinder Kaur Vs. MACT/Special Judge, A.C.Act. Bareilly and another). Therefore, the Tribunal is not justified in returning the application on the ground that it can recover the amount only by initiating execution proceedings against the owner. The Petitioner Insurance Company is entitled to get certificate under Section 174 of the Act and hence, the impugned order is liable to be set aside.?
15. In view of the above, the petitioner/insurance company is entitled to get the recovery certificate as prescribed under Section 174 of the Motor Vehicles Act as there is no necessity to file a separate application under Order 21 of the Code of Civil Procedure.
16. The learned counsel Mr.Bharathidasan submitted that in all the Motor Accident Tribunals in Tamil Nadu, recovery certificate under Section 174 of the Motor Vehicles Act is not issued as per the award. The Tribunals are insisting on petitions being filed under Order 21 of the Code of Civil Procedure. Hence this Court is inclined to issue the following direction.
17. All applications for Revenue Recovery Certificates under Section 174 of the Motor Vehicles Act, 1988 shall be continued to be filed as interlocutory applications, without insisting on petition under Order 21 of the Code of Civil Procedure. All the Motor Accident Claims Tribunals shall follow the direction scrupulously.
18. The Registrar General shall issue a circular setting out the directions issued by this Court to all the Motor Claims Tribunals in the State and procedure to be followed by drawing their attention to the same.
19. With the above observation, this Civil Revision Petition is disposed of. No costs.
30/3/2015 mvs.
Index: yes/no website: yes/No To
1. The Motor Accident Claim Tribunal (Additional District Judge), Pudukottai
2. All the Motor Accident Claims Tribunal in the State
3. The Registrar General, Madurai Bench of Madras High Court, Madurai.
PUSHPA SATHYANARAYANA,J mvs.
Order made in C.R.P.NPD (MD) No.192 of 2015 30/3/2015