Gauhati High Court
Ram Chandra Roy vs The State Of Assam And 3 Ors on 20 November, 2020
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010211932015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3987/2015
RAM CHANDRA ROY
NAVAJYOTI NAGAR, PANJABARI, GUWAHATI, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER and SECY. , GENERAL ADMINISTRATION
DEPTT., DISPUR, GHY-6
2:THE DY. COMMISSIONER
3:THE CERTIFICATE OFFICER
4:MRS. MADHABI DEK
Advocate for the Petitioner : MS. P SAHA
Advocate for the Respondent : MR. ZAFAR IQBAL (R4)
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 20-11-2020 As this is an old pending writ petition filed on 08.07.2015, with consent of both sides, the matter has been heard at the admission stage.
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2. Heard Mr. B.K. Bhattacharjee, learned counsel for the petitioner. Also heard Ms. D.D. Barman, learned Government Advocate appearing for the State respondents no.1, 2 and
3. None appears on call for the respondent no.4 although the name of the counsel is reflected in the cause-list.
3. The case projected in this writ petition is that the truck of the petitioner bearing registration No.AS-21-4625 met with a road accident having hit a tanker on 03.12.2003 at 5:20 p.m. at Nibiragaon while proceeding from Jagiroad to Guwahati. As a result of the said accident, the son of the respondent no.4 who was the handyman of the said vehicle sustained grievous injuries and died. Accordingly, Khetri P.S. Case no.238/2003 was registered. The respondent no.4 along with her husband filed claim under section 166 of the Motor Vehicles Act registered as MAC Case no.2295/2004 and re-registered as MAC Case no.38/2004. The learned MACT, Kamrup, Guwahati had passed an award dated 05.06.2009 for a sum of Rs.1,47,400/- against the petitioner and in favour of the respondent no.4, which was payable with interest @ 6% from the date of filing of the case till realization. As the award was not paid within time, the respondent no.4 instituted a certificate proceeding which was registered before the Certificate Officer, Kamrup, Guwahati as BJ Case No.22/2013(MACT) for recovery of the awarded sum and interest. Accordingly, as the petitioner continued his default, a notice of warrant of arrest was issued on 10.06.2015 against the petitioner against which the petitioner has filed this writ petition on 08.07.2015 under Article 226 of the Constitution of India, inter-alia, praying for setting aside and quashing of the BJ Case no.22/2013(MACT) pending before the Certificate Officer, Kamrup, Guwahati as well as the warrant of arrest dated 10.06.2015 issued by the said Certificate Officer.
4. The learned counsel for the petitioner has submitted that the petitioner has assailed the award passed by the MACT before this Court by filing MAC Appeal No.294/2014 which was filed on 23.07.2012 alongwith an application for condonation of delay being MC No.3129/2012 which was allowed by condoning the delay vide order dated 08.10.2014. Hence, it is submitted that in view of the pendency of the appeal the Certificate Officer had Page No.# 3/5 no power or authority to proceed with the Bakijai / certificate proceedings.
5. One of the grounds urged by the learned counsel for the petitioner is to the effect that the petitioner had paid insurance premium in respect of this said vehicle on 03.12.2003 by cash and, as such the period of insurance must be deemed to have commenced from 03.12.2003. However, the New India company Assurance Limited had mischievously and illegally made the the said certificate of Insurance operative from 04.12.2003 at 00:00:00 to midnight of 03.12.2004. Hence, by relying on the case of- (1) National Insurance Company Limited Vs. Abhaysing Pratapsing Waghela, (2008) 9 SCC 133 and (2) Nur Mohammad (Md) Vs. Nure Ali (Md), 2013 (4) GLT 659. It is submitted that it is well settled that notwithstanding the date from which the Insurance policy is made applicable, such policy ought to be made applicable on and from the date and time the Insurance premium was actually paid.
6. The connected MAC Appeal No.294/2014 was admitted by this Court by order dated 19.01.2015 with a specific observation by the Court in the said order that there is no prayer for stay. Accordingly, in the absence for the prayer for stay, the Court is unable to accept the contention of the learned counsel for the petitioner that the Certificate Officer ought not to have taken coercive steps against the petitioner for enforcement of the award. In this connection, reference may be made to the provisions of Order XLI Rule 5(1) CPC which provides that an appeal shall not operate as a stay of proceedings under a decree. Reference may also be made to the provisions of Order XLI Rule 1(3) CPC, which provides that if the appeal is against a decree for payment of money, the appellant shall, within time as may be allowed, deposit the amount disputed in the appeal or furnish security as the appellate Court may think fit. Therefore, ordinarily an award for payment of money is stayed by imposing some conditions or upon insisting part payment of the MACT award. In light of above, it appears that the petitioner took a calculated risk of not praying for the stay of the award, perhaps to escape liability to pay a part of the MACT award and, as such the Court finds no ground, based on which the Certificate Officer could have stayed recovery because it is too well settled that a mere filing of an appeal does not operate as a stay of the order impugned.
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7. Moreover, under the scheme of Bengal Public Demand Recovery Act, 1913 section 9 thereof provides as follows:
9. Filing of petition denying liability.--(1 )The certificate-debtor may, within thirty days from the service of the notice required by section 7, or, where the notice has not been duly served, then within thirty days from the execution of any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed, or to the Certificate Officer who is executing the certificate, a petition, in the prescribed form, signed and verified in the prescribed manner, denying his liability, in whole or in part. (2) If any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal.
8. There is nothing on record that having come to know about the issuance of process for enforcing the certificate, the petitioner had exercised his statutory right by filing a petition denying liability. It is also observed that this Court by order dated 13.07.2015 gave the petitioner an opportunity to appear before the Certificate Officer, Kamrup, Guwahati in terms of Annexure-B and furnish his explanation by providing that he may not be arrested.
However, there is no material on record that the petitioner had availed the opportunity of complying with section 9 of the Bengal Public Demand Recovery Act, 1913 by filing petition denying liability. It is needless to mention herein that the said Act also contains provisions for appeal and, as such, the said Act is a complete code in itself by providing alternative efficacious remedy.
9. In so far as the plea of effective date of Insurance policy is concerned, we are afraid that the said plea cannot be entertained in this writ petition because the said issue is not a subject matter of the writ petition as the petitioner has not challenged the effective date of commencement of the Insurance policy and neither there is any statement in the writ petition to that effect nor any prayer is made in this writ petition to that effect. Moreover, the petitioner has not impleaded the New India Insurance Company Limited as respondent Page No.# 5/5 herein. Hence, even otherwise the said question cannot be gone into in the absence of the said New India Insurance Company Limited, which is a proper and necessary party without whose presence such an issue, which may materially affect them cannot be heard and decided.
10. Hence, both the plea as urged by the learned counsel for the petitioner is found to be devoid of any merit as such, the writ petition is hereby dismissed. The stay order passed earlier stands vacated.
11. It may be mentioned herein that this writ petition was analogously heard alongwith (1) MAC Appeal No.101/2014 (Ram Chandra Roy Vs. Prabhat Rabha), (2) MAC App. No.293/2014 (Ram Chandra Roy Vs. Dilip Saikia and another), and (3) MAC App. No.294/2014 (Ram Chandra Roy Vs. Madhabi Deka). However, the MAC appeals have been separately disposed of.
12. Let a copy of this order be sent to the Certificate Officer, Kamrup (M), Guwahati by a special messenger so as to enable the said authority to tag the same with the records of BJ Case No.22/2013 (MACT), and to resume the proceeding.
JUDGE Comparing Assistant