THE HON’BLE SHRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.1538 OF 2014 DATED 24TH OCTOBER, 2014 Between:
K. Subramanyam … Petitioner and I.C.I.C.I. Lombard General Insurance Co. Ltd.
… Respondent THE HON’BLE SHRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.1538 OF 2014 O R D E R The petitioner is the owner of the auto trolley bearing Registration N o . AP 36W 8415. The said auto trolley was insured with the respondent insurance company. It met with an accident on 09.05.2007 resulting in the death of one T. Yakaiah. The wife and children of the deceased filed MVOP No.1352 of 2007 before the Motor Accidents Claims Tribunal-cum-II Additional District Judge’s Court, Warangal, against the petitioner and the insurance company seeking compensation of Rs.5,05,000/-. By Award dated 11.12.2008, the Tribunal partly allowed the OP, directing the insurance company to deposit a sum of Rs.3,95,000/- with proportionate costs and interest at 7.5% per annum from the date of the filing of the OP. The insurance company was given liberty to recover the same from the petitioner herein, the first respondent in the OP, by filing an execution petition. It appears that the insurance company, having paid the amount as directed, filed Execution Petition No.31 of 2010 before the Tribunal and the same is pending as on date.
While so, the insurance company also moved a petition under Section 174 of the Motor Vehicles Act, 1988 (for short, ‘the Act of 1988’) in I.A. No.198 of 2012 in MVOP No.1352 of 2007 praying for issuance of a certificate for an amount of Rs.4,75,000/- in its favour and to direct the District Collector, Warangal, to recover the said amount with interest from the petitioner herein as arrears of land revenue under the provisions of the Revenue Recovery Act, 1890. By order dated 16.04.2014, the Tribunal allowed the I.A. Aggrieved thereby, the petitioner filed the present CRP.
Notice having been served upon the respondent insurance company, it entered appearance through learned counsel.
Heard.
Perusal of the order under revision reflects that the petitioner contended before the Tribunal that the insurance company could not invoke Section 174 of the Act of 1988, having already initiated execution proceedings under Order 21 CPC. Sri Ramidi Satyanarayana, learned counsel for the petitioner, further argued that as the Tribunal specifically observed in its Award dated 11.12.2008 that the insurance company could recover the amount paid by it from the petitioner by filing an EP, the same would bind the insurance company as the Award was allowed to attain finality. He therefore contended that it was not open to the insurance company to resort to simultaneous and parallel proceedings by way of an EP as well as a petition under Section 174 of the Act of 1988. Refuting this contention, learned counsel for the insurance company argued that mere institution of execution proceedings would not preclude invocation of the provisions of Section 174 of the Act of 1988. He placed reliance on the judgment of the Kerala High Court in
[1]
SYNDICATE BANK, PUNALUR V/s. S.S. SHERIFF in this regard.
The said case dealt with recovery of a loan by a bank basing upon a decree. The Kerala High Court opined that two methods of recovery simultaneously engineered could be mutually exclusive and that there was no illegality in taking recourse to the provisions of the Kerala Revenue Recovery Act, 1968.
In the present case, Section 174 of the Act of 1988 reads as under:
“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.”
The heading of the provision indicates that it is intended for recovery of monies from the insurer. The provision would therefore have no application to an insurer seeking to recover monies from the owner of the vehicle. Further, the inexorable fact also remains that in its Award dated 11.12.2008, the Tribunal specifically conferred upon the insurance company the liberty to recover the amounts paid by it pursuant to the said award only by way of an execution petition filed against the petitioner herein, the owner of the auto trolley. This Award has admittedly attained finality. That being so, whether the insurance company could legally maintain two simultaneous recovery proceedings pales into insignificance as it was bound by the dictum of the Tribunal as to the mode in which it could effect recovery of monies from the owner of the vehicle. Having suffered the said direction in the Award dated 11.12.2008 and having allowed it to attain finality; it was not open to the insurance company to act in violation thereof. The petition filed by the insurance company under Section 174 of the Act of 1988 was therefore liable to be dismissed on this short ground. The Tribunal unfortunately lost sight of this aspect of the matter and passed the order dated 16.04.2014. The said order is therefore unsustainable in law and is accordingly set aside.
The Civil Revenue Petition is allowed. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.
24TH OCTOBER, 2014 PGS
[1] AIR 2007 KERALA 189
------------------------------------- SANJAY KUMAR, J