New India Assurance Company Limited vs Smt. Labanya Prova Chakraborty

D.P. Sarkar-II, J.—This is an application under Article 227 of the Constitution of India directed against the order No. 16 dated November 24, 1994, passed by the learned Judge, Motor Accident Claims Tribunal at Raiganj in Motor Accident Case (Execution) No. 1/1994 arising out of M.A.C. Case No. 38/1988.

The claimant - Labanya Prova Chakraborty was the mother of the victim Partha Pratim Chakraborty who was travelling as a passenger for hire by Mini Bus No. WOY-7970 owned by Kedar Nath Mitruka. The vehicle was insured with the New India Assurance Co Ltd. The Tribunal passed an award of Rs. 15.000/- on no fault basis u/s 92B of the M.V. Act and subsequently after inquiry the Claims Tribunal passed an award of Rs. 93,000/-; with interest and cost, the total amount of award came to Rs. 1,61,395/-. The Tribunal passing the award directed both the Insurance Company as well as the owner of the offending vehicle to pay the amount making both of them jointly and severally liable for the total award. The claimant has put the award to execution before the Tribunal. The Insurance Company i.e. the present Petitioner raised the point that its liability is limited to Rs. 15,000/- and that amount of-award passed u/s 92B of the M.V. Act was paid by the Insurance Company and as such the Insurance Company had no further liability.

The Executing Court after hearing the parties came to the finding that by the original award the Insurance Company as well as the owner of the offending vehicle both were made liable jointly and severally. So, as an Executing Court, it cannot go behind that award to find whether the Insurance Company has already discharged its liability under the award or not or in other words what would be the limit of liability of the Insurance Company and the limit of liability vis-a-vis of the owner of the vehicle.

On being aggrieved by such order the present application has been filed challenging the provision of M.V. Rules 342 and 343 as ultra vires to the provision of Section 174 of the principal M.V. Act of 1988. It is submitted that u/s 174 any person who intends to execute an award must approach the Tribunal passing the award and the Tribunal should issue a Certificate showing the total amount of award and the liability of the judgment Debtors and send the same to the Collector of the District having jurisdiction over the place of accident and the Collector in his turn get the amount realised through Certificate proceeding. According to the Id. Advocate for the Petitioner this is the only provision for execution of an award provided by the Act.

Rules are framed for aiding and filling up the gaps in the original Act. In the instant case, Section 176 contains the Rule making power of the State Government. Section 176(e) is the proper section under which the State Government can frame Rules for the purpose contemplated under Sections 165 to 174.

On being empowered by the provision of Section 176 of the M.V. Act the State Government has framed Motor Vehicles Rules of 1989 including Rules 342 and 343. I have examined the Rules contained in Rules referred to above. I have also heard the arguments placed by the learned Advocate for the Petitioner. I do not find anything in Rule 342 except the provision of Sub-Rule 3 of the said M.V. Rule, regarding the power of execution by the Tribunal.

Rule 342(3) lays down that the Tribunal can execute the award treating the same as a Money Decree.

The learned Advocate for the Appellant-Petitioner has raised the point that when specific provision for execution has been made in the body of the Act itself, framing of Rules, for execution by the Claims Tribunal, simply creates conflict and contradictions.

The Rule making power is given by the Act itself vide Section 176 and it has also been made clear by that section that the rule making power of the State will be confined to the subjects covered by Sections 165 to 174. It is to be remembered that the provision of execution of an award through the Certificate Proceeding is contained in Section 174. Therefore, there should not be any doubt that the Parliament has specifically given the Rule making power even touching that subject i.e. Execution as contemplated u/s 174 of the Act.

That apart, the Government in the form of making Rules if provides an alternative forum for execution of the award, in my opinion, it cannot be said to be in conflict with the provision contained in Section 174 of the M.V. Act. Rather, it appears to m(sic) that the Rule 342(3) has been framed by the State Government not in derogation of but in addition to the provision of Section 174. Therefore, there cannot be any question of ultra vires as argued by the Id. Advocate for the Petitioner. In R. Jadeswar Rao v. Premier Insuranace Company 1979 T.A.C. 344 (A.P), it has been clearly decided that claimant has choice either to seek certificate or an application for execution under the Andhra Pradesh Motor Vehicles Rules as those two provisions are not in conflict. It was also emphasised that the Id. District Judge committed error by holding the specific Motor Vehicles Rules of Andhra Pradesh as ultra vires being in conflict with the original section i.e. Section 110E of the old Act and Section 174 of the new Act. In the self-same decision at page 74-75, it is laid down, that the clear intention of the Parliament is evidenced by Section 110E (old) - Section 174 (new), that the procedure provided by Section 110E (old) i.e. 174 (new) can be added to and supplemented by the Rules that might be made by the State Government according to the necessities of the local situation.

Thus, considering the different aspects it is clear that the challenge, that Rules 342 and 343 are ultra vires to the provision of 174 of the M.V. Act is not sustainable.

That apart, there is nothing wrong in the impugned order. The Executing Court cannot go behind the Decree. Therefore, the application under Article 227 must fail.

But it is an established principle of law that a Court exercising revisional jurisdiction can look into the illegality, if any, appears to have been committed by the Subordinate Court at any stage of the inquiry of proceeding. In exercise of such power it appears to me, that u/s 95 of the old Act the liability of the insurer is a limited liability. The award amount outside such liability of the insurance company shall be paid by the owner of the vehicle. Therefore, it is necessary to separately show the liability of the Insurance Company as well as the liability of the owner of the vehicle. A composite award making the Insurance company as well as the owner of the vehicle liable jointly and severally is bad in law and such an order is not executable unless the liability of the Insurance Company and the owner of the vehicle is separately mentioned in the award itself. Such a defect makes the award unexecutable. Therefore, to meet the ends of justice, there is no escape from the result that the amount of award arrived at by the claims Tribunal in the instant case is hereby affirmed. But the M.A.C. Case shall go back to the Claims Tribunal having jurisdiction at present to pass a speaking, executable award removing the defects as mentioned above. In other words, the Claims Tribunal shall indicate in the award how much of the award money is to be paid by the Insurance Company and how much by the owner of the offending vehicle with interest etc. as required by the Section 110B of the M.V. Act. The case has been lingering for long. So, in order to meet the ends of justice, the original M.A.C. Tribunal is hereby directed to expedite the hearing of the matter and to pass a fresh appropriate speaking award as mentioned above within three months from the date of receipt of the record.

The application under Article 227 is accordingly disposed of.