ORIENTAL INSURANCE CO LTD Vs. NIRMALA

JUDGEMENT

(1.) The first three Writ Petitions mentioned above had been referred by the learned Judge of this Court by his order dated 9th November, 2005. The scope of reference is to consider whether the dictum laid down in Sobha Mohankumar v. National Insurance Co. Ltd. 2002 (3) KLT 293 requires reconsideration. The contention is whether Order 21 Rule 1 of the Code of Civil Procedure is applicable to the execution proceedings of an award passed by the Motor Accidents Claims Tribunal and whether Section 171 of the Motor Vehicles Act and other provisions bars application of Order 21 of CPC and further whether the decree holder is entitled to interest on interest. The brief facts necessary for the disposal of these Writ Petitions are as follows. O.P. 22527/04 is filed against the order of the Claims Tribunal, Thodupuzha in E.P. 26/02 in OP(MV) 295/89. The executing Court held that the costs and interest have to be adjusted first and the contention of the judgment debtor that it has to be adjusted first towards the principal was rejected. In O.P. 22528/04 the executing Court passed a very similar order and held that the part payments made by the judgment debtor, Insurance Company has to be adjusted towards the interest and then towards principal in that order. In O.P. 17731/05 also the Court held that the same principle has to be followed. In OP(MV) 2749/95 against which W.P. No. 17446/06 is filed, the Motor Accidents Claims Tribunal had taken the same view and arrived at a figure as per the provisions of Order XXI of the CPC. So, the points that arise for determination are:

(2.) This question deals with the question of applicability of Order XXI of the Code of Civil Procedure to execution proceedings before the Motor Accidents Claims Tribunal. The learned Judge of this Court in the case reported in Sobha Mohankumar v. National Insurance Co. Ltd. 2002 (3) KLT 193 held as follows:

(3.) The learned Judge also distinguished the decision of the Apex Court in Prem Nath Kapur v. National Fertilizers Corporation of India Ltd. . If the decision in 2002 (2) KLT 293 is affirmed then the provisions of Order XXI of the Code of Civil Procedure would be applicable to the execution proceedings before the Claims Tribunal and the amount has to be adjusted and appropriated as per the provisions of the said Rule. A Division Bench of this Court in Ramankutty Menon v. M.A.C.T. Ernakulam 2000 (2) KLT 211 held that the provisions of Order XXI Rule 1 has to be applied in the matter of execution of award passed by the Tribunal. It was a case where the question that arose for consideration was whether the amount deposited by the judgment-debtor before the Tribunal without notice to the decree holder, can interest be claimed on such deposit. This Court on analysis found that Order XXI mandates issuance of notice and the non-compliance of the same would entitle the decree holder to get interest as provided under Order 21 CPC.