KIRTAN BEHARI Vs. COLLECTOR BALASORE

JUDGEMENT

(1.) These two writ applications are by one petitioner challenging the certificate proceedings in two certificate cases and both the certificate cases were instituted for realisation of the balance amount under an award passed by the Motor Accident Claims Tribunal under S.110 of the Motor Vehicles Act.

(2.) The petitioner is the owner of a taxi bearing registration No. ORC 9011. On 27-969, the said vehicle met with an accident as a result of which one Durga Charan Ghosh who was the husband of opposite party No. 2 and father of opposite parties 3 to 6 died. After the death of Durgacharan, the widow and the children of the deceased, namely, opposite party as 2 to 6 filed an application under S.110-A of the Motor Vehicles Act claiming compensation to the tune of Rs. 45,000/- impleading the petitioner as well as the Insurance Company as opposite parties. This application was registered as Misc. Case No. 58 of 1969. The mother of the deceased also filed an application against the petitioner as well as the Insurance Company claiming Rs. 5,000/- which was registered as Misc. Case No. 59 of 1969. Both these applications were, tried together by the Tribunal and the, Tribunal disposed of the same by a common judgement on 30-6-72 awarding a total sum of Rs. 18,000/- out of which the widow and the children would get Rs. 16,000/- and the mother of the deceased would get Rs. 2,000/- So far as the liability of the Petitioner and the Insurance Company is concerned, the Tribunal directed that the Insurance Company would pay Rs. 13,000/- and the petitioner would pay Rs. 5,000/-. The policy of insurance covered a risk up to Rs. 20,000. But notwithstanding the same the Tribunal directed that the insured (the owner of the vehicle) to pay Rs. 5,000/- out of the amount awarded. The Insurance Company paid the amount in accordance with the direction of the Tribunal, but as the owner did not pay, opposite parties 2 to 6 filed two execution cases, namely, Execution Case Nos. 1 and 2 of 1975 for realisation of the unpaid amount of Rs. 5,000/-. The petitioner contested the same and filed objections regarding the maintainability of the two execution cases. The opposite parties thereafter took steps for amending the execution petitions praying for issuing certificates to the Collector, Balasore for realisation of the amount in question. Opposite party No. 7 allowed that amendment and directed issue of two certificates to opposite party No. 1, the Collector for execution and realisation of the amount of Rs. 5,000/- in each of the certificates. On receipt of the requisition the Special Certificate Officer, Bhadrak, opposite party No. 8, started two certificate cases, namely, certificate cases Nos. 10 and 11 of 1975. On receiving the notice from opposite party No. 8, the petitioner appeared and filed objections. The petitioner objected to the maintainability and the legality of the certificate proceedings on several grounds. The certificate officer, however, rejected the objection mainly on the conclusion that the tribunal having directed for realisation of the unpaid award, it becomes a Public demand and, therefore, directed issuance of notice under S.37(1) of the Orissa public Demand Recovery Act. The petitioner being unsuccessful carried two certificate appeals, being Certificate appeals Nos. 23 and 24 of 1976 before the Additional District Magistrate who by his judgement dt. 15-5-78 dismissed the same. The petitioner thereafter preferred two revisions before the Revenue Divisional Commissioner who also rejected the same on the ground of non-deposit of the entire certificate dues by his order dt. 17-7-1979, and thereafter the petitioner has approached this Court.

(3.) Mr. R.K. Mohapatra, the learned counsel for the petitioner raises the following contentions and prays for quashing the certificate proceedings : (i) In view of the admitted position that the policy of insurance covered the liability to the extent of Rs. 20,000/- and the total amount of award being only Rs. 18,000/-, and in view of the provisions contained in S.96(1) of the Motor Vehicles Act, the tribunal committed an error in apportioning the award and directing the petitioner to pay a sum of Rs. 5,000/-. The award to that extent fixing the liability of the petitioner is one without jurisdiction and is a nullity and, therefore, the same cannot be executed by way of a certificate proceeding; (ii) On the date of the accident, that is, on 27-9-69 as well as on the date of the filing of the claim petition, that is on 25-11-69, amendment to S.110-B of the Motor Vehicles Act had not come into force and under the pre-amended provision, the tribunal had no jurisdiction to award any compensation against the owner. (iii) Opposite Party No. 8 had no jurisdiction to entertain the certificate proceedings for realisation of any sum awarded by opposite party No. 7 since under S.110-E of the Motor Vehicles Act, it is the Collector who can only realise the amount by way of a certificate proceeding. In that view of the matter, since the award fixed the petitioner's liability at Rs. 5,000/-, the certificate for the said sum in two certificate cases twice is without jurisdiction and must be held to be a nullity. That apart, Mr. Mohapatra also raised some other contentions with regard to the legality of the revisional order of the Revenue Divisional Commissioner as well as the power of the tribunal to award interest in the case.