# Pitamber v. Motor Accident Claim Tribunal/ A.D.J. Fatehpur & Ors

- **Citation:** (2014) 1 ILRA 130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-03
- **Case number:** Civil Misc. Writ Petition No. 64792 of 2013
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pitamber-v-motor-accident-claim-tribunal-a-d-j-fatehpur-ors-42894
- **Pages:** 3

## Headnote

Constitution of India, Art.-226-Withdrawl of
compensation-accident claim tribunal-awardfixing liability of vehicle owner-but in view of
Apex Court direction-insurance company to
deposit entire amount-keeping it open to
recover
from
vehicle
owner-withdrawl
application rejected-as owner not furnished
any security-can not be release-held-wholly
misconceived-where
on
application
of
insurance company to recover the said
amount-notice issued-no other safe guard
required-accordingly
direction
issued.
1 All] Pitamber Vs. Motor Accident Claim Tribunal/ A.D.J. Fatehpur & Ors.
131
Held: Para-9
In the instant case, the Court finds that the
insurance company has already filed an
application under Section 174 of the Act of
1988 for recovery of the amount from the
owner of the vehicle and that notices has
already been issued to the owner of the
vehicle. The Court is of the opinion that
sufficient protection has been granted to the
insurance company and that there is no
reason why the amount already deposited by
the insurance company should not be
released so that the award is satisfied.

Case Law discussed:
AIR 2004 SC 1630; 2008(2) T.A.C. 104(All.);
2006(65) ALR 5; W.P. No. 59746 of 2007;
2013(9) ADJ 444.

## Text

130 INDIAN LAW REPORTS ALLAHABAD SERIES

34. Petitioner cannot be permitted to
prescribe allopathic/modern medicine as is
provided for under Indian Medical Council
Act, 1956, by any means, as a person having
studied one particular system of medicine
cannot possibly claim deep and complete
knowledge about the drugs of the other
system of medicine, and specially when right
to health and medical care is fundamental
right under Article 21 read with Articles
39(c), 41 and 43 of Constitution, as
expressed by Apex Court, in the case of
Consumer Education and Research Centre
Vs. Union of India, AIR 1995 SC 922, and
by further providing that right to life includes
protection of health and strength and the
minimum requirement to enable the persons
to live with dignity. Petitioner will have to
practice in his own branch, and it would be a
extremely grave situation, to allow petitioner
to treat and prescribe a sick incumbent with
allopathic medicine. The transgression into
other branches of medicine as has been
prayed for is not permissible, as same would
tantamount to quackery and exposing
petitioner to cancellation of registration and
prosecution.

35. Petitioner at last stated before
this Court that there is dearth of doctors,
in such a situation in this background
such resources should be utilized.

36. This is not at all case of the
petitioner that he has acquired degree or
qualification as is provided for under the
Indian Medical Council Act, 1956, and is
registered in the State register, maintained
in this regard then, in such a situation and
in this background, the petitioner cannot
be permitted to administer the medicine
connected with the modern medicine and
it may be true on the ground that large
number of poorer sections of the society,
being rendered service by him and various
other similarly situated but the same cannot
be a criteria to flout the statuary provisions,
the same being in the realm of policy
decision of other constitutional functionaries.
Apex Court in the case of Mumbai Vs. State
of Maharashtra and another reported in JT
2009 (3) SC 351 has repelled such an
argument wherein plea has been raised that
incumbent was rendering service to treat the
poor people and there is dearth of Doctors,
and accordingly, he should be permitted to
prescribe medicine.

37. In terms of above, prayer made by
the
petitioner
cannot
be
entertained,
accordingly, present writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 64792 of 2013

Pitamber... Petitioner
Versus
Motor Accident Claim Tribunal/A.D.J.
Fatehpur & Ors... .Respondents

Counsel for the Petitioner:
Sri Ram Singh

Counsel for the Respondents:
---

Constitution of India, Art.-226-Withdrawl of
compensation-accident claim tribunal-awardfixing liability of vehicle owner-but in view of
Apex Court direction-insurance company to
deposit entire amount-keeping it open to
recover
from
vehicle
owner-withdrawl
application rejected-as owner not furnished
any security-can not be release-held-wholly
misconceived-where
on
application
of
insurance company to recover the said
amount-notice issued-no other safe guard
required-accordingly
direction
issued.
1 All] Pitamber Vs. Motor Accident Claim Tribunal/ A.D.J. Fatehpur & Ors.
131
Held: Para-9
In the instant case, the Court finds that the
insurance company has already filed an
application under Section 174 of the Act of
1988 for recovery of the amount from the
owner of the vehicle and that notices has
already been issued to the owner of the
vehicle. The Court is of the opinion that
sufficient protection has been granted to the
insurance company and that there is no
reason why the amount already deposited by
the insurance company should not be
released so that the award is satisfied.

Case Law discussed:
AIR 2004 SC 1630; 2008(2) T.A.C. 104(All.);
2006(65) ALR 5; W.P. No. 59746 of 2007;
2013(9) ADJ 444.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard the learned counsel for the
petitioner and the learned Standing Counsel.

2. The petitioner is the claimant and had
filed a claim application under the Motor
Vehicles Act, 1988 (hereinafter referred to as
the Act of 1988). The Tribunal gave an award
dated
27th
February,
2009
awarding
compensation of Rs.55,000/- along with 6%
interest per annum for a period of three years.
The compensation was to be paid by the
insurance company, who was given a right to
recover the amount from the owner of the
vehicle. Based on this award, the insurance
company deposited the entire decreetal amount.

3. The petitioner, being the claimant,
moved an application for withdrawal of the
amount, which application was rejected on the
ground that the owner of the vehicle had not
provided security to the satisfaction of the
Tribunal and, consequently, the amount cannot
be released, since the interest of the insurance
company was required to be protected. The
Tribunal, while rejecting the application, relied
upon a decision of the Supreme Court in
Oriental
Insurance
Company
Ltd.
Vs.
Nanjappan and others, AIR 2004 SC 1630 and
Smt. Sheela Devi and others Vs. Additional
District Judge, Court No.4, Gorakhpur, Vs.
2008 (2) T.A.C. 104 (All.). The petitioner,
being aggrieved by the said order, has filed the
present writ petition.

4.

The
Supreme
Court
in
Nanjappan's case (supra) held:

"Before release of the amount of the
claimants, owner of the offending vehicle shall
furnish security for the entire amount which the
insurer will pay to the claimants. The offending
vehicle shall be attached, as a part of the
security. If necessity arises the Executing Court
shall take assistance of the concerned Regional
Transport Authority. The Executing Court shall
pass appropriate orders in accordance with law
as to the manner in which the owner of the
vehicle shall make payment to the insurer. In
case there is any default it shall be open to the
Executing Court to direct realization by
disposal of the securities to be furnished or
from any other property or peroperties of the
owner of the vehicle i.e. the insured. In the
instant case considering the quantum involved
we leave it to the discretion of the insurer to
decide whether it would take steps for recovery
of the amount from the insured."

5. Having heard the learned counsel for
the claimant, the Court finds that the aforesaid
judgments of the Supreme Court were
considered in various decisions of this Court
and the directions of the Supreme Court were
explained.

6. In Smt. Bhuri and others Vs.
Shobhrani and others decided on 8th August,
2006 (65) ALR 5, the Court held that
appropriate safeguards were given to the
insurance company to recover the amount
from the owner of the vehicle as per the
decision of the Supreme Court and, therefore,
132 INDIAN LAW REPORTS ALLAHABAD SERIES
adequate measures has been given to protect
the interest and that the said purpose was
satisfied and it was not meant that the
Supreme Court was undermining the interest
of the claimant whose welfare was supreme.
The Court held that the burden of recovering
the amount within the provisions of the Act
itself had been placed upon the insurer and
that the claimant, who has obtained the award
should not made to suffer through any
observation made by the Supreme Court.

7. In Smt. Nisha and others Vs. Motor
Accident Claims Tribunal and others, in Writ
Petition No.59746 of 2007 decided on 13th
December, 2007, the Court held that since the
tribunal had already issued notice to the owner
of the vehicle and that the tribunal would take
all steps including attachment of the vehicle
and calling upon the owner of the vehicle to
furnish security, was by itself sufficient not to
create any impediment to the claimant for
release of the amount.

8. A similar issue came up before the
Court in ICICI Lombard General Insurance
Company Ltd. Vs. Sirajuddin and others,
2013 (9) ADJ 444 in which this Court held
that it is not mandatory that the owner of the
vehicle is required to furnish security before
release of the amount to the claimant and that
such directions was only directory to the
extent that the application should be filed by
the insurance company for recovery of the
amount, which by itself was sufficient to
protect the interest of the insurance company.

9. In the instant case, the Court finds
that the insurance company has already filed
an application under Section 174 of the Act of
1988 for recovery of the amount from the
owner of the vehicle and that notices has
already been issued to the owner of the
vehicle. The Court is of the opinion that
sufficient protection has been granted to the
insurance company and that there is no reason
why the amount already deposited by the
insurance company should not be released so
that the award is satisfied.

10. In the light of the aforesaid, the
Court finds that the impugned order
cannot be sustained and is quashed. The
writ petition is allowed. The Tribunal is
directed to release the amount forthwith.
--------