# Rajendra Ban v. Motor Accident Claim Tribunal/Upper District Judge & Anr

- **Citation:** (2014) 1 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-02
- **Case number:** Civil Misc. Writ Petition No. 39671 of 2010
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-ban-v-motor-accident-claim-tribunal-upper-district-judge-anr-42918
- **Pages:** 5

## Headnote

Act
1988-Section
174Application
by
insurance
company-to
recover the amount from owner of vehicleagainst award of Tribunal-appeal dismissed
by High Court-finding regarding liability of
owner to pay compensation-got finalityargument that in absence of direction to
recover-by Tribunal-can not be recovered
as
such
application
u/s
174
not
maintainable-held-misconceivedapplication maintainable.

Held: Para-12
In the operative portion of the award,
the Tribunal directed the insurance
company to pay the amount awarded to
the claimants. The contention of the
petitioner
that
since
the
operative
portion did not give any direction to the
insurance
company
to
recover
the
amount from the owner, such application
could not be filed under Section 174 of
the Act of 1988.

## Text

1 All] Rajendra Ban Vs. Motor Accident Claim Tribunal/Upper District Judge & Anr.
25
clear. In view of this, the definition of
family which includes brother cannot be
read in a fashion to exclude brother from
defined family members and throw him and
club him in the category of any other
member, who has been staying together and
has been dining together, in view of this, the
said portion of the Ram Murat's Case
(supra) is not being approved of.

56. In view of the above, our answer
to the referred questions is as follows:-

(i)The Division Bench judgment in
Ram Murat's case (supra) defining the word
'family' as given in the Government order
dated 3.7.1990 (Paragraph 4.7) lays down
the correct law except that the word 'brother'
shall also be included in self, wife, son,
unmarried daughter, mother, father and the
condition of having living together and
taking food from common kitchen shall
apply only to 'any other member (vU; dksbZ
lnL;)' which has been separated by word
'Or (;k)' in the definition.

(ii)The definition of word 'family' as
given in Clause 2 (o) of U.P. Scheduled
Commodities Distribution Order, 2004
shall not override the definition of word
'family' as given in Paragraph 4.7 of the
Government order dated 3.7.1990.

57. Let our answer be placed before
the appropriate Bench hearing the writ
petition.

I agree
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 39671 of 2010
alongwith W.P. No. 62595 of 2009

Rajendra Ban... Petitioner
Versus
Motor Accident Claim Tribunal/Upper
District Judge & Anr. ....Respondents

Counsel for the Petitioner:
Sri Jagdish Prasad Tripathi Sri A.D. Saunders

Counsel for the Respondents:
S.C., Sri Vinay Khare.

Motor
Vehicle
Act
1988-Section
174Application
by
insurance
company-to
recover the amount from owner of vehicleagainst award of Tribunal-appeal dismissed
by High Court-finding regarding liability of
owner to pay compensation-got finalityargument that in absence of direction to
recover-by Tribunal-can not be recovered
as
such
application
u/s
174
not
maintainable-held-misconceivedapplication maintainable.

Held: Para-12
In the operative portion of the award,
the Tribunal directed the insurance
company to pay the amount awarded to
the claimants. The contention of the
petitioner
that
since
the
operative
portion did not give any direction to the
insurance
company
to
recover
the
amount from the owner, such application
could not be filed under Section 174 of
the Act of 1988.

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

1. An accident occurred on
Haridwar Nazibabad road wherein a
Motorcycle dashed into a parked truck
resulting in the death of one person and
injury to the other person. The heirs of the
deceased filed a Claim Application No.432
of 2007 before the Motor Accident Claims
Tribunal,
Muzaffarnagar.
The
injured
person also filed a Claim Application
26 INDIAN LAW REPORTS ALLAHABAD SERIES
No.130 of 2008 before the same Tribunal.
In Claim Application No.432 of 2007, the
Tribunal
gave
an
award
dated
6th
November, 2008 directing the insurance
company to pay Rs.1,79,500/- along with
interest to the claimants. In this award issue
no.4 was decided leaving it open to the
insurance company to recover the amount
from the owner of the vehicle.

2. In so far as Claim Application
No.130 of 2008 is concerned the Tribunal
gave an award dated 7th March, 2009
directing the insurance company to pay a
sum of Rs.3,24,173/- along with interest
to the claimants. In this award, the
Tribunal did not give any direction to the
insurance company to recover the amount
from the owner of the vehicle.

3. Against this award dated 7th
March, 2009, the insurance company filed
First Appeal From Order No.1967 of 2009
before the High Court. The Appellate Court
did not find any fault in the impugned
award holding that no case was made out in
favour of the insurance company. The
appeal
was,
however,
disposed
of
permitting the insurance company to make
an appropriate application for the purpose of
recovery of amount, if any, from the owner
of the vehicle. The Appellate Court directed
that in the event, such an application is filed,
the Tribunal would dispose of the same
within three weeks. For facility, the
direction of the Appellate Court dated 1st
July, 2009 is extracted hereunder:

"... In totality, we do not find any
case in favour of the insurance company.
The appeal is treated to be disposed of
granting
liberty
to
the
appellantinsurance
company
to
make
an
appropriate application in the selfsarne
proceeding before the tribunal within a
period of one week from this date for the
purpose of recovery of amount, if any,
from the owner and in case such an
application is filed, upon sufficient notice
and giving fullest opportunity of hearing
to the parties, tribunal will dispose of the
same within a period of three weeks
thereafter but under no circumstance the
payment of compensation to the claimant
will be stalled. Accordingly, the appeal is
disposed of at the state of admission,
however, without any order as to cost..."

4. Pursuant to the aforesaid
direction, the insurance company filed an
application purported to be under Section
174 of the Motor Vehicles Act, 1988
seeking permission to recover the amount
as per the award from the owner of the
vehicle. The Tribunal, after hearing the
parties concerned, passed an order dated
3rd June, 2010 directing the recovery of
the amount as per the award from the
owner of the vehicle. The owner, the
petitioner, being aggrieved by the said
order, has filed Writ Petition No.39671 of
2010.

5. A similar application for recovery
against the owner was also filed in Claim
Application No.432 of 2007 in which an
order was also passed directing recovery
of the amount from the owner. The
petitioner, being aggrieved, filed Writ
Petition No.62595 of 2009. Both the writ
petitions have been connected and are
being decided together.

6. Heard Sri A.D. Saunders, the
learned counsel for the petitioner and Sri
Vinay Khare, the learned counsel for the
Insurance Company.

7. The learned counsel for the
petitioner submitted that no recovery right
1 All] Rajendra Ban Vs. Motor Accident Claim Tribunal/Upper District Judge & Anr.
27
was given to the insurance company in
the operative portion of the award and,
therefore, no such application could be
filed by the insurance company for
recovery of the amount under Section 174
of the Motor Vehicles Act.

8. The learned counsel for the
petitioner submitted that it is only the
amount in the operative portion of the
order that can be recovered and any
observation made elsewhere in the body
of the judgment is only an obiter dicta and
that no right accrues to the insurance
company nor can the insurance company
take such advantage pursuant to such
observation by filing an application for
recovery under Section 174 of the Motor
Vehicles
Act.
The
learned
counsel
submitted that the operative portion of the
award is a decree and only the amount
mentioned in the decree can be recovered
and since the decree did not mention the
fact that the amount could be recovered
from the owner, no such right accrued
upon the insurance company to file such
an application nor did the Tribunal had
any jurisdiction to entertain or pass orders
on such application.

9. On the other hand, the learned
counsel for the Insurance Company
submitted that a specific finding has been
given by the Tribunal on issue no.4 in the
award passed in Claim Application
No.432 of 2007 permitting the insurance
company to recover the amount from the
petitioner. Pursuant to the said finding,
the application under Section 174 of the
Motor Vehicles Act was maintainable and
the order passed therein was rightly
passed. The learned counsel submitted
that since similar finding was required to
be given in the second Claim Application
No.130 of 2008 and since the same was
not given by the award, the High Court
while disposing of the appeal permitted
the insurance company to move an
appropriate
application
before
the
Tribunal for recovery. Based on such
direction, the application was filed, which
was maintainable and the Tribunal passed
the order in accordance with law.

10. In order to appreciate the
submission of the rival counsel for the
parties, it would be appropriate to refer to
the provision of Section 174 of the Act of
1988, which is extracted hereunder:-

"174. 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."

11. The aforesaid provision makes it
apparently clear that an application is
required to be filed before the Tribunal
for recovery of the amount as per the
award as arrears of land revenue. The
amount must be due under the award,
which would entitle a person to recover
the amount as arrears of land revenue.

12. In the award dated 6th November,
2008 passed in Claim Application No.432
of 2007, issue no.4 was decided against the
owner of the vehicle, namely, that the
insurance company was directed to pay the
amount to the claimant since the vehicle
was insured and further leaving it open to
the insurance company to recover the
amount from the owner of the vehicle. In
the operative portion of the award, the
28 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal directed the insurance company to
pay the amount awarded to the claimants.
The contention of the petitioner that since
the operative portion did not give any
direction to the insurance company to
recover the amount from the owner, such
application could not be filed under Section
174 of the Act of 1988.

13. The submission of the learned
counsel for the petitioner is patently
erroneous. The award as a whole is
required to be implemented and under the
operative portion of the award, the
amount awarded has to be recovered as
arrears of land revenue. The finding on
issue no.4 has not been attacked or
challenged by the owner of the vehicle,
namely, the petitioner in an appropriate
appeal. The said award along with its
findings has become final and binding
upon the petitioner.

14. No doubt the Tribunal becomes
functus officio the moment it gives an
award but gets limited jurisdiction to
entertain an application. In the instant case,
since the Tribunal permitted the insurance
company to recover the amount from the
owner of the vehicle, that limited right was
given to the insurance company to file an
appropriate application under Section 174
of the Act of 1988. The application filed by
the
insurance
company
was
thus
maintainable and a correct order was passed
by the Tribunal. The Court does not find
any illegality in the said order or in the
award and, consequently, the Court is of the
opinion that there is no merit in Writ
Petition
No.62595
of
2009
and
is
consequently, dismissed.

15. With regard to the award dated
7th March, 2009 passed in Claim
Application No.130 of 2008, the Court
finds that the Tribunal only directed the
insurance company to pay the awarded
amount to the claimants and did not issue
any direction for recovery of the amount
from the owner of the vehicle on account
of breach of policy. The appeal filed by
the insurance company before the High
Court failed. The insurance company did
not get any relief and only permitted the
insurance company to file an appropriate
application, if any, for recovery against
the owner. Such direction of the Court did
not mean that an application could be
filed, even where no such direction was
given by the Tribunal for recovery. The
order of the Appellate Court did not mean
that the application of the insurance
company under Section 174 of the Act of
1988 would become maintainable.

16. In the instant case, the Court
finds that under the award dated 7th
March, 2009 the amount due from any
person under the award was only against
the insurance company and, consequently,
such application, if any, can only be filed
for
recovery
against
the
insurance
company. Since no right was given to the
insurance company to recover the amount
from the owner, the application of the
insurance company under Section 174 of
the Act of 1988 was not maintainable.
The order passed by the Tribunal dated
3rd June, 2010 was without jurisdiction
and cannot be sustained.

17. There is another reason for the
Court to arrive at this conclusion, namely,
that an order passed under Section 174 of
the Act of 1988 would amount to
modification of the award, which in the
instant case cannot be permitted, inasmuch
as the said award has been affirmed by the
appellate court in the appeal filed by the
insurance
company.
1 All] M/s Torrent Power Ltd. Vs. The State of U.P. and Ors.
29

18. For the reasons stated aforesaid,
the Writ Petition No.62595 of 2009 fails
and is dismissed. The order dated 3rd
June, 2010 is quashed and the Writ
Petition No.39671 of 2010 is allowed.

19. In the circumstances of the case,
parties shall bear their own cost.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.41139 of 2012

M/s Torrent Power Ltd.... Petitioner
Versus
The State of U.P. and Ors... .Respondents

Counsel for the Petitioner:
Sri Ashutosh Srivastava

Counsel for the Respondents:
C.S.C., Sri M.L. Jain

Constitution of India, Art.-226-Jurisdiction
of permanent Lok Adalat-consumer foundusing electricity power for commercial
purpose-having
valid
connection
for
domestic use-on inspection fine imposed
under section 126-instead of filing appealcomplaint filed before Lok Adalat-offence
of unauthorise use of electricity amounts
to theft-compoundable under Section 152Lok Adalat can entertain the claim-but
without making effort for conciliation-can
not give adjudication on merit-order
passed by Lok Adalat-quashed-general
direction issued for strict compliance.

Held: Para-27
In the light of the aforesaid, the matter
relating to theft of energy is an offence
under the Electricity Act, 2003 and even
though such offence is compoundable, the
Permanent Lok Adalat has the jurisdiction
to entertain the dispute for the purpose of
conciliation and settlement but upon its
failure, the Permanent Lok Adalat could
not proceed to decide the matter on
merits.

Case Law discussed:
2012(8) SCC 261; 2012(8) SCC 243; 2008(7)
SCC 454.

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

1. The petitioner is a distribution
franchise of Dakshinanchal Vidyut Vitran
Nigam Ltd. and is authorized to operate and
maintain
the
distribution
system
for
supplying electricity to the consumers in the
urban areas of Agra. Respondent no.3 is a
consumer of electricity having obtained a
sanctioned load of 7.5 KVA for domestic
purposes. It transpires that an inspection
was carried out on 19th September, 2011 at
the premises of respondent no.3 and it was
found that respondent no.3 was using the
domestic
connection
for
commercial
purposes, namely, for office purposes. Since
the consumption of energy was being used
unauthorizedly for a purpose other than for
what it was given, a report was submitted
by the inspection team for unauthorized use
of electricity. Based on this inspection
report, a provisional assessment was made
by the petitioner under Section 126 of the
Electricity Act, 2003 (hereinafter referred to
as the Act of 2003) demanding a sum of
Rs.42,266.30. The respondents, instead of
filing an appeal under Section 127 of the
Act of 2003, filed an application before the
Permanent Lok Adalat for the quashing of
the assessment bill as well as the inspection
report.
The
petitioner
appeared
and
contended that the Permanent Lok Adalat
had no jurisdiction to entertain such claim
as it related to the unauthorized use of
electricity, which was an offence and,
consequently, the Permanent Lok Adalat