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Judgment
Heard Mr. DK Biswas, learned counsel appearing for the petitioner as well as Mr. TD Majumder, learned counsel appearing for the respondent No.1. There is no representation from the respondent No.2 despite being served.
This petition, under Article 227 of the Constitution of India has been filed by New India Assurance Company, the insurer of the vehicle which met the accident. The liability of payment has been saddled on the insurance company by the judgment and award dated 20.09.1993 by the Motor Accident Claims Tribunal, West Tripura in TS (MAC) 52/1993. The said judgment has been affirmed by this court the judgment dated 28.02.1995 in MA (F) No.08 of 1994.
Mr. DK Biswas, learned counsel appearing for the petitioner has submitted that even though the appeal was dismissed on 28.02.1995, the certificate has been issued for recovery under Section 174 of MV Act by the order dated 16.03.2019. According to Mr. Biswas, after such a long time the insurance company has been pushed to a quandary as their records are, as per the standing instruction, destroyed. Despite their best efforts, they could not the records. When they applied for the certified copies, they were informed that the judicial records are not available.
According to Mr. Biswas, learned counsel the insurance company not in a position even to ascertain that whether the award was satisfied or not. Unless, they are constructively favoured with such information, they are not in a position to take any stand in the certificate proceeding.
This court, in order to check, whether the records were sent from this court after judgment and order dated 28.02.1995 found a note that the records of TS (MAC) No.52/1993 in two files namely 'C' & 'D' containing 74 and 80 sheets of papers respectively and copy of the judgment were sent to the Additional District and Sessions judge, West Tripura, Agartala vide dispatch No. 1378. This court is taken aback by this note. Usually, the file 'C' & 'D' are maintained for the miscellaneous papers and un-used documents or the memo of appearance as per the Gauhati High Court Civil Courts Rules and Orders. From the High Court's note it does not appear that file 'A' & 'B' were returned to the tribunal. But this court also cannot say with certainty that whether the file 'A' & 'B' were earlier transmitted or separately transmitted or not. The Registry shall make a search whether the files 'A' & 'B' are still lying in the high court or not.
But this court is not agreeable to the proposition made that unless the records are available, the petitioner cannot ascertain whether the payment has been made or not. From the records of MA (F) 08/1994, it appears that in the Registry a sum of Rs.25,000/- are lying inasmuch as there is no note that the said amount has been disbursed to the claimant or refunded to the depositor.
Without waiting for any formal application, this court directs the registry to disburse the said amount, if it is still lying in the account of the Registry, to the claimant, following in a proper procedure. If such payment is made, a letter containing the fact of such payment be sent to the respondents No. 2 forthwith inasmuch as, in the certificate proceeding the petitioner shall get the benefit by way of adjustment. If the records are found available, those records should be sent to the tribunal for maintaining those records in the records room, as per rules.
The plea that has been raised by this revision petition can hardly be entertained. This is the fundamental duty of the judgment-debtor, in ordinary parlance, to satisfy that the payment has been made. It is not on the court, niether on the decree holder or the awardee to prove the fact that payment has been made.
It is found from the notice that has been issued under Rule 89(1) of the Tripura Land Revenue & Land Reforms Rules, 1961 read with Section 62 of the Tripura Land Revenue & Land Reforms Act, 1960 that a sum of Rs.2,25,408/- is pending for payment. A certificate has been issued for that amount with interest @ 12% per annum w.e.f 07.04.1993 till the payment is made.
The insurance company has various means to ascertain whether such payment has been made or not, such as, to ask the conducting counsel whether any cheque had been issued or not, to deposit in the tribunal and also their banker who are for maintaining the perennial records of transaction whether any cheque of that amount was issued by them on having tallied the same with the date. These are the essential inquiries, the petitioner could have made but it appears, that they have not done so. Mr. Biswas, learned counsel has submitted that they had sent one investigator to the house of the claimant. This court has failed to understand, how that will help the petitioner inasmuch as, the claimant has approached the tribunal for recovery of the said amount.
Having observed thus, this petition stands dismissed. However, the petitioner is given opportunity to move the tribunal which issued the certificate for recovery, if materials are found that the amount has been satisfied by the petitioner. If the tribunal is satisfied by the additional materials, the tribunal is as well given liberty to recall the certificate but before such order is passed, a notice is to be issued to the claimant.
No order as to costs.
A copy of this order be furnished to learned counsel for the parties.