Preet Singh vs National Insurance Co. Ltd

Javed Iqbal Wani, J

The appellant herein has questioned order dated 23.11.2009 (for short, “impugned order”) passed in execution proceedings titled as “National Insurance Company V/s Preet Singh.”, pending before the Motor Accident Claims Tribunal, Jammu (for short, “Tribunal”).

The facts giving rise to the filing of the instant appeal, as emerging from the record would reveal that a claim petition had been filed by one-Madan Lal Khajuria, S/o Shiv Ram, R/o Krishna Nagar, Jammu against the respondent herein and the present appellant being respondents 1 & 2 in the Claim Petition filed under Section 140/166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the “Act”) for compensation in respect of the injuries, alleged to have been sustained by the claimant on account of a vehicular accident on 20.02.2001 while travelling on his Scooter as pillion rider from Jammu to R.S Pura. The Tribunal upon entertaining the claim petition, summoned the respondents, i.e., respondent 1 being the Insurance Company and the respondent 2 being the appellant herein, who filed objections to the claim petition, whereafter the Tribunal framed four issues from the pleadings of the parties and after conclusion of the adjudication of the claim petition, passed an award on 31.03.2006 saddling the Insurance Company with a liability after holding that the offending vehicle have had been insured with the Insurance Company.

Aggrieved of the award (supra) dated 31.03.2006, the Insurance Company assailed the same in an appeal being CIMA 217/2006 before this Court. The said appeal came to be considered and disposed of on 05.03.2008 after the appellant-Insurance Company and respondent No. 1 therein being the claimant agreed to its disposal. At the time of the disposal of the appeal, it was observed that the respondent No. 2 did not appear despite service and, accordingly, this Court provided that the appellant-Insurance Company shall pay an amount of Rs. 1,75,000/- (Rupees One Lac and Seventy Five Thousand) to the claimant/respondent in the appeal in total satisfaction of the claim including the awarded amount of Rs. 1,50,000/- (Rupees One Lac and Fifty Thousand) and interest of Rs. 25,000/- (Rupees Twenty Five Thousand), however, providing a liberty to the appellant-Insurance Company to seek recovery of the amount under law from the respondent No. 2-the present appellant.

The Insurance Company-respondent herein after the disposal of the appeal by this Court filed an Execution Petition before the Tribunal, seeking recovery of the awarded amount from the present appellant being respondent No. 2 in the appeal, decided by this Court. The present appellant resisted the said Execution Petition, primarily, on the ground that the award of the Tribunal had been directed against the Insurance Company and not against him. The Executing Court, however, disagreeing with the ground of resistance urged by the present appellant, passed the impugned order, whereby a warrant for attachment of movable property of the appellant herein being the owner of the offending vehicle came to be issued.

Heard learned counsel for the parties and perused the record.

Mr. Ashwani Thakur, appearing counsel for the appellant while making his submissions would contend that the Executing Court passed the impugned order without jurisdiction overlooking the fact that the original award have had been passed by the Tribunal against the Insurance Company and not against the present appellant and that the Insurance Company, as such, could not have filed the Execution Petition and that the Executing Court, in turn, could not have entertained the same conducted the proceedings thereon or passed the impugned order.

On the contrary, Mr. Suneel Malhotra, appearing counsel for the respondent-Insurance Company would raise a maiden preliminary objection qua the maintainability of the instant appeal and would submit that the appeal is not competent in terms of the provisions under Section 173 of the Act.

It is not in dispute that the Tribunal initially passed the award in favour of the claimant, namely, Madan Lal Khajuria on 31.03.2006. It is also not in dispute that the said award came to be questioned in a statutory appeal by the Insurance Company-respondent herein before this Court in CIMA No. 217/2006 and the said appeal, admittedly, came to be settled and disposed of on 05.03.2008, modifying the basic award passed by the Tribunal while settling the quantum of amount of compensation to the tune of Rs. 1,75,000/- (awarded amount of Rs. 1,50,000/- + interest of Rs. 25,000/-) providing a liberty to the Insurance Company-respondent herein to seek recovery of the amount from the respondent No. 2-appellant herein. The basic original award upon being modified by this Court, in essence, got merged into the order passed by this Court on 05.03.2008 in the appeal filed by the Insurance Company-respondent herein. The Execution Petition laid in consequence of passing of the order dated 05.03.2008 by this Court by the Insurance Company-respondent herein before the Executing Court, as such, sought execution of the said modified award while seeking recovery of the awarded amount of Rs. 1,75,000/- from the owner of the offending vehicle/petitioner herein.

Section 173 of the Act provides for appeals contemplating that any person aggrieved by an award of claims Tribunal may within 90 days from the date of the award prefer an appeal to the High Court, subject to certain stipulations and conditions provided in Section 173 itself.

A bare perusal of the aforesaid Section 173 manifestly would reveal that the statutory remedy of appeal is available to an aggrieved person against an award alone of the claims Tribunal. The present appeal indisputably has been filed by the owner of the offending vehicle/appellant herein against the order passed by the Executing Court in the execution proceedings instituted by the Insurance Company/respondent herein consequent to the order dated 05.03.2008 passed by this Court. The impugned order cannot, by any sense of imagination, said to be an award, as provided under Section 173 of the Act. The remedy of appeal invoked by the appellant herein against the impugned order passed by the Executing Court in the execution proceedings, ex-facie, is not maintainable. The appeal, prima-facie, is misconceived. Thus, preliminary objection raised by the counsel for the respondent succeeds and resultantly, the appeal fails and is, accordingly, dismissed, along connected application.