Jammu and Kashmir High Court
OWP/25/2003 of ABDUL RASHID BHAT Vs STATE GOVT OF J AND KL OTHERS on 30 December 2022
OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP No. 25/2003 IA No. 01/2006 Reserved on: 20.12.2022 Pronounced on: 30.12.2022 Abdul Rashid Bhat …….Petitioner(s) Through: Mr. Mohtashim Manzoor, Advocate V/s State Government of J&K and Ors. ……Respondent(s)
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
OWP No. 25/2003 IA No. 01/2006
Abdul Rashid Bhat
Reserved on: 20.12.2022 Pronounced on: 30.12.2022
…….Petitioner(s)
Through: Mr. Mohtashim Manzoor, Advocate V/s ……Respondent(s)
State Government of J&K and Ors.
Through: Mr Hakim Suhail Ishtiyaq, Advocate Mr. N. H. Khuroo, Advocate
CORAM:
HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
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JUDGMENT
01. In this petition, filed under Article 226 of the Constitution of India, the petitioner has craved the indulgence of this Court in granting him the following relief(s):
a) “Writ of certiorari, quashing award dated 30.08.2001 passed by the Motor Accident Claims Tribunal, Kargil (respondent No. 1) in case No. 35 claim titled Habibullah and others versus United Insurance Company Ltd., and others, being illegal and without jurisdiction. b) Writ of certiorari, quashing summon dated 11.12.2002 (Annexure P6) and also recovery proceedings before the Special Tehsildar, Recoveries, Srinagar.”
02. The case set up by petitioner is that he was the owner of the vehicle No. JKC
9417, and was financed by the respondent No. 10. It is stated that the petitioner has sold the said vehicle to one Ghulam Ahmad Bhat and had handed over the documents of the vehicle to him. The possession of the vehicle was also given to him. However, the ownership of the said vehicle could not be transferred in RTOs office because of the financial liability of respondent No. 10.
03. The said vehicle No. JKC-9417, as is stated in the petition, had met with an accident at Shey in District Leh on 30.03.1989, in which father of respondent No. 5, and grandfather of the respondents 6 to 8 had died. It is stated that the respondents 5 to 8 filed a claim petition before the respondent No. 1. The respondents 3 and 4, however, pleaded before the respondent No. 1 that the vehicle was duly insured on the date of accident viz 30.03.1989. However, respondents 3 and 4, produced photocopy of the cover note before the Tribunal, showing the offending vehicle insured with the respondent No. 2 for the period commencing from 04.05.1989 to 30.05.1990.
04. It is stated that since the vehicle was under finance with the respondent No. 10 and it is this Bank, which had taken upon itself to pay for the insurance and they had been regularly debiting the premium amount, which was being paid to respondent No. 2 to have the insurance cover.
05. The Tribunal has passed the award on 30.08.2001, which is challenged in the instant petition by the petitioner on varied grounds including that the respondent No. 1 has ignored very important factor that it is the liability of the insurer to discharge the liability which is indefeasible and ultimate. It is averred that the respondent No. 1, has ignored a very vital aspect of the matter regarding the plea taken by the petitioner that the vehicle already stood sold nearly five years before the accident, viz 03.05.1985, whereas the accident took place on 30.03.1989 and the premium for the said vehicle for insurance cover had been paid by the respondent Bank to the respondent No. 2, so this clinches the whole issue because on this date the vehicle involved was squarely covered by the insurance.
06. It is stated that the sale of the motor vehicle is governed by the Sale of Goods Act and the sale is complete when the consideration is paid and the vehicle is delivered irrespective of the fact that the sale has been registered with the registering authority or not. It is averred that Section 157 of the Motor Vehicles Act makes transfer of insurance certificate and policy automatic along with transfer of the motor vehicle and it takes away insurer’s right of refusal which was otherwise exerciseable under Section 103 of the Old Act, therefore, the petitioner under law is not liable to pay awarded money to the claimants.
07. On notice respondents have filed objections, wherein it is stated that the instant writ petition is not maintainable, as the petitioner had a remedy to file the appeal against the award, if he was aggrieved of the award of Tribunal. The award has been passed by the Tribunal on 30.08.2001 and this petition has been preferred by him in the year 2003. It is stated that under Section 173 of the Motor Vehicles Act, any person aggrieved of the award, has to file the appeal within 90 days before the High Court after depositing the required statutory amount. The petitioner, instead of filing the appeal as is required under the Motor Vehicles Act, has filed this writ petition too after a period of two years. It is stated that the petitioner being the registered owner of the offending vehicle was also arrayed as one of the respondents along with other respondents.
08. Heard learned counsel for the parties, perused the records and considered the matter.
09. The Petitioner, admittedly, is registered owner of the offending vehicle and was impleaded as party on the application filed before the Tribunal. Though he objected the application, yet the Tribunal allowed the application and impleaded him as party, as being was a registered owner of the vehicle. However, thereafter the petitioner did not contest the claim petition as he did not file the reply before Tribunal. The tribunal proceeded and it appears that due to some error, the Tribunal had not shown the name of petitioner in the array of respondents primarily on the ground that steps had not been taken for his service, when as a matter of fact he had appeared and contested the application, wherein his impleadment as respondent was sought.
11. The petitioner was already before the Tribunal, but he had not chosen to file the response to the claim petition. Though he remained absent before order of deleting him from the array of respondents as the said order was wrongly passed, as has been rightly observed by the Tribunal, because petitioner had already been served and had appeared before the Tribunal to contest the claim petition. Even he had remained absent before and after the deletion, but the Tribunal while passing the award rectified the defect, which had occurred in the proceedings.
12. It is beaten law of the land that award passed in terms of the Motor Vehicles Act can be assailed through an appeal and not by a writ petition filed in terms of Article 226 of the Constitution of India. The instant writ petition in that view of the matter is not maintainable being not an appropriate remedy provided by the statute.15. Viewed thus, this writ petition being without any merit is dismissed. Interim direction, if any, shall stand vacated.
Srinagar 30.12.2022“Mohammad Yasin Dar”
(VINOD CHATTERJI KOUL) JUDGE