G. Anjaneyulu Vs. Collector (Civil Supplies), Joint Collector and ors. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - not being satisfied with the explanation offered by the petitioner, the first respondent directed confiscation of the commodities seized from the petitioner. clause 5(4) of the control order mandates that any such action shall precede a show-cause notice as well as an enquiry.orderl. narasimha reddy, j.1. petitioner was appointed as a fair price shop dealer of palkonda village of mahaboobnagar district by the third respondent, through proceedings dated 12-1-1991. the second respondent initiated proceedings under section 6-a of the essential commodities act, 1955 (for short 'the act') against the petitioner before the first respondent. it was alleged that the petitioner committed certain irregularities in the matter of distribution of essential commodities. after conducting an enquiry, the first respondent passed an order dated 1-1-2005 directing confiscation of the stock seized from the petitioner and imposed a penalty of rs.5,746/-. the first respondent also directed that the petitioner be removed from the dealership of the fair price shop. the petitioner challenges the order dated 1-1-2005 passed by the first respondent insofar as it relates to the direction as to his removal from the dealership.2. sri v. manohar rao, learned counsel for the petitioner, submits that the scope and ambit of the proceedings under section 6-a of the act initiated before the first respondent was limited and the maximum that could have been done by the first respondent was to have ordered confiscation of the seized stock. he submits that the authority to appoint an individual as a dealer of a fair price shop is the revenue divisional officer and the question of removing the existing dealer by the authority, under section 6-a of the act, does not arise. he also contends that under the a.p. state public distribution system control order, 2001, the first respondent is the appellate authority against any order passed by the third respondent cancelling the authorization of a fair price shop dealer and in that view of the matter, the impugned order to the extent indicated above is unsustainable.3. learned government pleader for civil supplies, on the other hand, submits that the direction as to removal of the petitioner from the dealership is only consequential to the order of confiscation passed under section 6-a of the act and that no exception can be taken to the same. he also contends that the petitioner had an effective remedy by way of appeal under section 6-c of the act and he can canvas the present grievances also in that.4. the proceedings under section 6-a of the act were initiated against the petitioner before the first respondent. two charges, namely he was indulging in clandestine business in relation to the commodities meant for public distribution and that he misappropriated certain quantities of pds rice and kerosene oil meant for the distribution in the month of august, 2004, were framed against him. the petitioner responded to the notice and submitted his explanation. not being satisfied with the explanation offered by the petitioner, the first respondent directed confiscation of the commodities seized from the petitioner. if the petitioner feels aggrieved by the same, he has to avail the remedy of appeal provided for under section 6-c of the act. in addition to directing confiscation of the seized commodities, the first respondent directed that the petitioner be removed from the dealership of the fair price shop. in this context, it needs to be seen that appointment of dealers for fair price shops and other matters relating thereto are governed by the control order, 2001. the third respondent is the appointing authority. it is he who is conferred with the power either to appoint a person as a dealer or to cancel the dealership. mere confiscation of essential commodities in the proceedings under section 6-a of the act cannot by itself result in cancellation of the dealership. for that purpose, separate and independent proceedings have to be initiated by the competent authority, viz., the third respondent. clause 5(4) of the control order mandates that any such action shall precede a show-cause notice as well as an enquiry. therefore, the direction issued by the first respondent for removal of the petitioner from dealership cannot be sustained.5. for the foregoing reasons, the impugned order insofar as it relates to the cancellation of the authorization of the petitioner is set aside. this order, however, does not preclude the revenue divisional officer, mahabunagar, the third respondent, from initiating the proceedings against the petitioner in accordance with the relevant provisions of law.6. the writ petition is accordingly allowed. there shall be no order as to costs.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. Petitioner was appointed as a fair price shop dealer of Palkonda Village of Mahaboobnagar District by the third respondent, through proceedings dated 12-1-1991. The second respondent initiated proceedings under Section 6-A of the Essential Commodities Act, 1955 (for short 'the Act') against the petitioner before the first respondent. It was alleged that the petitioner committed certain irregularities in the matter of distribution of essential commodities. After conducting an enquiry, the first respondent passed an order dated 1-1-2005 directing confiscation of the stock seized from the petitioner and imposed a penalty of Rs.5,746/-. The first respondent also directed that the petitioner be removed from the dealership of the fair price shop. The petitioner challenges the order dated 1-1-2005 passed by the first respondent insofar as it relates to the direction as to his removal from the dealership.

2. Sri V. Manohar Rao, learned Counsel for the petitioner, submits that the scope and ambit of the proceedings under Section 6-A of the Act initiated before the first respondent was limited and the maximum that could have been done by the first respondent was to have ordered confiscation of the seized stock. He submits that the authority to appoint an individual as a dealer of a fair price shop is the Revenue Divisional Officer and the question of removing the existing dealer by the authority, under Section 6-A of the Act, does not arise. He also contends that under the A.P. State Public Distribution System Control Order, 2001, the first respondent is the appellate authority against any order passed by the third respondent cancelling the authorization of a fair price shop dealer and in that view of the matter, the impugned order to the extent indicated above is unsustainable.

3. Learned Government Pleader for Civil Supplies, on the other hand, submits that the direction as to removal of the petitioner from the dealership is only consequential to the order of confiscation passed under Section 6-A of the Act and that no exception can be taken to the same. He also contends that the petitioner had an effective remedy by way of appeal under Section 6-C of the Act and he can canvas the present grievances also in that.

4. The proceedings under Section 6-A of the Act were initiated against the petitioner before the first respondent. Two charges, namely he was indulging in clandestine business in relation to the commodities meant for public distribution and that he misappropriated certain quantities of PDS rice and kerosene oil meant for the distribution in the month of August, 2004, were framed against him. The petitioner responded to the notice and submitted his explanation. Not being satisfied with the explanation offered by the petitioner, the first respondent directed confiscation of the commodities seized from the petitioner. If the petitioner feels aggrieved by the same, he has to avail the remedy of appeal provided for under Section 6-C of the Act. In addition to directing confiscation of the seized commodities, the first respondent directed that the petitioner be removed from the dealership of the fair price shop. In this context, it needs to be seen that appointment of dealers for fair price shops and other matters relating thereto are governed by the Control Order, 2001. The third respondent is the appointing authority. It is he who is conferred with the power either to appoint a person as a dealer or to cancel the dealership. Mere confiscation of essential commodities in the proceedings under Section 6-A of the Act cannot by itself result in cancellation of the dealership. For that purpose, separate and independent proceedings have to be initiated by the competent authority, viz., the third respondent. Clause 5(4) of the Control Order mandates that any such action shall precede a show-cause notice as well as an enquiry. Therefore, the direction issued by the first respondent for removal of the petitioner from dealership cannot be sustained.

5. For the foregoing reasons, the impugned order insofar as it relates to the cancellation of the authorization of the petitioner is set aside. This order, however, does not preclude the Revenue Divisional Officer, Mahabunagar, the third respondent, from initiating the proceedings against the petitioner in accordance with the relevant provisions of law.

6. The writ petition is accordingly allowed. There shall be no order as to costs.