J. Kista Reddy and ors. Vs. Mandal Revenue Officer - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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 same, they sought for reference, and it was taken up by the court of senior civil judge, wanaparthy, as o. provided that, when any certificate is superseded under this section, all payments made to the holder of such certificate in ignorance of such super session shall be held good against claims under the probate or letters of administration. a reading of the provisions of section 214(1)(b) of the indian succession act makes it perfectly clear that it only bars the institution of execution proceedings by a person claiming on succession and does not bar the continuance of the proceedings which had been instituted by the original decree-holder'.12. in the recent past, a learned single judge of this court followed this principle in kothamasu lakshmaiah v. whatever may have been the circumstances, under which the said judgment was rendered, it no longer continues to be good law, in view of the fact that the amounts payable as compensation to the deceased were held to be not debts by the supreme court in smt.l. narasimha reddy, j.1. this revision is directed against the order dated 18-08-2004 passed by the court of senior civil judge, wanaparthy, in e.a. no. 85 of 2003, dismissing an application filed in e.p. no. 106 of 1997 in o.p. no. 38 of 1987.2. the lands of the petitioners 1 and 2 were acquired by the government, under the land acquisition act, for the purpose of srisailam project. award was passed by the respondent. not being satisfied with the same, they sought for reference, and it was taken up by the court of senior civil judge, wanaparthy, as o.p. no. 38 of 1987. after the decree passed therein became final, they filed e.p. no. 106 of 1997, for recovery of the amount. the amount has since been deposited by the respondent. in the meanwhile, the 2nd petitioner died on 7-5-2003.3. petitioners 3 to 6 filed e.a. no. 29 of 2004, under section 146 of c.p.c., to bring them on record as legal representatives of the 2nd petitioner. the e.a. was allowed on 21-04-2004. thereafter, petitioners nos. 1 and 3 to 6 filed e.a. no. 85 of 2003, for issuance of cheque, for the amount deposited to the credit of the e.p. the executing court dismissed the application on the ground that the petitioners 3 to 6 did not file the succession certificate, and in that view of the matter, their request is barred under section 214 of the indian succession act, (for short 'the act').4. learned counsel for the petitioners submits that section 214 of the act applies only to those cases where the suits, or execution petitions, as the case may be, are filed for the first time, by the persons claiming to be successors of a deceased person, and not where proceedings were already initiated, by the persons, entitled to such effects or benefits. he submits that, in cases where suits or execution petition is filed by the person actually entitled to, and he is dead, during the pendency of such proceedings, section 146 and order 22 of c.p.c., get attracted, and filing of succession certificate cannot be insisted, in such cases. he places reliance upon certain judgments rendered by this court, in support of his contention. he also submits that there was no justification for the executing court in refusing the relief for the 1st petitioner also.5. learned government pleader for arbitration, on the other hand, submits that section 214 of the act applies to all matters, pertaining to money decrees, and it is immaterial whether death of the decree-holder occurs before institution of the suit/ e.p. or thereafter.6. the short question that falls for consideration in this c.r.p., is, as to whether the bar contained in section 214 of the act applies to the proceedings, which are already instituted or initiated. it is a matter of record that a decree was passed in favour of the petitioners 1 and 2, in o.p. no. 38 of 1987, and e.p. no. 106 of 1997 was filed by them in the year 1977. the decretal amount was deposited; the 2nd petitioner died as late as on 07-05-2003, during the pendency of a petition for issuance of cheque. petitioners 3 to 6 were permitted to come on record as legal representatives of deceased 2nd petitioner, vide orders in e.a. no. 29 of 2004. the executing court rejected the application filed by petitioners 1 and 3 to 6, for issuance of cheque, on the ground that the petitioners 3 to 6 did not file succession certificate. it relied upon the judgment of this court in l.i.c. of india v. t. tirupathayya, : air1963ap353 which in turn followed a judgment of the bombay high court in abdul majid v. shamsherali, air 1940 bom. 285. it also relied upon the judgment in g. shivakumar v. md. nasim and ors., : 1992(3)alt458 . 7. section 214 occurs in part-viii of the act, comprising of sections 211 - 216. part viii deals with the representative title to the property of a deceased, on succession. it mostly refers to executors or administrators, and the effect of probate or the letters of administration, as the case may be, in relation to the properties left by a deceased. section 214 reads as under:section 214: 'proof of representative title a condition precedent to recovery through the courts of debts from debtors of deceased persons:-(1) no court shall -(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of-(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or(ii) a certificate granted under section 31 or section 32 of the administrator-general's act, 1913 (3 of 1913), and having the debt mentioned therein or(iii) a succession certificate granted under part x and having the debt specified therein, or(iv) a certificate granted under bombay regulation no. viii of 1827,. and, if granted after the first day of may, 1989, having the debt specified therein.(2) the word 'debt' in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.'if this section is read in the context of sections 212, 213, 215 and 216, it is manifest that the emphasis is upon the very institution or initiation of proceedings, after the death of the person, on the basis of 'succession, to be entitled to the effects of the deceased person'. wherever it was felt necessary, the legislature referred to the stage of pendency of the suit or proceedings. for instance, in section 215, a clear reference is made to pendency of proceedings. it reads as under:section 215: 'effect on certificate of subsequent probate or letters of administration:-(1) a grant of probate or letters of administration in respect of an estate shall be deemed to supersede any certificate previously granted under part x or under the succession certificate act, 1989 (7 of 1989), or bombay regulation no. viii of 1827, in respect of any debts or securities included in the estate.(2) when at the time of the grant of the probate or letters any suit or other proceeding instituted by the holder of any such certificate regarding any such debt or security is pending, the person to whom the grant is made shall, on applying to the court in which the suit or proceeding is pending, be entitled to take the place of the holder of the certificate in the suit or proceeding:provided that, when any certificate is superseded under this section, all payments made to the holder of such certificate in ignorance of such super session shall be held good against claims under the probate or letters of administration.'8. the omission to refer to pendency of a suit, in section 214 of the act, is not significant. if the object underlying part viii, and in particular section 214 is taken into account, it would be evident that the bar applies to the institution of the suit, or the execution proceedings, as the case may be. if this section is construed as governing the pending proceedings also, it virtually renders section 146 and order 22 of c.p.c., inapplicable to the suits or execution petitions, filed for recovery of amounts.9. even where parties are brought on record under section 146 and order 22 c.p.c., it is not as if the provisions of the act become inoperative. section 215 confers a superior right on a person, in whose favour a probate or a letter of administration, as the case may be, is issued. the rights of a person, who has either instituted the suit or e.p., on the basis of a succession certificate, or has come on record during the pendency of such proceedings, is subject to that of an executor or the administrator, as the case may be. the thrust under part-viii of the act, is in relation to the succession to a deceased, otherwise than through operation of personal law applicable to the person concerned.10. section 214 of the act has been the subject matter of interpretation by various courts. the views expressed by different courts are at a variance with each other. further, the interpretations covered several facets, ranging from definition of debt, to the stage of the proceedings. a division bench of this court, in ramaswamy v. venkamma, 1962 (2) an.w.r. 94 (d.b.) dealt with the applicability of this provision to suits, for enforcement of the rights of a mortgagee, in relation to the mortgaged property. after referring to the judgments of the high courts of allahabad, madras, calcutta, bombay, patna etc., the division bench held that the decrees in such suits cannot be treated as debts, and thereby section 214 does not apply.11. very apt, and relevant to the facts of this case, is the decision rendered by another division bench of this court in akula mahbubkhan v. rajamma, 1962 (2) an.w.r. 199 (d.b.). as in the present case, there also the e.p. was filed during the lifetime of the decree-holder. on his death, during the pendency of the e.p., his legal representatives came on record to continue the proceedings. the order passed by the executing court, permitting the legal representatives to come on record, was challenged by the judgment-debtor, on the ground that the succession certificate was not filed by the legal representatives. the objection was overruled, and it was upheld in an appeal. the judgment-debtor approached the high court. after referring to the decided cases and section 214 of the act, the bench held as under:'it is manifest from the language of section 214(1)(b) that it is only an application for execution filed by a person that comes within the prohibition enacted in section 214(1)(b). could it be predicated that a person who seeks to come on record as the legal representative of a decree-holder for the purpose of continuing that application, has applied for execution of the decree? in our opinion, the answer is in the negative. it looks to us that this clause contemplates initiation of execution proceedings by a person and not continuation of proceedings already started by the decree-holder.'support was derived for this conclusion, from a judgment of the patna high court in raghubir narain singh v. raj rajeshwari prasad singh, : air1957pat435 wherein it was observed as under:'a reading of the provisions of section 214(1)(b) of the indian succession act makes it perfectly clear that it only bars the institution of execution proceedings by a person claiming on succession and does not bar the continuance of the proceedings which had been instituted by the original decree-holder'.12. in the recent past, a learned single judge of this court followed this principle in kothamasu lakshmaiah v. kothamasu satyanarayana, : 1992(1)alt334 . clauses (a) and (b) of sub-section (1) of section 214 of the act, which deal with the institution of suit and initiation of execution proceedings, respectively, are couched in identical terms. what applies to execution, applies, equally, if not with greater vigor, to institution of suits also. in other words, the bar under section 214 of the act operates only for institution of suits, in respect of the debts, payable to a deceased, and filing of an e.p., to execute a decree obtained by the deceased person during his lifetime, and not for continuation of the suit or e.p., which are already instituted during the lifetime of such person.13. in l.i.c of india v. t. tirupathayya (1 supra), a learned single judge of this court took the view that section 214 of the act applies, even where legal representatives are brought on record, after the death of the original creditor, during the pendency of the suit. support was drawn for this proposition, from the judgment of the bombay high court in abdul majid v. shamsherali (2 supra). no reference was made to the judgment in akula mahbubkhan v. rajamma (5 supra), rendered by a division bench. further, a distinction was maintained between succession, on the one hand, and devolution by survivorship, on the other hand, in the context of section 214 of the act, and it was held that the section does not cover the latter. further, the decree in challenge was set aside, on the ground that though there may be a presumption in favour of a hindu family, being a joint, no such presumption exists, as regards the jointness of the properties. since the principle laid down therein is contrary to the judgment of a division bench of this court, this cannot be said to have laid down correct law.14. another judgment on which the executing court relied upon is, the one in g. shivkumar v. md. nasirn and ors. (3 supra). that case related to a claim under the motor vehicles act. whatever may have been the circumstances, under which the said judgment was rendered, it no longer continues to be good law, in view of the fact that the amounts payable as compensation to the deceased were held to be not debts by the supreme court in smt. rukhsana v. smt. nazrunnisa, : (2000)9scc240 . the said principle was followed by this court in chitrapu chinabapanaiah v. union of india, : air2004ap413 . it was held therein as under:'succession certificate is issuable only in cases of debts or securities payable to a deceased individual. section 370 of the indian succession act makes it amply clear. amount awarded as compensation to an individual is never treated as debt or security. therefore, no succession certificate can be issued under the said act, in relation to an amount awarded as compensation to a deceased-claimant. in smt. rukhsana v. smt. nazrunnisa : (2000)9scc240 , the supreme court held that the amount awarded, as compensation, on account of death of an individual, cannot be treated as debt or security and that the legal heirs of the person who was awarded such compensation, cannot be required to obtain succession certificate.'15. learned government pleader relied upon an unreported decision of this court c.r.p. no. 6988 of 2003. in that case, the land was acquired by the government for the benefit of a.p. housing board. at the instance of the owner of the land, the matter was referred to civil court. while the o.p., was pending, the matter was settled in lok adalat. the original claimant received the amount. however, a sum of rs. 11,100/-came to be deposited at a later point of time. by that time, the original claimant died. his legal representatives filed an application in the o.p. itself, for appropriate orders, to enable them to withdraw the amount. the application was rejected, on the ground that the petitioners therein did not file succession certificate. the order of the trial court was upheld by this court in the c.r.p. the instant case is distinguishable from the order in that c.r.p., in many respects. the petitioners therein were not brought on record as legal representatives of deceased claimant. no e.p. was filed. the matter was settled in lok adalat. the order dealt, mostly with the contentions on facts, and no principle of law as such was laid down.16. for the foregoing reasons, the c.r.p. is allowed, and the order under revision is set aside. consequently, the executing court is directed to pass appropriate orders, and take necessary steps in e.p. no. 85 of 2003. since the proceedings are pending for last several years, it is directed that finality shall be given to them, within six weeks from the date of receipt of a copy of this order. there shall be no order as to costs.