Mahomed Ali Vs. the State - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - 5. for these reasons, in our view, the petitioner was perfectly justified in making an application praying for an order for disposal of the bums of money according to law.order1. this is an application in revision by one muhammed ali and it is directed against the order dated 17th august 1954 of the chief city magistrate, hyderabad whereby he dismissed the petitioner's application dated 5th july 1954 praying that money lying with the court below be refunded to him in the result of his acquittal.2. before adverting to the question involved herein, it may be mentioned that the petitioner was charged with offences falling under sections 400 and 353 of the hyderabad penal code for having obtained the sum claimed by cheating and fabrication of false document. on conclusion of the trial, he was found guilty of the said offences and sentenced to four years' rigorous imprisonment. that conviction and sentence was upheld on appeal. on a revision filed in this court it was found that the chief city magistrate has no jurisdiction to try the petitioner and we by our judgment and order dated 18th june 1954 for reasons stated therein, acquitted him. the trial magistrate while sentencing the petitioner had ordered that the monies recovered from the petitioner's possession may be handed over to the commercial corporation mahabubnagar. as there was no specific order in our acquittal judgment with respect to the said amount, the petitioner applied to the trial magistrate for an order of its refund as a necessary consequence of his acquittal.3. the learned magistrate dismissed the application on two grounds : firstly because his previous order with respect to the disposal of money had not been expressly set aside by the high court, and secondly because section 517 of the criminal procedure code was enough to justify the order which he had made.4. it is this order which the petitioner assails in this revision. after hearing the learned advocates appearing on behalf of the parties, we think that the impugned order cannot be allowed to stand. for passing an order under section 517, criminal p. c., it is necessary that there should have been an inquiry or trial but where it is held either by the trial magistrate or by a superior court either in appeal or revision, that trial was without jurisdiction, the proceeding cannot be said to constitute a trial, and therefore it is not open to the court to pass any order under section 517. in other words, to constitute an inquiry or trial within the meaning of section 517 it is a condition precedent that the proceeding must have concluded before a court of competent jurisdiction. it is quite true that in our judgment of 18th june 1954 we did not expressly set aside the order of the trial magistrate with respect to the disposal of the sums of money alleged to have been recovered from the petitioner but that omission would not validate the order which was void for being without jurisdiction.5. for these reasons, in our view, the petitioner was perfectly justified in making an application praying for an order for disposal of the bums of money according to law. the only section under which such an application could be made is section 523, criminal p. c. clause (1) of section 523 gives magistrate power either to deliver the property to the person entitled to its possession or to pass such an order as he deems fit respecting its disposal. if he adopts the first alternative, he has to find out the person entitled to possession, and, if no one succeeds in establishing his title to possession, the property should be placed at the disposal of the government.6. the revision petition is, therefore allowed, and the order of the chief city magistrate is set aside. as the learned magistrate has already formed an opinion in the matter in question and the guilt of the accused, we direct that the proceeding be transferred and placed before the district magistrate, secunderabad, for disposal in accordance with law.

Judgment:
ORDER

1. This is an application in revision by one Muhammed Ali and it is directed against the order dated 17th August 1954 of the Chief City Magistrate, Hyderabad whereby he dismissed the petitioner's application dated 5th July 1954 praying that money lying with the court below be refunded to him in the result of his acquittal.

2. Before adverting to the question involved herein, it may be mentioned that the petitioner was charged with offences falling under Sections 400 and 353 of the Hyderabad Penal Code for having obtained the sum claimed by cheating and fabrication of false document. On conclusion of the trial, he was found guilty of the said offences and sentenced to four years' rigorous imprisonment. That conviction and sentence was upheld on appeal. On a revision filed in this Court it was found that the Chief City Magistrate has no jurisdiction to try the petitioner and we by our judgment and order dated 18th June 1954 for reasons stated therein, acquitted him. The Trial Magistrate while sentencing the petitioner had ordered that the monies recovered from the petitioner's possession may be handed over to the Commercial Corporation Mahabubnagar. As there was no specific order in our acquittal judgment with respect to the said amount, the petitioner applied to the Trial Magistrate for an order of its refund as a necessary consequence of his acquittal.

3. The learned Magistrate dismissed the application on two grounds : firstly because his previous order with respect to the disposal of money had not been expressly set aside by the High Court, and secondly because Section 517 of the Criminal Procedure Code was enough to justify the order which he had made.

4. It is this order which the petitioner assails in this revision. After hearing the learned advocates appearing on behalf of the parties, we think that the impugned order cannot be allowed to stand. For passing an order under Section 517, Criminal P. C., it is necessary that there should have been an inquiry or trial but where it is held either by the Trial Magistrate or by a superior court either in appeal or revision, that trial was without jurisdiction, the proceeding cannot be said to constitute a trial, and therefore it is not open to the Court to pass any order under Section 517. In other words, to constitute an inquiry or trial within the meaning of Section 517 it is a condition precedent that the proceeding must have concluded before a court of competent jurisdiction. It is quite true that in our judgment of 18th June 1954 we did not expressly set aside the order of the Trial Magistrate with respect to the disposal of the sums of money alleged to have been recovered from the petitioner but that omission would not validate the order which was void for being without jurisdiction.

5. For these reasons, in our view, the petitioner was perfectly justified in making an application praying for an order for disposal of the Bums of money according to law. The only section under which such an application could be made is Section 523, Criminal P. C. Clause (1) of Section 523 gives Magistrate power either to deliver the property to the person entitled to its possession or to pass such an order as he deems fit respecting its disposal. If he adopts the first alternative, he has to find out the person entitled to possession, and, if no one succeeds in establishing his title to possession, the property should be placed at the disposal of the Government.

6. The revision petition is, therefore allowed, and the order of the Chief City Magistrate is set aside. As the learned Magistrate has already formed an opinion in the matter in question and the guilt of the accused, we direct that the proceeding be transferred and placed before the District Magistrate, Secunderabad, for disposal in accordance with law.