# (2011) 2 ILRA 662

- **Citation:** (2011) 2 ILRA 662
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-25
- **Case number:** Etawah in Motor Accident Claim Petition No. 738 of 2008
- **Bench:** Satya Poot Mehrotra, S. S.Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2011-2-ilra-662-41955
- **Pages:** 8

## Headnote

Motor Vehicle Act, 1988 Section 173Appeal against award of Accident Claim
Tribunal-vehicle
involve
in
accident
found insured-permission to contest the
case under section 170 rejected-hence
the
insurance
company
cannot
be
allowed to challenge except liability
under section 149(2)-no infirmity or
illegality found-Appeal Dismissed.

Held: Para 17

Reading Sections 170 and 149(2) of the
Act together, it is evident that in case
the Tribunal grants permission to the
insurer under Section 170, the insurer
will get right to contest the Claim
Petition on all or any of the grounds that
are available to the person against whom
the claim has been made. However, if
such permission is not granted by the
Tribunal, then the insurer will be entitled
to contest the Claim Petition on the
limited
grounds
mentioned
in
subsection (2) of Section 149 of the Act. It
follows, therefore, that in case an appeal
is filed by the insurer against an Award
in a case where its application under
Section 170 of the Act was rejected by
the Tribunal, it (insurer) will be able to
challenge the Award only on the limited
grounds mentioned in sub-section (2) of
Section 149 of the said Act.

## Text

662 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2011

BEFORE
THE HON'BLE SATYA POOT MEHROTRA,J.
THE HON'BLE S. S.TIWARI,J.

First Appeal From Order No. - 2851 of 2010

National Insurance Company Ltd.

 ...Petitioner
Versus
Nathu Ram Sharma and others

 ...Respondent

Counsel for the Petitioner:
Sri S.K. Mehrotra

Motor Vehicle Act, 1988 Section 173Appeal against award of Accident Claim
Tribunal-vehicle
involve
in
accident
found insured-permission to contest the
case under section 170 rejected-hence
the
insurance
company
cannot
be
allowed to challenge except liability
under section 149(2)-no infirmity or
illegality found-Appeal Dismissed.

Held: Para 17

Reading Sections 170 and 149(2) of the
Act together, it is evident that in case
the Tribunal grants permission to the
insurer under Section 170, the insurer
will get right to contest the Claim
Petition on all or any of the grounds that
are available to the person against whom
the claim has been made. However, if
such permission is not granted by the
Tribunal, then the insurer will be entitled
to contest the Claim Petition on the
limited
grounds
mentioned
in
subsection (2) of Section 149 of the Act. It
follows, therefore, that in case an appeal
is filed by the insurer against an Award
in a case where its application under
Section 170 of the Act was rejected by
the Tribunal, it (insurer) will be able to
challenge the Award only on the limited
grounds mentioned in sub-section (2) of
Section 149 of the said Act.
(Delivered by Hon'ble S.P.Mehrotra,J.)

1. The present Appeal has been filed
under Section 173 of the Motor Vehicles
Act, 1988 (in short "the Act") against the
judgment and order / award dated
6.4.2010 passed by the Motor Accidents
Claims Tribunal,
Etawah
in
Motor
Accident Claim Petition No. 738 of 2008
filed by the claimant-respondent nos. 1 to
3 on account of the death of Vijay Kumar
in an accident, which took place on
25.10.2008.

2. It was, interalia, averred in the
Claim Petition that on 25.10.2008, the
said Vijay Kumar boarded Bus No.
UP75A-7639 (hereinafter also referred to
as 'the vehicle in question') after paying
fare for going from Etawah to his house;
and that when the said Bus starting from
Etawah reached near Kachaura Ghat
under Police Station Belari, District -
Etawah, the Driver of the said Bus did not
slow-down the speed of the said Bus, and
he could not see the black stone gitti
spread on the road, and the said Bus
suddenly over-turned on the gitti, as a
result of which, the said Vijay Kumar,
aged 26 years, died; and that the Driver of
the said Bus at the time of the accident
was Rashid Ahmad, son of Mushtaq
Ahmad; and that had the said Bus been
driven by the Driver carefully and
following Traffic Rules, the accident
could have been avoided; and that the said
Vijay Kumar was working on the post of
Supervisor in Mohan Dairy, Mahavir
Ganj, Auraiya for the last about two and
half years.

3. The Claim Petition was contested
by Smt. Shitla Devi, owner of the vehicle
in question (respondent no.4 herein) as
well as by the Appellant-Insurance
2 All National Insurance Company Ltd. V. Nathu Ram Sharma and others
663
Company. In the Written Statement filed
on behalf of the said Smt. Shitla Devi
(respondent no.4 herein) through her
Special Power of Attorney Holder, Arun
Kumar, the averments made in the Claim
Petition were denied. The involvement of
the vehicle in question in the accident was
denied. It was alleged that Vijay Kumar
collided with some other vehicle and he
died on account of his own mistake, and
the liability could not be fastened on the
vehicle in question and its Driver. It was
further alleged that at the time of the
alleged accident, all the papers in respect
of the vehicle in question were valid and
the Driver of the vehicle in question was
having valid Driving Licence. It was
further alleged that in any case, the
liability for payment of compensation was
on the Appellant-Insurance Company.

4.

The
Appellant-Insurance
Company in its Written Statement denied
the averments made in the Claim Petition.
It was alleged that the death of the said
Vijay Kumar did not occur in the alleged
accident nor was the said Vijay Kumar
travelling in the said Bus (vehicle in
question) after purchasing ticket. It was
further alleged that the death of the said
Vijay Kumar occurred due to some other
vehicle or some other cause. It was further
alleged that the terms of the Insurance
Policy had been violated.

The Tribunal framed four Issues in
the case.

Issue No.1 was regarding factum of
the accident having taken place on
25.10.2008 on account of rash and
negligent driving by the Driver of the
vehicle in question resulting in the death
of the said Vijay Kumar.

Issue No.2 was as to whether the
vehicle in question was insured with the
Appellant-Insurance Company on the date
of the accident.

Issue No.3 was as to whether the
Driver of the vehicle in question was
having
valid
and
effective
Driving
Licence on the date of the accident.

Issue No.4 was as to whether the
claimant-respondent nos. 1 to 3 were
entitled to get any compensation, and if
yes, the quantum of such compensation,
and against which opposite party in the
Claim Petition.

6. The claimant-respondent nos. 1 to
3 examined three witnesses on their
behalf. Further, the claimant-respondent
nos. 1 to 3 filed documentary evidence
including
photostat
copies
of
the
Insurance
Policy,
General
Diary,
Application
of
Ram
Autar,
Panchayatnama,
Post-Mortem
Report,
Registration Certification, Permit, Driving
Licence, Voter Identity Card and Licence
in respect of the Dairy. Original Salary
Certificate issued by Mohan Dairy was
also filed.

7. The owner of the vehicle in
question, Smt. Shitla Devi (respondent
no.4 herein) filed documentary evidence,
namely,
photostat
copies
of
the
Registration Certificate, Insurance Cover
Note, Permit and Driving Licence.

8.

The
Appellant-Insurance
Company filed documentary evidence,
namely, attested copy of the Insurance
Policy and Form No. 54 containing
verification report in respect of the
Driving Licence.
664 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

9. On consideration of the material
on record, the Tribunal recorded its
findings on various Issues.

10. As regards Issue No.1, the
Tribunal held that the accident in question
took place on account of the rash and
negligent driving by the driver of the said
Bus (vehicle in question), which resulted
in the death of the said Vijay Kumar.
Issue No.1 was accordingly decided in the
affirmative.

11. As regards Issue No.2, the
Tribunal held that the vehicle in question
was insured with the Appellant-Insurance
Company on the date of the accident in
question. Issue No.2 was accordingly
decided in the affirmative.

12. As regards Issue No.3, the
Tribunal held that the Driver of the
vehicle in question (Rashid Ahmad) was
having
valid
and
effective
Driving
Licence on the date of the accident. The
Tribunal further held that there was valid
Permit in respect of the vehicle in
question.
Issue
No.3
was
decided
accordingly.

13. As regards Issue No.4, the
Tribunal
held
that
the
claimantrespondent nos. 1 to 3 were entitled to get
compensation
amounting
to
Rs.
5,50,500/- with simple interest @ 6% perannum with effect from the date of
presentation of the Claim Petition till the
date of actual payment.

14. On the basis of the above
findings, the Tribunal gave the impugned
Award
awarding
Rs.
5,50,500/-
as
compensation to the claimant-respondent
nos. 1 to 3 with simple interest @ 6% perannum with effect from the date of
presentation of the Claim Petition till the
date of actual payment.

15.

The
Appellant-Insurance
Company has filed the present Appeal
against the said Award.

We have heard Shri S.K. Mehrotra,
learned
counsel
for
the
AppellantInsurance Company, and perused the
record filed with the Appeal.

16. From a perusal of the record, it
is evident that an Application under
Section 170 of the Act was filed on behalf
of the Appellant-Insurance Company.
However, by the order dated 21.11.2009,
the Tribunal rejected the said Application
interalia, observing that the witnesses had
been cross-examined on behalf of the
owner
of
the
vehicle
in
question
(respondent no.4 herein).

Section 170 of the Act lays down as
under :

"170 Impleading insurer in certain
cases- Where in the course of any inquiry,
the Claims Tribunal is satisfied that-

(a) there is collusion between the
person making the claim and the person
against whom the claim is made, or

(b) the person against whom the
claim is made has failed to contest the
claim, it may, for reasons to be recorded
in writing, direct that the insurer who may
be liable in respect of such claim, shall be
impleaded as a party to the proceeding
and the insurer so impleaded shall
thereupon have, without prejudice to the
provisions contained in sub-section (2) of
Section 149, the right to contest the claim
on all or any of the grounds that are
2 All National Insurance Company Ltd. V. Nathu Ram Sharma and others
665
available to the person against whom the
claim has been made."

Section 149 of the Act referred to in
Section 170 of the said Act is reproduced
below:-

"149. Duty of insurers to satisfy
judgments and awards against persons
insured in respect of third party risks. (1)
If, after a certificate of insurance has
been issued under sub-section (3) of
Section 147 in favour of the person by
whom a policy has been effected,
judgment or award in respect of any such
liability as is required to be covered by a
policy under clause (b) of sub-section (1)
of Section 147 (being a liability covered
by the terms of the policy) [or under the
provisions of Section 163A] is obtained
against any person insured by the policy,
then, notwithstanding that the insurer may
be entitled to avoid or cancel or may have
avoided or cancelled the policy, the
insurer shall, subject to the provisions of
this section, pay to the person entitled to
the benefit of the decree any sum not
exceeding the sum assured payable
thereunder, as if he were the judgment
debtor, in respect of the liability, together
with any amount payable in respect of
costs and any sum payable in respect of
interest on that sum by virtue of any
enactment
relating
to
interest
on
judgments.

(2) No sum shall be payable by an
insurer under sub-section (1) in respect of
any judgment or award unless, before the
commencement of the proceedings in
which the judgment or award is given the
insurer had notice through the Court or,
as the case may be, the Claims Tribunal
of the bringing of the proceedings, or in
respect of such judgment or award so
long as execution is stayed thereon
pending an appeal; and an insurer to
whom notice of the bringing of any such
proceedings is so given shall be entitled
to be made a party thereto and to defend
the action on any of the following
grounds, namely:-

(a) that there has been a breach of a
specified condition of the policy, being
one of the following conditions, namely:-

(i) a condition excluding the use of
the vehicle-

(a) for hire or reward, where the
vehicle is on the date of the contract of
insurance a vehicle not covered by a
permit to ply for hire or reward, or

(b) for organised racing and speed
testing, or

(c) for a purpose not allowed by the
permit under which the vehicle is used,
where the vehicle is a transport vehicle,
or

(d) without side-car being attached
where the vehicle is a motor cycle; or

(ii) a condition excluding driving by
a named person or persons or by any
person who is not duly licensed, or by any
person who has been disqualified for
holding or obtaining a driving licence
during the period of disqualification; or

(iii) a condition excluding liability
for injury caused or contributed to by
conditions of war, civil war, riot or civil
commotion; or

(b) that the policy is void on the
ground that it was obtained by the
666 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
nondisclosure of a material fact or by a
representation of fact which was false in
some material particular.

(3) Where any such judgment as is
referred to in sub-section (1) is obtained
from a Court in a reciprocating country
and in the case of a foreign judgment is,
by virtue of the provisions of Section 13 of
the Code of Civil Procedure, 1908 (5 of
1908) conclusive as to any matter
adjudicated upon by it, the insurer (being
an insurer registered under the Insurance
Act, 1938 (4 of 1938) and whether or not
he is registered under the corresponding
law of the reciprocating country) shall be
liable to the person entitled to the benefit
of the decree in the manner and to be the
extent specified in sub-section (1), as if
the judgment were given by a Court in
India:

Provided that no sum shall be
payable by the insurer in respect of any
such
judgment
unless,
before
the
commencement of the proceedings in
which the judgment is given, the insurer
had notice through the Court concerned
of the bringing of the proceedings and the
insurer to whom notice is so given is
entitled under the corresponding law of
the reciprocating country, to be made a
party to the proceedings and to defend the
action on grounds similar to those
specified in sub-section (2).

(4) Where a certificate of insurance
has been issued under sub-section (3) of
Section 147 to the person by whom a
policy has been effected, so much of the
policy
as
purports
to
restrict
the
insurance of the persons insured thereby
by reference to any condition other than
those in clause (b) of sub-section (2)
shall, as respects such liabilities as are
required to be covered by a policy under
clause (b) of sub-section (1) of Section
147, be of no effect:

Provided that any sum paid by the
insurer in or towards the discharge of any
liability of any person which is covered by
the policy by virtue only of this subsection shall be recoverable by the
insurer from that person.

(5) If the amount which an insurer
becomes liable under this Section to pay
in respect of a liability incurred by a
person insured by a policy exceeds the
amount for which the insurer would apart
from the provisions of this Section be
liable under the policy in respect of that
liability, the insurer shall be entitled to
recover the excess from that person.

(6) In this Section the expression
"material fact" and "material particular"
means, respectively a fact or particular of
such a nature as to influence the judgment
of a prudent insurer in determining
whether he will take the risk and, if so, at
what premium and on what conditions,
and the expression "liability covered by
the terms of the policy" means a liability
which is covered by the policy or which
would be so covered but for the fact that
the insurer is entitled to avoid or cancel
or has avoided or cancelled the policy.

(7) No insurer to whom the notice
referred to in sub-section (2) or subsection (3) has been given shall be
entitled to avoid his liability to any person
entitled to the benefit of any such
judgment or award as is referred to in
sub-section (1) or in such judgment as is
referred to in sub-section (3) otherwise
than in the manner provided for in subsection (2) or in the corresponding law of
2 All National Insurance Company Ltd. V. Nathu Ram Sharma and others
667
the reciprocating country, as the case
may be.

Explanation.-For the purposes of this
section, "Claims Tribunal" means a
Claims Tribunal constituted under Section
165 and "award" means an award made
by that Tribunal under Section 168."

17. Reading Sections 170 and
149(2) of the Act together, it is evident
that in case the Tribunal grants permission
to the insurer under Section 170, the
insurer will get right to contest the Claim
Petition on all or any of the grounds that
are available to the person against whom
the claim has been made. However, if
such permission is not granted by the
Tribunal, then the insurer will be entitled
to contest the Claim Petition on the
limited grounds mentioned in sub-section
(2) of Section 149 of the Act. It follows,
therefore, that in case an appeal is filed by
the insurer against an Award in a case
where its application under Section 170 of
the Act was rejected by the Tribunal, it
(insurer) will be able to challenge the
Award only on the limited grounds
mentioned in sub-section (2) of Section
149 of the said Act.

18. The first question to be
considered is as to whether the Tribunal
was right in passing the order dated
21.11.2009 rejecting the said application
under Section 170 of the Act filed on
behalf
of
the
Appellant-Insurance
Company.

19. Section 170 of the Act
contemplates the following two situations
where the insurer may be given, without
prejudice to the provisions contained in
sub-section (2) of Section 149, the right to
contest the claim on all or any of the
grounds that are available to the person
against whom the claim has been made:

(a) where there is collusion between
the person making the claim and the
person against whom the claim is made,
or

(b) where the person against whom
the claim is made has failed to contest the
claim.

20. In the present case, no collusion
has been shown between the claimantrespondent nos. 1 to 3 and the owner of
the vehicle in question namely, Smt.
Shitla Devi (respondent no.4 herein).
Therefore, situation (a), mentioned above,
has not been shown to exist in the present
case.

21. As is evident from the impugned
Award, Written Statement was filed on
behalf of the said Smt. Shitla Devi
(respondent no.4 herein) denying the
averments made in the Claim Petition.
Further, various documents including
photostat copies of the Insurance Cover
Note, Permit and Driving Licence were
filed on behalf of the said Smt. Shitla
Devi (respondent no.4 herein). The
witnesses examined on behalf of the
claimant-respondent nos. 1 to 3 were
cross-examined on behalf of the said Smt.
Shitla Devi (respondent no.4 herein) as
noted by the Tribunal in its said order
dated
21.11.2009
passed
on
the
Application under Section 170 of the Act.

22. It is, thus, evident that the owner
of the vehicle in question (respondent
no.4 herein) against whom the claim was
made, was contesting the Claim Petition.
Therefore, situation (b), mentioned above,
also does not exist in the present case.
668 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

23. In view of the above, we are of
the opinion that the application under
Section 170 of the Act, filed on behalf of
the Appellant-Insurance Company, was
rightly rejected by the said order dated
21.11.2009.

24. The next question to be
considered is as to on what grounds, the
Appellant-Insurance
Company
can
challenge the impugned Award, and as to
whether such challenge is valid.

25. As noted above, in the present
case, the Tribunal rejected the application
of the Appellant-Insurance Company for
permission under Section 170 of the Act.

26. In view of the rejection of the
said application under Section 170 of the
Act, it is evident that the AppellantInsurance Company can challenge the
impugned Award only on the grounds
mentioned in sub-section (2) of Section
149 of the Act. Such grounds are
evidently in respect of Issue Nos. 2 and 3.

27. As noted above, in regard to
Issue No.2, the Tribunal has recorded
finding of fact that at the time of the
accident, the vehicle in question was
insured with the Appellant-Insurance
Company. In this regard, it is noteworthy
that the Insurance Policy brought on
record before the Tribunal showed that
the vehicle in question was insured with
the Appellant-Insurance Company for the
period with effect from 6.6.2008 to
5.6.2009, and, thus, the vehicle in
question was insured with the AppellantInsurance Company on the date of the
accident, namely, 25.10.2008. It is further
noteworthy that the factum of the
insurance of the vehicle in question with
the Appellant-Insurance Company was
got verified by the Appellant-Insurance
Company itself.

28. As regards Issue no.3, the
Tribunal has recorded finding of fact that
at the time of the accident, the Driver of
the vehicle in question was having valid
and effective Driving Licence, and there
was valid Permit in operation in respect of
the vehicle in question.

29. Shri S.K. Mehrotra, learned
counsel
for
the
Appellant-Insurance
Company has not been able to show any
error or infirmity or illegality in the
aforesaid
findings
recorded
by
the
Tribunal on Issue nos. 2 and 3.

30. Having perused the record filed
with the Appeal, we are of the opinion
that the findings recorded by the Tribunal
on the aforesaid Issues were correct, and
the same do not suffer from any error or
infirmity or illegality.

31. Therefore, we are of the view
that the Appellant-Insurance Company
has failed to establish any error or
infirmity or illegality in the impugned
Award on the grounds open to the
Appellant-Insurance Company to raise in
view of the provisions of sub-section (2)
of Section 149 of the Act.

32. Shri S.K. Mehrotra, learned
counsel
for
the
Appellant-Insurance
Company submits that the involvement of
the vehicle in question in the alleged
accident was not established, and the
Tribunal erred in deciding Issue No.1.

33. Shri S.K. Mehrotra, learned
counsel
for
the
Appellant-Insurance
Company
further
submits
that
the
quantum of compensation as determined
2 All Vasudev Gupta V. State of U.P. and others
669
by the Tribunal in deciding Issue No.4 is
not correct.

34. In our opinion, as the application
of the Appellant-Insurance Company
under Section 170 of the Act was rejected
by the Tribunal, it is not open to the
Appellant-Insurance Company to raise the
question of involvement of the vehicle in
question in the accident or the question of
quantum of compensation awarded by the
Tribunal in the impugned Award. The
pleas raised in this regard by Shri S.K.
Mehrotra,
learned
counsel
for
the
Appellant-Insurance Company, cannot,
therefore, be considered.

35. In view of the above, we are of
the opinion that the Appeal filed by the
Appellant-Insurance
Company
lacks
merits, and the same is liable to be
dismissed.

The Appeal is accordingly dismissed.

36. However, on the facts and in the
circumstances of the case, there will be no
order as to costs.

37. The amount of Rs. 25,000/-
deposited by the Appellant-Insurance
Company while filing the present Appeal
will be remitted to the Tribunal for being
adjusted towards the amount payable
under the impugned Award.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Misc. Bench No. - 3362 of 2011

Vasudev Gupta

 ...Petitioner
Versus
State of U.P., through Principal Secy.,
Home and others
 ...Respondents

Counsel for the Petitioner:
Sri Hari Shanker Jain
Sri Vishnu Shankar Jain

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 25, 26-oral
restriction-on procession of " Akhand
Jyoti Kalash" by local administrationheld-really unfortunate if state feels
helpless to facilitate religious procession
even
after
expiry
of
63
years
of
Independence-General Mandamus issued
to
the
Govt.
to
frame
regulation
providing the authority to entertain such
application and inform in writing within
3 days through registered post by the
decision taken.

Held: Para 42 and 43

It is unfortunate that the State feels
itself helpless to facilitate the religious
procession. Even after 63 years of
independence, governmental system has
been
failed
to
create
communal
harmony, love and affection among the
various sections of the society. Religious
procession or rituals of one community
must be welcomed by other and only
then,
countrymen
may
enjoy
the
independence
and
freedom
of
life.
Freedom and independence cannot be
enjoyed in an atmosphere where the
State
or
its
authorities
find
one