# Anish v. National Insurance Co. Ltd. Sitapur & Ors

- **Citation:** (2021) 2 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-11
- **Case number:** First Appeal From Order No. 230 of 2010
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anish-v-national-insurance-co-ltd-sitapur-ors-46843
- **Pages:** 6

## Headnote

A. Civil Law - Motor Vehicles Act, 1988:
Section 173
-
Insurance
and
Motor
Vehicles - Compensation - The appeals have
arisen out of the case of death in the same
motor accident between a motorcycle and a
tractor. The insurer while disputing the liability
to pay had pleaded two distinct grounds against
the two vehicles involved in the accident. Firstly,
the insurance company contrary to the oral
evidence stated that the unregistered trolley
was used for a purpose other than agricultural
and was thus a transport vehicle used for
commercial purpose without a permit, hence
there was violation of the insurance cover. (Para
9)

Secondly, the motorcycle, which according to
the insurer was duly insured but the same
was not driven by a person possessed with a
valid licence, therefore, violation of policy was
pleaded to dispute the liability to pay. This
ground was found favour with by the
Tribunal. The legal representatives of the
deceased could not prove that the driver of
motorcycle possessed a valid driving licence
and both the deceased being victims of their
own violation, the dependents-claimants were
held
entitled
to
a
lesser
amount
of
compensation. (Para 10)

For first ground, two conditions laid down by
this Court are that at the time of accident, the
tractor trolley must not be operated on a public
road and that it is not used for commercial
purpose. Attachment of a trailer to the tractor
when used for commercial purpose on public
road, would constitute a statutory defence
within the ambit of the provisions of Motor
Vehicles Act, 1988. (Para 15, 16)
2 All. Anish Vs. National Insurance Co. Ltd. Sitapur & Ors.
911
B. In civil law, the burden to prove a fact
lies on the party who has averred and it is
that party who has to lead the evidence to
prove the alleged fact. The insurer in the
present case has failed to lead any evidence in
support of the pleas advanced. Therefore, the
oral evidence led by the claimants and
defendants was relevant and could not be
ignored to the advantage of the insurer
particularly when he had an opportunity to
cross-examine the witnesses.

The facts before this Court insofar as the
pleadings are concerned do show that the
alleged commercial use of the trolley was
pleaded by the insurer without leading any
evidence whatsoever. Once a pleading alleging
use of trolley for commercial purpose without a
valid permit was advanced in the written
statements
by
the
insurance
company,
therefore, it cannot be said that there was no
pleading at all. The burden to prove such a fact
rested on the insurer but he failed to lead any
evidence except the cover note. On the contrary
the evidence available on record disproving
commercial use of the trolley had amply come
on record. The Tribunal in such a situation
ought not to have failed to apply mind on the
relevant oral evidence of the witnesses,
according to which, the trolley was not used for
commercial purpose. The load on the trolley
was indicative of nothing but an agricultural
purpose. The material evidence available on
record has thus escaped attention of the
Tribunal. (Para 18, 19)

For the reasons recorded above, both the
F.A.F.Os. are hereby allowed and the award
made by the Tribunal shall be satisfied by
National Insurance Company Ltd. (Para 20)

Appeals allowed. (E-3)

Precedent followed:

## Text

910 INDIAN LAW REPORTS ALLAHABAD SERIES
released on bail forthwith. Needless to
mention that these additional conditions are
imposed to cope with emergent condition-:

1.
The
applicant
shall
be
enlarged on bail on execution of personal
bond
without
sureties
till
normal
functioning of the courts is restored. The
accused will furnish sureties to the
satisfaction of the court below within a
month after normal functioning of the
courts are restored.

2. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

3. The computer generated copy
of such order shall be self attested by the
counsel of the party concerned.

4.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad and shall make a
declaration of such verification in writing.

40. However, it is made clear that any
wilful violation of above conditions by the
applicant, shall have serious repercussion
on his/her bail so granted by this Court and
the trial court is at liberty to cancel the bail,
after recording the reasons for doing so, in
the given case of any of the condition
mentioned above.
----------
(2021)02ILR A910
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.02.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

First Appeal From Order No. 230 of 2010
with
First Appeal From Order No. 305 of 2010

Anish ...Appellant
Versus
National Insurance Co. Ltd. Sitapur & Ors.
 ...Respondents

Counsel for the Appellant:
Ram Lakhan Vishwakarma

Counsel for the Respondents:
Ashok Sahu, S.C. Gulati

A. Civil Law - Motor Vehicles Act, 1988:
Section 173
-
Insurance
and
Motor
Vehicles - Compensation - The appeals have
arisen out of the case of death in the same
motor accident between a motorcycle and a
tractor. The insurer while disputing the liability
to pay had pleaded two distinct grounds against
the two vehicles involved in the accident. Firstly,
the insurance company contrary to the oral
evidence stated that the unregistered trolley
was used for a purpose other than agricultural
and was thus a transport vehicle used for
commercial purpose without a permit, hence
there was violation of the insurance cover. (Para
9)

Secondly, the motorcycle, which according to
the insurer was duly insured but the same
was not driven by a person possessed with a
valid licence, therefore, violation of policy was
pleaded to dispute the liability to pay. This
ground was found favour with by the
Tribunal. The legal representatives of the
deceased could not prove that the driver of
motorcycle possessed a valid driving licence
and both the deceased being victims of their
own violation, the dependents-claimants were
held
entitled
to
a
lesser
amount
of
compensation. (Para 10)

For first ground, two conditions laid down by
this Court are that at the time of accident, the
tractor trolley must not be operated on a public
road and that it is not used for commercial
purpose. Attachment of a trailer to the tractor
when used for commercial purpose on public
road, would constitute a statutory defence
within the ambit of the provisions of Motor
Vehicles Act, 1988. (Para 15, 16)
2 All. Anish Vs. National Insurance Co. Ltd. Sitapur & Ors.
911
B. In civil law, the burden to prove a fact
lies on the party who has averred and it is
that party who has to lead the evidence to
prove the alleged fact. The insurer in the
present case has failed to lead any evidence in
support of the pleas advanced. Therefore, the
oral evidence led by the claimants and
defendants was relevant and could not be
ignored to the advantage of the insurer
particularly when he had an opportunity to
cross-examine the witnesses.

The facts before this Court insofar as the
pleadings are concerned do show that the
alleged commercial use of the trolley was
pleaded by the insurer without leading any
evidence whatsoever. Once a pleading alleging
use of trolley for commercial purpose without a
valid permit was advanced in the written
statements
by
the
insurance
company,
therefore, it cannot be said that there was no
pleading at all. The burden to prove such a fact
rested on the insurer but he failed to lead any
evidence except the cover note. On the contrary
the evidence available on record disproving
commercial use of the trolley had amply come
on record. The Tribunal in such a situation
ought not to have failed to apply mind on the
relevant oral evidence of the witnesses,
according to which, the trolley was not used for
commercial purpose. The load on the trolley
was indicative of nothing but an agricultural
purpose. The material evidence available on
record has thus escaped attention of the
Tribunal. (Para 18, 19)

For the reasons recorded above, both the
F.A.F.Os. are hereby allowed and the award
made by the Tribunal shall be satisfied by
National Insurance Company Ltd. (Para 20)

Appeals allowed. (E-3)

Precedent followed:

1. United India Insurance Co. Ltd. Vs Smt.
Suman & ors., FAFO No. 611 of 2013, decided
on 06.03.2013 (Para 15)

2. Natwar Parikh & Co. Ltd. Vs St. of Karn. &
ors., 2006 ACJ (1) (Para 16)

Precedent distinguished:
1. The National Textile Corporation Ltd. Vs
Naresh Kumar Badri Kumar Jagad & ors., 2011
(29) LCD 1793 (Para 18)

2. Ram Swaroop Gupta (dead) by LRs Vs Bishun
Narain Inter College & ors., AIR 1987 SC 1242
(Para 15)

Present
appeals
challenge
judgments/orders dated 23.11.2006 and
03.02.2007, in F.A.F.O. No. 305 of 2010
and
in
F.A.F.O.
No.
230
of
2010,
respectively passed by the Tribunal.

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard learned counsel for the
appellants and Miss Pooja Arora holding
brief of Sri S.C. Gulati, learned counsel for
the insurance company.

2. These two appeals filed under
Section 173 of Motor Vehicles Act
involving a common question of law were
heard together and are decided by a
common judgement. Both the appeals have
arisen out of the case of death in the same
motor accident. In FAFO No. 305 of 2010,
a compensation of Rs. 80,000/- awarded by
the Tribunal is the subject matter of dispute
whereas in FAFO No. 230 of 2010, the
amount involved is restricted to Rs. 67500/-
.

3. In both the cases the liability for
payment has been fixed exclusively upon
the appellant, although the tractor involved
in the accident bearing No. UP34-A-4209
belonged jointly to several other persons as
per the registration certificate. Amongst the
owners, the appellant alone was chosen to
be impleaded as a defendant in the claim
petitions. The appellant by means of the
present appeals has disputed the liability on
the ground that his vehicle i.e. tractor no.
UP34-A-4209 was duly insured and was
912 INDIAN LAW REPORTS ALLAHABAD SERIES
driven by a person possessed with a valid
driving licence. Therefore in absence of
any violation of the insurance policy, the
liability ought to have been fixed upon the
insurance company was the case set up by
the appellant.

4. The brief facts of the case are that
the claimants in both the claim petitions
have averred involvement of two vehicles
in the accident and both were insured by
one and the same insurance company i.e.
New India Assurance Company. There was
no mention of a trolley attached to the
tractor in so far as the facts set out in the
claim petitions are concerned. Likewise the
written statements filed by the appellant
while disputing the accident did not
mention of any trolley attached to the
tractor. It was simply pleaded by the owner
that the tractor was plied in terms of the
insurance policy.

5. The insurance company in the
written statements filed at the initial stage
also did not clarify the position as regards
the attachment of trolley and it is in these
circumstances that the claim petitions
proceeded for framing of issues and
thereafter the evidence was led. During the
course of evidence when PW-1 Vijay
Prakash was examined and cross-examined,
the trolley attached to the tractor surfaced
and it was stated that the same was loaded
with 'Jhankhar' (dead wood of Arhar).

6. It is during the course of evidence
that the New India Assurance Company
sought
amendment
in
the
written
statements which were allowed. Thus, two
paragraphs viz. 28A and 28B came to be
added in the pleadings which read as under:

"28A. The trolley was attached
with the alleged tractor as per version of
the alleged claimants and alleged F.I.R.
Some persons were also sitting on the
tractor although the seating capacity of
tractor is only one for driver only. The
same was not also used for agriculture
purpose at the time of disputed accident
and was used for hire and reward. Trolley
was also unregistered, uninsured, without
permit and fitness u/s 66, 56, 39, 61 and
146 MV Act. The same cannot be used and
tractor trolley comes under the definition of
goods vehicle. As such driver possessing
transport vehicle hence can only drive the
same. The driver was also not holding valid
and effective driving licence. As such the
same was deliberately used contrary to MV
Act and terms and condition of policy if any
and under no circumstances insurance co.-
OP No. 3 is liable to pay any compensation
and the same is not maintainable against
answering OP.

28B. That as per allegations
mentioned in claim petition the alleged
Smt. Raj Rani was pillion rider on alleged
M/cycle
UP32
AL/6706
(gratuitous
passenger) for which there is no insurance
and no premium been charged for covering
the risk of pillion rider. As such the
answering opp. party is also not liable to
pay any compensation."

7. In the background of pleadings, as
aforesaid, the evidence went on to be
recorded before the Tribunal. The oral
evidence of two persons, namely, Vijay
Prakash and Kamlesh Kumar was recorded
on behalf of the claimants whereas oral
evidence of the owner of the vehicle i.e. the
present appellant-Anish (DW-1) and the
driver of the vehicle viz Kallan (DW-2)
was recorded on behalf of the defendants.

8. A close scrutiny of the oral
evidence led by the claimants as well as the
deposition of DW-1 and DW-2 clearly
2 All. Anish Vs. National Insurance Co. Ltd. Sitapur & Ors.
913
shows that the attached trolley was stated to
be loaded with Jhankhar. It is also gathered
from the above evidence that the tractortrolley was stated to be used for agricultural
purpose.

9. The pleadings of the insurance
company contrary to the oral evidence
referred
to
above
stated
that
the
unregistered trolley was used for a purpose
other than agricultural and was thus a
transport vehicle used for commercial
purpose without a permit, hence there was
violation of the insurance cover. It is on this
premise that the judgment/order of the
Tribunal is sought to be defended by the
insurance company i.e. respondent no. 1.

10. The Tribunal in the backdrop of
the pleadings and the evidence aforesaid
has dealt with the issues no. 2 and 3 which
related to the liability and also as to
whether the tractor was operated in terms
of the insurance policy or not. It is to be
noted that the insurer while disputing the
liability to pay had pleaded two distinct
grounds against the two vehicles involved
in the accident. Insofar as the motorcycle
no. UP-32-AL-6706 is concerned, which
according to the insurer was duly insured
but the same was not driven by a person
possessed with a valid licence, therefore,
violation of policy was pleaded to dispute
the liability to pay. This ground was found
favour with by the Tribunal. The legal
representatives of the deceased could not
prove that the driver of motorcycle
possessed a valid driving licence and both
the deceased being victim's of their own
violation, the dependents-claimants were
held entitled to a lesser amount of
compensation.

11. The deceased Rajit Ram was riding
the motorcycle upon which his wife Raj Rani,
who also died in the same accident, was a
pillion rider, therefore, legal representatives
of the deceased owing to the degree of
negligence
and
violation
of
policy
contributed by the deceased Rajit Ram and
the gratuitous pillion rider who was his wife
were denied compensation proportionately.

12. The claimants had also approached
this Court for enhancement of compensation
by filing two appeals i.e. FAFO No. 843 of
2010 and FAFO No. 842 of 2010 which have
already
been
dismissed
for
want
of
prosecution by orders dated 30.10.2017 and
8.8.2017 respectively.

13. Now coming to the involvement of
the tractor, it is worthwhile to mention that
the defence pleaded by the insurer was bound
to be analyzed by the Tribunal in the light of
the relevant evidence adduced by the parties.
It is to be noted that apart from the averments
made in the written statement denying the
liability, the insurer has not filed any
document except paper no. 32-Ga i.e. the
insurance policy of the tractor. The cover note
of the insurance policy was filed to show that
no premium was paid by the owner of the
tractor towards the insurance of unregistered
trolley of which there was no permit for its
commercial use.

14. Learned counsel for the appellant
has argued that even if the tractor was
attached to the trolley and the trolley was
used for agricultural purpose, it would not
require a permit, therefore, the insurance
cover of the tractor as per the evidence on
record ought to have been construed as valid
within its fullest scope i.e. inclusive of trailer.

15. In support of the submission put
forth, learned counsel for the appellant has
placed reliance upon a judgement of this
Court rendered in FAFO No. 611 of 2013
914 INDIAN LAW REPORTS ALLAHABAD SERIES
(United India Insurance Co. Ltd. v. Smt.
Suman and others decided on 6.3.2013),
which lays down the twin test. The two
conditions laid down are that at the time of
accident, the tractor trolley must not be
operated on a public road and that it is not
used for commercial purpose.

16. Miss Pooja Arora, learned counsel
appearing for the insurance company citing
a judgement of the apex court in the case
reported in 2006 ACJ (1) (Natwar Parikh
& Co. Ltd v. State of Karnataka and
others), has further clarified the position as
to when a trailer attached to the tractor
would be construed to be a transport
vehicle. Attention of this Court is drawn to
Para-24 of the said judgement which
clearly lays down that attachment of a
trailer to the tractor when used for
commercial purpose on public road, would
constitute a statutory defence within the
ambit of the provisions of Motor Vehicle
Act, 1988.

17. Learned counsel for the insurance
company has further argued that in the
present case, the evidence available on
record cannot be read beyond the scope of
pleadings of the claimants and defendants.
According to the learned counsel, neither
the claimants nor the owner of the vehicle
i.e. the appellant herein pleaded before the
Tribunal about the attachment of trolley
with the tractor nor there is any mention in
the pleadings that the tractor even if the
trolley
was
attached,
was
used
for
agricultural purpose. According to her, in
absence of such pleadings, the oral
evidence of the witnesses to the effect that
the trolley attached with the tractor was
loaded with Jhankhar can not be construed
beyond the scope of pleadings to the
advantage of the present appellant. The
evidence of a party according to the learned
counsel cannot be read beyond what was
pleaded.

18. The facts before this Court insofar
as the pleadings are concerned do show that
the alleged commercial use of the trolley
was pleaded by the insurer without leading
any evidence whatsoever. Once a pleading
alleging use of trolley for commercial
purpose without a valid permit was
advanced in the written statements by the
insurance company, therefore, it cannot be
said that there was no pleading at all. The
burden to prove such a fact rested on the
insurer but he failed to lead any evidence
except the cover note. On the contrary the
evidence available on record disproving
commercial use of the trolley had amply
come on record. The Tribunal in such a
situation ought not to have failed to apply
mind on the relevant oral evidence of the
witnesses, according to which, the trolley
was not used for commercial purpose. The
load on the trolley was indicative of
nothing but an agricultural purpose. The
material evidence available on record has
thus escaped attention of the Tribunal. The
judgement cited by learned counsel for the
insurance company reported in 2011 (29)
LCD
1793
(The
National
Textile
Corporation Ltd. v. Naresh Kumar Badri
Kumar Jagad and others) with reference to
the case reported in AIR 1987 SC 1242
[Ram Swaroop Gupta (dead) by LRs v.
Bishun Narain Inter College & others) is
an instance where there was complete
absence of pleadings and it is in that
situation that evidence could not be read
beyond the scope of pleadings. In civil law,
the burden to prove a fact lies on the party
who has averred and it is that party who has
to lead the evidence to prove the alleged
fact. The insurer in the present case has
failed to lead any evidence in support of the
pleas advanced in para 28-A and 28-B
2 All. Liaqat Hussain Vs. Smt. Jainab Parveen & Anr.
915
extracted
above.
Therefore,
the
oral
evidence
led
by
the
claimants
and
defendants was relevant and could not be
ignored to the advantage of the insurer
particularly when he had an opportunity to
cross-examine the witnesses.

19. The insurer in the case at hand
had specifically pleaded the involvement of
the trolley being used for commercial
purpose and having an opportunity of
cross-examination
of
the
witnesses
produced before the Tribunal, cannot come
up in defence and argue that the oral
evidence available on record ought not to
have been considered by the Tribunal for
want of pleadings of the claimants or the
owner as such. The proposition of law
advanced before the Court, taking support
of the decisions cited before this Court,
does not help the insurer in the nature of
proceeding under the Motor Vehicles Act
which is a beneficial legislation. The
finding recorded by the Tribunal that the
unregistered trolley attached to the tractor
required the permit, in my humble
consideration, looking to the material
available on record, is clearly perverse. The
position that the trolley was loaded with
'Jhankar' and nothing was found otherwise
in the cross-examination by the insurance
company, was a satisfactory proof to belie
the stand adopted in paras 28-A and 28-B.
The finding so recorded deserves to be
overruled and the liability to pay would
thus stand shifted upon the insurer to the
extent of compensation as has been allowed
by the Tribunal.

20. For the reasons recorded above,
both the FAFOs are hereby allowed. The
judgement/order
dated
23.11.2006
impugned in FAFO No. 305 of 2010 and
3.2.2007 impugned in FAFO No. 230 of
2010 passed by the Tribunal are modified
to the extent that the award made by the
Tribunal shall be satisfied by National
Insurance Company Ltd. and the necessary
compliance of the award shall be made
within a period of two months from today.

21. The statutory amount or any other
amount deposited in compliance of any
order passed by this Court is permitted to
be withdrawn by the appellant. The interest
on the awarded amount in either of the two
appeals is restricted to Rs. 25,000/- or 4%
whichever
is
lesser
and
the
judgement/order passed by the Tribunal is
also modified to this extent.

22. No order as to cost.
----------
(2021)02ILR A915
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2020

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE VIVEK VARMA, J.

First Appeal Defective No. 300 of 2020

Liaqat Hussain ...Appellant
Versus
Smt. Jainab Parveen & Anr. ...Respondents

Counsel for the Appellant:
Sri Arun K. Singh Deshwal

Counsel for the Opposite Parties:

A. Family Law - Family Courts Act, 1984 -
Sections 7(2)(a), 19 - Code of Criminal
Procedure - Section 125 - Maintenance -
Maintainability of appeal Remedy against
the order passed by the Family Court
under Section 125 of Chapter IX of Cr.P.C.
has been specifically provided under
Section 19(4) of the Act, which confers
powers on the High Court to examine the