# Chandra v. Sumit Bhalotia) including

- **Citation:** (2011) 3 ILRA 1178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-27
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-v-sumit-bhalotia-including-42058
- **Pages:** 3

## Headnote

Motor Vehicle Act 1988-Section 170liability to pay compensation-a beneficiary
legislation-even if breath of policy-insurer
to pay entire amount with liberty to
recover the same from vehicle owner-still
hold good field-as no decision on reference
taken as yet by Apex Court-direction of
tribunal warrants no interference.

Held:Para 12

The submission of the learned counsel for
the appellant that the validity of such a
direction upon the Insurance Company to
pay and recover has been referred to a
larger Bench by the Supreme Court vide
3 All] New India Assuarance Company V. Mahendra Pratap Singh and others
1179
reference order dated 31st August 2009
reported in (2009) 8 SCC 785 National
Insurance
Company
Limited
Vs.
Parvathneni and another is not of much
relevance as the said reference has not yet
been answered and the law as referred to
above holds the field as on date.
Case law discussed:
(2007) 7 SCC 56; (2008) 7 SCC 416; (2008) 7
SCC 526; 2008 (9) SCC 100; 2009(7) ADJ (DB);
(2009) 8 SCC 785

## Text

1178 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

"12. For the purpose of constituting
an offence of cheating, the complainant is
required to show that the accused had
fraudulent or doshonest intention at the
time of making promise or representation.
Even in a case where allegations are made
in regard to failure on the part of the
accused to keep his promise, in absence of
a culpable intention at the time of making
initial promise being absent, no offence
under Section 420 of the Indian Penal
Code can be said to have been made out."

10. Similar opinion has been
expressed by the Supreme Court in 2009
(2) SCC (Cri.) 941 ( S.V.L. Murthy and
others
Vs.
State
Rep.
By
CBI,
Hyderabad and others).

11. From the side of opposite party
no.
2
the
judgment
and
order
dated27.10.2010 passed by this Court in
Criminal Misc. Application No. 33856 of
2010 ( Anand Kumar Porwal Vs. State of
U.P. and another) has been relied upon.

12. I have gone through all the three
case laws mentioned above. In the instant
case prima facie there is nothing which
may indicate that the applicant has any
dishonest intention when he entered into
the contract with opposite party no. 2.
Therefore, summoning of the applicant
under Section 420 I.P.C. cannot be
allowed to sustain. From the perusal of
the complaint itself it is evident that it is a
simple case of breach of contract. This
contract had taken place at Mumbai. No
part of it has been executed in the city of
Allahabad. From the entire records it is
evident that opposite party no. 2 has
misused the process of law. The learned
Magistrate has, in a mechanical and
routine manner, summoned the applicant
which shows that he did not care even to
read the complaint in a proper manner.
Such type of conduct from a judicial
officer is not desirable.

13. On the basis of the above
discussion, I am of the view that there is
force in the petition and it must succeed.

14. The petition under Section 482
Cr.P.C. is allowed. The entire proceedings
of Criminal Case No. 3305/09 (Prem
Chandra Vs. Sumit Bhalotia) including
the summoning order dated 22.8.2009 are
quashed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.20113

BEFORE
THE HON'BLE PANKAJ MITHAL,J.

First Appeal From Order No. - 1635 D of 2011

New India Assuarance Company

...Appellants
Versus
Mahendra Pratap Singh and others

 ...Respondents

Counsel for the Petitioner:
Sri Manish Kumar Nigam

Motor Vehicle Act 1988-Section 170liability to pay compensation-a beneficiary
legislation-even if breath of policy-insurer
to pay entire amount with liberty to
recover the same from vehicle owner-still
hold good field-as no decision on reference
taken as yet by Apex Court-direction of
tribunal warrants no interference.

Held:Para 12

The submission of the learned counsel for
the appellant that the validity of such a
direction upon the Insurance Company to
pay and recover has been referred to a
larger Bench by the Supreme Court vide
3 All] New India Assuarance Company V. Mahendra Pratap Singh and others
1179
reference order dated 31st August 2009
reported in (2009) 8 SCC 785 National
Insurance
Company
Limited
Vs.
Parvathneni and another is not of much
relevance as the said reference has not yet
been answered and the law as referred to
above holds the field as on date.
Case law discussed:
(2007) 7 SCC 56; (2008) 7 SCC 416; (2008) 7
SCC 526; 2008 (9) SCC 100; 2009(7) ADJ (DB);
(2009) 8 SCC 785

(Delivered by Hon'ble Pankaj Mithal,J. )

1. The appeal is reported to be
defective on account of non filing of an
application under Section 170 of the
Motor Vehicles Act.

2. The submission of Sri M.K.
Nigam,
learned
counsel
for
the
appellant is that in the present case no
such application was filed before the
tribunal and as such its copy can not be
enclosed with the memo of appeal.

3. In view of the above, the defect
reported in presentation of the appeal
does not exist.

4. Appeal be given a regular
number.

5. Heard Sri M.K. Nigam, learned
counsel for the appellant on merits of
the appeal.

6. The submission is that the
offending vehicle was being driven
without a valid permit and therefore the
condition to pay and recover could not
have imposed upon the insurance
company.

7. It has to be remembered that
the Motor Vehicles Act, 1988 is a
beneficial piece of legislation which is
meant to protect the interest of the
sufferers/claimants. Therefore, the law
courts have evolved a principle that
where the vehicle is insured and there
is breach of policy, the liability to pay
compensation may rest upon the owner
but
the
insurer
will
pay
the
compensation in the first instance and
recover it from the owner. This
principle safeguards the interest of the
sufferers/claimants and at the same
time saves the insurer from the liability
by
giving
right
to
recover
the
compensation from the owner of the
vehicle.

8. The above principle placing
initial burden to pay compensation
upon the insurance company and
permitting it to recover it from the
owner of the vehicle, later on is
enunciated in a number of decisions of
the
Supreme
Court
in
Oriental
Insurance Co. Ltd. Vs. Brij Mohal
(2007)
7
SCC
56,
New
India
Insurance Co. Vs. Darshana Devi
(2008) 7 SCC 416, National Insurance
Co. Ltd. Vs. Yellamma and (2008) 7
SCC 5262008 (9) SCC 100 Samundra
Devi Vs. Narendra Kaur.

9. A Division Bench of this Court
in
National
Insurance
Company
Limited Vs. Chotey Lal and others
2009 (7) ADJ (DB) while considering
the condition imposed in the award of
the Motor Accident Claims Tribunal
directing the insurer to pay and recover
the amount from the owner held it is an
equitable principle and that such a
direction
is
only
a
stop
gap
arrangement which does not ultimately
makes
the
insurer
liable
for
compensation. Thus, principle of pay
and recover as a condition in the award
1180 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
was held to be valid in view of the
beneficial scheme of the Act.

10. Following the aforesaid
principle and the Division Bench
decision of this Court, I myself
dismissed First Appeal From Order No.
3337
of
2011
including
similar
question
vide
my
order
dated
12.10.2011.

11. In view of the aforesaid
decision, I find that there is no
substance in the present appeal and it is
liable to the dismissed.

12. The submission of the learned
counsel for the appellant that the
validity of such a direction upon the
Insurance Company to pay and recover
has been referred to a larger Bench by
the Supreme Court vide reference order
dated 31st August 2009 reported in
(2009) 8 SCC 785 National Insurance
Company Limited Vs. Parvathneni
and another is not of much relevance
as the said reference has not yet been
answered and the law as referred to
above holds the field as on date.

13. Accordingly, the appeal lacks
merit and is dismissed.

14. The statutory deposit made
before this Court shall be remitted to
the tribunal immediately for adjustment
towards payment of compensation to
the claimants.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.10.2011

BEFORE
THE HON'BLE RAVINDRA SINGH,J.

U/S 482/378/407 No. - 2445 of 2010

Ashok Kumar Rai

 ...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Vashu Deo Misra
Sri Vinod Kumar Misra

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section-419application to quash charge sheet-as no
offence made out-applicants to move
discharge application-if moved within 30
days-shall
be
decided
under
the
provision of law-till disposal of such
applicant arrest stayed.

(Delivered by Hon'ble Ravindra Singh,J. )

1. Heard learned counsel for the
applicant and learned A.G.A.

2. This application has been filed
with a prayer to quash the charge sheet of
case crime No. 25 of 2009 under sections
419, 420, 467, 468, 471 IPC and section
12 of Passport Act, P.S. Chhapiya,
District Gonda pending in the court of
learned C.J.M. Gonda in criminal case
No. 1539 of 2010.

3. It is contended by learned counsel
for the applicant that on the basis of the
allegations made against the applicant no
offence is made out, but without doing the
fair investigation the chargesheet has been