# Claimants v. Smt. Sheela Devi and others

- **Citation:** (2007) 3 ILRA 644
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007
- **Case number:** F.A.F.O. No. 47 of 2006
- **Bench:** Amitava Lala, Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/claimants-v-smt-sheela-devi-and-others-41033
- **Pages:** 3

## Headnote

Motor Vehicle Act 1988-Section 147
readwith 170-claim for limited liabilityno objection raised before the a claim
Tribunal-can not be allowed at appellate
stage.

Held: Para 4

We are of view that the submission of
the claimant-respondents is appropriate.
Since no application is made for the
purpose
of
determination
of
any
independent right of the Insurance
Company being agent of the owner, now
such defence cannot be taken, otherwise
the entire process of determination will
become futile.
Case law discussed:
J.T. 2005 (4) SC-399

## Text

644 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
have not adhered to the provisions of
Section 20 of the Act. No reasons have
been assigned for granting such a decree
in such a belated instituted suit.

27. The submission that concurrent
finding of fact cannot be disturbed in
second appeal is not tenable under the
facts and circumstances of the instant
case. In JT 2001 (6) SC 591 Shri
Hafazat Hussain Vs. Abdul Majeed, the
Apex Court observed that it has been
repeatedly pointed out by this Court that
concurrent findings recorded by the trial
court as well as the first appellate court on
proper appreciation of the materials on
record should not be disturbed by the
High Court while exercising jurisdiction
in second appeal, but at the same time, it
is not an absolute rule to be applied
universally and invariably since the
exceptions to the same also were often
indicated with equal importance by this
Court. The instances are innumerable
where despite such need and necessity
warranting such interference, second
appellate court mechanically declined to
interfere, the matter has been relegated by
this Court to the second appellate court to
objectively deal with the claims of the
parties keeping in view the parameters of
consideration
for
interference
under
Section 100 C.P.C. In the instant appeal
the courts below have overlooked the
mandatory provision of Section 20 of the
Act and at the same time misapplied the
statutory provisions of the Ceiling Act.
The findings on the issue of compliance
of the Section 16(c) of the Act are also
perverse. Therefore, the second appellate
court is competent to interfere especially
when
the
appeal
raises
substantial
questions of law.

28. Since the substantial questions
of law No. 2 and 3 as formulated at the
admission of the appeal are sufficient to
decide the appeal, I do not consider it
necessary to dwell on the first substantial
question of law with regard to suit being
barred by time.

29. Accordingly the appeal is
allowed. The judgment and orders passed
by the Courts below dated 16.11.1995
passed in Civil Appeal No. 52 of 1992
(Indal Kumar and another Vs. Achchey
Lal and others) and judgment and order
dated 12.12.1989 passed in Original Suit
No. 210 of 1984 (Achchey Lal Gupta and
others Vs. Indal Kumar Kushwaha and
others) and the consequential decree of
specific performance of the agreement are
set
aside.
The
suit
for
specific
performance is dismissed. No order as to
costs.

Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2007

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHISHIR KUMAR, J.

F.A.F.O. No. 47 of 2006

The New India Insurance Co. Ltd.

...Claimants
Versus
Smt. Sheela Devi and others

 ...Opposite Parties

Counsel for the Appellant:
Sri K.S. Amist
Sri V.C. Dixit

Counsel for the Respondents:
Sri K.B. Dixit
Sri R.K. Porwal
3 All] The New India Insurance Co. V. Smt. Sheela Devi and others
645
Motor Vehicle Act 1988-Section 147
readwith 170-claim for limited liabilityno objection raised before the a claim
Tribunal-can not be allowed at appellate
stage.

Held: Para 4

We are of view that the submission of
the claimant-respondents is appropriate.
Since no application is made for the
purpose
of
determination
of
any
independent right of the Insurance
Company being agent of the owner, now
such defence cannot be taken, otherwise
the entire process of determination will
become futile.
Case law discussed:
J.T. 2005 (4) SC-399

(Delivered by Hon'ble Amitava Lala, J.)

1. The appeal was placed for
disposal in the final list. Learned counsel
appearing for the appellant Insurance
Company contended before this Court
that its liability is limited as per section
147 of the Motor Vehicles Act, 1988. He
relied upon the judgement reported in JT
2005 (4) SC 399 (National Insurance
Company Limited Vs. Prambai Patel
and others). By relying upon this
judgement he contended that when the
liability of the Insurance Company is
limited as per Section 147 of the Act
having
an
effect
of
Workmen
Compensation Act, it is not liable to pay
the entire amount of compensation.

2. We have carefully gone through
the judgement and find that the same
point was agitated in the appropriate court
on the basis of the insurance policy when
the Court found that liability is limited on
the basis of the insurance policy and order
was passed in favour of the Insurance
Company. In the present case, no
application under Section 170 of the Act
was made by the petitioner to proceed
with the case independently apart from
the existence of the owner.

3. The learned counsel appearing for
the
claimant-respondents
contended
before this Court that as per Section 147
of the Motor Vehicles Act, 1988, either
they can proceed before the Motor
Accident
Claims
Tribunal
or
the
Commissioner
under
the
Workmen
Compensation Act, 1923. When they have
proceeded before the Motor Accident
Claims Tribunal and the award has been
passed without any objection, now at this
appellate stage, the appellant Insurance
Company cannot turn around and say that
liability of the Insurance Company is
limited
as
per
the
Workmen
Compensation Act.

4. We are of view that the
submission of the claimant-respondents is
appropriate. Since no application is made
for the purpose of determination of any
independent
right
of
the
Insurance
Company being agent of the owner, now
such defence cannot be taken, otherwise
the entire process of determination will
become futile.

5.

Hence
the
appeal
stands
dismissed. Interim order in connection
with any application connected with
appeal stands vacated.

6. No order is passed as to costs.

7.

Incidentally
the
appellant
Insurance Company prayed that the
statutory deposit of Rs.25,000/- made
before this Court for preferring this appeal
shall be remitted back to the concerned
Motor Accidents Claims Tribunal as
expeditiously as possible in order to
646 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
adjust with the amount of compensation
to be paid to the claimant, however, such
prayer is allowed. Appeal Dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2007

BEFORE
THE HON'BLE RAKESH SHARMA, J.

First Appeal from order No. 158 of 1997

Km. Pusp Lata and others

 ...Claimants-Appellants
Versus
Nirlep Singh and others ...Respondents

Counsel for the Appellants:
Sri Anant Kumar
Sri Anand Kumar
Sri C.P. Gupta
Sri G.L. Bind

Counsel for the Respondents:
Sri N.C. Gupta
Smt. Sarita Singh
Sri K.S. Amist
Sri A.K. Saxena

Motor Vehicle Act 1988-Section-173Enhancement of compensation-diseased
a housewife aged about 35 yearscritically injured by tanker in question-
initially awarded Rs.2 Lacs-on recall
application after re-hearing reduced to
Rs.60,000/-held-ridiculous- amount of
compensation
enhanced
to
Rs.1,50,000/-.

Held: Para 11

In view of the facts and circumstances of
the case I am of the view that the
compensation of Rs.60.000/- is too
meager. Once the same Court had come
to the conclusion that Rs.2 lacs should
have been adequate compensation for
the loss of human life, then how
subsequently
the
same
court
has
reduced
the
compensation
to
Rs.60,000/-
is
ridiculous.
No
such
conclusion could be drawn on the same
material, which existed on the date of
earlier judgment and on the date of
subsequent order passed by the Court.
The
findings
are
wholly
erroneous,
unjust and improper.

(Delivered by Hon'ble Rakesh Sharma, J.)

1. This case was listed on the daily
cause list of 9 April 2007. The list is
being rotated for the last two weeks. The
case has come up for hearing today.
Considering the facts and circumstances
of this case, this Court is of the view that
the litigation, which was initiated in the
year 1989, claiming enhancement of
compensation under the Motor Vehicles
Act, must come to a logical end today
after 18 years. The appeal was filed in the
year 1997 and remained, pending for
disposal in this Court for the last 10 years.

2. Heard learned counsel for the
appellants and perused the record.

3. Under challenge is an order
passed
by
Motor
Accident
Claim
Tribunal, Mizapur dated 22.11.1996 in
Motor Accident Claim Petition No. 39 of
1989 Km. Puspa and others vs. Nirlep
Singh and others.

4. The facts of the case emerging
from the record is that deceased Shrimati
Shanti Devi wife of Prabhakar Pandey,
appellant no. 6, was going on foot on
17.3.1989 on Mirzapur-Pipari road when
the Tanker bearing registration No. URZ
2060, which was being driven rashly and
negligently, hit the woman as a result of
which she was critically injured and when
she was being taken to Railway hospital,
Chopan, she succumbed to her injuries in