# Defendant v. Naresh Kumar and others

- **Citation:** (2003) 2 ILRA 401
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-03-24
- **Case number:** F.A.F.O. No. 736 of 2003
- **Bench:** S.P. Srivastava, M.P. Singh, S.P. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-naresh-kumar-and-others-40095
- **Pages:** 4

## Headnote

Motor Vehicles Act 1988-Section 170 -
Appeal filed by Insurance Company -No
permission obtained before filing the
Appeal held Quantum of Compensation
can not be questioned.

Held - Para 8
Case law discussed:
J.t. 2002 (7) SC -251
2003 ALJ 247

## Text

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2 All] National Insurance Co. Ltd. V. Naresh Kumar and others
401
of law may prevail and to deter the people
for mustering the courage to disobey the
interim injuction passed by the court.

25. To sum up the case, the sale
deeds
allegedly
executed
by
the
respondent no. 3 in favour of respondent
nos. 4 to 6 are nullity as had been
executed in disobedience of the interim
order passed by the trail court on
18.8.1992. Secondly respondent nos. 4 to
6 could not be in possession of the land as
there has been no partition by metes and
bounds between co-sharers. If they are in
possession, it is to be ignored and thirdly
as the alleged sale deeds have to be
ignored the learned court below ought to
have attached the entire property which,
including the land sold vide two sale
deeds.

26. Petition succeeds and is allowed.
Learned trial court is directed to attach the
entire land in dispute and force the
respondent no. 3 to comply with the order
passed by that court on 18.8.1992 and
further to conclude the trial of the suit
expeditiously.

27. In the facts and circumstances of
the case, the respondent nos. 4 to 6 shall
pay a sum of Rs.5000/- as a cost to the
petitioner.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2003.

BEFORE
THE HON'BLE S.P. SRIVASTAVA, J.
THE HON'BLE M.P. SINGH, J.

F.A.F.O. No. 736 of 2003

National Insurance Company Limited

 ...Defendant-Appellant
Versus
Naresh Kumar and others
 ...Claimant-
 Respondent.

Counsel for the Appellant:
Sri Satish Chaturvedi

Counsel for the Respondents:
Sri J.J. Munir

Motor Vehicles Act 1988-Section 170 -
Appeal filed by Insurance Company -No
permission obtained before filing the
Appeal held Quantum of Compensation
can not be questioned.

Held - Para 8
Case law discussed:
J.t. 2002 (7) SC -251
2003 ALJ 247

(Delivered by Hon'ble S.P. Srivastava, J.)

1. Heard Sri Satish Chaturvedi
learned counsel for the insurer-Appellant
and Sri J.J. Munir, learned counsel for the
claimants-caveators.

2. The appellant feels aggrieved by
the award of the Motor Accident Claims
Tribunal, determining an amount of
Rs.2,42,726/- (Rupees two lacs forty two
thousands, seven hundred and twenty six
only) as just compensation, to which the
claimant Naresh Kumar was found
entitled to on account of the grievous
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
402
injury resulting in permanent disability
caused in an accident involving the
offending motor vehicle, Jeep insured by
the appellant covering the risk

3. The Motor Accident Claims
Tribunal on a careful consideration of the
evidence and materials brought on record,
has come to the conclusion that the
injured had
a monthly income of
Rs.1500/-. The Tribunal utilizing the
multiplier of 12 had calculated the amount
of
compensation.

The
discretion
exercised by the Tribunal holding the
disability to be only 73.5%, taking into
consideration the nature of the injuries
and their effect and impact on the body of
the injured workman, cannot be held to be
arbitrary.

4. The injured - claimant had
asserted that he was getting an income of
Rs.5,000/- per month. Before the Tribunal
a Salary Certificate has been produced
which indicated that he was being paid
the salary of Rs.3,000/- per month. The
injured had set up a claim that apart from
Rs.3,000/- per month, he was getting an
income from agricultural holdings. The
Tribunal, however, had calculated the
amount of compensation taking his salary
to be only Rs.1,500/- per month and
utilizing the multiplier of 12. The age of
the injured at the time of accident was
fount to be 32 years.

5. It may also be noticed that the
claim of the Insurer as well as the owner
to the effect that the injured was traveling
in the Jeep as a passenger after paying
fare had been disbelieved. It was also
found that the injured was traveling in the
Jeep without paying any fare being an
acquaintance of the driver. It was also
found that the motor vehicle in question
was not being run for any purpose other
than that for which it has been registered.
It has also been found that none of the
terms and conditions subject to which the
insurance policy had been issued, has
been violated. The plea of the Insurer to
the effect that the driver Amit Kumar had
no valid licence to drive the motor vehicle
in question was not accepted observing
that no evidence had been led in support
of such plea.

6. It may be noticed that it is not
disputed by the insurer appellant that it
had
not
been
granted
permission
envisaged under Section 170 of the Motor
Vehicles Act. Obviously, in facts and
circumstances of the present case the ratio
of the decision rendered in the case of
National Insurance Co. Ltd. Chandigarh
Vs.
Nicolletta
Rohtagi
and
others
reported in JT 2002 (7) SC 251, stands
squarely
attracted
and
the
insurer-
appellant cannot be deemed to be entitled
to challenge the quantum of compensation
determined by the Tribunal as just
compensation.

7. Learned counsel for the appellant
has tried to assail the findings returned
against it by the Motor Accident Claims
Tribunal.
The
aforesaid
findings,
however, could not be demonstrated to be
suffering from any such legal infirmity
which may justify an interference therein
by this Court. The findings returned
against the appellant by the Tribunal are
amply supported and warranted by the
evidence and material brought on record.

8. Taking into consideration the
facts and circumstances, as brought on
record, no justifiable ground has been
made out for any interference in the
evaluation of the evidence as done by the
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2 All] National Insurance Co. Ltd. V. Naresh Kumar and others
403
Tribunal. Moreover, the findings returned
by the Tribunal about the age of the third
party victim and the use of the multiplier
as well as the income of the deceased are
amply supported and warranted by the
evidence and materials brought on record.
The amount of compensation, taking into
consideration
the
number
of
the
dependants, does not appear to be unjust.

9. The learned counsel for the
appellant has further urged that there was
a breach of terms and conditions, subject
to which the insurance policy has been
issued covering the risk. The contention
is that at the time of the accident, the
driver of the offending motor vehicle was
not having valid licence to run the
vehicle.

10. Be what it may, so far as the
statutory liability of the insurer-appellant
as contemplated under the provisions of
Motor Vehicles Act in the matter relating
to the payment of just compensation
determined by the Motor Accident Claims
Tribunal is concerned, the mere fact that
there was violation of the terms and
conditions subject to which the insurance
policy had been issued, cannot have the
effect of exonerating the insurer from the
statutory liability cast upon him in this
regard to pay the amount to the third party
victim.

11. The Position in law in this
regard has been amply clarified by this
Court vide the request rendered by a
Division Bench in the case of National
Insurance Company Ltd. Vs. Smt. Asha
Devi and others, reported in 2003 A.L.J.
247.

12. In such a situation, it is always
open to the insurer- appellant to get the
amount, paid in excess, refunded to it
from the owner/insured in an appropriate
proceedings initiated before the Motor
Accident Claims Tribunal in which
proceedings such a dispute can be decided
between the insurer and the insured after
affording an opportunity of hearing to the
insured in accordance with law.

13. It will, therefore, be open to the
insurer-appellant to initiate an appropriate
proceeding for the refund of the amount
paid by it to the claimants on establishing
the breach of the terms and conditions
subject to which the insurance policy had
been issued.

14. The dismissal of this appeal will
not come in the way of the insurerappellant in initiating such proceedings.

15. Taking into consideration the
facts and circumstances, as brought on
record, no justifiable ground has been
made out for any interference in the
impugned award.

16. Taking into consideration the
totality of the circumstances as brought on
record, the quantum of compensation
cannot be held to be unjust.

17. This Appeal is totally devoid of
merits, which deserves to be and is hereby
dismissed.

18. As prayed, the amount of
Rs.25000/- deposited in this Court by the
insurer- appellant under section 173 of the
Motor Vehicle Act be remitted to the
Motor
Accident
Claims
Tribunal
concerned so that it may be disbursed to
the claimant.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
404
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2003

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 31231 of 1993

Makhan Singh

...Petitioner
Versus
XIth Additional District Judge, Agra and
others

 ...Respondents

Counsel for the Petitioner:
Shri A.K. Goyal

Counsel for the Respondents:
Shri Prakash Gupta
Shri D. K. Agarwal
S.C.

Code of Civil Procedure 1808 Ord. 9 R. 13
- Suit for cancellation-27.2.89 fixed for
disposal
of
issue
No.
10-due
to
Advocates strike 27.4.89 fixed-neither
petitioner nor his counsel appearedCourt suo moto decided the suit itself on
merit-no notice for final disposal givenapplication under order 9.R.13 held
mentionable.

Held- Para 5

The order dated 9th May 1989 has been
passed under Rule 2 and not under rule
3. Applying the ration as set out in Seth
Munnalal case (supra), it is clear that an
application under Or.9 r.9 and r.13 was
maintainable especially in view of the
fact that there was no notice to the
plaintiff petitioner that the suit itself
would be finally heard and disposed of.
In my view, the application under Or. 9
was maintainable for recall of the order
dated 9th May 1989.
Case law discussed:
AIR 1970 Alld 257
1996 ACJ 1043

(Delivered by Hon'ble D.P. Singh, J.)

1. Pleadings have been exchanged
and counsel for the parties agree that the
writ petition itself may be disposed of
finally under the Rules of the Court.

2. The petitioner filed suit no. 693 of
1987 for cancellation of sale deed dated
9.4.1984 and further that the petitioner be
declared owner of the disputed plot. The
contesting respondents filed their written
statement. A number of issue were framed
on
21st
March
1988.
However,
subsequently an additional issue was
framed on 10th February 1989 which was
to the following effect:

"Prastut Vad perjo ki Bainame
Samvyavhar
per
Adharit
hai
per
Adhiniyam 45 San 1988 Ka kya Prabhao
hai ?

3. The issue related to as to whether
the provisions of Act No. 45 of 1988
dealing with 'benami' transaction were
attracted. The trial court had also framed
other issues including the issues no. 5 and
9 as to whether any cause of action had
arisen and as to what relief the plaintiff is
entitled to. The trial court fixed 27.2.1989
for disposal of issue no. 10 only.
However, due to Advocates strike the
case could not be taken up, though it is
averred that the plaintiff was present on
that date. The court, thereafter fixed 6th
April 1989 for disposal of issue no. 10,
which date was adjourned on the request
of counsel for the petitioner and 27th
April, 1989 was fixed for disposal of issue
no. 10. On 27th April 1989 neither the
Petitioner nor his counsel appeared before
the court and the court after disposing of
issue no.10 went on to dismiss the suit of
the petitioner by its order dated 9th May