# Defendant/ v. Smt. Prabhawati Devi and others

- **Citation:** (2008) 3 ILRA 963
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-02-13
- **Case number:** First Appeal From Order No. 991 of 2008
- **Bench:** Amitava Lala, Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-smt-prabhawati-devi-and-others-41288
- **Pages:** 4

## Headnote

of law of Laxcan-as a passenger carried
out on account of grace.

Held: Para 4

According to us, "gratuitous passenger"
is neither authorised passenger nor
unauthorised passenger. A "gratuitous
passenger" is a passenger who has been
carried out on account of grace.

(B) Motor Vehicle Act, 1988-Section 147-
Gratuitous
Passengers-whether
the
owner of goods travelling in cabin of
964 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
truck be treated within the meaning of
Gratuitous passenger-held-"No".

Held: Para 8

In
(2005)
12
SCC
243
(National
Insurance
Co.
Ltd.
Vs.
Bommithi
Subbhayamma And Others) and (2008) 1
SCC 423 (National Insurance Co. Ltd. Vs.
Cholleti
Bharatamma
And
Others)
repeatedly this question arose before the
Supreme Court. In the latest judgment,
as aforesaid, Supreme Court has clarified
that it is well settled that the owner of
the goods means only the person who
travels in the cabin of the vehicle.
According to us, law does not say that
whether owner of the goods or his
authorised representative carried in the
vehicle means only the person travelled
in the cabin of the vehicle. Therefore,
this aspect of the matter is yet open for
the discussion. However, since in the
present case owner of the vehicle carried
in the cabin he can not be said a
"gratuitous passenger".
Case law discussed:
206 Kan. 199. (2000) 1 SCC 237=2000 SCC
(Cri) 130, (2003) 2 SCC 223 = (2003) SCC
(Cri) 493, 2004 (2) SCC 1, (2005) 12 SCC 243,
(2008) 1 SCC 423

## Text

3 All] New India Assurance Co. Ltd. V. Smt. Prabhawati Devi and others
963
unless he is duly promoted to the said post
in accordance with the provisions of a
Statute."

6. In the present case here is a matter
where it is the grant of L.T. grade after
rendering 10 years service in C.T. grade
but the law laid down in Vipin Kumar
(supra) would ipso facto apply with full
force.

7. To the same effect is the view
taken in Virendra Pandey Vs. State of
U.P. and others, 1994(24) ALR 19 and
Km. Sheela Sanyal Vs. State of U.P.
and others, 1995 ALJ 589. A Single
Judge of this Court (Hon'ble Dr. B.S.
Chauhan, J., as His Lordship then was) in
Madan Gopal Agrawal Vs. The District
Inspector of Schools, Bijnor and others,
1996 (3) ESC 202 after referring to the
relevant Government Orders said that
grant of L.T. grade under the aforesaid
Government Orders is personal and it
does not mean holding of a post in L.T.
grade inasmuch as, when such person
would retire it would result in a vacancy
in C.T. grade and not in L.T. grade. The
incumbent cannot be said to hold post of
Assistant Teacher in L.T. grade. Another
Single Judge of this Court (Hon'ble Ashok
Bhushan, J.) in Writ Petition No. 39731
of 2000, Ansal Lal Jha Vs. District
Inspector of Schools, Badaun and
another, decided on 13.02.2006 has
followed the same. Besides, one of us
(Hon'ble Sudhir Agarwal, J.) has also
taken the same view in Smt. Bharti Roy
Vs. Deputy Director of Education II,
Kanpur and others, 2008(2) ESC 911.
We are in respectfully agreement with the
view taken in the aforesaid judgements.
Since the petitioner was never appointed
in L.T. grade but was only granted said
pay scale as per the Government Order
dated 03.06.1989, it is evident that he has
no occasion to claim seniority over
respondent no. 4 who has been promoted
in L.T. grade and that too on regular basis
w.e.f. 30.06.1996.

8. In the circumstances, we do not
find any error legal or factual in the
judgement under appeal. The appeal lacks
merit and is accordingly dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2008

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

First Appeal From Order No. 991 of 2008

New India Assurance Co. Ltd.

 ...Defendant/Appellant
Versus
Smt. Prabhawati Devi and others

...Respondents

Counsel for the Appellant:
Sri Arvind Kumar

Counsel for the respondents:

(A)
Words
and
Phrases-"Gratuitous
Passengers" explained as per dictionary
of law of Laxcan-as a passenger carried
out on account of grace.

Held: Para 4

According to us, "gratuitous passenger"
is neither authorised passenger nor
unauthorised passenger. A "gratuitous
passenger" is a passenger who has been
carried out on account of grace.

(B) Motor Vehicle Act, 1988-Section 147-
Gratuitous
Passengers-whether
the
owner of goods travelling in cabin of
964 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
truck be treated within the meaning of
Gratuitous passenger-held-"No".

Held: Para 8

In
(2005)
12
SCC
243
(National
Insurance
Co.
Ltd.
Vs.
Bommithi
Subbhayamma And Others) and (2008) 1
SCC 423 (National Insurance Co. Ltd. Vs.
Cholleti
Bharatamma
And
Others)
repeatedly this question arose before the
Supreme Court. In the latest judgment,
as aforesaid, Supreme Court has clarified
that it is well settled that the owner of
the goods means only the person who
travels in the cabin of the vehicle.
According to us, law does not say that
whether owner of the goods or his
authorised representative carried in the
vehicle means only the person travelled
in the cabin of the vehicle. Therefore,
this aspect of the matter is yet open for
the discussion. However, since in the
present case owner of the vehicle carried
in the cabin he can not be said a
"gratuitous passenger".
Case law discussed:
206 Kan. 199. (2000) 1 SCC 237=2000 SCC
(Cri) 130, (2003) 2 SCC 223 = (2003) SCC
(Cri) 493, 2004 (2) SCC 1, (2005) 12 SCC 243,
(2008) 1 SCC 423

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

1. This appeal filed by the Insurance
Company arises out of judgment and
order dated 21.01.2008 passed by the
concerned
Motor
Accidents
Claims
Tribunal, Mirzapur awarding a sum of
Rs.3,20,200.00 alongwith interest @ 7%
per annum from the date of presentation
of claim petition till its realisation payable
to the claimants on account of death of the
deceased.

2. The fact remains that the deceased
was travelling by a truck no. U.A.N. 8427
as owner of cattle being cows and
buffaloes alongwith son, a trader, driver
and cleaner sitting in cabin. The vehicle
was
allegedly
driven
rashly
and
negligently by the driver which hit a tree
and met with an accident as a result
whereof the deceased died and his son
become injured. The version of the driver
is that he wanted to save some stray cattle
on the road when the truck hit a tree and
met with an accident. The tribunal
accepted the version of the eye witness
i.e. son of the deceased and held that the
driver was rash and negligent at the time
of driving the vehicle. It has also been
held by the tribunal that the opposite
parties not cross examined the witness on
that score. From the analysis of the
evidence, as made by the tribunal, it
appears that the vehicle was carrying
cattle i.e. cows and buffaloes and the
driver rashly and negligently driven the
vehicle. There was no violation of
insurance policy. Before the tribunal at no
point of time neither any issue was
framed nor any discussion was held as to
whether the deceased was "gratuitous
passenger" or not. However, the appellant
has raised such issue before the Court of
appeal for the first time.

3. Against this background we have
to see what is the meaning and import of
the
"gratuitous
passenger"
and
its
applicability in the present case. Meaning
of "gratuitous passenger" is not available
in the Motor Vehicles Act, 1988. As per
Black's Law Dictionary, Sixth Edition, in
a motor vehicle law, a person riding at
invitation of owner or authorised agent
without payment of a consideration or
fare
is
a
"gratuitous
passenger".
"Gratuitous passenger" is comparable
with gratuitous guest. Therefore, we have
to go by the meaning of "guest". A
"guest" in an automobile is one who takes
ride in automobile driven by another
3 All] New India Assurance Co. Ltd. V. Smt. Prabhawati Devi and others
965
person, merely for his own pleasure or on
his own business, and without making any
return or conferring any benefit on
automobile driver. "Guest" is used to
denote one whom owner or possessor of
vehicle invites or permits to ride with him
as gratuity, without any financial return
except such slight benefits as are
customarily
extended
as
part
of
ordinary
courtesies
of
road.
See
Rothwell v. Transmeier, 206 Kan. 199.

4. According to us, "gratuitous
passenger" is neither authorised passenger
nor unauthorised passenger. A "gratuitous
passenger" is a passenger who has been
carried out on account of grace.

5.

Section
147 of the Act
contemplates policy of insurance against
any liability which may be incurred by a
person in respect of the death of or bodily
injury to any person, including owner of
the
goods
or
his
authorised
representative carried in the vehicle or
damage to any property of a third party
caused by or arising out of the use of the
vehicle in a public place etc.

6. Therefore, the legal position is to
be analysed hereunder. Previously, under
Section 147 of the Act question of death
or bodily injury to "any person" was
incorporated in such Section. By an
amendment w.e.f. 14.11.1994 it has been
incorporated as "injury to any person",
including owner of the goods or his
authorised representative carried in the
vehicle...................................................."
Therefore, the expanded scope of "any
person" even towards the "gratuitous
passenger" was restricted to owner of the
goods or his authorised representative
carried
in
the
vehicle.
Hence,
in
accordance with law if they are being
carried in the vehicle they should not be
seem to be "gratuitous passenger". Such
person includes the nomenclature "any
person" as per the law itself. Therefore, as
and when in a case it is proved beyond
doubt that the owner was carried by
vehicle he can not refuse in making
compensation

7. According to us, "any person"
means valid occupier of the vehicle and
also outside the vehicle being "third
party" by the analysis of the Supreme
Court
reported
in
(2000)
1
SCC
237=2000 SCC (Cri) 130 (New India
Assurance Company Vs. Stapal Singh
and others) "any person" includes
gratuitous passenger. In (2003) 2 SCC
223 = (2003) SCC (Cri) 493 (New India
Assurance Co. Ltd. Vs. Asha Rani and
others) Supreme Court said 'no', "any
person" does not include "gratuitous
passenger". In 2004 (2) SCC 1 (National
Insurance Co. Ltd. Vs. Baljit Kaur and
others) three Judges Bench of the
Supreme Court held that there is no
ambiguity under Section 147 of the Act.
Earlier the words "any person" could be
held not to include the owner of the goods
or his authorised representative travelling
in the goods vehicle. Parliament has now
made it clear that such a construction is
no longer possible. Now we find from the
interpretation of the Supreme Court that
the words "any person" as used in Section
147 of the Act, would be rendered otiose
by
an
interpretation
that
removed
"gratuitous passengers" from the ambit of
the same. In other words, the owner of the
goods and his authorised representative
carried in the vehicle can not be said to be
gratuitous passenger.

8. In (2005) 12 SCC 243 (National
Insurance Co. Ltd. Vs. Bommithi
966 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Subbhayamma And Others) and (2008)
1 SCC 423 (National Insurance Co.
Ltd. Vs. Cholleti Bharatamma And
Others) repeatedly this question arose
before the Supreme Court. In the latest
judgment, as aforesaid, Supreme Court
has clarified that it is well settled that the
owner of the goods means only the person
who travels in the cabin of the vehicle.
According to us, law does not say that
whether owner of the goods or his
authorised representative carried in the
vehicle means only the person travelled in
the cabin of the vehicle. Therefore, this
aspect of the matter is yet open for the
discussion. However, since in the present
case owner of the vehicle carried in the
cabin he can not be said a "gratuitous
passenger".

9. Hence, we do not find any merit
in the appeal and as such the same is
dismissed even at the stage of admission,
however, without imposing any cost.

10. Incidentally, the appellantinsurance company prayed that the
statutory deposit of Rs.25,000/- made
before this Court for preferring this appeal
be remitted back to the concerned Motor
Accidents
Claims
Tribunal
as
expeditiously as possible in order to
adjust the same with the amount of
compensation to be paid to the claimants,
however, such prayer is allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2008

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Second Appeal No. 1595 of 1976

Ram Bharose Lal and another

...Plaintiff-Appellants
Versus
Tula Ram and others

 ...Defendants-Respondents

Counsel for the Appellants:
Sri Anil Sharma
Sri Rishi Ram
Sri K.K. Tiwari

Counsel for the Respondents:
Sri S. Alim Shah
Sri R.K. Shukla
Sri Jitendra Nath Singh
Sri Nagendra Kumar Srivastava
Sri Anil Shukla
Sri Neeraj Agrawal

Code of Civil Procedure-Section 100Substantial
Question
of
lawmisinterpreting
or
mis
reading
document-itself
a
question
of
lawconcurrent finding of fact recorded by
Courts
below-not
sustainable-suit
decreed.

Held: Para 17 & 23

From the legal position discussed above,
it is clear that where a document of title
has been misinterpreted, misconstrued
or even misread it involves a substantial
question of law or at-least a question of
law.

Thus, I hold that the courts below have
grossly
erred
in
holding
that
the
plaintiff/appellants are not the owners
of
the
'Rasta'
by
misreading
the
document
of
title.
The
substantial