# Devi Jain v. Kuntal Kumari and others

- **Citation:** (2007) 1 ILRA 217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-13
- **Case number:** Writ Petition No. 55607 of 2003
- **Bench:** Rakesh Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devi-jain-v-kuntal-kumari-and-others-40832
- **Pages:** 3

## Headnote

Constitution of India, Art. 226-Practice
and Procedure-Restoration ApplicationMotor Accident claim Tribunal if found
merit in claim-refusal of restoration on
technical ground-held-highly unjust and
unfair.

Held: Para 6

Therefore, I am of the view that it will be
highly unjust and unfair if a claim which
is prima facie found to be valid for
consideration
by
the
Tribunal
is
dismissed in default and the restoration
application is also rejected on technical
or
hyper-technical
grounds.
The
Tribunal,
while
dealing
with
such
matters should not take such a technical
view to deny justice to an injured party,
vide
judgments
of
Apex
Court
as
reportcd in AIR 1969 SC 575 Sakuntala
Devi Jain Vs. Kuntal Kumari and others,
AIR 1972 SC 749 The State of West
Bengal Vs. The Administrator, Howrah
Municipality and others, etc. and 1998
(2) JCLR 917 :: AIR 1998 SC 3222 N.
Balakrishnan Vs. M.Krishnamurthv.
Case law discussed:
2003 AC-769
AIR 1969 SC-575
AIR 1972 SC-749
AIR 1998 SC-3222

## Text

1 All] Ajai Kumar V. Motor Accident Claims Tribunal Spl. Judge and others
217
revisionist
deposit
the
compensation
amount within the stipulated period of
three weeks the trial court is directed to
discharge their sureties and personal
bonds.

10. With the above modification in
sentence the revision is party allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2006
BEFORE
THE HON'BLE RAKESH SHARMA, J.

Writ Petition No. 55607 of 2003

Ajai Kumar

...Petitioner
Versus
Motor
Accident
Claims
Tribunal,
Moradabad and others ...Respondents

Counsel for the Petitioner:
Km. Pratima Srivastava

Counsel for the Respondents:
Sri K.K. Misra
Sri N.K. Srivastava

Constitution of India, Art. 226-Practice
and Procedure-Restoration ApplicationMotor Accident claim Tribunal if found
merit in claim-refusal of restoration on
technical ground-held-highly unjust and
unfair.

Held: Para 6

Therefore, I am of the view that it will be
highly unjust and unfair if a claim which
is prima facie found to be valid for
consideration
by
the
Tribunal
is
dismissed in default and the restoration
application is also rejected on technical
or
hyper-technical
grounds.
The
Tribunal,
while
dealing
with
such
matters should not take such a technical
view to deny justice to an injured party,
vide
judgments
of
Apex
Court
as
reportcd in AIR 1969 SC 575 Sakuntala
Devi Jain Vs. Kuntal Kumari and others,
AIR 1972 SC 749 The State of West
Bengal Vs. The Administrator, Howrah
Municipality and others, etc. and 1998
(2) JCLR 917 :: AIR 1998 SC 3222 N.
Balakrishnan Vs. M.Krishnamurthv.
Case law discussed:
2003 AC-769
AIR 1969 SC-575
AIR 1972 SC-749
AIR 1998 SC-3222

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

1. Heard Ms. Pratima Srivastava,
learned counsel for the petitioner and Sri
K.K.Misra, holding brief for Sri N.K.
Srivastava, learned counsel appearing for
the National Insurance Company Limited,
respondent no. 2.

2. The petitioner has assailed the
two orders passed by the Motor Accident
Claims Tribunal, Moradabad, one dated I.
10.2002 dismissing his claim petition in
default and the subsequent order dated
3.3.2003 rejecting the application for
recall of the order dated 1.10.2002.

3. Learned counsel for the petitioner
has submitted that the Tribunal has
exc1uded
from
consideration
the
submissions made in the application for
recall of the order dated 1.10.2002 and the
compelling circumstances under which
the petitioner could not pursue his case
before the Tribunal. As per petitioner,
there was no element of wilful or
deliberate avoidance in pursuing the case
before
the
Tribunal.
Several
circumstances, which were enumerated in
the application, were highlighted before
the Tribunal showing sufficient reasons to
recall the order but they were not taken
into consideration. The Tribunal ought to
have restored the claim petition and heard
it on merits. Learned counsel for the
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
petitioner has placed reliance on a
judgment of this Court as reported in
2003(2) Transport and Accident Cases
769 United India Insurance Co. Ltd. Vs.
Additional District and Sessions Judge.
Muzaffarnagar and others, in support of
her submissions.

4. Learned counsel for United India
Insurance Company Limited has also put
forth his version before the Court.

5. After hearing the learned counsel
for the parties and perusing the record,
this Court is of the opinion that the
Tribunal has failed to consider the entire
facts and evidence on record. There was
substance in the submissions made before
the Tribunal. This fact cannot be ignored
that the petitioner was injured in an
accident, which took place near village
Mangupura on Moradabad-Gajraula road.
The claim petition was dismissed as the
petitioner could not pursue the matter on
the date fixed for sufficient reasons. His
application for recall has been dismissed
without appreciating the material on
record and a too technical view of the
matter has been taken by the learned
Tribunal
while
disposing
of
the
application for recall of the order. The
petitioner's case is squarely covered by
the afore-mentioned judgment cited by
the learned counsel for the petitioner. It
would be relevant to quote para 9 of the
said judgment, wherein this Court has
observed as under:

"9. In United India Insurance Co.
Ltd. v. Rajendra Singh and others, (2000)
3 Supreme Court Cases 581, the Supreme
Court allowed the appeal, set aside the
orders of Tribunal, which held that
Tribunal does not have powers to review
its orders except to correct any error in
calculating the amounts. The Allahabad
High Court had dismissed the writ
petition stating that it is a question of fact
for which writ petition is the appropriate
remedy. The Supreme Court allowing
applications filed under Sections 151, 152
and 153, C.P.C., praying for recall of
orders on the ground of revelations of
new facts that injuries were not suffered
due to accident, held in para 16 as
follows:

"16. Therefore, we have no doubt
that the remedy to move for recalling the
order on the basis of the newly-discovered
facts amounting to fraud of high degree,
cannot he foreclosed in such a situation.
No Court or Tribunal can he regarded as
powerless to recall its own order if it is
convinced that the order was wangled
through fraud or misrepresentation of
such a dimension as would affect the very
basis of the claim."

6. Therefore, I am of the view that it
will be highly unjust and unfair if a claim
which is prima facie found to be valid for
consideration by the Tribunal is dismissed
in default and the restoration application
is also rejected on technical or hypertechnical grounds. The Tribunal, while
dealing with such matters should not take
such a technical view to deny justice to an
injured party, vide judgments of Apex
Court as reported in AIR 1969 SC 575
Sakuntala Devi Jain Vs. Kuntal Kumari
and others, AIR 1972 SC 749 The State
of West Bengal Vs. The Administrator,
Howrah Municipality and others, etc. and
1998 (2) JCLR 917 : AIR 1998 SC 3222
N. Balakrishnan Vs. M.Krishnamurthv.

In view of above, the writ petition is
allowed and the judgment and orders
dated 1.10.2002 and 3.3.2003 passed by
1 All] Smt. Geeta Srivastava V. Sri A.K. Saxena, Judge Family Court and others
219
the Motor Accident Claims Tribunal,
Moradabad, contained respectively in
Annexures 2 and 3 to the petition are
quashed. The Tribunal shall reopen the
proceedings, hear the case on merits and
conclude the controversy expeditiously.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Transfer Application No. 260 of
2006

Smt. Geeta Srivastava
...Applicant
Versus
Sri A.K. Saxena, Judge Family Court,
Gorakhpur and others ...Respondents

Counsel for the Applicant:
Sri Amish Srivastava

Counsel for the Respondents:
Sri Shashi Nandan
Sri K.K. Mani
Sri Abhishek Srivastava
Sri Shyamal Narain

Code of Civil Procedure Section 24
readwith Family Court Act-Section-8Transfer of cases pending before judge
family court to Additional District Judge
of the same district-despite of the
provision of exclusion of jurisdiction
transfree court would be deemed as
competent court.

Held: Para 7

In the same manner, if this court under
Section 24 C.P.C. makes an order of the
transfer of a particular case pending in a
court,
which
possesses
territorial
jurisdiction for its trial to a court
functioning in another district in that
event also the transferee court acquires
territorial jurisdiction for the trial or
hearing
of
the
transferred
case.
Therefore, if the cases referred to in
paragraph-11
of
the
petition
are
withdrawn from the court of Principal
Judge, Family Court and transferred to a
court of other Additional District Judge
whose jurisdiction for its trial is excluded
by-Section 8 of Family Courts Act, the
transferee court would be deemed as a
competent
court
for
its
trial
notwithstanding the provision of Section
8 of the Family Courts Act. Therefore, the
submissions
of
the learned counsel
appearing for the opposite parties that
the case could not be transferred to any
other
court
within
the
district
of
Gorakhpur, does not appear to have
much relevance simply because of the
provisions contained in Section 8 of
Family Court Act.

(Delivered by Hon'ble Umeshwar Pandey. J.)

Heard
learned
counsel
for
the
applicant.

1. This transfer petition under
Section 24 of C.P.C. has been filed
seeking transfer of five pending matters
detailed in paragraph-11 of the petition
from the court of Principal Judge Family
Court to any other court in the district.

2. There is a complaint against the
Presiding Officer of the concerned court
in annexure-3 to the petition, which bas
been made the entire basis for seeking the
transfer.
This
complaint
has
been
addressed to Hon'ble the Chief Justice
spelling
out
extremely
scandalous
allegations against the Presiding Officer.
The petitioner has not spared even the
District Judge of concerned district
against whom there is accusation that he
has prejudice against her because he
wanted to marry his daughter with