# Floor, L.I.C. Investment Building, Hazratganj, Lucknow v. Smt. Savitri Devi and others

- **Citation:** (2012) 3 ILRA 1407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-11
- **Case number:** F.A.F.O. No. 760 of 2006
- **Bench:** Devi Prasad Singh, Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/floor-l-i-c-investment-building-hazratganj-lucknow-v-smt-savitri-devi-and-others-42430
- **Pages:** 7

## Headnote

Sri
Himanshu
Kumar
Srivastava,
Advocate,

Motor Vehicle Act, 1988-Section 173Appeal against award of Accident Claim
Tribunal-accident and involvement of
vehicle established-negligence on part of
Zeep driver also established by Tribunalthird Party Risk-liability to pay entire
amount of compensation fastened upon
the Insurance Company-with liberty to
recover the same from the Driver and
owner of the vehicle.

Held: Para-12

In view of the above proposition of law
in the light of the fact of this case, the
appeal is allowed. The award is modified
to the extent that the amount of
compensation
determined
by
the
Tribunal shall be paid by the Appellant
Insurance Company and recover the
same from the owner or driver of the
vehicle in question, the respondent no. 3
and 4, who are jointly and severally
liable
to
pay
the
compensation
to
claimant respondent no. 1 and 2 by
1408 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

moving
an
application
before
the
Tribunal concern.
Case Law discussed:
2000 (1) TAC page no. 98 Supreme Court;
2004 (1) TAC 105 Allahabad; F.A.F.O. 1389 of
2009 ( New India Assurance Company Ltd. Vs.
Sanjeev Kumar and Others, decided on
21.09.2012; 2008 (1) SCC 696; 2009 SCC (2)
151; (2008) 3 SCC page 464;F.A.F.O. No. 893
of 2009 National Insurance Co. Ltd Vs. Smt.
Gita Mishra decided on 06.08.2012

## Text

3 All] Oriental Insurance Company V. Smt. Savitri Devi and others

1407

"52.Truth is the foundation of justice.
It must be the endeavour of all the judicial
officers and judges to ascertain truth in
every matter and no stone should be left
unturned in achieving this object. Courts
must give greater emphasis on the veracity
of pleadings and documents in order to
ascertain the truth."

81. Having regard to what has been
said above, we are of the opinion that the
plaintiffs have not approached the Civil
Court for vindication of their rights but
more to get the seal of approval on their
fraudulent acts. It is known that the Jim
Corbett Park is one of the oldest national
park of the country to preserve the faun and
fauna. The park is known for its initiative
Project Tiger, for endangered Bengal tiger
of India. The total area of the reserve is
1318.54 sq. km. consisting 520 sq. km. of
core area and 797.72 sq. km. of buffer area.
After India's Independence in 1947, the park
was renamed as Ramganga National Park.
But in 1956 it was renamed as Jim Carbett
National Park in the memory of Colonel
Jim Corbet. The land in dispute as come in
the inquiry report was buffer land of the
aforesaid park. The persons who were
responsible to protect the land, it is
unfortunate, are its grabbers. The fraud
committed by the plaintiffs came to surface
only when an inquiry was initiated that
there is no official record to show Rani
Nagla as revenue village.

82. The appeal is allowed with cost
throughout. Impugned judgement dated
30.5.2005 and decree dated 8.7.2005 are set
aside and the original suit no. 545/1991
(Ajay Singh and others Vs. State of U.P.
And others) is dismissed.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.10.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE VISHNU CHANDRA GUPTA, J.

F.A.F.O. No. 760 of 2006

Oriental Insurance Company, Branch
Office, Bahraich, Through the Deputy
General Manager, Regional Office, 3rd
Floor,
L.I.C.
Investment
Building,
Hazratganj, Lucknow.
 ...Appellant
Versus
Smt. Savitri Devi and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashotosh K. Singh, Advocate ,

Counsel for the Respondents:
Sri
Himanshu
Kumar
Srivastava,
Advocate,

Motor Vehicle Act, 1988-Section 173Appeal against award of Accident Claim
Tribunal-accident and involvement of
vehicle established-negligence on part of
Zeep driver also established by Tribunalthird Party Risk-liability to pay entire
amount of compensation fastened upon
the Insurance Company-with liberty to
recover the same from the Driver and
owner of the vehicle.

Held: Para-12

In view of the above proposition of law
in the light of the fact of this case, the
appeal is allowed. The award is modified
to the extent that the amount of
compensation
determined
by
the
Tribunal shall be paid by the Appellant
Insurance Company and recover the
same from the owner or driver of the
vehicle in question, the respondent no. 3
and 4, who are jointly and severally
liable
to
pay
the
compensation
to
claimant respondent no. 1 and 2 by
1408 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

moving
an
application
before
the
Tribunal concern.
Case Law discussed:
2000 (1) TAC page no. 98 Supreme Court;
2004 (1) TAC 105 Allahabad; F.A.F.O. 1389 of
2009 ( New India Assurance Company Ltd. Vs.
Sanjeev Kumar and Others, decided on
21.09.2012; 2008 (1) SCC 696; 2009 SCC (2)
151; (2008) 3 SCC page 464;F.A.F.O. No. 893
of 2009 National Insurance Co. Ltd Vs. Smt.
Gita Mishra decided on 06.08.2012

(Delivered by Hon'ble Vishnu Chandra Gupta, J

J U D G M E NT

1. This appeal under Section 173 of
Motor Vehicle Act 1988 (In short the 'Act')
has been preferred by Oriental Insurance
Co. Ltd dissatisfying with an award dated
29.8.2006 passed by Motor Accident Claim
Tribunal / Fast Track Court No. 1, Bahraich
(In short 'Tribunal') in Motor Accident
Claim Petition No. 39/70 of 2001.

2. The relevant facts for deciding this
appeal in short are that one Pradeep Kumar
was coming back to his house along with
his Nana Sant Ram after easing himself and
when crossing the Gonda-Bahraich road in
village
Udharna
Thakurain,
District
Srawasti on 25.8.1999 at about 10.30 AM a
Mahindra Pick- up Jeep having registration
no. UP-45/1782 driven by its driver
Rajendra Singh (Respondent no.3) in a rash
and negligent manner hit Pradeep Kumar ,
who received sever injuries and succumbed
to injuries on the spot. The first information
report of this incident was lodged by father
of
the
deceased
Dwarika
Prasad
(Respondent No. 2). On the same day at
Crime No. 189 of 1999 under Section 279,
304 I.P.C. wherein the number of the
vehicle was mentioned as UP 43-1782.
Later on during investigation the jeep
number was corrected and the vehicle
number, by which accident said to have
been occurred, was mentioned as UP 451782.

3. The parents of the deceased
Pradeep Kumar, had filed a motor accident
claim before the tribunal for award of
compensation of Rs. 3,00,000/- on account
of death of the deceased Pradeep Kumar
who was aged about 6 years and student of
Class-II. The petition was contested by
driver Rajendra Singh, owner Raghwendra
Prasad Mishra and Insurer Appellant by
filing their respective written statements.
Rajendra Singh in his written statement
pleaded that he was not negligent in driving
the
vehicle.
It
was
deceased
who
negligently crossing the road and the
incident was occurred due to negligence of
the deceased. He was having a valid and
effective driving license having No. R3068-G-N-D-99 issued from the office of
R.T.O., Gonda. The same was valid from
22.07.1995 to 21.07.2015. The license was
valid for driving private light motor vehicle.
Raghwendra Prasad Mishra pleaded that the
driver was not Rajendra Singh on the
vehicle in question but driver was Umesh
Chandra, who died in the year 2002, He was
having valid driving license to drive the
aforesaid vehicle. It was further pleaded that
vehicle was dully insured with Appellant
Insurance company under cover note no.
722503 with effect from 20.05.1999 to
19.05.2000. Although, the accident has
been denied by owner but in the alternative
it has been pleaded that even if it is found
that owner is liable for any compensation in
that event the Insurance Company would be
bound to indemnify him to the extent of
amount of compensation. It was further
pleaded that the vehicle was being driven
under all valid documents. The Insurance
Company disowned his liability by pleading
breach of terms of policy for want of valid
driving licence with driver and other papers.
3 All] Oriental Insurance Company V. Smt. Savitri Devi and others

1409

4. On the basis of pleadings of the
parties the tribunal framed certain issues.
Issue No. 1 is relating to negligence of the
driver of jeep in the accident and death of
Pradeep Kumar. Issue no. 2 was framed
regarding the validity of the papers of
vehicle in question. Issue no. 3 is related to
validity of driving license of driver of jeep.
Issue No. 4 was framed in respect of
insurance of the vehicle and issue no. 5 was
framed in respect of quantum, entitlement
and its liability to pay the compensation to
the petitioner.

5. The tribunal decided issue no. 1 in
affirmative holding therein that the accident
was caused due to sole negligence of jeep
driver resulting into death of Pradeep
Kumar in the aforesaid accident, which was
occurred due to involvement of vehicle No.
UP-45-1782. While deciding issue no. 4 in
affirmative it was held that vehicle in
question was dully insured on the date of
accident
with
Appellant
Insurance
Company. While deciding issue nos. 2 and
3 it was held that the driver of the jeep at the
time of accident was Rajendra Singh, who
was having a valid driving license for
driving private light motor vehicle. It was
further held that the vehicle in question on
the basis of registration certificate was a
goods carrier, but in view of the judgment
of Hon'ble Supreme Court reported in
2000(1) TAC page no. 98 Supreme Court
(Ashok
Gangadhar
Vs.
Oriental
Insurance
Company
Ltd.)
and
the
judgment reported in 2004(1) TAC 105
Allahabad
(New
India
Insurance
Company Ltd. Vs. Smt Sunita and
others) held that insurance company in case
of 3rd party risk cannot escape with its
liability even if it is found that vehicle in
question was being driven by a driver
having not a valid driving license.

6. While deciding Issue No. 5 the
tribunal award a compensation of Rs.
1,75,000/- with 6% simple pendente lite and
future interest, but liability was fastened
totally on Appellant Insurance Company
and right to recovery has also not been
given to Appellant Insurance Company.
Aggrieved with this part of the award which
relates to liability of the Insurance
Company, this appeal has been filed.

7. The moot question in this appeal for
consideration is :-

"Whether in the given set of
circumstances Insurance Company would
be liable to pay compensation? if so,
whether the Insurance Company would be
entitled
to
recover
the
amount
of
compensation from the owner and the
driver of the vehicle in question"

8. Aforesaid controversy is not resintegra. In recent decision rendered by this
Division Bench in F.A.F.O. 1389 of 2009 (
New India Assurance Company Ltd. Vs.
Sanjeev Kumar and Others, decided on
21.09.2012 this controversy set at rest. In
aforesaid Division Bench case the judgment
relied
upon
by
tribunal
in
Ashok
Gangadhar Maratha (Supra) was also
considered and after relying upon the
judgment rendered by Hon'ble Supreme
Court in New India Assurance Co. Ltd
V/s Prabhu lal 2008(1)SCC 696 and
Judgment report in Oriental Insurance Co.
Ltd Vs. Angal Kol, 2009 SCC(2) 151 and
also distinguishing the judgment rendered
by Hon'ble Supreme Court in National
Insurance Co. Ltd Vs. Annapa Irappa
Nesaria @ Nesaragi and Others, (2008) 3
SCC page 464 held that driver having
licence to drive light motor vehicle cannot
be permitted to drive transport vehicle. The
relevant
paragraphs
of
the
aforesaid
1410 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Division Bench judgment in Sanjeev
Kumar's case (Supra) are reproduced
herein-below:-

"39. The counsel for the petitioner
relying upon the judgment of Hon'ble Apex
Court in Annappa Irappa's case (supra)
would submit that in view of judgment
rendered in the aforesaid case a driving
licence to drive light motor vehicle would
be valid to drive the Vikram Tempo whose
laden weight is less than 7500 Kg.

40. The learned counsel for the
appellant cited judgment of Angad Kol's
case (supra) wherein the judgment in
Annappa Irappa's case (supra) has been
considered and distinguished on the ground
that Annappa Irappa's case (supra) is
based on the provisions contained in Motor
Vehicle Act prior to amendment of 2001, so
in view of the amended provisions the
Annappa Irappa's case (supra) after
amendment made in 2001 cannot be
followed. It would be necessary to
reproduce relevant paragraph of Angad
Kol's case (supra)

"16. Had the driving licence been
granted for transport vehicle, the tenure
thereof could not have exceeded to three
years."

In National Insurance Co. Ltd. v.
Annappa Irappa Nesaria [(2008) 3 SCC
464] this Court noticed the aforementioned
development in the matter of grant of
licence to a transport vehicle stating that the
same became effective from 28-3-2001 in
the following terms:

"20. From what has been noticed
hereinbefore, it is evident that ''transport
vehicle' has now been substituted for
''medium goods vehicle' and ''heavy goods
vehicle'. The light motor vehicle continued,
at the relevant point of time to cover both
''light passenger carriage vehicle' and ''light
goods carriage vehicle'. A driver who had a
valid licence to drive a light motor vehicle,
therefore, was authorised to drive a light
goods vehicle as well.

21. The amendments carried out in the
Rules having a prospective operation, the
licence held by the driver of the vehicle in
question cannot be said to be invalid in
law."

41. The effect of the different terms of
licences granted in terms of the provisions
of Sections 2(14) and 2(47) has also been
noticed by Apex Court in New India
Assurance Co. Ltd. v. Prabhu Lal [(2008)
1 SCC 696 : (2008) 1 SCC (Cri) 308],
relevant part is being reproduced herein
below (SCC pp. 704-06, paras 30 and 3738),

"30. Now, it is the case of the
Insurance Company that the vehicle of the
complainant which met with an accident
was a ''transport vehicle'. It was submitted
that the insured vehicle was a ''goods
carriage' and was thus a ''transport vehicle'.
The vehicle was driven by Ram Narain, who
was authorised to drive light motor vehicle
and not a transport vehicle. Since the driver
had no licence to drive transport vehicle in
the absence of necessary endorsement in his
licence to that effect, he could not have
driven Tata 709 and when that vehicle met
with an accident, the Insurance Company
could
not
be
made
liable
to
pay
compensation.

***

37. The argument of the Insurance
Company is that at the time of accident,
3 All] Oriental Insurance Company V. Smt. Savitri Devi and others

1411
Ram Narain had no valid and effective
licence to drive Tata 709. Indisputably,
Ram Narain was having a licence to drive
light motor vehicle. The learned counsel for
the Insurance Company, referring to
various provisions of the Act submitted that
if a person is having licence to drive light
motor vehicle, he cannot drive a transport
vehicle
unless
his
driving
licence
specifically entitles him so to do (Section 3).
Clauses (14), (21), (28) and (47) of Section
2 make it clear that if a vehicle is ''light
motor vehicle', but falls under the category
of transport vehicle, the driving licence has
to be duly endorsed under Section 3 of the
Act. If it is not done, a person holding
driving licence to ply light motor vehicle
cannot ply transport vehicle. It is not in
dispute that in the instant case, Ram Narain
was having licence to drive light motor
vehicle. The licence was not endorsed as
required and hence, he could not have
driven Tata 709 in the absence of requisite
endorsement and the Insurance Company
could not be held liable.

38. We find considerable force in the
submission of the learned counsel for the
Insurance Company. We also find that the
District Forum considered the question in
its proper perspective and held that the
vehicle driven by Ram Narain was covered
by the category of transport vehicle under
clause (47) of Section 2 of the Act. Section
3, therefore, required the driver to have an
endorsement which would entitle him to ply
such vehicle. It is not even the case of the
complainant
that
there
was
such
endorsement and Ram Narain was allowed
to ply transport vehicle. On the contrary,
the case of the complainant was that it was
Mohd. Julfikar who was driving the vehicle.
To us, therefore, the District Forum was
right in holding that Ram Narain could not
have driven the vehicle in question."

42. The Hon'ble Supreme Court
distinguished its earlier judgment in Ashok
Gangadhar
Maratha
v.
Oriental
Insurance Co. Ltd. [(1999) 6 SCC 620 :
1999 SCC (Cri) 1170], stating: (Prabhu Lal
case [(2008) 1 SCC 696 : (2008) 1 SCC
(Cri) 308] , SCC p. 707, para 41

"41. In our judgment, Ashok
Gangadhar [(1999) 6 SCC 620 : 1999 SCC
(Cri) 1170] did not lay down that the driver
holding licence to drive a light motor
vehicle need not have an endorsement to
drive transport vehicle and yet he can drive
such vehicle. It was on the peculiar facts of
the case, as the Insurance Company neither
pleaded nor proved that the vehicle was
transport vehicle by placing on record the
permit issued by the Transport Authority
that the Insurance Company was held
liable.

However, in this case, the finding of
fact arrived at that the vehicle in question
was not proved to be a goods vehicle is not
correct. The Regional Transport Officer, in
his deposition, stated that the vehicle in
question was a goods vehicle.

From
the
discussions
made
hereinbefore, it is, thus, proved that
Respondent No1 did not hold a valid and
effective driving licence for driving a goods
vehicle. Breach of conditions of the
insurance is, therefore, apparent on the face
of the record."

43. In the aforesaid facts and
circumstances, we are of the firm view that
in the case in hand Vikram Tempo is a
transport vehicle and the deceased Ajay
Kumar @ Sintu who was the driver of the
Vikram Tempo having registration No. UP
42-T 5674, was having a driving licence to
drive light motor vehicle and not the
1412 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

transport vehicle. Therefore the deceased
was not having any valid and effective
driving licence to drive the Vikram Tempo
at the time of accident.

44. The effect of this finding would be
that the Appellant Insurance Company after
making
the
payment
of
awarded
compensation to the petitioner shall be
entitled to recover the amount from Owner
of the Vehicle as held by this Court in
F.A.F.O. No. 893 of 2009 National
Insurance Co. Ltd., Through its R.M. Vs.
Smt. Gita Mishra and others decided on
6.8.2012"

9. It is not in dispute that deceased of
this case is squarely falls within the
definition of 3rd party. The driver of the
offending vehicle was having a only driving
licence to drive light motor vehicle. The
vehicle in question is admittedly transport
vehicle. Hence, terms of policy has been
violated and it is established that owner
committed breach of terms of policy.

10. This Division Bench in aforesaid
circumstances in F.A.F.O. No. 893 of 2009
National Insurance Co. Ltd Vs. Smt. Gita
Mishra decided on 06.08.2012 held that in
such circumstances the insurance company
would not be saddled with liablity to pay
compensation but in case of 3rd party risk
the insurance company will pay amount of
compensation
determined
by
the
Tribunal/Court to the claimants and then
recover the same from owner of the vehicle.
The relevant para of the aforesaid judgment
is reproduced herein-below:-

"59. On the basis of the provisions
contained in Chapter XI and XII of
M.V.Act 1988 and the proposition of law
laid down by the Apex Court it is held that
where the owner of the vehicle has taken
the
compulsory
statutory
policy
of
Insurance of vehicle , called as 'Act Policy'
following consequences shall follow in
motor accident claims for payment of
compensation to the victims/claimants of
motor vehicle accident;

- In cases of 'third party risk' the
insurance company would be liable to
indemnify the losses of the owner of
vehicle and would be liable to pay the
determined
compensation
to
the
victims/claimants.

- In case of 'third party risk' if
Insurance
Company
succeed
in
establishing the breach of terms of
insurance policy in the light of section
149(2) of M.V.Act1988, though insurance
company would not be liable to indemnify
the losses of owner of the vehicle but
concerned insurance company would pay
the determined compensation to the
claimants with a right to recover from the
owner of the vehicle involved in the
accident to the extent, the amount paid
with interest to the claimants.

-The gratuitous passengers (except
owner of goods or
his authorised
representative carried in the vehicle along
with goods) in goods vehicle/carriage
could not be permitted to travel. They
being victim or in case of death their heirs
could claim compensation from the owner
of the vehicle in which they are trevelling
and not from the insurance company of
the concern vehicle. The insurance
company would not be liable to indemnify
the amount of compensation paid by the
owner. In such situation the insurance
company could not be saddled with any
liability including the liabilities to pay
compensation to victim/claimants with
right to recover from owner of the vehicle.
3 All] Union of India & others V. Anil Kumar and others

1413

- The direction given by Apex Court
in some of its authorities to insurance
companies
to
pay
the
amount
of
compensation to the victims/claimants in
cases other than those covered under 'third
party risk', with intent to do complete
justice between the parties in any cause or
matter pending before the Supreme Court
in its extraordinary jurisdiction vested
under Article 142 of the Constitution of
India would be binding in between the
parties of that cause or matter but can not
be taken as binding precedent in other
matters."

11. No other point was pressed,argued
or raised by the Counsel for Appellant.

12. In view of the above proposition
of law in the light of the fact of this case, the
appeal is allowed. The award is modified to
the extent that the amount of compensation
determined by the Tribunal shall be paid by
the Appellant Insurance Company and
recover the same from the owner or driver
of the vehicle in question, the respondent
no. 3 and 4, who are jointly and severally
liable to pay the compensation to claimant
respondent no. 1 and 2 by moving an
application before the Tribunal concern.

13. The amount deposited by the
Appellant Insurance Company in this court
including the statutory deposit be remitted
to the Tribunal concerned forthwith but not
later than a month. The Tribunal thereafter
will disburse the amount of compensation to
the claimant respondents no. 1 and 2 in
terms of the award within two months
thereafter.

14. There shall be no order as to costs.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2012

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

First Appeal No. 967 of 1999

Union of India & others
 ...Appellant
Versus
Anil Kumar and others ...Respondents

Counsel for the Petitioner:
Sri Subodh Kumar
S.C.

Counsel for the Respondents:
Sri A.K. Gupta

Land
Acquisition
Act-Appeal
against
reference order-possession of land taken
in
the
year
1971-on
failure
of
negotiation
between
parties-as
per
direction of Court Notification under
Section 4 issued in the year 1971considering
exempler
by
reference
compensation enhanced from 1000/-per
square yard to 1200 per square yard-for
the
period
of
possession
without
notification
too
till
the
date
of
publication
of
notification-claimant
entitled
about
rent
for
use
and
occupation
with
9%
interest
and
thereafter to pay interest @ 15%-
accordingly order of reference Court
modified-appeal partly allowed.

Held: Para-27

In
this
case,
the Apex
Court
has
specifically held that in a case where a
land owner is dispossessed prior to issue
of earlier notification under section 4 (1)
of the Act, the Government merely take
possession of he land. It is fully open to
the land owner to recover compensation
of the land by taking appropriate legal
proceedings,
therefore,
he
is
only
entitled to get rent or damages for use