# Intermediate College, Deoria and others v. Joint

- **Citation:** (2008) 3 ILRA 928
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-26
- **Case number:** First Appeal From Order No.947 of 2006
- **Bench:** Amitava Lala, A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/intermediate-college-deoria-and-others-v-joint-41272
- **Pages:** 3

## Headnote

Motor Vehicle Act 1988-173-Rejection of
application filed under Section 166-after
examining the witness-appeal on the
ground after examining the witness
about rash and negligence-cannot be
dismissed as not maintainable hence
illegal-held-order
passed
by
claim
3 All] The New India Assurance Co. Ltd. V. Smt. Suman and others
929
tribunal may be termed as irregular-but
cannot
be
illegal-hence
appeal
not
maintainable-can
be
questioned
in
revision.

Held: Para 6

So far as the other point as agitated that
collective application under Section 163A
and
under
Section
166
is
so
fundamental
in
nature
if
Insurance
Company has right to oppose, we are of
the view that it is for the Court to treat
the claim petition under either of the
Sections but not to reject solely on such
ground. Therefore, when the Tribunal
has proceeded with the proof of rash and
negligence of the driver, it has to be
construed that the Court proceeded
under Section 166 of the Act but not
under
Section
163-A
of
the
Act.
Therefore, in totality, we do not find any
prudent
cause
to
support
the
contentions of the appellant. Hence the
appeal is liable to be dismissed and
accordingly,
is
dismissed,
however,
without imposing any cost.
Case law discussed:
2007 (4) ADJ 101; AIR 2002 SC 3350.

## Text

928 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
23.3.2001, there is no mention that the
comparative hardship was considered and
the claim of respondent no.4 was found
genuine. It is to be kept in mind that while
considering as to who is to be given
employment, the paramount factor which
shall be taken into consideration is the
overall interest of the welfare of the entire
family.

22. In the instant case, income out of
meagre pension was not sufficient to
maintain, and, therefore, to tide over the
financial crisis on the sudden death of the
employee
refusing
appointment
on
compassionate ground to the petitioner is
wholly unjustified. I am of the view that
the financial position of the family of the
deceased
employee
requires
such
compassionate appointment on the facts
of the case. It may be added that the
receipt of family pension by the widow
cannot be taken to be a good ground for
rejecting the case for appointment on
compassionate
ground.
It
may
be
mentioned that this Court in the case of
Committee of Management, R.B. Rao
Intermediate College, Deoria and others
Vs.
Joint
Director
of
Education,
Gorakhpur and others (2001) 1 UPLBEC
706 took a view that a widow cannot be
denied appointment on compassionate
ground just because of its illiteracy.

23. Looking to the pathetic
condition of the family and financial
stress and strain that it has undergone all
these years, the order dated 23.3.2001 was
not justified and reflects non-application
of mind. The respondents have not at all
taken
into
account
the
tremendous
difficulties that the petitioner and his
family faced upon the death of their head
of family way back in the year 1999.

24. For the reasons aforesaid, the
order dated 23.3.2001, passed by the
Secretary, U.P. Basic Shiksha Parishad is
hereby
quashed.
The
concerned
authorities (respondent nos. 1 to 3) are
directed to consider the claim of the
petitioner for compassionate appointment
after considering the provisions of Rules
of Dying in Harness Rules, 1974, in the
light
of
the
observations
made
hereinabove. The authorities shall pass the
appropriate orders within a maximum
period of six weeks' considering the fact
that the poor widowed lady is litigating
this matter since last seven years to get
justice.

25. For the foregoing reasons, writ
petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE A.P. SAHI, J.

First Appeal From Order No.947 of 2006

The New India Assurance Co. Ltd

...Appellant
Versus
Smt. Suman and others ...Respondents

Counsel for the Appellant:
Sri. Arvind Kumar

Counsel for the Respondents:
Sri. R.K. Porwal

Motor Vehicle Act 1988-173-Rejection of
application filed under Section 166-after
examining the witness-appeal on the
ground after examining the witness
about rash and negligence-cannot be
dismissed as not maintainable hence
illegal-held-order
passed
by
claim
3 All] The New India Assurance Co. Ltd. V. Smt. Suman and others
929
tribunal may be termed as irregular-but
cannot
be
illegal-hence
appeal
not
maintainable-can
be
questioned
in
revision.

Held: Para 6

So far as the other point as agitated that
collective application under Section 163A
and
under
Section
166
is
so
fundamental
in
nature
if
Insurance
Company has right to oppose, we are of
the view that it is for the Court to treat
the claim petition under either of the
Sections but not to reject solely on such
ground. Therefore, when the Tribunal
has proceeded with the proof of rash and
negligence of the driver, it has to be
construed that the Court proceeded
under Section 166 of the Act but not
under
Section
163-A
of
the
Act.
Therefore, in totality, we do not find any
prudent
cause
to
support
the
contentions of the appellant. Hence the
appeal is liable to be dismissed and
accordingly,
is
dismissed,
however,
without imposing any cost.
Case law discussed:
2007 (4) ADJ 101; AIR 2002 SC 3350.

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

1. This appeal has been preferred by
the Insurance Company challenging the
judgement and order dated 7.1.2006
passed by the concerned Motor Accident
Claims Tribunal, Etawah, in spite of
rejection of the application under Section
170 of the Motor Vehicles Act, 1988.

2. We have considered the issue of
right of appeal in our judgement reported
in
2007
(4)
ADJ
101
(Oriental
Insurance Company Limited Vs. Smt.
Manju
and
others)
following
the
Supreme Court reported in AIR 2002 SC
3350 (National Insurance Co. Ltd.,
Chandigarh Vs. Nicolleta Rohtagi and
others). Therefore, no new case is
available therein excepting very few
which are discussed herein.

3. Mr. Arvind Kumar, learned
counsel appearing in support of the
appellant, contended before this Court
that the order which has been passed
rejecting the application on 20.9.2004 is
falicious in nature. Either the application
will be rejected or the same will be
allowed. There is no scope of holding that
the same is not maintainable as Insurance
Company has already examined the
witnesses. He further contended that the
original claim petition was filed both
under section 163-A and under Section
166 of the Motor Vehicles Act 1988,
therefore, the same is required to be
dismissed as a matter of course. It is a
question of maintainability of the claim
petition,
therefore,
the
Insurance
Company has a right independent of the
rejection of the application under Section
170 of the Act. He relied upon the
judgment of the Division Bench of this
Court in F.A.F.O. No. 513 of 2007,
National Insurance Company Limited Vs.
S.L. Sharma dated 19.3.2008.

4. Mr. R.K. Porwal, learned counsel
appearing for the claimants, contended
before this Court that Section 170 of the
Act is provided for specific purposes.
Such type of application cannot be made
mechanically. In the instant case, the
application was made after examination
of the witness is over. Therefore, the
Court held that there is no necessity of
permitting Section 170 to the Insurance to
contest the claim. He has further said that
there is existing right of an Insurance
Company
to
examine
any
witness
provided the cause falls under Section 149
(2) of the Act but not beyond the same.
The Tribunal considered this part and
930 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
only thereafter the application was
rejected.

5. He also argued before this Court
that definitely an application will be made
either under Section 163-A or Section 166
of the Act but if the claim petition is filed
referring two sections it is to be seen by
the tribunal under which Section the
parties are required to be proceeded
before the Tribunal. In the present case
rash and negligent driving of the vehicle
was called upon to prove by the
claimant/s. Therefore, obviously the claim
petition is to be treated under Section 166
but not under Section 163-A. It is also
stated that for the purposes of the
applicability of the multiplier as a
guidance, the second schedule under such
Section was considered not for any other
purposes. Mr. Arvind Kumar contended
that since the owner was not examined,
therefore, the Insurance Company has
right to contest to which the Tribunal fell
into error. However, upon going through
the judgment and order, we find that the
owner was produced for examination.
Therefore, factually such statement is
incorrect.

6. Therefore, taking into totality of
the matter, we are of the view that the
way of rejection of the order may be
defective or irregular but it cannot be said
to
be
illegal
for
the
purpose
of
intervention of the Appeal Court. In the
case of an irregular rejection, there is
every right of the insurance to make a
revisional application as we have already
held in the case of Manju Devi (supra).
We do not find any cogent reasons to
interfere with the order at the appellant
Insurance Company independently. So far
as the other point as agitated that
collective application under Section 163A
and
under
Section
166
is
so
fundamental
in
nature
if
Insurance
Company has right to oppose, we are of
the view that it is for the Court to treat the
claim petition under either of the Sections
but not to reject solely on such ground.
Therefore,
when
the
Tribunal
has
proceeded with the proof of rash and
negligence of the driver, it has to be
construed that the Court proceeded under
Section 166 of the Act but not under
Section 163-A of the Act. Therefore, in
totality, we do not find any prudent cause
to
support
the
contentions
of
the
appellant. Hence the appeal is liable to be
dismissed and accordingly, is dismissed,
however, without imposing any cost.

7. 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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 11872 of 2000

Awadhesh Kumar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. Umesh Chandra Mishra