# Jayanta Bandopadhyay and another v. U.P.P.C.L., Lucknow and another

- **Citation:** (2007) 2 ILRA 394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-12-14
- **Case number:** Civil Misc. Writ Petition No. 67078 of 2006
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jayanta-bandopadhyay-and-another-v-u-p-p-c-l-lucknow-and-another-40896
- **Pages:** 3

## Headnote

Constitution of India Act 226 -read with
Limitation Act 1963 Section 5(1) (b), 14
claim petition-dismissed on the ground
of
limitation-petitioner
instead
of
addressing the tribunal under section 14
of
Limitation
Act-approached
under
section 5 of the Act-held- petitioner
entitled for the benefit of section 14
although not addressed the Court -
tribunal directed to decide the claim on
merit.

Held Para 8:
2 All] Jayanta Bandopadhyay and another V. U.P.P.C.L., Lucknow and another
395
In view of the above, as the learned
Tribunal had not been addressed by the
petitioners for grant of benefit under
Section 14 of the Limitation Act, though
it could have very safely been advanced,
we are of the considered opinion, and it
is also in the interest of justice, that the
learned Tribunal be requested to decide
the
case
on
merit.
We
have
also
examined the matter that in case the
petitioner is given benefit of Section 14
of Limitation Act, the Claim Petition filed
by him, would not be barred by time
Case law discussed:
1996(6) SCC-199
2004(13) SCC-463
2004(13) SCC-656
1996(6) SC-101
2001(10) SCC-513
2004(3) SCC-458
2005(12) SCC-454

## Text

394 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
297 and has relied on paragraphs 69 and
98 which are quoted hereunder:

"69. The proposition of law is no longer
res integra that the person who
alleges breach must prove the same
The insurance company is, thus,
required to establish the said breach
by cogent evidence. In the event the
insurance company fails to prove that
there has been breach of conditions
of policy on the part of the insured,
the insurance company cannot be
absolved of its liability. (See Sohan
Lal Passi)
98. "Nicolletta Rohtagi was a case where
a question arose as to whether an
appeal by the insurer on the ground
dehors those contained in Section
149(2) would be maintainable. It was
held not to be. There cannot be any
doubt
or dispute
that
defences
enumerated in Section 149(2) would
be
available
to
the
insurance
companies, but that does not and
cannot
mean
that
despite
such
defences having not been established,
they would not be liable to fulfill
their statutory obligation under subsection (1) of Section 149 of the
Act."

7. In the present case the finding of
the Tribunal on issue no.2 has been found
-to be erroneous. The driver was holding a
valid driving license on the day of the
accident, therefore, when the contrary has
not been established by the insurer it
cannot absolve itself of the liability.

8. In view of the foregoing
discussion, the appeal is allowed to the
extent that the amount awarded to the
claimant respondents is to be paid by the
Insurance
Company-respondent
no.6
against whom the award is executable. In
case any amount has been paid by the
appellants in pursuance of impugned
award, they shall be entitled to six percent
interest on the amount from the date of
deposit upto the date it is recovered from
the insurer.

9. No order is passed as to costs.
Appeal allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2006

BEFORE
THE HON,BLE DR. B.S. CHAUHAN, J.
THE HON,BLE DILIP GUPTA, J

Civil Misc. Writ Petition No. 67078 of 2006

Jayanta Bandhopadhyay and another.

 ...Petitioners
Versus
U.P. Power Corporation limited Lucknow
& another.

...Respondents

Counsel for the Revisionist:
Sri. G.K. SINGH
Sri. V.K. Singh

Counsel for the Opposite parties:
Sri. R.D. KHARE
S.C.

Constitution of India Act 226 -read with
Limitation Act 1963 Section 5(1) (b), 14
claim petition-dismissed on the ground
of
limitation-petitioner
instead
of
addressing the tribunal under section 14
of
Limitation
Act-approached
under
section 5 of the Act-held- petitioner
entitled for the benefit of section 14
although not addressed the Court -
tribunal directed to decide the claim on
merit.

Held Para 8:
2 All] Jayanta Bandopadhyay and another V. U.P.P.C.L., Lucknow and another
395
In view of the above, as the learned
Tribunal had not been addressed by the
petitioners for grant of benefit under
Section 14 of the Limitation Act, though
it could have very safely been advanced,
we are of the considered opinion, and it
is also in the interest of justice, that the
learned Tribunal be requested to decide
the
case
on
merit.
We
have
also
examined the matter that in case the
petitioner is given benefit of Section 14
of Limitation Act, the Claim Petition filed
by him, would not be barred by time
Case law discussed:
1996(6) SCC-199
2004(13) SCC-463
2004(13) SCC-656
1996(6) SC-101
2001(10) SCC-513
2004(3) SCC-458
2005(12) SCC-454

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for challenging the impugned judgment
and order dated 14th August, 2006,
rejecting the Claim Petition No. 265 of
2004 only on the ground of limitation.
The learned Tribunal has dealt with
various provisions of the U.P. Public
Service Tribunal Act, 1976 and reached
the conclusion that the Claim Petition was
time barred, and the provisions of Section
5 (1) (b) of the Limitation Act, 1963
would not apply in case of the main
petition.

2. We have heard Shri V.K. Singh,
learned counsel for the petitioners and
Shri R.D. Khare, learned counsel for
respondent.

3. The learned Tribunal has only
been addressed to the effect that of
Section 5 of the Limitation Act, and it
appears that the learned counsel appearing
before the learned Tribunal did not
advance the arguments on the basis of
Section 14 of the Limitation Act, 1963.

4. In Danda Rajeshwari Vs.
Bodavula Hanumayamma & Ors., (1996)
6 SCC 199, the Hon'ble Supreme Court
has held that in case the writ Court has the
power to entertain a petition but does not
want to decide the same itself and
relegates the party to some other statutory
forum,
the
Court
can
prescribe
a
particular time during which the party
may file/present a petition before the said
statutory authority. Therefore, this Court
may, in exceptional circumstances, pass
an order that in case the statutory
authority
is
approached
within
the
stipulated period, the authority can be
requested to decide the case on merit
without entering into the issue of
limitation.

5. In Virendra Kumar Rai Vs. Union
of India, (2004) 13 SCC 463, the Hon'ble
Supreme Court held that where a party
has approached the High Court or
Supreme Court without approaching the
statutory forum, in a bona fide manner, he
may be entitled of the benefit of
provisions of Section 14 of the Limitation
Act. A similar order has been passed in
Trai Foods Ltd. Vs. National Insurance
Co., (2004) 13 SCC 656 relegating the
party by the Hon'ble Supreme Court to the
civil court, giving him the benefit of
Section 14 of the Limitation Act. In such
a case, the period for which petition
remained pending before the writ Court,
can be excluded therefrom.

6. In Roshanlal Nuthiala & Ors. Vs.
R.B. Mohan Singh Oberai, AIR 1975 SC
824,
the
Hon'ble
Supreme
Court
considered the provisions of Section 14 of
the Limitation Act and held that the said
396 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
provisions is wide enough to cover such
cases where the defects are not merely
jurisdictional, strictly but similarly other
defects also. Any circumstance, legal or
factual, which inhabits entertaining by the
Court of the dispute on the merits of the
case within the scope of the Section and a
liberal
touch
must
inform
the
interpretation of the Limitation Act which
deprives remedy of one who has a right.

7. Similar view has been reiterated
in Tapan Kumar Sadhukhan Vs. Food
Corporation of India & Ors., (1996) 6
SCC 101; World Tel Inc. & Anr. Vs.
Union of India & Ors., (2001) 10 SCC
513; Union of India &Ors. Vs. West
Coast Paper Mills Ltd. & Anr (III), (2004)
3 SCC 458; and NITCO Tiles Ltd. Vs.
Gujarat Ceramic Floor Tiles Mfg.Assn &
Ors., (2005) 12 SC 454.

8. In view of the above, as the
learned Tribunal had not been addressed
by the petitioners for grant of benefit
under Section 14 of the Limitation Act,
though it could have very safely been
advanced, we are of the considered
opinion, and it is also in the interest of
justice, that the learned Tribunal be
requested to decide the case on merit. We
have also examined the matter that in case
the petitioner is given benefit of Section
14 of Limitation Act, the . Claim Petition
filed by him, would not be barred by time.

9. Thus, in view of the above, we
allow the writ petition and set aside the
impugned judgment and order of the
learned Tribunal and remand the case to
the learned Tribunal to be decided on
merit. Petition allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2006

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 52295 of 2006

Pushpanjali Avasthi (minor) ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri G.K. Maurya

Counsel for the Respondents:
S.C.

Constitution
of
India-Art.
226Declaration of result petitioner appeared
in High School Examination-declared
failed-prayer for re-evaluation denied-no
provision
for
re-evaluation-neither
counters affidavit filed nor answer sheet
that
of
Sansprit
produced-report
regarding missing of answer sheet and
award
of
average
marks-in
other
subjects
obtained
63%
marks-heldBoard to give 20,000/- cost for mental
agony and shock-shall be permitted to
appear in Intermediate examination 0708 even if the date had expired.

Held: Para 6

Keeping in view the fact that the
petitioner has suffered mental agony and
shock on account of being declared fail,
whereas she has actually passed the
High
School
Examination
with
first
division marks, and also considering the
fact that the petitioner has not been able
to seek admission in Class 11, this Court
has
no
option
but
to
award
compensation to her, which is assessed
at Rs.20,000/-. The Madhyamik Shiksha
Parishad, U.P. Allahabad is directed to
pay the same to the petitioner by a bank
draft payable in favour of the petitioner.
Such bank draft shall be sent to the