# Mohd. Hashim v. Board of Madarsa Education U.P. and another

- **Citation:** (2008) 2 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-17
- **Case number:** First Appeal From Order No. 1130 of 1988
- **Bench:** Amitava Lala, A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-hashim-v-board-of-madarsa-education-u-p-and-another-41226
- **Pages:** 4

## Headnote

Motor Vehicle Act 1939-Section 1102(A)-
Section 170 of M.V. Act 1988 read with
Section 96 of Old Act (149(2) of new
Act)-maintainability of appeal-appeal by
insurance
Company-no
permission
granted to contest the case-whether the
appeal maintainable-held-"yes" where
breach of policy found-appeal cannot be
denied on technicalities-from perusal of
records/ the policy no extra premium
given-Company has limited liability to
the extent of Rs.1,50,000/- already
deposited-direction
to
deposit
the
amount of interest within fortnightmatter remitted back to Tribunal for
realisation of remaining amount from
owner of vehicle.

Held: Para 4 & 5

We are of the view that the stand of
insurance company is correct to say that
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
it has limited liability to the extent of
Rs.1,50,000/-.

Learned
counsel
appearing
for
the
claimants-respondents says that this
arguable point could have been raised
before the tribunal earlier or even now,
upon notice to the owner so that the
claimants should not be made to suffer
under benevolent piece of legislation.
This is an appeal of 1988. This Court
cannot wait indefinitely. We have been
told
that
the
principal
amount
of
Rs.1,50,000/-
has
already
been
deposited which has been withdrawn by
the claimants, therefore, the rest amount
on account of interest is directed to be
deposited upon calculation within a
period of fortnight from this date, which
will
be
released
in
favour
of
the
claimants within a period of one week
thereafter.
Case Law discussed:
2007 (4) ADJ 101,
AIR 2002 SC 3350,
JT 2002 (1) SC 198.

## Text

2 All] Mohd. Hashim V. Board of Madarsa Education U.P. and another
571
grant the stay order. By the order dated
13-5-2008, the learned Single Judge has
only granted time for filing Counter
Affidavit and Rejoinder Affidavit, and the
petitioner-appellant cannot possibly be
aggrieved by the said order.

7. Under Chapter VIII, Rule 5 of the
Rules of the Court, 1952, Special Appeal
lies against a "judgement" passed by a
learned Single Judge.

8. In the present case, there is no
judgement
whereby
the
petitionerappellant
has
been
aggrieved
and,
therefore, the present Special Appeal is
not maintainable.

9. Sri M.A. Khan, learned counsel
for the petitioner-appellant submits that
the examinations are scheduled to be held
with effect from 31-5-2008.

10. He further submits that at the
time of filing of the Writ Petition, the
Examination- Schedule had not been
announced and therefore, in paragraph 29
of the Writ Petition, it was, inter-alia,
stated
that
the
examinations
were
expected to be held in the last week of
May, 2008.

11. It is submitted that the
Examination-Schedule having now been
announced, the fate of 200 students who
have submitted their examination form
through the institution in question, would
be adversely affected.

12. It is open to the petitionerappellant to move appropriate application
in this regard before the learned Single
Judge. We are not expressing any opinion
on the merits of any such application.

13.

Subject
to
the
above
observations, the Special Appeal is
dismissed as not maintainable.
Appeal dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2008

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

First Appeal From Order No. 1130 of 1988

National Insurance Co. Ltd. ...Appellant
Versus.
Smt. Reeta Porwal & others ...Respondents

Counsel for the Appellant:
Sri Kuldeep Shankar Amist.

Counsel for the Respondents:
Sri R.K.Porwal
Sri. Sanjay Ratan
Sri. P. Srivastava.

Motor Vehicle Act 1939-Section 1102(A)-
Section 170 of M.V. Act 1988 read with
Section 96 of Old Act (149(2) of new
Act)-maintainability of appeal-appeal by
insurance
Company-no
permission
granted to contest the case-whether the
appeal maintainable-held-"yes" where
breach of policy found-appeal cannot be
denied on technicalities-from perusal of
records/ the policy no extra premium
given-Company has limited liability to
the extent of Rs.1,50,000/- already
deposited-direction
to
deposit
the
amount of interest within fortnightmatter remitted back to Tribunal for
realisation of remaining amount from
owner of vehicle.

Held: Para 4 & 5

We are of the view that the stand of
insurance company is correct to say that
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
it has limited liability to the extent of
Rs.1,50,000/-.

Learned
counsel
appearing
for
the
claimants-respondents says that this
arguable point could have been raised
before the tribunal earlier or even now,
upon notice to the owner so that the
claimants should not be made to suffer
under benevolent piece of legislation.
This is an appeal of 1988. This Court
cannot wait indefinitely. We have been
told
that
the
principal
amount
of
Rs.1,50,000/-
has
already
been
deposited which has been withdrawn by
the claimants, therefore, the rest amount
on account of interest is directed to be
deposited upon calculation within a
period of fortnight from this date, which
will
be
released
in
favour
of
the
claimants within a period of one week
thereafter.
Case Law discussed:
2007 (4) ADJ 101,
AIR 2002 SC 3350,
JT 2002 (1) SC 198.

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

1. This appeal has been preferred by
the insurance company from the judgment
and order dated 31st August, 1988 passed
by concerned Motor Accidents Claims
Tribunal, Agra. The contention of the
appellant is that although the awarded
amount is Rs.2,15,000/- but the insurance
company has a limited liability in
accordance with law i.e. the Motor
Vehicles Act, 1939 (hereinafter referred
to as the old Act) to the extent of
Rs.1,50,000/-.
Both,
the
insurance
company and the claimants, are present
before this Court but in spite of service of
notice the owner is not present.

2. A preliminary objection has been
raised by the learned counsel appearing
for the claimants-respondents before this
Court that the appeal is not maintainable
in view of Section 110 (2A) of the old Act
which is parallel to Section 170 of the
Motor Vehicles Act, 1988 (hereinafter
referred to as the new Act). In other
words, no permission has been granted to
the insurance company to contest the
claim, therefore, the appeal cannot be
maintainable, in view of the ratio of the
recent judgment of this Court reported in
2007 (4) ADJ 101 (Oriental Insurance
Company Limited Vs. Smt. Manju and
others) following the judgement of three
Judge-Bench of Supreme Court reported
in AIR 2002 SC 3350 (National
Insurance Co. Ltd., Chandigarh Vs.
Nicolleta Rohtagi and others). On the
other hand, argument as advanced by the
learned
counsel
appearing
for
the
claimants-respondents is that Section 96
of the old Act is equivalent to Section 149
of the new Act and as per Section 149 (2),
if there is any breach of policy, in that
case, the insurance company can prefer an
appeal irrespective of right of contest,
which point is also covered by both the
judgements i.e. Smt. Manju (supra) &
Nicolleta Rohtagi (supra).

3. Under such circumstances, we
have called upon the lower court record to
verify the scope and ambit of insurance
coverage i.e. the insurance policy. We
find that the insurance policy of the
particular year, when the accident was
occurred, is not available but of the
previous year it is available, which is
comparable with the cover note of the
year when the accident took place. We
also find that in both the years similar
premium was paid covering the liability
of the insurance company to the extent of
Rs. 1,50,000/-. The additional premium,
which has been received cannot seem to
be unlimited from the plain reading of it.
2 All] National Insurance Co. Ltd. V. Smt. Reeta Porwal and others
573
Learned
counsel
appearing
for
the
claimants-respondents contended before
us that irrespective of such factum,
particularly when the owner is not
available and the long period has been
elapsed, it is desirable that the insurance
company will pay the amount and recover
the same from the owner. It has been
submitted by learned counsel appearing
for the insurance company that five
Judge-Bench judgment of Supreme Court
reported in JT 2002 (1) SC 198 (New
India Assurance Co. Ltd. Vs. C.M.
Jaya and others) is squarely covering the
field. Specific question in such judgment
is as follows:

""The question involved in these
appeals is whether in a case of insurance
policy not taking any higher liability by
accepting a higher premium, in case of
payment of compensation to a third party,
the insurer would be liable to the extent
limited under section 95 (2) or the insurer
would be liable to pay the entire amount
and he may ultimately recover from the
insured."

On this question a discussion is made in
paragraph 10 which is as follows:

"In the absence of such a term or
clause in the policy, pursuant to the
contract of insurance, a limited statutory
liability cannot be expanded to make it
unlimited or higher, if it is so done, it
amounts to re-writing the statute or the
contract of insurance which is not
permissible."

Ultimately the Court held as follows:

"In the case of insurance company
not taking any higher liability by
accepting a higher premium for payment
of compensation to a third party, the
insurer would be liable to the extent
limited under section 95(2) of the Act and
would not be liable to pay the entire
amount."

4. We are of the view that the stand
of insurance company is correct to say
that it has limited liability to the extent of
Rs.1,50,000/-.

5. Learned counsel appearing for the
claimants-respondents
says
that
this
arguable point could have been raised
before the tribunal earlier or even now,
upon notice to the owner so that the
claimants should not be made to suffer
under benevolent piece of legislation.
This is an appeal of 1988. This Court
cannot wait indefinitely. We have been
told
that
the
principal
amount
of
Rs.1,50,000/- has already been deposited
which has been withdrawn by the
claimants, therefore, the rest amount on
account of interest is directed to be
deposited upon calculation within a
period of fortnight from this date, which
will be released in favour of the claimants
within a period of one week thereafter.

6. However, so far as the rest of the
amount of principal sum awarded by the
tribunal is concerned, the matter is
remitted back for this limited purpose
with a direction to the tribunal to consider
such cause upon notice to the owner and
giving adequate opportunity of hearing
and dispose of the same preferably within
a period of 2 months from the date of
communication of this order with a formal
application by the claimants.

7. The appeal is accordingly
disposed of without imposing any cost.
---------
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal 1201 of 2003

Ram Awadh Tiwari

...Appellant
Versus
Sudarshan Tiwari & others ...Respondents

Counsel for the Appellant:
Sri. Veer Singh
Sri. S.C. Pandey

Counsel for the Respondents:
Sri. V.K. Goel
Sri. A.P. Srivastava
Sri. A.B. Srivastava
Sri. R.S. Mishra

U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950-Section 286 read with
Notification dated 17.01.1976-Sale of
agricultural land-in auction proceeding
held towards realization of loan-sale
confirmed
by
the
Sub
Divisional
Magistrate and not by Collector-heldS.D.M. Can exercise every power except
confirmation of sale-direction issued to
refund the amount of auction sale with
5% interest.

Held: Para 24, 25 & 26

Thus, after notification dated 17.1.1976
it has to be accepted that the power to
approve the auction sale conducted
under section 286 of the U.P.Z.A. & L.R.
Act vest with the Collector and Sub
Divisional Officer cannot exercise the
power of approval.

In the present case it is admitted
position that Collector has not approved
the auction sale and learned Single
Judge has rightly set aside the auction
and
also
its
confirmation
by
Sub
Divisional
Officer
and
all
other
consequential action on that ground.

In view of the aforesaid observations,
we are of the considered opinion that the
learned Single Judge has rightly allowed
the writ petition. We do not find any
error in the order of the learned Single
Judge. The appeal is dismissed.
Case law discussed:
JT 2005(5) SC 467

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Veer Singh learned
counsel for the appellant and Sri A.P.
Srivastava on behalf of the respondent.

2. This appeal has been filed against
the judgment and order dated 11.11.2003
passed by the learned Single Judge
allowing the writ petition filed by
respondent no. 1.

3. The brief facts necessary for
deciding
the
appeal
are
that
the
respondent no. 1 took an agriculture loan
of Rs.59,000/- from the Chandauli Branch
of Union Bank of India. The loan was
repayable in 17 equal half yearly
instalments. The respondent no. 1, who
was writ petitioner, committed default in
depositing the instalments, due to which
recovery proceedings were initiated at the
instance of the bank for recovery of the
outstanding amount as arrears of land
revenue. A citation to appear was issued
on 25th November, 1995. In pursuance of
the citation to appear, writ-petitioner was
arrested and after deposited Rs.30,000/-
he was released. Writ-petitioner thereafter
represented the matter to the bank and
also filed a writ petition in this Court
challenging the recovery proceedings.

4. In the writ petition, under an
interim order he was directed to deposit