# National Insurance Co. Ltd v. Satya Prakash and others

- **Citation:** (2004) 2 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-11
- **Case number:** First Appeal From Order No.199 of 1992
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-v-satya-prakash-and-others-40257
- **Pages:** 4

## Headnote

Motor Vehicles Act 1988-Section 173Principle of Joint tort feasers -explained:
Collusion between two trucks-carrying
more than 6 passengers-driver of both
the trucks found driving the vehicle
rashly and negligently-held both are
liable to pay the compensation.

Held: Para 12 & 13

Therefore the liability of appellant under
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2 All] National Insurance Company Ltd. V. Satya Prakash and others
579
the Insurance Policy to indemnify the
owner of the truck for the compensation
on account of accidental death of Om
Veer Singh is established.

The tribunal has also recorded a finding
that there was head on collusion of the
trucks and the drivers of the truck were
driving
the
vehicles
rashly
and
negligently. Both the truck drivers have
been held to be joint tort feasers.

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
578
mortals."

23. Based on this order, the
appellate court subsequently passed the
impugned order and recalled its judgment
and posted the appeal for rehearing.

24. In my view, the order passed by
the appellate court recalling its earlier
judgment has been validly passed in the
exercise of its powers conferred under
Section 151, C.P.C. to meet the ends of
justice and to prevent the abuse of the
process of the Court. The appellate court
clearly held that the judgment was passed
on certain grounds which occurred to the
judge which dictating the judgment and
which points were neither raised nor
argued by the parties and therefore, the
litigant should not suffer for any fault or
error committed by the appellate court.
On this basis, the appellate court recalled
its judgment.

25. The inherent powers have not
been conferred on the Court. It is a power
inherent in the Court by virtue of its duty
to do justice between the parties. One of
the first and main duties of the Court is to
ensure that the act of the Court does not
cause injustice to any of the suitors.
Accordingly, if injustice has been done by
the Court, the aggrieved party can invoke
the provisions of Section 151, C.P.C.

26. The maxim of law expressed in
the Latin phrase "actus curaie nemini
gravabit", namely that the error of the
Court will cause no harm to a litigant,
fully applies in the instant case.

27. Thus, in my view, in the present
facts and circumstances of the case the
application for recall of the judgment
passed by the appellate court could be
made under Section 151, C.P.C. and the
same was maintainable. In exceptional
circumstances and to advance the cause of
justice, the appellate court had the
inherent power under Section 151, C.P.C.
to recall its judgment.

28. In the result, the writ petition is
devoid of any merit and is dismissed with
costs, which is assessed at Rs.10,000/-.
The petitioner is directed to deposit the
cost before the appellate court within four
weeks from today, which the landlord can
withdraw. The appellate court is further
directed to decide the appeal within three
months from the date a certified copy of
this order is produced before him.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.8.2004

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

First Appeal From Order No.199 of 1992

National Insurance Co. Ltd. ...Appellant
Versus
Satya Prakash and others ...Respondents

Counsel for the Appellant:
Sri A.K. Sinha

Counsel for the Respondents:
Sri A.K. Shukla
Sri V.K. Sharma
Sri D.V. Singh
Sri Sudhir Jaiswal

Motor Vehicles Act 1988-Section 173Principle of Joint tort feasers -explained:
Collusion between two trucks-carrying
more than 6 passengers-driver of both
the trucks found driving the vehicle
rashly and negligently-held both are
liable to pay the compensation.

Held: Para 12 & 13

Therefore the liability of appellant under
http://www.allahabadhighcourt.nic.in
2 All] National Insurance Company Ltd. V. Satya Prakash and others
579
the Insurance Policy to indemnify the
owner of the truck for the compensation
on account of accidental death of Om
Veer Singh is established.

The tribunal has also recorded a finding
that there was head on collusion of the
trucks and the drivers of the truck were
driving
the
vehicles
rashly
and
negligently. Both the truck drivers have
been held to be joint tort feasers.

(Delivered by Hon'ble Prakash Krishna, J.)

1. This appeal is under section 173
of Motor Vehicles Act 1988 by the
Insurance Company against the judgment
and order dated 25.10.1991 passed by the
Motor Accident Claims Tribunal in
MACT No.16 of 1991.

2. One Om Veer Singh, a labourer
on daily wages at Rs.25/- was engaged by
a truck driver having registration no. RNT
559 for loading and unloading purposes
and was traveling in the said truck on 3rd
of July 1988. On that day while going
from Jagner to Sardi the said truck
collided with another truck No. DEG
3398. On account of collision of two
trucks aforesaid, Shri Om Veer Singh was
seriously injured and ultimately died.

3. The claimant-respondents No.1 to
4 who are sons of deceased and wife filed
claim petition claiming compensation
being M.A.C. No.16 of 1991. In the
claim petition the owners of two trucks
and their respective Insurance Companies
were impleaded as opp.parties.

4. The tribunal by its judgment and
order dated 28.10.1991 awarded a sum of
Rs.85,000/- as compensation and held that
both the Insurance Companies are liable
to pay half and half of it as the drivers of
two vehicles were joint tort-feasers.

5. The present appeal is on behalf of
the Insurance Company who had insured
the truck No. RNT 559 in which the
deceased was travelling as a labourer on
that fateful day. The learned counsel for
the appellant has pressed only one point
in the appeal. He submitted that the claim
against the appellant Insurance Company
could not be decreed as the appellant had
insured the truck. The truck is meant to
carry goods. It is not meant to carry
passengers. The insurance was of the
truck and the goods and as such the
Insurance Company is not liable to
indemnify the owner of the truck for the
damages awarded against the owner, in
respect of a passenger on the truck.

6. Issue no.2 was struck by the
tribunal to the effect as to whether the
deceased wastravelling in truck No.RNT
559 as unauthorized passenger and the
Insurance Company of the truck is not
liable to indemnify the owner. A copy of
the Insurance Policy has been filed as
annexure No.3 alongwith the affidavit.
The following terms of the said policy are
helpful to resolve the above controversy:-

"The policy does not cover:
(i)
Use for organized racing, pace
making reliability trial speed testing.
(ii) Use whilst drawing a trailer except
towing (other than for reward) of
any
one
disabled
mechanically
propelled vehicle.
(iii) Use for carrying passengers in the
vehicle except employees (other
than driver) not exceeding 6 in
numbers coming under the purview
of W.C. Act 1923."

7. The learned counsel for the
appellant, in support of this appeal made a
fervent appeal and drawn my attention
that a premium of Rs.24/- for two drivers
and one cleaner has been paid. He
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
580
submitted that the Insurance Company
had insured besides truck and the goods
two drivers and one cleaner. Elaborating
the argument it was submitted that the
deceased was traveling in the truck as a
passenger and therefore the appellant is
not liable to indemnify the owner of truck.
He
has
placed reliance
upon
two
judgments of the Supreme Court, (i)
Ramashray
Singh
Vs.
New
India
Assurance Co. Ltd. JT 2003 (6) S.C. 97
and New India Assurance Co. Ltd. Vs.
C.M. Jaya and others JT 2002 (1) S.C.
198.

8. Heard the learned counsel for the
parties and perused the record. It is to be
placed on record that before the Tribunal
no evidence was led by the present
appellant. The Claim Petition was filed
with the allegation that Om Veer Singh
deceased was employed by the driver of
the truck for loading and unloading
purposes and in that connection he was
traveling in the truck. Consequently the
deceased was traveling in the truck not as
a passenger but in the course of
employment. It has come on record and
the tribunal has also found that the driver
of the truck had the authority to engage
labourers for the purposes of loading and
unloading goods. In paragraph No.21 of
the award the tribunal has found that the
deceased was employed by the driver of
the truck. The driver of the truck as an
agent of the owner of the truck engaged
the deceased and as such he was not an
unauthorized passenger in the truck. PW/1
Satya Prakash has stated that the deceased
was engaged by the driver of the truck at
Rs.50/-
for
loading
and
unloading
purposes. The tribunal has rightly placed
reliance upon the statement of PW/1 on
this point. The testimony of PW/1 is
uncontroverted and unchallenged. There
is no evidence on record against the
aforesaid finding recorded by the tribunal.
Therefore the very basis of the argument
of the learned counsel for the appellant
that the deceased was unauthorised
passenger in the goods vehicle vanishes.

9. In view of these facts liability of
the appellant is required to be determined.
The relevant terms of the Insurance Policy
have been quoted above. The Insurance
Policy does not cover the use of vehicle
for carrying passengers except employees
not exceeding six in number. Meaning
thereby in a goods vehicle employees not
exceeding six in number are covered
under the Insurance Policy. The finding is
that the deceased was engaged as a
labourer and wastravelling in the truck in
that capacity. Therefore there is no doubt
that the Insurance Company is liable to
indemnify the owner of the truck. The
Supreme Court interpreted the aforesaid
terms of the Insurance Policy in the case
of B.V. Nagaraju vs. Oriental Insurance
Co. Ltd. JT 1996 (6) S.C. 32. In para 5 of
the aforesaid judgment the terms of the
Insurance Policy have been quoted and in
para 7 of the report it has been mentioned
as follows:-

10. "It is plain from the terms of the
Insurance Policy that the insured vehicle
was entitled to carry six workmen,
excluding the driver."

11. It is not the case of the appellant
that the vehicle in question was carrying
on workmen exceeding six in number on
the date of occurrence of the accident.

12. Therefore the liability of
appellant under the Insurance Policy to
indemnify the owner of the truck for the
compensation on account of accidental
death of Om Veer Singh is established.

13. The tribunal has also recorded a
finding that there was head on collusion
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2 All] Commissioner of Income Tax, Kanpur V. M/s Kanpur Textiles Ltd., Kanpur
581
of the trucks and the drivers of the truck
were driving the vehicles rashly and
negligently. Both the truck drivers have
been held to be joint tort feasers.

14. The cases relied upon by the
learned
counsel
for
the
Insurance
Company have no application to the facts
of
the
present
case.
They
are
distinguishable on two grounds. Firstly,
these cases have been decided under New
Motor Vehicles Act, 1988. Secondly, in
those cases the Supreme Court was not
called upon to adjudicate the liability of
the Insurance Company in respect of the
workman traveling in goods vehicle.
Those are the cases of passengers
traveling in goods vehicles.

15. Therefore, I do not find any
merit in the appeal. The appeal is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2004

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE K.N. OJHA, J.

Income Tax Reference No.15 of 1982

Commissioner of Income Tax, Kanpur

...Applicant
Versus
M/s Kanpur Textiles Limited, Kanpur

 ...Respondent

Counsel for the Applicant:
Sri A.N. Mahajan

Counsel for the Respondent:
Sri R.S. Agarwal

Income
Tax
Act,
1961-S.256
(2)-
Reference-under-whether
interest
on
late payment of Income Tax is an
allowable deduction while computing
prints
and
gains
from
business
or
profession. Held; No.

Held: Para 21

We are in respectful agreement with the
principles
laid
down
in
the
aforementioned cases and are of the
considered view that interest on late
payment of income tax is not an
allowable deduction while computing the
profits and gains from business or
profession. In view of the foregoing
discussions, we are of the considered
opinion that the interest on late payment
of income tax/advance tax or selfassessment tax or any other direct tax
cannot be allowed as a deduction.
Case law discussed:
(1973) 88 ITR 234, (1995) 213 ITR 523,
(1969) 73 ITR 53 (SC), (1973) 92 ITR 503
(All), (1974) 95 ITR 151 (Del), (1975) 101 ITR
292 (Bom), 1977 U.P.T.C. 31, (1978) 114 ITR
684, (1985) 151 ITR 701, (1985) 156 ITR 585
(SC), (1948) 30 Tax Cases 496, (1976) CTR
(Pat) 227, (1987) 167 ITR 354, (1998) 229
ITR 366 (Bom), (1971) 82 ITR 363 (SC),
(1965) 57 ITR 521 (SC), (1977) 106 ITR 704
(All), (1997) 224 ITR 591 (SC), (1978) CTR
(All) 211, (1978) 112 ITR 276 (Cal), (1979)
118 ITR 976 (Cal), (1987) 163 ITR 429 (A.P.),
(1989) 180 ITR 29,31 (Punj), (1989) 180 ITR
114,166 (Punj), (1981) 129 ITR 62 (Cal),
(1993) 203 ITR 315 (Cal), (1906) AC 10, 12
(HL), 13 ITR Suppl. 23,26 (HL), 33 TC 259,
274, 282 (HL), 17 TC 59,63, (1957) 31 ITR
153 (Bom), (1960) 39 ITR 751 (Cal), (1961)
42 ITR 774 (Pat), (1965) 58 ITR 84 (Cal),
(1973) 90 ITR 373 (P&H), (1977) 108 ITR 531
(Guj), (1977) 110 ITR 577 (Cal), (1978) 13
ITR 252 (Cal), (1978) 114 ITR 654 (Bom),
(1981) 132 ITR 342 (P&H), (1983) 144 ITR
936 (Kar), (1987) 166 ITR 176 (SC), (1989)
177 ITR 222 (Bom), (1989) 180 ITR 37 (Kar),
(1989) 180 ITR 478 (Gauhati), (1994) 209 ITR
490 (Cal), (1998) 230 ITR 733 (SC).

(Delivered by Hon'ble R.K. Agrawal, J.)

1. The Income Tax Appellate
Tribunal, Allahabad has referred the