# National Insurance Compnaney Ltd.Thr.Manager v. Smt. Seema Dhal

- **Citation:** (2011) 2 ILRA 639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-17
- **Bench:** Devi Prasad Singh, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-compnaney-ltd-thr-manager-v-smt-seema-dhal-41948
- **Pages:** 6

## Headnote

Motor Vehicle Act, 1988-Section 170Right to appeal-once the permission to
contest the claim granted by TribunalStatus of Insurance Camp became as
owner-against the award of Tribunalappeal by Insurance Company very well
maintainable-so
far
Quantum
of
compensation
is
concern-learned
Tribunal rightly assessed the income of
deceased-can
not
be
termed
as
excessive-No interference called for

Held: Para 10

From a plain reading of Section 170 of
the
Act,
it
is
evident
that
once
permission under Section 170 of the Act
is granted, then Insurance Company will
have same status as of the owner of the
vehicle. Hence after grant of permission
under Section 170 of the Act, the
Insurance Company will have right to
prefer appeal. In view of the facts of the
case, the provisions of Section 149 will
not be applicable. In the case of
Chinnama George (supra), Section 170
has not been considered by the Hon'ble
Supreme Court. The power conferred by
Section 170 is statutory power and in
derogation of Section 149 of the Act, as
640 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
is evident from the provisions itself.
Accordingly, the appeal is very well
maintainable. In view of the above,
though the appeal is maintainable but on
the
question
of
quantum
of
compensation, impugned appeal, does
not seem to survive. The compensation
does not seem to be excessive.

## Text

2 All] National Insurance Compnaney Ltd.Thr.Manager V. Smt. Seema Dhal
639

36. It is true that the nature of this
crime is heinous. The deceased appears to
have been done to death and his body was
hacked into pieces, placed in a sack and
thrown into the Gorma river. But that is
precisely the reason why we must be extra
cautious in assessing the credibility of the
evidence. As held in Kashmira Singh v.
State of M.P., AIR 1952 SC 159 and Ashish
Botham V. State of M.P., (2002) SCC 317
hard cases should not make bad law. Extra
caution is needed in handling such cases
and the Courts are not to be carried away
by the gravity of the allegations.

37. For all the aforesaid reasons we
are of the opinion that the prosecution has
failed to establish the complicity of the
appellants in the crimes for which they
were charged. The judgement of the trial
court dated 21.12.2009 convicting and
sentencing the appellants under the various
provisions mentioned above are set aside.
The appellants are held not guilty of all of
the offences for which they have been
charged and acquitted. All the appellants
are in jail. They may be released forthwith
unless wanted in connection with some
other case.

Accordingly, Capital case No. 59 of
2010 and the Criminal Appeal No. 298 of
2010 are allowed and the Reference No. 3
of 2010 is hereby rejected.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

First Appeal From Order No. - 545 of 2007

National
Insurance
Compnaney
Ltd.Thr.Manager

 ...Petitioner
Versus
Smt.Seema Dhal

 ...Respondent

Counsel for the Petitioner:
Sri Rajesh Nath

Counsel for the Respondent:
Sri R.K.Dwivedi

Motor Vehicle Act, 1988-Section 170Right to appeal-once the permission to
contest the claim granted by TribunalStatus of Insurance Camp became as
owner-against the award of Tribunalappeal by Insurance Company very well
maintainable-so
far
Quantum
of
compensation
is
concern-learned
Tribunal rightly assessed the income of
deceased-can
not
be
termed
as
excessive-No interference called for

Held: Para 10

From a plain reading of Section 170 of
the
Act,
it
is
evident
that
once
permission under Section 170 of the Act
is granted, then Insurance Company will
have same status as of the owner of the
vehicle. Hence after grant of permission
under Section 170 of the Act, the
Insurance Company will have right to
prefer appeal. In view of the facts of the
case, the provisions of Section 149 will
not be applicable. In the case of
Chinnama George (supra), Section 170
has not been considered by the Hon'ble
Supreme Court. The power conferred by
Section 170 is statutory power and in
derogation of Section 149 of the Act, as
640 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
is evident from the provisions itself.
Accordingly, the appeal is very well
maintainable. In view of the above,
though the appeal is maintainable but on
the
question
of
quantum
of
compensation, impugned appeal, does
not seem to survive. The compensation
does not seem to be excessive.

(Delivered by Hon'ble Devi Prasad Singh,J.)

1. Heard learned counsel for the
appellant and perused record.

2. Present appeal under Section
173 of Motor Vehicles Act, 1988, has
been preferred against the impugned
Award dated 24.2.2007, passed by the
Motor
Accident
Claims
Tribunal/District
Judge,
Lakhimpur
Kheri in MAC No.19 of 2001 (Smt.
Seema Dhal and another. Vs. Shyam
Sunder and others).

3. One Jagdish Dhal, son of Nanak
Chandra, resident of Punjabi Colony,
City Lakhimpur, District Kheri aged
about 30 years, was coming on his
Scooter
No.U.P.
31-A/4625
after
visiting Hanuman Temple to his town
Lakhimpur. On 30.5.2000, while he was
on his way, at about 12:30 P.M. on
Lakhimpur-Sitapur Road, near village
Saraiya a Truck No.DIL 1359 driven
rashly and negligently, hit the scooter.
In connection thereof, Jagdish Dhal
succumbed to injuries on spot. An FIR
was lodged and the dependents of
deceased
approached
the
Tribunal.
Jagdish Dhal was having business of
videography
and
photography
in
Lakhimpur Kheri. Smt. Seema Dhal and
Master Sagar Dhal filed claim petition
before the Tribunal.

4. The Tribunal framed issues with
regard to accident in question, insurance
cover and driving license etc.

5. Before the Tribunal, Smt. Seema
Dhal wife of deceased, appeared as
witness
and
corroborated
the
relationship and incident occurred on
the aforesaid date. PW-2 Munendra
Kumar
Misra
is
eyewitness
who
supported
the
prosecution
version
stating that the truck was being driven
rashly and negligently and that the
deceased
was
coming
towards
Lakhimpur Kheri on his Scooter. PW-2
Munendra Kumar Misra stated that on
the date of incident i.e., 30.5.2000, he
was going from Lakhimpur on his
scooter along with one Om Prakash and
as soon as they reached near the place of
incident, the Truck No.DIL 1359, going
towards Hargaon, was being driven
rashly and negligently, dashed the
deceased Jagdish Dhal on his Scooter
and the accident was caused due to rash
and negligent driving of the truck.

6. The Tribunal on the basis of
statement given by the witness, recorded
finding that the deceased was having
business
of
videography
and
photography and he was having a shop
in Lakhimpur Kheri having an income
of Rs.5000/- per month. Rs.500/- was
deducted by the Tribunal out of
Rs.5000/- and assessed monthly income
of the deceased as Rs.4,500/- per month.
A deduction of Rs.500/- was in lieu of
daily expense which the deceased might
have incurred while maintaining the
shop. One third amount was taken out of
Rs.4,500/- in lieu of personal expenses
in terms of schedule 2 of the Motor
Vehicles
Act,
1988
and
the
compensation was awarded on the basis
2 All] National Insurance Compnaney Ltd.Thr.Manager V. Smt. Seema Dhal
641
of net income of Rs.3,000/- per month
which comes to Rs.3,23,500/- after
addition
of
funeral
expenses
Rs.2,000.00,
loss
of
consortium
Rs.5,000.00, loss of estate Rs.2,500.00
and damage to Scooter Rs.2,000.00.

7. While assailing the impugned
award, it has been submitted by the
learned counsel for the appellant that
the income assessed by the Tribunal is
excessive
since
no
documentary
evidence was laid by the claimant
respondents before the Tribunal. The
argument
advanced
on
behalf
of
appellant to the extent of documentary
evidence is concerned, is correct but for
assessment of income in some matters,
there may not be documentary evidence,
more so, when a citizen does not come
within the purview of Income Tax Act.
Moreover, it has not been disputed that
the deceased was having a shop of
videography
and
photography. The
income assessed by the Tribunal to the
extent of Rs.4,500.00 from the shop in
question, does not seem to be excessive.
Even income of small shop owner with
regard to videography and photography,
may
be,
more
than
Rs.4,500.00.
Accordingly,
submission
of
the
appellant's counsel does not seem to be
sustainable.

8. During the course of argument,
a preliminary objection has been raised
on behalf of claimant respondents that
the appeal is not maintainable since it
has been preferred on the quantum of
compensation. Learned counsel for the
claimant respondents relied upon the
judgment reported in 2000 (2) T.A.C.
207
SC:
Chinnama
George
and
others. Vs. N. K. Raju and another. In
the said judgment of Chinnama Goerge
(supra), it has been held that under
Section 149 of the Act, it shall be the
duty of the insurer to satisfy the award
against the person insured in respect of
third party risks. For convenience, para
5, 6 and 7 of the aforesaid judgment are
reproduced as under:

5."Under Section 149 of the Act, it
is the duty of the insurer to satisfy the
award against the person insured in
respect of third party risks. It is not that
liability of the insurer in the present
case is being disputed. Insurer can
defend the proceedings before the
Claims Tribunal on certain limited
grounds. Sub-sections (1), (2) and (7) of
Section 149 of the Act are relevant,
which are as under :

"149. Duty of insurers to satisfy
judgments and awards against persons
insured in respect of third party risks.-
(1) If, after a certificate of insurance has
been issued under sub-section (3) of
section 147 in favour of the person by
whom a policy has been effected,
judgment or award in respect of any
such liability as is required to be
covered by a policy under clause (b) of
sub-section (1) of section 147 (being a
liability covered by the terms of the
policy) or under the provisions of
section 163A is obtained against any
person insured by the policy, then,
notwithstanding that the insurer may be
entitled to avoid or cancel or may have
avoided or cancelled the policy, the
insurer shall, subject to the provisions
of this section, pay to the person entitled
to the benefit of the decree any sum not
exceeding the sum assured payable
thereunder, as if he were the judgment
debtor, in respect of the liability,
together with any amount payable in
642 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
respect of costs and any sum payable in
respect of interest on that sum by virtue
of any enactment relating to interest on
judgment.

(2) No sum shall be payable by an
insurer under sub- section (1) in respect
of any judgment or award unless, before
the commencement of the proceedings
in which the judgment or award is given
the insurer had notice through the Court
or, as the case may be, the Claims
Tribunal
of
the
bringing
of
the
proceedings, or in respect of such
judgment or award so long as execution
is stayed thereon pending an appeal, and
an insurer to whom notice of the
bringing of any such proceedings is so
given shall be entitled to be made a
party thereto and to defend the action on
any of the following grounds, namely:-

(a) that there has been a breach of a
specified condition of the policy, being
one
of
the
following
conditions,
namely:-

(i) a condition excluding the use of
the vehicle--

(a) for hire or reward, where the
vehicle is on the date of the contract of
insurance a vehicle not covered by a
permit to ply for hire or reward, or

(b) for organised racing and speed
testing, or

(c) for a purpose not allowed by the
permit under which the vehicle is used,
where the vehicle is a transport vehicle,
or

(d) without side-car being attached
where the vehicle is a motor cycle; or

(ii) a condition excluding driving
by a named person or persons or by any
person who is not duly licenced, or by
any person who has been disqualified
for holding or obtaining a driving
licence
during
the
period
of
disqualification; or

(iii) a condition excluding liability
for injury caused or contributed to by
conditions of war, civil war, riot or civil
commotion; or

(b) that the policy is void on the
ground that it was obtained by the nondisclosure of a material fact or by a
representation of fact which was false in
some material particular.

(3) to (6) ...

(7) No insurer to whom the notice
referred to in sub-section (2) or subsection (3) has been given shall be
entitled to avoid his liability to any
person entitled to the benefit of any
such judgment or award as is referred to
in sub-section (1) or in such judgment
as is referred to in sub-section (3)
otherwise than in the manner provided
for in sub-section (2) or in the
corresponding law of the reciprocating
country, as the case may be."

(6) Admittedly, none of the grounds
as given in sub-section (2) of Section 149
exist for the insurer to defend the claims
petition. That being so, no right existed in
the insurer to file appeal against the award
of the Claims Tribunal. However, by
adding N.K. Raju, the owner as co-
appellant, an appeal was filed in the High
Court which led to the impugned
judgment. None of the grounds on which
2 All] National Insurance Compnaney Ltd.Thr.Manager V. Smt. Seema Dhal
643
insurer could defend the claims petition
was the subject matter of the appeal as far
as the insurer is concerned. We have
already noticed above that we have not
been able to figure out from the impugned
judgment as to how the owner felt
aggrieved by the award of the Claims
Tribunal. The impugned judgment does
not reflect any grievance of the owner or
even that of the driver of the offending
bus against the award of the Claims
Tribunal. The insurer by associating the
owner or the driver in the appeal when the
owner or the driver is not an aggrieved
person cannot be allowed to mock at the
law which prohibit the insurer from filing
any appeal except on the limited grounds
on which it could defend the claims
petition. We cannot put our stamp of
approval as to the validity of the appeal
by the insurer merely by associating the
insured. Provision of law cannot be
undermined in this way. We have to give
effect to the real purpose to the provision
of
law
relating
to
the
award
of
compensation in respect of the accident
arising out of the use of the motor
vehicles and cannot permit the insurer to
give him right to defend or appeal on
grounds not permitted by law by a
backdoor
method.
Any
other
interpretation will produce unjust results
and open gates for the insurer to challenge
any award. We have to adopt purposive
approach which would not defeat the
broad purpose of the Act. Court has to
give effect to true object of the Act by
adopting purposive approach.

(7) Sections 146, 147, 149 and 173
are in the scheme of the Act and when
read together mean : (1) it is legally
obligatory to insure the motor vehicle
against third party risk. Driving an
uninsured
vehicle
is
an
offence
punishable
with
an
imprisonment
extending up to three months or the fine
which may extend to Rs.1,000/- or both;
(2) Policy of insurance must comply with
the requirements as contained in Section
147 of the Act; (3) It is obligatory for the
insurer to satisfy the judgments and
awards against the person insured in
respect of third party risks. These are subsections (1) and (7) of Section 149.
Grounds on which insurer can avoid his
liability are given in sub-section (2) of
Section 149."

9. A plain reading of judgment
(supra), shows that their Lordships of
Hon'ble
Supreme
court
have
not
considered provision of Section 170 of the
Act. In case Section 170 is granted to
contest, the case, then the position shall
be same as owner of vehicle and the
Insurance Company will have right to
prefer appeal. For convenience, Section
170 of the Motor Vehicles Act, 1988 is
reproduced as under:

"170-
Impleading
insurer
in
certain cases.--

Where in the course of any inquiry,
the Claims Tribunal is satisfied that -

(a) there is collusion between the
person making the claim and the person
against whom the claim is made, or

(b) the person against whom the
claim is made has failed to contest the
claim,

it may, for reasons to be recorded in
writing, that the insurer who may be liable
in respect of such claim, shall be
impleaded as a party to the proceeding
and the insurer so impleaded shall
644 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
thereupon have, without prejudice to the
provisions contained in sub-section (2) of
section 149, the right to contest the claim
on all or any of the grounds that are
available to the person against whom the
claim has been made."

10. From a plain reading of Section
170 of the Act, it is evident that once
permission under Section 170 of the Act
is granted, then Insurance Company will
have same status as of the owner of the
vehicle. Hence after grant of permission
under Section 170 of the Act, the
Insurance Company will have right to
prefer appeal. In view of the facts of the
case, the provisions of Section 149 will
not be applicable. In the case of
Chinnama George (supra), Section 170
has not been considered by the Hon'ble
Supreme Court. The power conferred by
Section 170 is statutory power and in
derogation of Section 149 of the Act, as is
evident
from
the
provisions
itself.
Accordingly, the appeal is very well
maintainable. In view of the above,
though the appeal is maintainable but on
the question of quantum of compensation,
impugned appeal, does not seem to
survive. The compensation does not seem
to be excessive.

11. The appeal is accordingly
dismissed. Let amount deposited in this
Court, be remitted to the Tribunal.
Whatever amount is due it shall also be
deposited
within
two
months.
The
Tribunal shall release the amount in terms
of award immediately after two months.

12. The appeal is accordingly
dismissed.

No order as to costs.
---------
ORIGINAL JURISDICTIONS
CIVIL SIDE
DATED: LUCKNOW 03.06.2011

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE DR. SATISH CHANDRA,J.

Writ Petition No. 1010(MB) of 2011

Pankaj Shrivastava and another

 ...Petitioners
Versus
High Court of Judicature at Allahabad
and another

 ...Respondents

Constitution of India, Article 226-Power
of Chief Justice-being King of roster can
even transfer a tied-up Part-heard casePIL (Criminal)-against Sushri Mayawati
challenging
the
order
of
Governor
refusing
sanction
for
prosecution-as
required under Section 19 of Prevention
of Corruption Act, 1988, read with
Section 197 of Cr.P.C.-as per note of
Registry-being
unaware
with
the
shortage of strength of Judges-under
bonafide impression bifurcated in two
separate wings 'Civil PIL' and 'Criminal
PIL' to expedite hearing-can not be
connected with malafide and arbitrary
exercises of Power-nor can be connected
with meeting with Chief Minister in
connection with Fast Track Courts and
Evening Courts-Court express its great
concern with mode of addressing Hon'ble
Judges-Petition dismissed.

Held: Para 32 and 39

We may now come to the question as to
whether the proposal to bifurcate the
PIL matters emanated from the office of
Hon'ble Chief Justice or it had been
mooted earlier and remained in offing,
and then surfaced for receiving the
approval of His Lordship, Hon'ble Chief
Justice? His Lordship, present Hon'ble
Chief Justice took over the charge in this
High Court only in the last week of June,
2010. Every Judge from his experience of
working in one High Court or different