# Oriental Insurance Co. Ltd. Allahabad v. Manoj Kumar & Ors

- **Citation:** (2015) 1 ILRA 424
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-29
- **Case number:** First Appeal From Order No. 1240 of 2000
- **Bench:** Krishna Murari, Pratyush Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-co-ltd-allahabad-v-manoj-kumar-ors-43180
- **Pages:** 5

## Headnote

Motor Vehicle Act, 1988-Section 173Appeal by Insurance Company-award
fixing liability upon appellant-admittedly
accident took place on 03.09.97-license
of driving renewed only on 08.10.1997stood expired on 09.09.96-more than
one year-held-benefit of Section 15 of
Act-not available-appellant not liable to
pay-if any amount paid in compliance of
award-liberty
to
realize
from
the
claimants-appeal allowed.
Held: Para-11 & 17

## Text

424
 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Be that as it may, the question
before this Court is as to whether the
petitioner, in individual capacity, being a
member of the Gram Panchayat can
challenge the order passed by the
Collector. There is no resolution passed
by the Gaon Sabha, authorizing the
petitioner to challenge the order passed by
the Collector.
7. The law contemplates that if
somebody wants to challenge the action
of the revenue authorities on behalf of the
Gaon Sabha, then there has to be a
resolution on behalf of the Gaon Sabha to
challenge the same.
8. In the case of Sita Ram vs.
Deputy Director of Consolidation and
others 1982 ALJ 76, the Court in Para-22,
held as under:
"22. Thus, in view of the above I am
of the opinion that the objection filed by
the opposite party No.3 Sheo Prasad
cannot be treated to be a valid objection
on behalf of the Gaon Sabha under
Section 9A(2) of the U.P. Consolidation of
Holdings Act, on the ground that he was
himself an interested person under
Section 9A(2) of the Act, as admittedly the
Land Management Committee of the
Gaon
Sabha
had
not
passed
any
resolution
taking
decision
to
file
objection, appeal
and
revision nor
opposite party no.3 was authorised to file
those on behalf of the Gaon Sabha. It is
also not disputed that the action of the
opposite party no.3, in filing objections,
appeal, and revision on behalf of the
Gaon Sabha, was not ratified by the Land
Management Committee in its meetings.
Thus, the objections, appeal and revision
filed by opposite party no.3 Sheo Prasad
on behalf of the Gaon Sabha were wholly
incompetent and opposite party nos.1 and
2 acted illegally and without jurisdiction
in passing the impugned orders."
9. I, therefore, find that the writ
petition on behalf of the petitioner in
individual capacity is not maintainable. It
is accordingly dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2015
BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE PRATYUSH KUMAR, J.
First Appeal From Order No. 1240 of 2000
The
Oriental
Insurance
Co.
Ltd.
Allahabad
 ...Appellant
Versus
Manoj Kumar & Ors.
...Respondents
Counsel for the Appellant:
Sri S.C. Srivastava
Counsel for the Respondents:
Sri Siddharth Srivastava, Sri S.D. Ojha
Motor Vehicle Act, 1988-Section 173Appeal by Insurance Company-award
fixing liability upon appellant-admittedly
accident took place on 03.09.97-license
of driving renewed only on 08.10.1997stood expired on 09.09.96-more than
one year-held-benefit of Section 15 of
Act-not available-appellant not liable to
pay-if any amount paid in compliance of
award-liberty
to
realize
from
the
claimants-appeal allowed.
Held: Para-11 & 17
11.

The
accident,
in
this
case,
admittedly took place on 03.09.1997.
Although, there is nothing on record to
indicate as to when the renewal was
applied, but this much is clear that the
licence was renewed after more than a
year from its expiry and, thus, on the
1 All] The Oriential Insurance Co. Ltd. Allahabad Vs. Manoj Kumar & Ors.
425
date of accident, the driver did not have
a valid driving licence.
17. The offending vehicle was clearly being
driven in breach of Section 149 (2) (a) (ii) of
the Act and, thus, the insurance company
cannot
be
held
liable
to
pay
the
compensation. The insurance company has
already been directed to make payment of
the amount to the claimant-respondents.
The insurance company shall be liable to
recover the same from the owner of the
offending vehicle, namely, respondent no. 4.
Case Law discussed:
2007 (2) TAC 393 (SC); (2003) 3 SCC 338.
(Delivered by Hon'ble Krishna Murari, J.)
1. Heard Shri S.C. Srivastava,
learned counsel for the appellant, Shri
Siddharth Srivastava, learned counsel for
the claimant-respondent nos. 1 to 3 and
Shri S.D. Ojha for respondent no. 4.
2. This appeal under Section 173 of the
Motor Vehicles Act (for short the Act) has
been filed by Insurance company challenging
the judgment and award dated 31.05.2000
passed by Additional District Judge/Motor
Accident Claims Tribunal, Meerut awarding
a sum of Rs.5,85,500/- as compensation to
the claimant-respondent nos. 1 to 3.
3. Facts, in short, giving rise to the
dispute are as under.
4. A claim petition claiming
compensation to the tune of Rs.20 lacs
was preferred by the claimant-respondents
on the allegation that on 03.09.1997 when
deceased Sobha Ram was going on his
moped no. U.P. 15D 1960 to his office at
about 10 am, when he reached telephone
exchange, then near SSD Crossing, Bus
No. UHN 1152, which was being driven in
rash and negligent manner, hit the moped,
which caused grievous injuries and
resulted into death of Sobha Ram. It was
further pleaded that the deceased was
aged 55 years and was working in CDA
Pension office and his total income
including that of from agriculture was
Rs.12,559/- per month. The proceedings
were contested by the appellant-insurance
company denying the allegations. It was
pleaded in the additional pleas that the
accident
was
caused
due
to
own
negligence of the deceased and the driver
of the bus was not having a valid driving
licence. The Tribunal, on the basis of the
pleadings of the parties, framed two
issues.
(1) Whether the accident was caused
due to rash and negligent driving of the
offending vehicle UHN 1152.
(2) Whether the claimants were
entitled for any compensation and if yes,
then how much and from whom.
5. After analysing the oral and
documentary evidence brought on record,
the Tribunal returned a finding that the
accident was caused due to rash and
negligent driving of the driver of the
offending vehicle no. UHN 1152, which
resulted in the death of Sobha Ram.
6.
On the question of quantum of
compensation,
on
the
basis
of
the
documentary evidence brought on record in
the form of salary slip, the Tribunal returned
a finding that the monthly income of the
deceased
was
Rs.10,252/-
and
after
deducting 1/3rd towards personal expenses,
determined his annual income to be
Rs.72,000/-. Treating the age of the deceased
to be 55 years, the Tribunal in accordance
with the Schedule II applied a multiplier of 8
and in this manner, determined the total
compensation to be Rs.5,85,500/-.
426
 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Learned counsel for the appellants
vehemently contended that since the driver
of the offending vehicle was not having a
valid driving licence, which fact was
established before the Tribunal by cogent
evidence, hence, the Tribunal committed a
manifest error of law in not allowing the
right to the appellant to recover the amount
of compensation from the owner. It is
further submitted that since the vehicle was
being driven in violation of the insurance
policy as the driver did not have a valid
driving licence, as such, it was the insurer,
who was liable to pay the compensation and
the liability has wrongly been fastened upon
the appellant.
8.
A perusal of the award goes to
show that it was pleaded and established
before the Tribunal that the driving licence
of the driver of the offending vehicle
expired on 09.09.1996 and admittedly it
was
renewed
from
08.10.1997.
The
accident,
admittedly,
took
place
on
03.09.1997. Thus, what is to be seen is
whether the renewal made on 08.10.1997
would relate back to the date of its expiry.
9. Section 15 of the Act relate to the
renewal of the driving licence. The
relevant part of Section 15 for the
purposes of the case reads as under.
"15. Renewal of driving licences.-
(1) Any licensing authority may, on
application made to it, renew a driving
licence issued under the provisions of this
Act with effect from the date of its expiry:
Provided that in any case where the
application for the renewal of a licence is
made more than thirty days after the date of
its expiry, the driving licence shall be
renewed with effect from the date of its
renewal."
10. A perusal of the aforesaid
provision makes it clear that, in case, the
renewal is applied, where the application
for renewal is made within 30 days from
the date of expiry, the renewal shall relate
back to the date of expire, otherwise if the
application is made beyond 30 days, it
would be effected from the date of its
renewal. Proviso to Section 15 (1) makes
it clear that the original licence granted
despite expiry only remain operative only
for a period of 30 days from the date of
expiry and, in case, if an application is
made within this period, it would relate
back to the said date, otherwise it would
be deemed to be renewed from the date of
its renewal.
11. The accident, in this case,
admittedly took place on 03.09.1997.
Although, there is nothing on record to
indicate as to when the renewal was
applied, but this much is clear that the
licence was renewed after more than a
year from its expiry and, thus, on the date
of accident, the driver did not have a valid
driving licence.
12. This view came up for
consideration before the Hon'ble Apex
Court in the case of Ishwar Chandra &
Ors. Vs. Oriental Insurance Co. Ltd. &
Ors., 2007 (2) TAC 393 (SC). After
considering the provisions of the Act, the
Hon'ble Apex Court has observed as
under.
"From a bare perusal of the said
provision, it would appear that the licence
is renewed in terms of the said Act and
the rules framed thereunder. The proviso
appended to Section 15 (1) of the Act in
no uncertain terms states that whereas the
original licence granted despite expiry
remains valid for a period of 30 days from
1 All] The Oriential Insurance Co. Ltd. Allahabad Vs. Manoj Kumar & Ors.
427
the date of expiry, if any application for
renewal thereof is filed thereafter, the
same would be renewed from the date of
its renewal. The accident took place on
28.04.1995. As on the said date, the
renewal application had not been filed,
the driver, did not have a valid licence on
the date when the vehicle met with the
accident."
13. Learned counsel for the
respondent no. 4, owner relying upon the
judgment of the Hon'ble Apex Court in
the case of United India Insurance Co.
Ltd. Vs. Lehru & Ors., (2003) 3 SCC 338,
contended that once the driver had a valid
driving licence and he was driving
competently, it cannot be said that there
was a breach of Section 149 (2) (a) (ii) of
the Act and the insurer would not be
absolved from liability and the Tribunal
rightly fastened the liability of paying the
compensation on the insurance company.
14. The case before the Hon'ble
Apex Court was one where the driving
licence of the driver of the offending
vehicle was found to be fake. Keeping
that factor in consideration, the Hon'ble
Apex Court in paragraph 20 observed as
under.
"When an owner is hiring a driver he
will therefore have to check whether the
driver has a driving licence. If the driver
produces a driving licence which on the
face of it looks genuine, the owner is not
expected to find out whether the licence
has in fact been issued by a competent
authority or not. The owner would then
take the test of the driver. If he finds that
the driver is competent to drive the
vehicle, he will hire the driver. We find it
rather strange that Insurance Companies
expect owners to make enquiries with
RTO's, which are spread all over the
country, whether the driving licence
shown to them is valid or not. Thus where
the owner has satisfied himself that the
driver has a licence and is driving
competently there would be no breach of
Section
149(2)(a)(ii).
The
Insurance
Company would not then be absolved of
liability. If it ultimately turns out that the
licence was fake the Insurance Company
would continue to remain liable unless
they prove that the owner/insured was
aware or had noticed that the licence was
fake and still permitted that person to
drive. More importantly even in such a
case the Insurance Company would
remain liable to the innocent third party,
but it may be able to recover from the
insured."
15. We see no reason as to how the
said judgment is of any help to the
respondent no. 4 or comes to his rescue. It
was a case where the licence was fake
and, thus, the Hon'ble Apex Court held
that the owner of the vehicle is not
expected to verify the driving licence,
which on the face of it, looks to be
genuine. However, in the case in hand, the
owner is supposed to be aware that the
driving licence of the driver is to expire
and it was his duty to have ensured that
the driver gets the licence renewed within
the time.
16. Thus, the reliance placed by
respondent no. 4 in the case of Lehru
(supra) is misplaced and, as such, the
judgment is of no avail to him. Since the
driver of the offending vehicle was not
having a valid driving licence on the date
of accident, the vehicle was being driven
in a breach of the condition of the policy
requiring the vehicle to be driven by a
person, who is duly licenced.
428
 INDIAN LAW REPORTS ALLAHABAD SERIES
17. The offending vehicle was
clearly being driven in breach of Section
149 (2) (a) (ii) of the Act and, thus, the
insurance company cannot be held liable
to pay the compensation. The insurance
company has already been directed to
make payment of the amount to the
claimant-respondents.
The
insurance
company shall be liable to recover the
same from the owner of the offending
vehicle, namely, respondent no. 4.
18. The appeal stands allowed to the
extent directed above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.04.2015
BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Service Single No. 1495 of 2015
Smt. Neha Sharma
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Shivam Sharma
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Scope of
Judicial Review-essential qualification-for
TGT(English)-3 years Bachelor's degree
with English subject-petitioner being M.A.
(English) with 2 year English course in
graduation-claims appointment-held-with
limited scope of judicial review-neither
mandamus can be issued to bring withing
eligibility zone-nor can interfere-petition
dismissed.
Held: Para-17
Thus,
in
view
of
the
aforesaid
pronouncements of Hon'ble Supreme
Court it can safely be summed up that
the grounds of judicial review by this
Court in exercise of its jurisdiction under
Article 226 of the Constitution of India in
a case where challenge is made to the
prescription
of
essential
educational
qualification for a teaching post, is very
limited.
Case Law discussed:
Civil Appeal No. 1010 of 2000; AIR 1965 SC
491; [(1997) 1 SCC 253]; [(2007) 5 SCC 519];
[(1990) 1 SCC 288; [(2008) 10 SCC 1].
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)
1. Heard Shri Ratnesh Chandra,
learned
counsel
appearing
for
the
petitioner and learned Standing Counsel
appearing for the respondents.
2. These proceedings under Article
226 of the Constitution of India have been
instituted by the petitioner challenging the
advertisement dated 17.03.2015, in so far
as it restricts selection to the post of
Trained Graduate Teacher (English) only
to the candidates, who have graduated
with English in all the three years of their
Graduation Course, to the exclusion of
candidates credited with a degree of Post
Graduation in English.
3. In effect, the petitioner challenges
the educational qualification prescribed
by
the
respondent
no.2
for
selection/appointment
as
Trained
Graduate Teacher (English), according to
which, only those Graduates in English
will be eligible, who have studied English
as a subject in all the three years of their
Graduation Course.
4. The State Government has taken a
decision to establish Model Schools in the
State of Uttar Pradesh and for the said