# Oriental Insurance Co. Ltd v. Puspa Devi and another

- **Citation:** (2008) 1 ILRA 276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-05
- **Case number:** First Appeal From Order No. 3127 of 2007
- **Bench:** Amitava Lala, Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-co-ltd-v-puspa-devi-and-another-41034
- **Pages:** 5

## Headnote

Motor Vehicle Act 1988-Section 170Rejection
of
application-Insurance
company
allegation
of
conspiracy
between vehicle owner and claimantInsurance company allowed the tribunal
to pass final award-can not be allowed to
1 All] Oriental Insurance Co. Ltd. V. Puspa Devi and another
277
challenge in Appeal-Insurance company
had remedy to challenge the said order
under Art. 227 of Constitution-However
on quantum of compensation matter
remitted back before the Tribunal.

Held: Para 8

Hence, in totality when we find that the
appeal
as
made
by
the
insurance
company
only
for
the
purpose
of
quantum
of
compensation
and
negligence
in
spite
of
rejection
of
application under Section 170 of the Act
is squarely hit both by the verdict of the
Supreme Court as well as the High Court,
we are of the view that the appeal can
not be admitted and as such the same is
dismissed without imposing any cost.
Case law discussed:
2003 (7) S.C.C. 212, F.A.F.O. No. 2087 of
2007, AIR 2002 SC 3350, 2007 (4) ADJ 101
(DB)=2007(4) ALJ 541 (DB), 2007 (4) T.A.C.
17 (S.C.), 2004 (5) SCC 222, 2007 AIR SCW
2362, (2006) 1 SCC 212, AIR 2007 SC 1563.

## Text

276 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
(Delivered by Hon'ble Bharati Sapru, J.)

1. Heard learned counsel for the
petitioner and the learned standing
counsel for the respondents.

2. The petitioner has applied for the
post of upcharika in the department of
respondent no. 2. The last date for
submission
of
the
application
was
10.12.2007. According to the terms of the
advertisement, the petitioner was to send
the application by registered post.

3. As the petitioner under some
apprehension that the application will not
reach by registered post within the time,
he sent it by speed post vide receipt dated
6.12.2007. In fact the petitioner did not
comply
with
the
terms
of
the
advertisement.

4. It is well aware that Speed Post
(EMS) service is value added post
services enunciated by the Indian Post and
Telegraph Department, for which sender
has to pay charges equivalent to the
registered
letter/parcel
together
with
speed
charges
depending
upon
the
distance of the place, where the post is
being dispatched.

5. In the instant case, the petitioner
has sent the application by speed post on
6.12.2007 through an agency authorized
by the Indian Post and Telegraph
Department which assured that the letter
would be delivered within 24 hours.

6. In view of the above, I am of the
opinion that both Speed post or registered
post are services rendered by Indian Post
and Telegraph Department which ensures
strict delivery of post and mere making
clause
in
the
advertisement
that
application will be sent through registered
post, the respondent cannot refuse the
application of the petitioner on the pretext
that it had not been sent by the registered
post but had been sent by the Speed Post
which is equally efficacious post.

7. Learned counsel for the petitioner
has stated that since the interview for the
job is going on, she may also be
considered.

8. In view of the facts and
circumstances stated in the case and if the
interview is going on, the petitioner's
application too may be considered by the
respondents.

9. The writ petition is disposed of as
above.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHISHIR KUMAR, J.

First Appeal From Order No. 3127 of 2007

Oriental Insurance Company Ltd.

...Appellant
Versus
Puspa Devi and others ...Respondents

Counsel for the Appellant:
Sri Anand Kumar Sinha

Counsel for the Respondents:
Sri Dinesh Kumar

Motor Vehicle Act 1988-Section 170Rejection
of
application-Insurance
company
allegation
of
conspiracy
between vehicle owner and claimantInsurance company allowed the tribunal
to pass final award-can not be allowed to
1 All] Oriental Insurance Co. Ltd. V. Puspa Devi and another
277
challenge in Appeal-Insurance company
had remedy to challenge the said order
under Art. 227 of Constitution-However
on quantum of compensation matter
remitted back before the Tribunal.

Held: Para 8

Hence, in totality when we find that the
appeal
as
made
by
the
insurance
company
only
for
the
purpose
of
quantum
of
compensation
and
negligence
in
spite
of
rejection
of
application under Section 170 of the Act
is squarely hit both by the verdict of the
Supreme Court as well as the High Court,
we are of the view that the appeal can
not be admitted and as such the same is
dismissed without imposing any cost.
Case law discussed:
2003 (7) S.C.C. 212, F.A.F.O. No. 2087 of
2007, AIR 2002 SC 3350, 2007 (4) ADJ 101
(DB)=2007(4) ALJ 541 (DB), 2007 (4) T.A.C.
17 (S.C.), 2004 (5) SCC 222, 2007 AIR SCW
2362, (2006) 1 SCC 212, AIR 2007 SC 1563.

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

1. This appeal is made by the
insurance company against an award of
the Motor Accident Claims Tribunal
dated 14th August,2007 under Section 166
read with Section 140 of the Motor
Vehicles Act, 1988 (hereinafter called as
the 'Act') on account of wrong fixation of
quantum of compensation and negligence
of the deceased. An application was made
by the insurance company under Section
170 of the Act to contest the claim on the
ground of collusion between owner of the
vehicle
and
the
claimant
of
the
compensation which was rejected by the
tribunal on or about 2nd July, 2007. A
limited observation has been made by the
tribunal which implies that since owner
has already filed his objection against the
claim of the claimant, the application of
the insurance company can not be
entertained. Therefore, on the ratio of the
judgment reported in 2003 (7) S.C.C. 212
(United India Insurance Co. Ltd. Vs.
Jyotsnaben Sudhirbhai Patel) followed
by this Division Bench in F.A.F.O. No.
2087 of 2007 (United India Insurance Co.
Ltd. Vs. Krishna Kumar & others),
delivered on 1st August, 2007 and
circulated to all District Judges of the
State of Uttar Pradesh, we can construe
that minimum reason as above will suffice
the cause of disposal with reasons to meet
the technicality.

2. The appellant/insurance company
slept with the order of the tribunal without
taking any step and preferred this appeal
when the tribunal finally passed the award
on 14th August, 2007 taking both the plea
of rejection of his application as well as
the award ignoring laid down principle by
the three Judges' Bench of the Supreme
Court reported in AIR 2002 SC 3350
(National
Insurance
Co.
Ltd.,
Chandigarh Vs. Nicolletta Rohtagi and
others) followed by Division Bench
judgment of this Court reported in 2007
(4) ADJ 101 (DB)=2007(4) ALJ 541
(DB) (Oriental Insurance Company
Limited Vs. Smt. Manju and others). In
the case of Nicolletta Rohtagi and
others (Supra) the Supreme Court has
categorically held as follows:

"31. We have already held that
unless the conditions precedent specified
in Section 170 of 1988 Act is satisfied, an
insurance company has no right of appeal
to challenge the award on merits.
However, in a situation where there is a
collusion between the claimants and the
insured or the insured does not contest
the claim and, further, the tribunal does
not implead the insurance company to
contest the claim in such cases it is open
to an insurer to seek permission of the
278 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
tribunal to contest the claim on the
ground available to the insured or to a
person against whom a claim has been
made. If permission is granted and the
insurer is allowed to contest the claim on
merits in that case it is open to the insurer
to file an appeal against an award on
merits, if aggrieved. In any case where an
application for permission is erroneously
rejected the insurer can challenge only
that part of the order while filing appeal
on grounds specified in sub-section (2) of
Section 149 of 1988 Act. But such
application for permission has to be
bonafide and filed at the stage when the
insured is required to lead his evidence.
So far as obtaining compensation by
fraud by the claimant is concerned, it is
no longer res integra that fraud vitiates
the entire proceeding and in such cases it
is open to an insurer to apply to the
Tribunal for rectification of award.

32. For the aforesaid reasons, our
answer to the question is that even if no
appeal is preferred under Section 173 of
1988 Act by an insured against the award
of a Tribunal, it is not permissible for an
insurer to file an appeal questioning the
quantum of compensation as well as
findings
as
regards
negligence
or
contributory negligence of the offending
vehicle."

3. This Division Bench of the High
Court specifically considered the issue
that if the application under Section 170
of the Act is rejected whether the
insurance company will be remediless or
not and ultimately held either the
appellant/insurance company will go for
rectification of the award if it is victim of
circumstances before the tribunal by
establishing such fact or it can take out an
application under Article 227 of the
Constitution before the High Court
challenging the order passed in the
application under Section 170 of the Act.
The present appeal is in the teeth of such
judgments. Learned Counsel appearing
for the appellant contended that inspite of
rejection of the application under Section
170 of the Act, it can prefer appeal from
the judgment and award of the tribunal as
a matter of course being an aggrieved
under Section 173 of the Act. He placed
reliance on 2007 (4) T.A.C. 17 (S.C.)
(New India Assurance Company Ltd.
Vs. Smt. Shanti Pathak and others) by
saying that the three Judges' Bench of the
Supreme Court entertained the appeal on
merit inspite of rejection by the High
Court on the ground of not having
permission to contest the claim.

4. According to us, the appellant
overlooked the following observations of
the Supreme Court: (a) The High Court
held that no permission had been granted
to the insurer to contest its claim, and (b)
The High Court did not find any
substance in this plea also. Therefore, the
Supreme Court entertained the appeal
only when found that the High Court had
already entered into the merit irrespective
of rejection. Such observation can not be
said to be a conflicting or later opinion
contrary to earlier opinion of the Supreme
Court in the case of Nicolletta Rohtagi
and others (Supra).

5. Moreover, in 2004 (5) SCC 222
(Common Cause Vs. Union of India
and others) it was held by the Supreme
Court itself that without laying down the
law cannot be read as a ratio of the
judgment and certainly not as a precedent.
Therefore, when in Smt. Shanti Pathak
and others (Supra) no reference has been
made about the well considered judgment
1 All] Oriental Insurance Co. Ltd. V. Puspa Devi and another
279
of the Bench of similar strength in
Nicolletta Rohtagi and others(Supra), the
same can not be said to be ratio decidendi.
In 2007 AIR SCW 2362 (Oriental
Insurance Co. Ltd. Vs. Meena Variyal
and others) it was held by the Supreme
Court that an obiter dictum of this Court
(read as Supreme Court) may be binding
only on the High Courts in the absence of
a direct pronouncement on that question
elsewhere by this Court (read as Supreme
Court). Here we are bound by the
expressed
pronouncement.
Unless
a
pronouncement forms a ratio decidendi, it
can not bind in rem. Judgment in rem is
one which declares, defines or otherwise
determines the status of a person or of a
thing, that is to say, the jural relation of
the person or thing to the word generally
following ratio of three Judges' Bench
judgmnent reported in (2006) 1 SCC 212
(Satrucharla Vijaya Rama Raju Vs.
Nimmaka Jaya Raju and others). That
apart a statute is an edict of the legislature
and in construing a statute, it is necessary
to see the intention of its maker. If a
statutory provision is open to more than
one interpretation, the Court has to choose
that interpretation which represents the
true intention of the legislature. AIR 2007
SC 1563 (National Insurance Co. Ltd.
Vs. Laxmi Narain Dhut) supports the
same.

6. Learned Counsel appearing in
support
of
the
appellant/insurance
company contended before this Court that
as per Section 168 of the Act, the Motor
Accident Claims Tribunal on receipt of an
application for compensation made under
Section 166 of the Act after giving notice
to the parties(including the insurer) and
opportunity of being heard, hold an
enquiry
etc.
Therefore,
insurance
company is a necessary party to the
proceeding before the Motor Accident
Claims Tribunal. According to us, Section
168 of the Act speaks for holding an
enquiry but not for impleading the party
as a matter of course. Section 170 of the
Act puts an embargo to that extent by
saying that where in the course of enquiry
the Motor Accident Claims Tribunal
found it satisfied that the insurer should
be made party then and then alone it will
be impleaded as party respondent. In
other words, Section 168 of the Act will
be applicable subject to satisfaction of
Section 170 of the Act.

7. There is reason for such
legislation. Relationship between the
insured and insurer is like a relationship
between principal and agent. They are
sailing in the same boat. Therefore, when
the
principal
is
disclosed
principal
existence of the agent is insignificant
unless it is hit by fraud or collusion or any
statutory provision like Section 149 (2)
for having separate identity which is to be
tested by the tribunal at first before
impleadment but not as a matter of course
inspite of the existence of the principal.
Therefore, the tribunal will only examine
whether there is any conflict between the
insurer and insured which likely to be hit
by fraud or collusion and statutory
requirement and then only the permission
is to be granted by the tribunal otherwise
there will be a routine permission for the
insurance
company
to
contest
the
proceeding without any cause. The
Supreme Court in Nicolletta Rohtagi and
others (Supra) discouraged such type of
activities on the part of the insurance
company and held that if ultimately the
insurance company found that there is a
fraud or collusion it can also apply for
rectification of the award in the tribunal
but not to wait and see whether the award
280 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
is going in its favour or against and then
prefer
a
chance
appeal.
This
discourageable state of affairs is to be
understood
carefully
before
making
grievance. Moreover, from the composite
reading of Jyotsnaben Sudhirbhai Patel
(Supra), Nicolletta Rohtagi and others
(Supra) and Smt. Manju and others
(Supra) we are of the view that an
insurance company is entitled to know the
reason of allowing or rejection of
application under Section 170 of the Act
by the Motor Accident Claims Tribunal
and can challenge the order of rejection, if
any, under Article 227 of the Constitution
of
India.
Therefore,
the
insurance
company can not be said to be remediless.

8. Hence, in totality when we find
that the appeal as made by the insurance
company only for the purpose of quantum
of compensation and negligence in spite
of rejection of application under Section
170 of the Act is squarely hit both by the
verdict of the Supreme Court as well as
the High Court, we are of the view that
the appeal can not be admitted and as
such the same is dismissed without
imposing any cost.

9. Incidentally, the appellantinsurance company prayed that the
statutory deposit of Rs.25,000/- made
before this Court for preferring this appeal
be remitted back to the concerned Motor
Accidents
Claims
Tribunal
as
expeditiously as possible in order to
adjust with the amount of compensation
to be paid to the claimants, however, such
prayer is allowed. Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2008

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 33392 of 2006
Connected with
Civil Misc. Writ Petition No. 39638 of 2006

Satya Narian Tripathi and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha
Sri Saroj Kumar Yadav

Counsel for the Respondents:
Sri Indra Raj Singh
Sri Mahendra Singh
Sri Vijendra Singh
S.C.

Constitution of India, Art. 19 & 226-Writ
Petition-maintainability-validity of the
list of members of society-challenge
made by member-neither statutory nor
fundamental
right
of
such
member
affected-serous disputed question of
facts involved-petitioner may file civil
suit or approach before the Registrar
under
Section
25
of
the
Society
Registration
Act-petition-held-not
maintainable.

Held: Para 9

In neither of these petitions has any
fundamental right or statutory right of
the
petitioners
been
breached.
The
petitioners have effective alternative
remedy to challenge the election by a
civil suit or under Section 25 of the
Societies Registration Act. The writ
petitions are therefore not maintainable.
Moreover disputed questions of fact are