# Oriental Insurance Comp. Ltd. Lko v. Smt. Urmila Singh

- **Citation:** (2014) 1 ILRA 152
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-20
- **Case number:** First Appeal from Order (D) No. 172 of 2009
- **Bench:** Devi Prasad Singh, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-comp-ltd-lko-v-smt-urmila-singh-42958
- **Pages:** 5

## Headnote

(A)Motor Vehicle Act 1988-Section 173Appeal against-award of accident claim
tribunal-on
ground
of
contributory
negligence-as deceased was driving motor
cycle under influence of intoxication-heldbody of deceased crushed under the tyre
of truck-deceased were going to attained
Tehsil Diwas-where so many district level
higher
authorities
participated-hence
theory
of
consuming
liquor-not
acceptable-more
over
in
postmortem
report do not support the story of
intoxication-in
absence
of
direct
or
corroborative evidence-no inference of
contributory negligence can be drawn.

Held: Para-7
Now, coming to the second limb of
argument of learned counsel for the
appellant that the deceased and the driver
of the motorcycle were in intoxicated state
of mind also seems to be not sustainable.
Admittedly, they both were going to
attend
Tehsil
Diwas
in
the
Tehsil
concerned, and it will be difficult to believe
that a government employee would go to
discharge his duty during the Tehsil Divas
which is also ordinarily attended by Higher
Authorities in an inebriated state. Apart
from this it is also not borne out from the
post-mortem report of the deceased that
he had consumed liquor. In the absence of
any material evidence and keeping in view
the surrounding facts and circumstances of
the case, argument advanced by the
learned counsel for appellant seems to be
not sustainable.

(B)Award of Penal interest- Tribunal
awarded 6% interest within specified
period-in case of default penal interest
enhance 9% retrospectively-held-in case
of default-enhanced amount of interest of
9% payable from the date of default
prospectively-accordingly award modified.

Held: Para-13
In view of above to the extent discussed
hereinabove, the impugned award requires
modification. Accordingly, the appeal is
allowed partly. The impugned award dated
27.9.2008 is modified to the extent that
1 All] Oriental Insurance Comp. Ltd. Lko. Vs. Smt. Urmila Singh
153
respondent shall be entitled for 9%
interest after expiry of stipulated period
provided by the tribunal for deposit of
compensation amount. For earlier period
,i.e., from the date of application till the
stipulated period provided in the impugned
award, the interest shall remain 6%.

## Text

152 INDIAN LAW REPORTS ALLAHABAD SERIES
aside. A mandamus would, accordingly,
issue directing the State to permit the
appellants and such other persons who
claim to be holding the qualifications
which are within the purview of the
notification issued by the NCTE on 23
August 2010, as amended on 29 July
2011, to apply for the post of Assistant
Teachers for Classes I to V which was the
subject matter of the advertisement in
question.

15. Since the Court is informed that
the process of counseling is still to
commence,
we
direct
the
State
Government to act in accordance with the
aforesaid direction in processing and
completing the selection process.

16. We clarify that the issue as to
whether
the
appellants
hold
the
qualifications strictly in accordance with
the notification issued by the NCTE has
not been decided by us since that is a
matter of verification by the authority
concerned.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ASHOK PAL SINGH, J.

First Appeal from Order (D) No. 172 of
2009

Oriental Insurance Comp. Ltd. Lko..Appellant
Versus
Smt. Urmila Singh.... Respondent

Counsel for the Petitioner:
Sri T.K. Misra

Counsel for the Respondents:
Sri B.R. Singh
(A)Motor Vehicle Act 1988-Section 173Appeal against-award of accident claim
tribunal-on
ground
of
contributory
negligence-as deceased was driving motor
cycle under influence of intoxication-heldbody of deceased crushed under the tyre
of truck-deceased were going to attained
Tehsil Diwas-where so many district level
higher
authorities
participated-hence
theory
of
consuming
liquor-not
acceptable-more
over
in
postmortem
report do not support the story of
intoxication-in
absence
of
direct
or
corroborative evidence-no inference of
contributory negligence can be drawn.

Held: Para-7
Now, coming to the second limb of
argument of learned counsel for the
appellant that the deceased and the driver
of the motorcycle were in intoxicated state
of mind also seems to be not sustainable.
Admittedly, they both were going to
attend
Tehsil
Diwas
in
the
Tehsil
concerned, and it will be difficult to believe
that a government employee would go to
discharge his duty during the Tehsil Divas
which is also ordinarily attended by Higher
Authorities in an inebriated state. Apart
from this it is also not borne out from the
post-mortem report of the deceased that
he had consumed liquor. In the absence of
any material evidence and keeping in view
the surrounding facts and circumstances of
the case, argument advanced by the
learned counsel for appellant seems to be
not sustainable.

(B)Award of Penal interest- Tribunal
awarded 6% interest within specified
period-in case of default penal interest
enhance 9% retrospectively-held-in case
of default-enhanced amount of interest of
9% payable from the date of default
prospectively-accordingly award modified.

Held: Para-13
In view of above to the extent discussed
hereinabove, the impugned award requires
modification. Accordingly, the appeal is
allowed partly. The impugned award dated
27.9.2008 is modified to the extent that
1 All] Oriental Insurance Comp. Ltd. Lko. Vs. Smt. Urmila Singh
153
respondent shall be entitled for 9%
interest after expiry of stipulated period
provided by the tribunal for deposit of
compensation amount. For earlier period
,i.e., from the date of application till the
stipulated period provided in the impugned
award, the interest shall remain 6%.

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

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

2. This appeal under Section 173 of
the Motor Vehicles Act has been
preferred against the judgement and
award dated 27.9.2008 passed by the
Motor Accident Claims Tribunal / Addl.
District Judge/FTC 5th, Court No. 14,
Sultanpur in M.A.C.P. No. 294 of 2007.

3. The brief facts giving rise to
present appeal are that on 25.9.2007 the
deceased Ram Chandra Singh was going
with his Supervisor to participate in
Tehsil Diwas function on his motorcycle
bearing No. UP 40 D 4597 as a pillion
rider. A Tata 407 bearing no. U.P. 42
2635 which was being driven rashly and
negligently
caused
the
accident
in
question by hitting their motorcycle and
sped away. The deceased having been
crushed succumbed to his injuries on the
spot.

4. Learned counsel for the appellant
has assailed the impugned award on the
grounds that firstly it is a case of
contributory negligence and secondly no
penal interest could have been awarded by
the tribunal. Accordingly, the questions,
which are required to be considered by
this court are firstly as to whether it is
case of contributory negligence and
secondly as to whether awarding of penal
interest was legally justified.

5.

As
regards
contributory
negligence
submission
of
appellant
counsel is that at the time of the accident
motorcycle was being driven rashly and
negligently and that the deceased as well
as the driver of the motorcycle both were
in intoxicated
state of
mind.
The
motorcycle had collided with the truck
while it was parked on the road side. As
such the insurer/owner of the motorcycle
shall be equally responsible for the
payment of compensation.

6. While deciding issue no. 2
alongwith issue no. 6 the Tribunal has
recorded the finding about truck having hit
the motorcycle and causing the accident.
After perusal of record a finding has also
been recorded by it that the body of the
deceased was crushed under the tyre of
truck. Accordingly, the tribunal was of the
view that the case set up by respondent's
counsel was not believable. In case the truck
was stationary and parked adjoining to the
road then the nature of injuries which the
deceased had suffered (crush head and
body) would not have been caused. It could
have happened only in case of accident
having occurred by a moving truck. Finding
recorded by tribunal seems to be well
considered and correct appreciation of
evidence on record. The nature of injury,
i.e., crush head and body could not have
been received by the deceased in case
contention of the appellant's counsel that the
truck was parked adjoining the road, is
accepted.

7. Now, coming to the second limb
of argument of learned counsel for the
appellant that the deceased and the driver
of the motorcycle were in intoxicated
state of mind also seems to be not
sustainable. Admittedly, they both were
going to attend Tehsil Diwas in the Tehsil
154 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned, and it will be difficult to
believe that a government employee
would go to discharge his duty during the
Tehsil Divas which is also ordinarily
attended by Higher Authorities in an
inebriated state. Apart from this it is also
not borne out from the post-mortem report
of the deceased that he had consumed
liquor. In the absence of any material
evidence and keeping in view the
surrounding facts and circumstances of
the case, argument advanced by the
learned counsel for appellant seems to be
not sustainable.

8. Admittedly, the appellant has not
adduced any evidence before the tribunal
to substantiate its case of contributory
negligence. The burden was on the
appellant to establish the factum with
regard to alleged contributory negligence.

9. In a case reported in 2013 Vol. 9
SCC 166 Jiju Kuruvila and others Vs.
Kunjujamma Mohan and others while
considering the plea with regard to
contributory negligence their Lordships of
Hon'ble Supreme Court held that merely
on the basis of postmortem report
indicating that the victim had consumed
liquor and the allegations of head on
collision, it cannot be presumed that it
was a case of contributory negligence.
Their Lordships further held that in the
absence of any direct or corroborative
evidence, no inference can be drawn
about the negligence on the part of victim
merely on the basis of position of vehicles
shown in "scene mahazar" . Relevant
Portion of the aforesaid judgement of
Hon'ble Supreme Court is reproduced as
under :- 2o.5, 20.6.

"20.5. The mere position of the
vehicles after accident, as shown in a
scene mahazar, cannot give a substantial
proof as to the rash and negligent driving
on the part of one or the other. When two
vehicles coming from opposite directions
collide, the position of the vehicles and its
direction, etc. depends on a number of
factors like the speed of vehicles,
intensity of collision, reason for collision,
place at which one vehicle hit the other,
etc. From the scene of the accident, one
may suggest or presume the manner in
which the accident was caused, but in the
absence of any direct or corroborative
evidence, no conclusion can be drawn as
to whether there was negligence on the
part of the driver. In absence of such
direct or corroborative evidence, the
Court cannot given any specific finding
about negligence on the part of any
individual.

20.6. The post-mortem report, Ext.
A-5 whows the condition of the deceased
at the time of death. The said report
reflects that the deceased had already
taken meal as his stomach was half-full
and contained rice, vegetables and meat
pieces in a fluid with strong smell of
spirit. The aforesaid evidence, Ext. A-5
clearly suggests that the deceased had
taken liquor but on the basis of the same,
no definite finding can be given that the
deceased was driving the car rashly and
negligently at the time of accident. The
mere suspicion based on Ext. B-2 "scene
mahazar" and Ext. A-5 post-mortem
report cannot take the place of evidence,
particularly, when the direct evidence like
PW.3 (independent eyewitness), Ext. A-1
(FIR), Ext. A-4 (charge-sheet) and Ext. B1 (FI statement) are on record.
21. In view of the aforesaid, we,
therefore, hold that the Tribunal and the
High Court erred in concluding that the
said accident occurred due to the
negligence on the part of the deceased as
1 All] Oriental Insurance Comp. Ltd. Lko. Vs. Smt. Urmila Singh
155
well, as the said conclusion was not based
on
evidence
but
based
on
mere
presumption and surmises."

10. Coming to the second question
involved the argument advanced by the
learned counsel for the appellant that penal
interest could not have been awarded by the
tribunal, he has relied upon a case reported
in
2004(2)
T.A.C.1
(S.C)
National
Insurance Co. Ltd. Vs. Keshav Bahadur and
others. Attention has been invited by him
towards para 12 of the said judgement,
which is reproduced as under:-

12. Though Section 110-CC of the Act
(corresponding to Section 171 of the New
Act) confers a discretion on the Tribunal to
award interest, the same is meant to be
exercised in cases where the claimant can
claim the same as a matter of right. In the
above background, it is to be judged whether
a stipulation for higher rate of interest in case
of default can be imposed by the Tribunal.
Once the discretion has been exercised by the
Tribunal to award simple interest on the
amount of compensation to be awarded at a
particular rate and from a particular date,
there
is
no
scope
for
retrospective
enhancement for default in payment of
compensation. No express or implied power
in this regard can be culled out from Section
110-CC of the Act or Section 171 of the new
Act. Such a direction in the award for
retrospective enhancement of interest for
default in payment of the compensation
together with interest payable thereon
virtually amounts to imposition of penalty
which is not statutorily envisaged and
prescribed. It is, therefore, directed that the
rate of interest as awarded by the High Court
shall alone be applicable till payment,
without the stipulation for higher rate of
interest being enforced, in the manner
directed by the Tribunal.

11. A perusal of the aforesaid
judgement of Hon'ble Supreme Court
reveals that no penal interest can be
awarded on account of default of payment
which
may
amount
retrospective
enhancement of the interest. In the present
case the tribunal had directed to pay
compensation
in
terms
of
award
alongwith 6 % interest within a specified
period. However, in the event of default
of payment within the specified period,
the
tribunal
has
enhanced
the
compensation from 6 % to 9 %.

12. In view of the aforesaid
judgement of Supreme court, the tribunal
could not have enhanced the interest
retrospectively. Of course, in case the
Insurance Company failed to deposit the
compensation within specified period,
some additional interest could have been
directed to be paid by the insurance
company prospectively, i.e., from the date
of default of payment of outstanding dues.

13. In view of above to the extent
discussed hereinabove, the impugned
award
requires
modification.
Accordingly, the appeal is allowed partly.
The impugned award dated 27.9.2008 is
modified to the extent that respondent
shall be entitled for 9% interest after
expiry of stipulated period provided by
the tribunal for deposit of compensation
amount. For earlier period ,i.e., from the
date of application till the stipulated
period provided in the impugned award,
the interest shall remain 6%.

14. The impugned award stands
modified accordingly. No order as to
costs.

15. The amount deposited by the
appellant insurance company in this court
shall be remitted to the tribunal and the
156 INDIAN LAW REPORTS ALLAHABAD SERIES
tribunal shall release the compensation
awarded within a period of three months
from the date of receipt of a certified copy of
the present order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition (Tax) No. 187 of
2012

Ajay Chaudhary.... Petitioner
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Satya Prakash Shukla
Sri Anil Kumar Tripathi

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Cancellation
of license of Tari Shop-on ground of
pendancy of criminal case-in proforma-G28-admittedly
no
conviction
against
petitioner
passed
as
yet-absence
of
requirement to disclose the pendancy of
criminal case-petitioner can not be guilty
for suppression of facts-held-cancellation
wholly illegal-quashed.

Held: Para-8 & 9
8. Once the respondents themselves do not
require
any
information
regarding
pendency
of
criminal
case,
petitioner
cannot be saddled with the responsibility
that he must disclose it and failing to do so
would justify an inference of concealment
of a relevant information that a criminal
case is pending against him.

9. Even otherwise, mere pendency of
criminal case has no connection with the
terms and conditions, which has to be
stated/disclosed by applicant in the
affidavit.
Therefore,
in
my
view,
respondents have acted wholly illegally
and the impugned orders cannot sustain.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The writ petition having been
restored vide order of date passed on
Restoration Application, as requested by
learned counsels for parties, I proceed to
decide this matter finally at this stage.

2. Heard Sri Satya Prakash Shukla,
counsel
for
petitioner
and
learned
Standing Counsel for respondents.

3. Petitioner was granted licence for
Tari shop on 26.3.2010. Thereafter some
complaint appears to be made against
petitioner that Criminal Case No. 31 of
1998 under Sections 323, 324, 504 and
506 I.P.C. Police Station Jaitpura, District
Varanasi is pending in the Court of First
Additional Chief Judicial Magistrate,
Varanasi, whereupon a show cause notice
was issued on 5.5.2010, which he replied
stating that in terms of Para 4 of Proforma
G-28, he is not a person convicted under
the statutes stated therein and therefore,
there is nothing wrong in grant of licence
to him.

4. Though respondent no. 3 held that
the grant of licence in favour of petitioner in
just and valid, but in appeal Excise
Commissioner passed an order on 21.9.2011
cancelling licence. Thereagainst petitioner
preferred Revision No. 30 of 2011 which has
been dismissed by State Government by
impugned order dated 6.1.2012.

5. The short question argued by
learned counsel for petitioner is that there
is no requirement that petitioner has to
disclose pendency of criminal case and,