# Pappu Singh and another v. Ravindra Nath Dubey and another

- **Citation:** (2004) 2 ILRA 605
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-17
- **Case number:** First Appeal From Order No. 912 of 1991
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pappu-singh-and-another-v-ravindra-nath-dubey-and-another-40273
- **Pages:** 7

## Headnote

Motor Vehicles Act, 1988-S. 149-Liability
of Insurance Company-Breach of PolicyNo evidence, to show that owner of
tractor handed over tractor to 'P' for
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
606
driving-Thus insured did not commit any
breach
of
Policy-Insurer
failed
to
discharge burden- In absence of any
finding by Tribunal that owner of Tractor
committed willful breach of terms of
Policy, insurer, held liable to indemnify
owner and pay compensation to victim.

Held: Para 14, 15 & 16

Admittedly, the owner of the tractor had
employed a duly licensed driver, namely,
Mahipal Singh. The Insurance Company
has not led any evidence to show that
the insured person, namely, the owner of
the tractor handed over the tractor to
Pappu Singh to drive the tractor on
28.8.1988. Therefore, it can not be said
that
the
insured
person
committed
breach of the terms of the policy. The
Insurance
Company
should
have
established by leading evidence that
there was breach of condition of contract
of
the
Insurance
Company.
The
Insurance
Company
has
failed
to
discharge the burden in the present
case. Assuming that the tractor was
being
driven
by
Pappu
Singh
on
28.8.1988, it is not sufficient to hold that
the
insured
person
has
committed
breach of the terms of the Insurance
Company
in
the
absence
of
wilful
violation of the terms of the policy by the
insured person.

I am of the opinion that the law as laid
down by Supreme Court in the case of
Swarn Singh and others (supra) is fully
applicable to the facts of the present
case. In the absence of any finding by
the Tribunal that the owner of the
tractor committed wilful breach of the
terms of the Insurance Company, the
Insurance
Company
is
liable
to
indemnify the owner of the tractor and
to pay the compensation to the victim.

There is no dispute that Mahipal Singh
was having a valid driving licence on
28th August, 1988 and the tractor was
duly insured with Oriental Insurance
Company Ltd.

Case law discussed:
JT 2004 (1) SC 109
AIR 1978 SC 1184

## Text

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2 All] Shoeb Alam and others V. D.D.C. Azamgarh and others
605
 of compromise or consequent order of
the Asstt. Consolidation Officer was
considered and jettisoned by this Court in
its decision 17.1.2000 and it cannot be reagitated by resort to the point of limitation
which in my considered view is a
metricious submission to prop up a
second inning in this Court. It is crystal
clear from the provisions of the U.P.Z.A.
& L.R. Act that question of limitation
cannot be called in aid in relation to
property which is admittedly Gaon Sabha
property. The learned counsel has not
been able to bear out that any limitation
has been fixed for acquiring any right on
the Gaon Sabha property on the basis of
adverse possession. The law is too settled
to be ignored on this count and I do not
propose to make an idle parade of
learning by dwelling upon this aspect at
prolix length also considering that the
matter journeyed upto Apex Court but
with no success.

5. In the above conspectus, I am of
the considered opinion that in view of
duties
cast
on
the
Consolidation
Authorities in Section 11-C of the
U.P.C.H. Act, the Deputy Director
Consolidation
rightly
passed
the
impugned
order
and
it
cannot
be
questioned or assailed as no material
irregularity or illegality has been pointed
out. Petition fails and is dismissed
accordingly.

6. Before parting, I feel constrained
to notice that in the instant case, there is
enough indication that the petitioners
have made persistent attempts to continue
their illegal possession over the Gaon
Sabha Property despite repeated failures
upto the Apex Court. The present petition
is again a desperate attempt to encroach
upon Court's precious time by vexatious
plea which did not find favour with this
Court. In my considered view, it is a preeminently fit case in which the petitioners
should be visited with costs which I
quantify at Rs.10,000/-. The petitioners
are directed to handover possession of the
property of Gaon Sabha forthwith and till
actual possession is handed over to the
Gaon Sabha, the petitioners would be
liable to pay compensation for their illegal
possession for the entire period the land in
question remained in illegal possession of
the petitioners. It may be clarified that in
case any such application is filed by the
Gaon Sabha for determining the question
of actual amount of mesne profits before
the District Magistrate, the same shall be
decided in accordance with law within a
period not exceeding six months from the
date of filing of such application by the
Gaon Sabha.
Petition Dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2004

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

First Appeal From Order No. 912 of 1991

Pappu Singh and another
...Appellants
Versus
Ravindra Nath Dubey and another

 ...Respondents

Counsel for the Appellants:
Sri R.B. Sahai

Counsel for the Respondents:
Sri P.K. Tripathi
Sri Saral Srivastava
Sri A.K. Banerji
Sri S.K. Srivastava

Motor Vehicles Act, 1988-S. 149-Liability
of Insurance Company-Breach of PolicyNo evidence, to show that owner of
tractor handed over tractor to 'P' for
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
606
driving-Thus insured did not commit any
breach
of
Policy-Insurer
failed
to
discharge burden- In absence of any
finding by Tribunal that owner of Tractor
committed willful breach of terms of
Policy, insurer, held liable to indemnify
owner and pay compensation to victim.

Held: Para 14, 15 & 16

Admittedly, the owner of the tractor had
employed a duly licensed driver, namely,
Mahipal Singh. The Insurance Company
has not led any evidence to show that
the insured person, namely, the owner of
the tractor handed over the tractor to
Pappu Singh to drive the tractor on
28.8.1988. Therefore, it can not be said
that
the
insured
person
committed
breach of the terms of the policy. The
Insurance
Company
should
have
established by leading evidence that
there was breach of condition of contract
of
the
Insurance
Company.
The
Insurance
Company
has
failed
to
discharge the burden in the present
case. Assuming that the tractor was
being
driven
by
Pappu
Singh
on
28.8.1988, it is not sufficient to hold that
the
insured
person
has
committed
breach of the terms of the Insurance
Company
in
the
absence
of
wilful
violation of the terms of the policy by the
insured person.

I am of the opinion that the law as laid
down by Supreme Court in the case of
Swarn Singh and others (supra) is fully
applicable to the facts of the present
case. In the absence of any finding by
the Tribunal that the owner of the
tractor committed wilful breach of the
terms of the Insurance Company, the
Insurance
Company
is
liable
to
indemnify the owner of the tractor and
to pay the compensation to the victim.

There is no dispute that Mahipal Singh
was having a valid driving licence on
28th August, 1988 and the tractor was
duly insured with Oriental Insurance
Company Ltd.

Case law discussed:
JT 2004 (1) SC 109
AIR 1978 SC 1184

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

1. This appeal is against the
judgment and order of Motor Accident
Claims Tribunal, Fatehpur, dated 16th
August, 1991, passed in MACP No. 19 of
1989.

2. Respondent no. 1 filed a claim
petition against the present appellants and
Insurance Company, namely, Oriental
Insurance Company Limited claiming a
sum of Rs. two lacs as compensation in an
accident caused by tractor no. UPW 4804
on 28th August, 1988 at about 8.00 p.m.
near Mission Hospital Fatehpur. The
Tribunal by its impugned order has
awarded
a
sum
of
Rs.45000/-
as
compensation along with the interest at
the rate of 12% per annum from the date
of the petition till the date of payment.
The said award has been passed against
the present appellants only. It was
dismissed
against
the
Insurance
Company, opposite party no. 3 in the
claim petition. The present appeal is at the
instance of the owner of the vehicle and it
is alleged driver, driving the vehicle on
the fateful day when the accident took
place.

3. The challenge in the appeal is a
limited one. The case of the appellant is
that the vehicle being insured with the
Insurance Company, the respondent no. 2
in the appeal, the Claims Tribunal
committed illegality in not passing the
award against the Insurance Company.
The Tribunal exonerated the Insurance
Company on the short ground that on 28th
August, 1988 at the time of the accident
the vehicle was being driven by Pappu
Singh, appellant no.1, who happens to be
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2 All] Pappu Singh and another V. Ravindra Nath Dubey and another
607
the son of appellant no.2 had no driving
licence to drive the tractor. Therefore, in
the
present
appeal
the
controversy
involved is as to whether Pappu Singh
was driving the vehicle on the date of the
accident and whether the finding of the
Tribunal
exonerating
the
Insurance
Company is legally justified.

4. Heard learned counsel for the
appellant and Sri Saral Srivastava, learned
counsel for the Insurance Company. None
appeared for the claimant/respondent no.1
to oppose the appeal.

5. The Tribunal decided issues no. 1,
4 and 5 together and have come to the
conclusion that Pappu Singh was driving
the vehicle on the date of the accident.
Therefore, in paragraph 17 of the
judgment it is concluded that only
opposite parties 1 and 2 are liable to pay
the compensation amount and in terms of
the policy the Insurance Company,
respondent no. 2 is not liable for the
same.

6. It is to be noted that the Insurance
Company has not laid any evidence in
support of its plea that the tractor in
question was not being driven by a duly
licensed driver at the time of the accident.
The claimant who received the injuries in
the accident on 28.8.1988 came out with a
case that the tractor was being driven by
Pappu Singh who was caught on the spot
by one Kailash Dwivedi, examined as PW
2. In contra; the case of the owner of the
tractor was that he had employed Mahipal
Singh as a driver on the tractor and he had
a valid driving licence and was driving
the tractor at the time of the occurrence of
accident.

7. The Tribunal has taken into
consideration the statement of claimant
and of Mahipal Singh (PW2) to arrive at
the aforesaid finding. From the judgment
it appears that the Tribunal was very
much influenced by the fact that the
driver of the tractor was arrested by Sri
Kailash Dwivedi immediately after the
accident on 28.8.1988. It has come on
record that the accident took place on
28th
August,
1988
and
the
first
information report was lodged on 29th
August, 1988. Kailash Dwivedi has
further stated that the tractor was driven
to the police station and handed over to
the police immediately after the accident.
He also stated that he apprehended Pappu
Singh and was handed to the police on
28th
August,
1988.
In
the
above
background the evidence of the parties are
required to be scrutinized. It is admitted
case that the FIR was lodged on 29th
August, 1988. The case of the appellant is
that when Pappu Singh went to the police
station on 29th August, 1988, he was
arrested there by the police. Admittedly,
there is nothing on record to show that
Pappu Singh was apprehended on 28th
August, 1988 and was handed over to the
police on the same day except the
statement of Kailash Dwivedi (PW2). The
attention of the Tribunal was invited to
the fact that the F.I.R. itself was lodged
on 29.8.1988 and there is nothing on
record to show that Pappu Singh was
apprehended on 28th August, 1988 and
was handed over to the police on that
date. The Tribunal met these points with
following observations:-

8. "But every body knows the
working of the police. Till 29.8.88 there
was no FIR. Even if Pappu and tractor
were present without a F.I.R. the police
will naturally detain the tractor and will
ask the driver to go away. The tractor is
already in the hand of the police. The
owner and driver will naturally appear to
take their four lacs tractor and if
necessary they will be arrested and such
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
608
happened in this case. The tractor was
detained there. The F.I.R. was lodged the
next day. The other day when the driver
appeared at the police station to take the
tractor or otherwise he was arrested."

9. Thus it is clear that Pappu Singh
was arrested only on 29th August, 1988
when he went to the police station for
release of the tractor involved in the
accident. The Tribunal in my view has
not correctly appreciated the evidence on
record. This part of the order is based on
surmises, and it has wrongly preferred to
place reliance upon the statement of PW2
on this point. It has also come on record
that the claimant became unconscious
immediately after the accident. He has not
deposed that the tractor was being driven
at the time of the accident by Pappu
Singh. Kailash Dwivedi was produced as
a witness to establish that the tractor in
question was involved in the accident. In
the circumstances of the case and in the
light of the evidence of the respective
parties, it is not safe to rely upon the
statement of PW2 to hold that the tractor
was being driven by Pappu Singh. Further
Mahipal Singh the driver of the tractor
was examined on behalf of the appellants
and he accepted that he was driving the
tractor on the date of the accident and ran
away immediately after the accident.
Undisputedly Mahipal Singh is duly
licensed driver of the tractor and was
employed by the owner of the tractor as a
driver. On this point there is no issue in
between the parties. The Tribunal was
very much influenced by the fact that
Pappu Singh was arrested and challenged
by the police and the claimant has got no
interest that it was being driven by Pappu
Singh of if it was being driven by Mahipal
Singh. These two circumstances are
wholly
irrelevant
to
come
to
the
conclusion that the tractor was being
driven by Pappu Singh at the time of the
accident. Therefore, I am of the view that
the finding of the Tribunal that the tractor
was being driven by Pappu Singh and not
by Mahipal Singh can not be sustained. I
am of the view that the tractor was being
driven by Mahipal Singh who was having
a valid driving licence to drive the tractor.

10. In this connection it is also
relevant to examine the plea raised by the
Insurance Company disputing its liability
to pay the amount of compensation to the
victim. This matter is not res-integra.
Very recently the Supreme Court has
examined this matter in depth in the case
of
National
Insurance
Company
Limited Vs.. Swarun Singh and others,
JT 2004 (1) SC 109. On this judgment
the learned counsel for both the parties
have placed reliance on Sub Section 1(1)
if Section 149 of the Motor Vehicles Act
casts a liability upon the insurer to pay to
the person entitled to the benefit of the
decree as if he were the judgment debtor.
Al though the said liability is subject to
the provisions of Section 1 prefaces with
a non obstinate class that the insurer may
be entitled to avoid or cancel or may have
avoided
and
cancelled
the
policy.
Interpreting Section 149 (2) (a) and (b) it
has been held in the aforesaid case that
the Insurance Company with a view to
avoid its liability is not only required to
show that the conditions laid down in the
aforesaid section are satisfied but is
further required to establish that there has
been breach on the part of the insured.
The relevant portion of paragraph 46 of
the aforesaid judgment is quoted below:-

"Furthermore,
the
insurance
company with a view to avoid its
liabilities is not only required to show that
the conditions laid down under section
149 (2) (a) or (b) are satisfied but is
further required to establish that there has
been a breach on the part of the insured."
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2 All] Pappu Singh and another V. Ravindra Nath Dubey and another
609

11. In the aforesaid case the
Supreme Court has placed reliance upon
its earlier judgment given in the case of
Scandia Insurance Company Limited
Vs.. Kokilaben Chandrabandan and
other A.I.R. 1978 SC 1184. In this case
the Supreme Court laid emphasis on the
expression 'breach' and used in Section
96 (1) (2) (b) (ii) of the Motor Vehicles
Act 1939. It has been held that the insurer
will have to establish that the insured is
guilty of an infringement or violation of
the promise that a person who is duly
licensed will have to be in charge of the
vehicle. The relevant paragraph is quoted
below :-

"If the insured is not at all at fault
and has not done any thing he should not
have done or is not amiss in any respect,
how can it be conscientiously posited that
he has committed a breach? It is only
when the insured himself places the
vehicle in charge of a person who does
not hold a driving licence, that it can be
said that he is guilty of the breach of the
promise that the vehicle will be driven by
a licensed driver. It must be established
by the Insurance Company that the
breach was on the part of the insured and
that it was the insured who was guilty of
violating the promise or infringement of
the contract. Unless the insured is at fault
and is guilty of a breach the insurer
cannot escape from the obligation to
indemnify the insured and successfully
contend that he is exonerated having
regard to the fact that the promisor (the
insured) committed a breach of his
promise. Not when some mishap occurs
by some mischance. When the insured has
done
everything
within
his
power
inasmuch as he has engaged a licensed
driver and has placed the vehicle in
charge of a licensed driver, with the
express or implied mandate to drive
himself it cannot be said that the insurer
is guilty of any breach. And it is only in
case of a breach or a violation of the
promise on the part of the insured that the
insured can hide under the umbrella of
the exclusion clause. In a way the
question is as to whether the promise
made by the insured is an absolute
promise or whether he is exculpated on
the basis of some legal doctrine. The
discussion made in paragraph 239 of
Breach of Contract by Carter (1984
Edition) under the head Proof of Breach,
gives an inkling of this dimension of the
matter. In the present case even if the
promise were to be treated as an absolute
promise the grounds for exculpation can
be found from S.84 of the Act which reads
thus :-

" 84. Stationary vehicles - No
person driving or in charge of a motor
vehicle shall cause or allow the vehicle to
remain stationary in any public place,
unless there is in the driver's seat a
person duly licensed to drive the vehicle
or unless the mechanism has been stopped
and a brake of brakes applied or such
other measures taken as to ensure that the
vehicle cannot accidentally be put in
motion in the absence of the driver."
In view of this provision apart from
the implied mandate to the licensed
driver not to place a non licensed person
in charge of the vehicle, there is also a
statutory obligation on the said person not
to leave the vehicle unattended and not to
place it in charge of an unlicensed driver.
What is prohibited by law must be treated
as a mandate to the employee and should
be considered sufficient in the eye of law
for excusing non compliance with the
conditions. It cannot therefore in any case
be considered as a breach on the part of
the insured. To construe the provision
differently would be to re write the
provision by engrafting a rider to the
effect that in the even of the motor vehicle
happening to be driven by an unlicensed
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
610
person regardless of the circumstances in
which such a contingency occurs, the
insured will not be liable under the
contract of insurance,. It needs to be
emphasized that it is not the contract."

12. The Supreme Court after
discussing the various cases on the point
has recorded its conclusion in para 64 of
the judgment which reads as follows :-
"A bare perusal of the provisions of
Section 149 of the Act leads to only one
conclusion that usual rule is that once the
assured proved that the accident is
covered by the compulsory insurance
clause, it is for the insurer to prove that it
comes within an exception."
"The proposition of law is no longer
res integra that the person who alleges
breach must prove the same. The
insurance company is, thus, required to
establish the said breach by cogent
evidence. In the event the insurance
company fails to prove that there has been
breach of conditions of policy on the part
of the insured, the insurance company
cannot be absolved of its liability."

13. The ratio of the judgment of the
Supreme Court is to be applied in the
facts of the present case. Admittedly, the
owner of the tractor had employed a duly
licensed driver, namely, Mahipal Singh.
The Insurance Company has not led any
evidence to show that the insured person,
namely, the owner of the tractor handed
over the tractor to Pappu Singh to drive
the tractor on 28.8.1988. Therefore, it can
not be said that the insured person
committed breach of the terms of the
policy. The Insurance Company should
have established by leading evidence that
there was breach of condition of contract
of the Insurance Company. The Insurance
Company has failed to discharge the
burden in the present case. Assuming that
the tractor was being driven by Pappu
Singh on 28.8.1988, it is not sufficient to
hold
that
the
insured
person
has
committed breach of the terms of the
Insurance Company in the absence of
wilful violation of the terms of the policy
by the insured person.

14. I am of the opinion that the law
as laid down by Supreme Court in the
case of Swarn Singh and others (supra) is
fully applicable to the facts of the present
case. In the absence of any finding by the
Tribunal that the owner of the tractor
committed wilful breach of the terms of
the Insurance Company, the Insurance
Company is liable to indemnify the owner
of the tractor and to pay the compensation
to the victim.

15. There is no dispute that Mahipal
Singh was having a valid driving licence
on 28th August, 1988 and the tractor was
duly insured with Oriental Insurance
Company Ltd.

16. In the result the appeal is
allowed. The judgment and order of the
Tribunal is modified to the extent that the
claim petition is allowed against the
Insurance Company also with costs and,
therefore,
the
claimant/applicant
is
entitled to recover the amount of
compensation
from
the
Insurance
Company also. The Insurance Company
will indemnify the owner of the tractor.
No order as to costs.
Appeal Allowed.
---------
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2 All] The Union of India and another V. Bhikham Singh
611
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Special Appeal No. 682 of 2002

The Union of India and another

...Appellants
Versus
Bhikham Singh

 ...Respondent

Counsel for the Applicants:
Sri Subodh Kumar
Sri M.I. Khan
Sri B.N. Singh, S.S.C.

Counsel for the Respondents:
Sri I.P. Yadav
Sri Krishnaji Khare

Constitution of India-Art. 226-C.R.P.F.
Rules,
1975-Service
law-Misconduct-
Dismissal-concealment of material facti
regarding involvement in Criminal caseabout arrest and subsequent release on
bail-Discretionary
enquiry-Order
of
dismissal-Writ against-Single Judge held
that misconduct stood washed off on
acquittal
of
petitioner
and
that
punishment
of
dismissal
was
disproportionate to misconduct-Special
Appeal-For proving or disproving guilt of
concealment of material facts, final
acquittal of petitioner by Trial Court is
immaterial-Held,
petitioner
was
not
entitled
for
relief
of
quashing
punishment order which stood merged
with appellate order-Since petitioner had
not asked for relief of quashing of
appellate
order-Further,
writ
court
strived
in
vain
to
question
proportionality
of
quantum
of
punishment,
where
there
was
no
justification to exhonate petitioner of
charges of concealment of substantive
facts about his arrest etc. in connection
with
a
criminal
case-Hence
appeal
allowed.

Held: Para 10,16 17

Copy of the statement of Ishwar SinghCompany Commander filed as Annexure2 to the memorandum of appeal, reveals
that it was recorded in the presence of
the petitioner and the proceedings were
not taken up behind his back. The
aforesaid facts are fully established on
the record and the petitioner was rightly
found
guilty
for
concealment
of
important facts, which he was bound to
divulge before his authorities and thus
he had grossly misconduct himself. In
view of the aforesaid, we find that for
proving or disproving this guilt, the
circumstance that the petitioner was
finally acquitted in the rape and Marpeet
case by the trial court is hardly of any
consequence, though it definitely finds
great emphasis in the judgment of the
learned Single Judge.

Thus, while summing up the entire facts
and circumstances in the light of the
above observations recorded by us in the
judgment, we hold that the petitioner
was not
entitled for
the
relief of
quashing the punishment order dated
30.1.1991 which had stood merged with
the appellate order as he had not sought
for the relief to quash the appellate
order dated 12.12.1993. We also find
that the learned Single Judge has strived
in vain to question the proportionality of
the quantum of punishment when there
was hardly any justification to exonerate
the
petitioner
of
the
charges
of
deliberate concealment of important and
sensitive facts about his arrest etc in
connection with a criminal case.

On the facts and circumstances, we find
that the petition of the delinquent
employee does not have any force at all
and instead of granting relief in his
favour the petition itself should have
dismissed. We thus find that there is
sufficient merit in the appeal, which
deserves to be allowed.