# Ramesh Prasad Tripathi and others v. Ibrahim and others

- **Citation:** (2007) 2 ILRA 544
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-16
- **Bench:** Amitava Lala, V.C. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-prasad-tripathi-and-others-v-ibrahim-and-others-40927
- **Pages:** 5

## Headnote

Motor Vehicle Act 1939-110-B-mode of
compensation-deceased a 6 years old
boy accident took place 29.8.88-new Act
came into force w.e.f. 1st July 1989statutory liability governed by section
95-since the policy unlimited-award of
Rs.25000/-totally
unjust-compensation
enhanced Rs.2 lac with 12% simple
interest
without
deduction-reason
explained.

Held: Para 5

Section 110 (B) of the old Act i.e. Act,

## Text

544 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
seeks equity must come with clean hands.
He, who comes to the court with false
claims, cannot plead equity nor would the
court be justified to exercise equity
jurisdiction in his favour. A person who
seeks equity must act in a fair and
equitable manner. ..............."

In Ram Preeti Yadav Vs. U.P. Board
of
High
School
and
Intermediate
Education and others, 2003 (Suppl.) 3
SCR 352, it was reiterated after referring
to various earlier decisions of the Apex
Court that fraud misrepresentation and
concealment of material fact vitiates all
solemn acts. In State of Andhra Pradesh
& another Vs. T. Suryachandra Rao,
AIR 2005 SC 3110, the Apex Court after
referring to various earlier decisions held
that suppression of a material document
would also amount to a fraud on the
Court. The same view has been reiterated
in Bhaurao Dagdu Paralkar Vs. State of
Maharashtra & others, AIR 2005 SC
3330. In R. Vishwanatha Pillai Vs. State
of Kerala & others, JT 2004(1) SC 88 the
Apex Court observed that a person, who
seeks equity, must act in a fair and
equitable manner. In Rajabhai Abdul
Rehman
Munshi
Vs.
Vasudev
Dhanjibhai Mody, AIR 1964 SC 345, it
was held that if there appears on the part
of a person, who has approached the
Court, any attempt to overreach or
mislead the Court by false or untrue
statements
or
by
withholding
true
information which would have a bearing
on the question of exercise of the
discretion, the Court would be justified in
refusing to exercise the discretion or if the
discretion has been exercised in revoking
the leave to appeal granted even at the
time of hearing of the appeal. The same
view was reiterated and followed in Vijay
Syal & another Vs. State of Punjab &
others (2003) 9 SCC 401.

12. A litigant who has approached
this Court in extra ordinary equitable
jurisdiction with unclean hands, his
conduct makes him liable to pay an
exemplary cost for abusing the process of
the Court besides wasting precious time
of the Court which could have been
utilized for other more deserving cases.
Moreover, he is also guilty of swearing a
false affidavit. Thus the petitioner must be
saddled with the liability of heavy cost so
that in future such thing may not recur.

13. The writ petition is accordingly
dismissed
with
cost
quantified
at
Rs.10,000/-. The cost of Rs.10,000/- shall
be deposited by the petitioner within two
months with the Registrar General of this
Court, who shall forward 50% thereof to
the Legal Aid Society of Allahabad High
Court and 50% to the Mediation Centre,
Allahabad High Court. In case of failure
by the petitioner to pay the amount of
cost, it shall be recovered as arrears of
land revenue for which the Registrar
General
of
this
Court
shall
take
appropriate steps.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2007

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE V.C. MISRA, J.

First Appeal From Order No. 639 of 1992.

Ramesh Prasad Tripathi and others
...Appellants
Versus
Ibrahim and others
...Respondents
2 All] Ramesh Prasad Tripathi V. Ibrahim and others
545
Counsel for the Appellants:
Sri Vipin Saxena
Sri A.K. Tripathi
Sri S.K. Mishra
Sri B.P. Singh

Counsel for the Respondents:
Sri Awadhesh Chandra Nigam.
Sri S.C. Nigam
Sri N.P. Singh

Motor Vehicle Act 1939-110-B-mode of
compensation-deceased a 6 years old
boy accident took place 29.8.88-new Act
came into force w.e.f. 1st July 1989statutory liability governed by section
95-since the policy unlimited-award of
Rs.25000/-totally
unjust-compensation
enhanced Rs.2 lac with 12% simple
interest
without
deduction-reason
explained.

Held: Para 5

Section 110 (B) of the old Act i.e. Act,
1939. Therefore, there is no bar even
under the statute unless and until it is hit
by Section 95 of the Act itself. Since
factually we find that the insurance
policy is unlimited, there is no bar for the
purpose
of
granting
an
unlimited
compensation in favour of the claimants.
Hence, the tribunal has committed an
error in giving an award only to the
extent of Rs. 25,200/-, which, according
to us, is totally unjust in nature.
Therefore, in disposing of the appeal we
fix the liability of compensation to be
paid to the claimants by the insurance
company for a sum of Rs. 2,00,000/-
along with the interest, as awarded by
the tribunal, at the rate of 12% simple
interest in the light of the judgement of
the Supreme Court in Lata Wadhwa
(supra) as claimed by the appellants
without any deduction since there is no
question of income and dependency on
account of death of a boy of six years
old.
AIR 2001 SC-3218
AIR 2001 SC-3660
2002 (3) TAC-453
2002 SC-651

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

1. This is an appeal of the claimants
arising out of the judgement and award
passed on 09th April, 1992 by the Motor
Accident Claims Tribunal, Basti. The
motor accident claim case is admittedly
filed under the old Act i.e. Motor
Vehicles Act, 1939 (hereinafter in short
called as the "Act, 1939") since the
accident took place on 29th August, 1988
prior to coming into force of the new Act
i.e. Motor Vehicles Act, 1988 (hereinafter
in short called as the "Act, 1988") with
effect from 01st July, 1989. The period of
the policy expired on 22nd May, 1989,
therefore, under no stretch of imagination
it can be said that new Act will be
applicable in the case of the claimants.
Proviso under Section 147 (2) of the new
Act i.e. Act, 1988 is categorical in this
respect, which is as follows:

"Provided
that
any
policy
of
insurance issued with any limited liability
and in force, immediately before the
commencement of this Act, shall continue
to be effective for a period of four months
after such commencement or till the date
of expiry of such policy whichever is
earlier."

2. Now the question arose about the
quantification of the compensation. A boy
of six years age died in a road accident.
The
compensation
awarded
by
the
tribunal is to the extent of Rs.25,200/-.
The claimants thought that the awarded
amount is unjust, therefore, they preferred
the instant appeal. The appeal has been
contested between the claimants and the
insurance
company.
Direction
for
546 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
payment of compensation was given
against all the respondents i.e. the
respondent nos. 1 and 2, being driver and
owner of the vehicle, as well as the
insurance company, the respondent no. 3
herein. Now question arose before this
Court whether the liability of the
insurance company is limited or unlimited
in view of the applicability of Section 95
of the old Act i.e. Act, 1939. Section 110
(B) of the Act, 1939 speaks as follows:-

"110-B. Award of the Claims
Tribunal.--On receipt of an application
for compensation made under Section
110-A, the Claims Tribunal shall, after
giving the parties an opportunity of being
heard, hold an inquiry into the claim or, as
the case may be, each of the claims and,
subject to the provisions of Section 109B, may make an award determining the
amount of compensation which appears to
it to be just and specifying the person or
persons to whom compensation shall be
paid; and in making the award the Claims
Tribunal shall specify the amount which
shall be paid by the insurer or owner or
driver of the vehicle involved in the
accident or by all or any of them, as the
case may be.

Provided that where such application
makes a claim for compensation under
Section 92-A in respect of the death or
permanent disablement of any person,
such claim and any other claim (whether
made in such application or otherwise) for
compensation in respect of such death or
permanent disablement shall be disposed
of in accordance with the provisions of
Chapter VII-A."

Section 95 (2) of the Act, 1939 is as
follows:

"(2) Subject to the proviso to subsection (1), a policy of insurance shall
cover any liability incurred in respect of
any one accident up to the following
limits, namely-

(a) where the vehicle is a goods vehicle, a
limit of one lakh and fifty thousand
rupees in all, including the liabilities, if
any,
arising
under
the
Workmen's
Compensation Act, 1923 (8 of 1923), in
respect of the death of, or bodily injury to,
employees (other than the driver), not
exceeding six in number, being carried in
the vehicle;
(b) where the vehicle is a vehicle in which
passengers are carried for hire or reward
or by reason of or in pursuance of a
contract of employment,--

(i) in respect of persons other than
passengers carried for hire or reward,
a limit of fifty thousand rupees in all
;
(ii) in respect of passengers, a limit of
fifteen thousand rupees for each
individual passenger;
(c) save as provided in clause (d), where
the vehicle is a vehicle of any other class,
the amount of liability incurred;
(d) irrespective of the class of the vehicle,
a limit of rupees six thousand in all in
respect of damage to any property of a
third party.

3. Learned Counsel appearing for
the insurance company contended that
under no stretch of imagination the
liability of the insurance company can be
made beyond Rs. 50,000/-, which is
prescribed under the relevant provisions
in Section 95 (2) as above. In such
circumstances, on the last occasion when
the hearing was continuing, we wanted to
go through the records to verify the
2 All] Ramesh Prasad Tripathi V. Ibrahim and others
547
policy. Today, at the time of hearing the
copy of the policy was produced before
this Court wherefrom we found that the
liability
is
unlimited.
Now,
further
question arose whether the insurance
company even after making certain
payments being limited or unlimited can
be able to recover the same from the
owner of the vehicle if the case of rash
and negligent driving is made out. We are
of the view that the law is not silent on
that score and the order of the tribunal
itself speaks for joint liability. Therefore,
there is no bar for the insurance company
to recover such amount from the owner, if
it pays on his account.

4. Learned Counsel appearing for
the appellants first of all cited two
decisions to establish before the Court
that just compensation in case of children
aged about between 5-10 years would be
Rs. 2 lacs. Claim petition was also filed
claiming Rs. 2 lacs. As there is no
question of any income of the children,
there is no question of any deduction.
Therefore, the claimants are entitled to
have Rs. 2 lacs. He cited a decision,
which arose in connection with an
accident took place in Tata Iron and Steel
Company, reported in AIR 2001 SC 3218
(Lata Wadhwa and others Vs. State of
Bihar and others). Since it has been held
only in case of just compensation but out
of a writ petition not in respect of the
motor accident claims, we wanted further
hearing on the part of the appellants to
establish whether the same is applicable
here or not. He further cited a decision
being AIR 2001 SC 3660 (M.S. Grewal
and another Vs. Deep Chand Sood and
others), wherein the decision of Lata
Wadhwa (supra) was applied principally
in case of motor accident even under the
Fatal Accidents Act, 1855. The relevant
portion is as follows:

"34.
In
Lata
Wadhwa's
case,
however, this Court came to a conclusion
that upon acceptability of the multiplier
method and depending upon the facts
situation namely the involvement of
TISCO
in
its
tradition
that
every
employee can get one of his child
employed in the company and having
regard to multiplier 15 the compensation
was calculated at Rs. 3,60 lacs with an
additional sum of Rs. 50,000/- as
conventional figure making the total
amount payable at Rs. 4.10 lacs for
approach of the claimants of the deceased
children.

35. The decision in Lata Wadhwa, thus, is
definitely a guiding factor in the matter of
award of compensation wherein children
died under an unfortunate incident as
noticed more fully hereinbefore in this
judgment."

Learned Counsel appearing for the
insurance company by citing a Division
Bench judgement of the Calcutta High
Court reported in 2002 (3) TAC 453
(Cal.) (National Insurance Co. Ltd. Vs.
Srimatya Basanti Mondal and others)
wanted to establish that there is no scope
of any claim against the insurance
company more than the fixed amount
since the liability is limited. In that case
there is a reference of the Supreme Court
judgement being AIR 2002 SC 651 (New
India Assurance Co. Ltd. Vs. C.M.
Jaya and others) wherein a Five Judges'
Bench of the Supreme Court considered
the liability under the old Act i.e. Act,
1939 whether limited or unlimited. The
relevant part is as follows:
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"The liability of Insurance Company
could be statutory or contractual. A
statutory liability cannot be more than
what is required under the statute itself.
However, there is nothing in S. 95 of the
Act
prohibiting
the
parties
from
contracting to create unlimited or higher
liability to cover wider risk. In such an
event, the insurer is bound by the terms of
the contract as specified in the policy in
regard to unlimited or higher liability as
the case may be. In the absence of such a
term of clause in the policy, pursuant to
the contract of insurance, a limited
statutory liability cannot be expanded to
make it unlimited or higher. If it is so
done, it amounts to re-writing the statute
or the contract of insurance, which is not
permissible."

5. Initially we were under the
impression that even if in the earlier
judgements of the Supreme Court in Lata
Wadhwa (supra) and M.S. Grewal (supra)
the amount has been enhanced upto the
extent of Rs. 2 lacs, but if the statute does
not permit, how it will be prescribed to
pay.
However,
from
the
aforesaid
judgements we can get the guideline. The
guideline is that either it will be a
statutory liability or it will be a
contractual liability. If there is no contract
for unlimited liability, it has to be guided
by the statutory liability under Section 95
of the Act. But if the insurance policy
speaks that the same is unlimited, it has to
be governed by the principles of Section
110 (B) of the old Act i.e. Act, 1939.
Therefore, there is no bar even under the
statute unless and until it is hit by Section
95 of the Act itself. Since factually we
find that the insurance policy is unlimited,
there is no bar for the purpose of granting
an unlimited compensation in favour of
the claimants. Hence, the tribunal has
committed an error in giving an award
only to the extent of Rs. 25,200/-, which,
according to us, is totally unjust in nature.
Therefore, in disposing of the appeal we
fix the liability of compensation to be
paid to the claimants by the insurance
company for a sum of Rs. 2,00,000/-
along with the interest, as awarded by the
tribunal, at the rate of 12% simple interest
in the light of the judgement of the
Supreme Court in Lata Wadhwa (supra)
as claimed by the appellants without any
deduction since there is no question of
income and dependency on account of
death of a boy of six years old. However,
the insurance company will be entitled to
recover the said sum from the owner of
the vehicle. The amount which has
already been paid to the claimants will be
adjusted. Thus, the appeal stands disposed
of.

However, no order is passed as to
costs.

Appeal disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2007

BEFORE
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No.13623 of 1990

Smt. Shail Prabha Misra.
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.K. Dwivedi

Counsel for the Respondents:
S.C.

Constitution of India-Art. 226-Practice &
Procedure-Petitioner's husband died in
harness on 19.5.88-worjing on the Post