# Shiv Shanker & Anr v. Jagat Prakash Sharma & Ors

- **Citation:** (2022) 3 ILRA 845
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-04
- **Case number:** First Appeal From Order No.184 of 1996
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-shanker-anr-v-jagat-prakash-sharma-ors-48247
- **Pages:** 5

## Headnote

Civil Law - Motor Vehicle Act, 1988Section 166-The negligence is proved beyond
reasonable doubt - once the charge sheet, FIR
is filed, involvement of the vehicle is prima facie
proved - trappings of civil procedure should not
be made fully applicable to the proceedings in
the Tribunal - Insurance Company has to
indemnify appellant - payment of Rs. 1,
56,000/- within a period of 12 weeks with 6%
interest.

Appeal was partly allowed. (E-9)

List of Cases cited:
846 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

3 All. Shiv Shanker & Anr. Vs. Jagat Prakash Sharma & Ors.
845
without producing the certificate from the
concerned Income- Tax Authority. The
aforesaid view has been reiterated by this
High Court in Review Application No.1 of
2020 in First Appeal From Order No.23 of
2001 (Smt. Sudesna and others Vs. Hari
Singh and another) and in First Appeal
From Order No.2871 of 2016 (Tej
Kumari Sharma v. Chola Mandlam M.S.
General Insurance Co. Ltd.) decided on
19.3.2021 while disbursing the amount.

14. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment is not passed because applicants
/claimants are neither illiterate or rustic
villagers.

15.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned,
it
should look into
the
condition of the litigant and the pendency
of the matter and not blindly apply the
judgment of A.V. Padma (supra). The
same is to be applied looking to the facts
of each case.

16. The amount of Rs. 25,000/-
deposited in the Registry of this High
Court be remitted back to the tribunal. The
recalculated amount be deposited within
eight weeks from today.

17. We are thankful to Sri Saurabh
Srivastava,
learned
counsel
for
the
appellant and Sri. Amar Chandra, learned
counsel for the respondents-claimants that
they got this matter disposed of at this
stage only. We disposed of this appeal
without the record of the tribunal as
nothing remains to be done.

18. This appeal is partly allowed.
Awarded decree shall stand modify to the
aforesaid extent. On depositing the amount
the tribunal shall follow the aforesaid
directions.
----------
(2022)03ILR A845
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No.184 of 1996

Shiv Shanker & Anr. ...Appellants
Versus
Jagat Prakash Sharma & Ors.
 ...Respondents

Counsel for the Appellants
Sri Rakesh Kumar Porwal

Counsel for the Respondents:
Sri A.K. Sinha

Civil Law - Motor Vehicle Act, 1988Section 166-The negligence is proved beyond
reasonable doubt - once the charge sheet, FIR
is filed, involvement of the vehicle is prima facie
proved - trappings of civil procedure should not
be made fully applicable to the proceedings in
the Tribunal - Insurance Company has to
indemnify appellant - payment of Rs. 1,
56,000/- within a period of 12 weeks with 6%
interest.

Appeal was partly allowed. (E-9)

List of Cases cited:
846 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Ajai Prakash Vs M/s National Insurance
Comp. Ltd. & ors., (2010) 2 ALJ 1787

2. Anita Sharma Vs New India Assurance Co.
Ltd., (2021) 1 SCC 171

3. Om Pal Singh Vs National Insurance Co. Ltd.
& 2 ors.First Appeal From Order No. 4022 of
2017

4. National Insurance Comp. Ltd. Vs Mt.Param
Pal Singh, 2008(3) T.A.C. 378 ( Del.)

5. Smt. K. Mallika Vs Executive Engineer, Potteru
Irrigation Division, Balimela, 2000(1) T.A.C. 549
( Ori)

6. Smt. Jagriti & ors. Vs The New India
Assurance Comp. Ltd. & ors. First Appeal From
Order No.3380 of 2003

7. A.Vs Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442

8. Smt. Hansaguti P. Ladhani Vs The Oriental
Insurance Co. Ltd., reported in 2007(2) GLH 291
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard learned counsel for the
appellant and learned counsel for Insurance
Company.

2. This appeal challenges the judgment
and order dated 28.11.1995 passed by
Motor
Accidents
Claim
Tribunal/VIII
Additional
District
Judge,
Etawah
(hereinafter referred to as 'Tribunal') in
claim petition No.76 of 1994.

3. The accident in question occurred
on the fateful date when the young child of
the appellant breathed last while being
treated.

4. The Tribunal dismissed the claim
petition on the ground that it was not
proved that the motorcycle was involved in
the accident. The fact that the driver was
nabbed at the spot and he took the child to
the hospital got admitted and that he was
the owner of Hero Honda motor cycle No.
UP-78 E-6622, against whom the charge
sheet is laid.

5. The principles for proving an
accident are not as stringer as mentioned by
the learned Tribunal under Section 166 of
the Motor Vehicle Act, 1988. The filing of
charge sheet would make the owner and
driver are liable as it was prima facie prove
involvement of the vehicle. The judgment
of Ajai Prakash Vs. M/s National Insurance
Company Limited and others, (2010) 2 ALJ
1787 would come to the aid of the
appellants.
The
provision
of
Motor
Vehicles Act, 1988 have to be read so as to
further beneficial legislation.

6. In our case the Tribunal has totally
mislead itself into not believing the
testimony of PW-1 and 2 who have
withstood the cross examination. Just
because the name of the driver was not
mentioned in the FIR, cannot be ground to
dismissing the petition. The driver was
taken to Dr. Suresh Sharma also dismissal
of claim petition is bad in eye of law.

7. The judgment of Supreme Court in
Anita Sharma Vs. New India Assurance
Company Limited , (2021) 1 SCC 171
will apply to the facts of this case. The
negligence is proved beyond reasonable
doubt by the evidence led before the
Tribunal.
The
record
and
oral
and
documentary evidence led before the
Tribunal below while dismissing the claim
petition for claiming compensation for
death of a minor son of the claimants by
assigning reasons which are not germane to
the facts and one of the reason is that the
claimants did not examine the person who
3 All. Shiv Shanker & Anr. Vs. Jagat Prakash Sharma & Ors.
847
caught hold of the driver on spot had not
been examined. This is a a hyper technical
stand taken by the Tribunal in holding that
the claimants had failed to prove the
involvement of the vehicle. The accident
which took place on 17.2.1994 can be said
to have been proved as the driver of the
motorcycle was nabbed at the place of the
accident. The chick report was also on
record. Charge sheet was led on 23.2.1994.
The deceased died on 19.2.1994. The fact
that Vijay Kumar took the child at the
Etawah Hospital. Just because name of the
owner was not given it cannot be said that
the accident did not take place with the said
motorcycle. PW-2 has deposed on oath and
has proved the contends of FIR. PW-1 was
an eye witness who has deposed manner in
which the accident took place. PW-1 and
PW-2 have corroborated each other. The
fact that neither the motorcycle's driver and
the owner have not stepped into the witness
box to prove the contents of the reply. Thus
the finding is perverse cannot be sustained.
 Once the charge sheet, FIR is filed ,
involvement of the vehicle is prima facie
proved it goes without saying that in
absence of pleadings by the respondent -
driver who has not stepped into witness box
it will be have to be held that the driver was
involved in committing the accident.

8. Recently in First Appeal From
Order No. 4022 of 2017 ( Om Pal Singh
Vs. National Insurance Company Ltd. &
2 others), decided on 19.12.2017, this
Court has held that Commissioner and
Motor Accident Tribunal are not civil
Court and trappings of civil procedure
should not be made fully applicable to the
proceedings in the Tribunal. I am supported
in my view, on the decision of Apex Court
in United India Insurance Company Ltd.
Vs. Anwari and another report in 2000(38)
Alld page 761, thus the question whether
the deceased died out of accident injuries is
proved. The Insurance Company has
though heavily relied on the FIR and has
relied on the decision of Apex Court in
National Insurance Company Ltd. Vs.
Mt.Param Pal Singh, 2008(3) T.A.C. 378
( Del.) and on the decision of Orrisa High
Court in Smt. K. Mallika Vs. Executive
Engineer, Potteru Irrigation Division,
Balimela, 2000(1) T.A.C. 549 ( Ori)
cannot be invoked as there is perversity in
finding of the Tribunal below that the
deceased did not die out of accidental
injuries.

9. Recently the Division Bench of this
High Court in First Appeal From Order
No.3380 of 2003 ( Smt. Jagriti and others
Vs. The New India Assurance Company
Limited and others) decided on 12.12.2021
has laid down the law in such matter which
will also be applied to the facts of this case.
The operative portion of paragraph No.13
of the judgment dated 12.12.2021 read as
follows : -

"13. As the matter has remained
pending for 17 years before this High
Court and the destitute family has not got
any amount of compensation despite we
feel that the family members who was the
earning member is lost in the accident, but
as the Insurance Company has contended
that the driving license was fake and they
have not filed appeal because that issue
was never decided. As far as, the claimants
are concerned as the accident is of the year
1999 and the family has been deprived of
compensation. We would take help of
judgment of the Apex Court in Bithika
Mazumdar and Another Vs. Sagar Pal And
Others AIR (2017) 2 Supreme Court Cases
748, we would venture to decide the
quantum as empowered under section 173
of the Motor Vehicles Act, on the principles
848 INDIAN LAW REPORTS ALLAHABAD SERIES
of grant of compensation for death and
injury."

10. As the appeal has remained
pending for more than two decades before
this High Court and the accident having
taken place when the appellants (parents-
father and mother) of the deceased were in
the prime of their youth and were aged 28
and 25 years respectively and lost aged
about seven years who have been left
without any compensation for the untimely
death of their only child. The Courts in
1994 for a death of seven year old child
were granting a sum of Rs.1,56,000/- as
award with 6% rate of interest. The same
requires to be done in this matter also. This
Court has perused the documents and the
detail copy of registration of the vehicle,
the copy of policy which is invoked on the
date of accident. Driving licence of Jagat
Prakash is also on record it can be seen and
it is proved that the vehicle was insured and
was plied as per the principles which
would not permit the Insurance Company
to avoid its liability and they would have to
indemnify the third party and the vehicle
was plied by authorized driver and that the
vehicle was insured with them.

11. The appeal is partly allowed. The
respondent-Insurance
Company
shall
deposit the amount of Rs. 1,56,000/-
within a period of 12 weeks from today
with interest at the rate of 6% from the date
of filing of the claim petition till the
amount is deposited. The record and
proceedings be sent back to the Tribunal
forthwith.

12. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment is not passed because applicants
/claimants are neither illiterate or rustic
villagers.

13. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

14.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and not blindly apply the judgment
of A.V. Padma (supra). The same is to be
applied looking to the facts of each case.
----------
3 All. Moradabad Development Authority Vs. M/S V.R. Construction & Engineering Co.,
 Moradabad
849
(2022)03ILR A849
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No.460 of 2021

Moradabad Development Authority
 ...Appellant
Versus
M/S V.R. Construction & Engineering Co.,
Moradabad ...Respondent

Counsel for the Appellant:
Sri Krishna Mohan Asthana

Counsel for the Respondent:
Sri Manu Khare

Civil Law - Arbitration & Conciliation Act1996 - Section 34(2) - Limitation Act -
Section 5-Appeal against order refusing to
condone the delay-in making Application u/s
34(2)-Application u/s 5 of limitation Actincompetent-as limitation is governed by section
34(3) of Act,1996 and condonation by its
proviso-not by section 5 of Limitation Act.

Appeal dismissed. (E-9)

Held, the principle above indicated and the
terms of section 14 of the Limitation Act show
that Section 14 would not come to the
Appellant's rescue. The prescribed period of
limitation under section 34 (3) , together with
its proviso is three months & anr. 30 days of
time, that may be condoned by the Court. (para
30)

List of Cases cited:

1. Gulbarga University Vs Mallikarjun S. Kodagali
& anr. (2008) 13 SCC 539

2. U.O.I. Vs Popular Construction Co. [(2001) 8
SCC 470 : AIR 2001 SC 4010]

3. St.of Goa Vs Western Builders [(2006) 6 SCC
239]

4. National Aluminium Co. Ltd. Vs Pressteel &
Fabrications (P) Ltd. [(2004) 1 SCC 540]

5. U.O.I. Vs Bhavna Engg. Co. [(2008) 13 SCC
546

6. U.O.I. Vs Popular Construction Co. (2001) 8
SCC 470

7. Consolidated Engineering Enterprises Vs
Principal Secretary, Irrigation Department & ors.
(2008) 7 SCC 169

8. P. Radha Bai & ors. Vs P. Ashok Kumar & anr.
(2019) 13 SCC 445

9. National Spot Exchange Limited Vs Anil Kohli
AIR 2021 SC 4339

10. M.P. Steel Corporation Vs Commissioner of
Central Excise (2015) 7 SCC 58
(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. K.M. Asthana, learned
Counsel for the appellant and Mr. Manu
Khare, learned Counsel appearing on
behalf of the respondent.

2. This is an appeal from an order of
the Presiding Officer, Commercial Court,
Moradabad dated 05.03.2020, refusing to
condone the delay in making an application
by the appellant under Section 34(2) of the
Arbitration and Conciliation Act, 19961.

3. The facts leading to the present
appeal are these:

The
Moradabad
Development
Authority, Moradabad, hereinafter referred
to as 'the appellant', entered into an
agreement with M/s. V.R. Construction and
Engineering Company for a civil works
contract on 28.03.2009. The subject matter