# Shri Sumati Nath Jain v. State of U.P. & Anr

- **Citation:** (2016) 1 ILRA 132
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-11
- **Case number:** Special Appeal No. 3 of 2016
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-sumati-nath-jain-v-state-of-u-p-anr-43396
- **Pages:** 9

## Headnote

Constitution
of
India,
Art.-226-Writ
Petition-against the order by District
Magistrate-fixing liability of additional
stamp duty-in utter violation of Principle
of Natural Justice-Learned Single Judge
dismissed the petition on ground of
alternative remedy to appeal under
Section 56 of Stamp Act-held-Learned
1 All. Shri Sumati Nath Jain Vs. State of U.P. & Anr.
133
Single Judge committed apparent errorpetition-held-maintainable.
Held: Para-8
We are, with respect, of the firm opinion
that the learned Single Judge has yet
again fallen in error in dismissing the
writ petition and relegating the appellant
to the alternative remedy.
(B)Stamp Act 1899-Section 47-A-demand
of additional duty-plot in question still
recorded agricultural land-with agricultural
use-Sub Registrar's report can be basis-on
assumption of future use-moreover plot
situated in flood area constructions already
prohibited-ignoring
same
demand
of
additional stamp duty-held-not proper.
Held: Para-22
The response filed before the second
respondent clearly asserted that the
property in question fell within the flood
plain area of the Hindon river. The order
of the NGT, NOIDA Master Plan as well
as
the
Government
Order
clearly
restrained all residential activities in this
area. There was therefore no basis for
the Sub Registrar or for that matter the
second Respondent presuming that the
property was liable to be treated as for
residential
purposes
and
taxed
at
residential rates. For this additional
reason also we find that the proceedings
initiated against the appellant and the
order impugned in the writ petition are
rendered unsustainable.
Case Law discussed:
(2008) 4 SCC 720; (2011) 14 SCC 160; (2010)
13 SCC 427

## Text

132
 INDIAN LAW REPORTS ALLAHABAD SERIES
disbursed by the State Government are not to
be compelled to litigate for bona fide claims. It
is true that every student has to apply as per
the time schedule prescribed in the scheme but
in a situation where the necessary forms have
been submitted but all the details could not be
forwarded to the State authorities timely due
to some technical reason beyond the control of
the students, any such objections pressed by
the State Government before the learned
Single Judge ought not to have weighed over
and above the object of the scheme which the
State Government is under a bounden duty to
implement.
9.
There is yet another feature of
distinction in the case set up before us as
compared to the Division Bench judgement
dated 11.12.2014. In the present case before
the learned Single Judge the appellants have
categorically stated that they have not
assailed the scheme, according to which the
students are eligible for scholarship and
have also not prayed for direct disbursement
of the scholarship in the accounts of the
institution but what the appellant had prayed
for in the writ petition is for extending the
benefit of scheme to the respective students
who are being imparted education through
the appellant institution. Once the prayer is
made for disbursement of the scholarship as
per the terms of the scheme, to doubt the
locus of the appellant in such a situation,
would amount to defeating the very object
of the policy of the State Government,
according to which the students belonging
to reserved category classes are entitled to
avail the benefit of scholarship through
various institutions recognized by the State.
10. In our considered opinion, the
judgement passed by the learned Single
Judge, in the facts and circumstances of
the present case, calls for interference and
the same is hereby set aside.
11. The respondents are directed to
extend the benefit of scholarship scheme
to the students whose details have been
forwarded by the appellant institution
even if the students have failed to submit
all the necessary details before the cut-off
date, however, it shall be open to the State
authorities to verify the bona fides of all
such students. The claims of all the
eligible students shall be included in the
process for actual payment and the entire
process shall be completed expeditiously
and not later than a period of two months
from the date of receipt of a certified copy
of this order by the competent authority.
12. The special appeal thus, stands
allowed with no order as to cost.
-------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.01.2016
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Special Appeal No. 3 of 2016
Shri Sumati Nath Jain
 ...Appellant
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Appellant:
Aishwarya Pratap Singh
Counsel for the Respondents:
C.S.C.
Constitution
of
India,
Art.-226-Writ
Petition-against the order by District
Magistrate-fixing liability of additional
stamp duty-in utter violation of Principle
of Natural Justice-Learned Single Judge
dismissed the petition on ground of
alternative remedy to appeal under
Section 56 of Stamp Act-held-Learned
1 All. Shri Sumati Nath Jain Vs. State of U.P. & Anr.
133
Single Judge committed apparent errorpetition-held-maintainable.
Held: Para-8
We are, with respect, of the firm opinion
that the learned Single Judge has yet
again fallen in error in dismissing the
writ petition and relegating the appellant
to the alternative remedy.
(B)Stamp Act 1899-Section 47-A-demand
of additional duty-plot in question still
recorded agricultural land-with agricultural
use-Sub Registrar's report can be basis-on
assumption of future use-moreover plot
situated in flood area constructions already
prohibited-ignoring
same
demand
of
additional stamp duty-held-not proper.
Held: Para-22
The response filed before the second
respondent clearly asserted that the
property in question fell within the flood
plain area of the Hindon river. The order
of the NGT, NOIDA Master Plan as well
as
the
Government
Order
clearly
restrained all residential activities in this
area. There was therefore no basis for
the Sub Registrar or for that matter the
second Respondent presuming that the
property was liable to be treated as for
residential
purposes
and
taxed
at
residential rates. For this additional
reason also we find that the proceedings
initiated against the appellant and the
order impugned in the writ petition are
rendered unsustainable.
Case Law discussed:
(2008) 4 SCC 720; (2011) 14 SCC 160; (2010)
13 SCC 427
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. Aggrieved by the judgment and
order rendered by the learned Single
Judge on 21 December 2015, dismissing a
writ petition and relegating him to the
alternative remedy, the original petitioner
is in appeal before us.
2.
The writ petition challenged an
order dated 26 October 2015 passed by the
second respondent in purported exercise of
powers conferred under Sections 47-A and
33 of the Indian Stamp Act 18991. The order
impugned held the petitioner-appellant liable
to pay additional stamp duty of Rs.7,14,650/-
and penalty of Rs.1,78,663/-, thus totaling
Rs.8,93,313/-. The order imposing additional
stamp duty is on an instrument executed in
favor of the appellant on 26 September 2011,
being a sale deed in respect of Khasra No.
786 admeasuring 0.7160 hectares. This
instrument, upon presentation in the office of
the Sub Registrar, Gautam Budh Nagar and
on payment of stamp duty of Rs. 1,07,600/-
had been duly registered and returned to the
appellant.
3. From the material brought on
record of the writ petition, it appears that
a copy of the instrument in question fell
for scrutiny before the Sub Registrar,
Gautambudh Nagar who on 7 December
2012 put up a note for consideration of
the second respondent asserting therein
that the instrument was in respect of a
property, which had been valued at
agricultural rates. In the opinion of the
Sub Registrar, the property comprised in
the instrument was liable to be taxed @
Rs. 6,500/- per square meter being the
circle rate prescribed by the second
respondent for residential properties.
Consequently, the Sub Registrar opined
that the instrument should be subjected to
additional stamp of Rs.7,14,650/-. Taking
note of the aforesaid report, the second
respondent
assumed jurisdiction
and
issued a notice dated 30 August 2012
informing the appellant that proceedings
in respect of the adequacy of stamp duty
paid on the instrument in question were
pending before him and that prima facie it
appears that the appellant has evaded
134
 INDIAN LAW REPORTS ALLAHABAD SERIES
stamp duty to the extent of Rs.7,14,650/-.
This notice accordingly called upon the
appellant to participate and show cause
why additional stamp duty together with
penalty be not imposed upon him. The
appellant filed his response in the
proceedings on 28 December 2012.
During the pendency of the proceedings,
he is stated to have gifted the property
comprised in the instrument to his wife
Smt. Vijaya Jain on 17 December 2012.
4. During the course of the
proceedings
before
the
second
respondent, an order came to be passed on
23 October 2013 calling upon the Sub
Registrar
to
conduct
a
fresh
site
inspection of the property and submit an
actual status report. Pursuant to the
aforesaid order, the Sub Registrar is stated
to have submitted a report dated 16
November 2013 recording therein that the
property in question appeared to have
been put to use as farm land. The second
respondent upon a consideration of the
material before him has proceeded to hold
that the land in question falls in the
vicinity of the Greater NOIDA industrial
development area where land is largely
being used for residential and commercial
purposes. He proceeded to hold that
bearing in mind the area of the property, it
was not possible to be utilized for
agricultural
purposes
and
that
the
appellant himself owned no premises in
the vicinity of the land in question, which
may lend credence to the contention that
the property was to be utilized for
agricultural
purposes
only.
On
a
consideration of the aforesaid facts, the
second respondent accepted the initial
report submitted by the Sub Registrar on
7 December 2012 and proceeded to pass
the order which was impugned in the writ
petition.
5. To complete the narration of facts it
becomes apposite to note that during the
pendency of proceedings before the second
respondent, the appellant on 17 December
2012 gifted the property to his wife Smt.
Vijaya Jain. This gift deed too was
subjected to proceedings under Section 47A of the Act by the second respondent. Smt.
Vijaya Jain was also foisted with a demand
of additional stamp duty. The order passed
by the second respondent against Smt.
Vijaya Jain, was subjected to challenge in a
writ petition which too came to be
dismissed by the learned Single Judge on
the ground that she had an equally
efficacious remedy of filing an appeal under
Section 56. The judgment rendered by the
learned Single Judge on that occasion fell
for consideration before a Division Bench
of the Court in a special appeal2 which
ultimately came to be allowed by judgment
and order dated 1 September 2015. The
judgment of the Division Bench, we may
note formed part of the record of the writ
proceedings from which the present Special
Appeal emanates.
6. Dealing with the correctness of
the view taken by the learned Single
Judge in relegating the appellant therein
to pursue the alternative remedy, this
Court in Smt Vijaya Jain found that the
proceedings taken against her were liable
to be set aside not just on account of
violation of the principles of natural
justice but also on the ground of the same
having been initiated and continued in
breach of the procedure prescribed under
the Act and the orders passed by the
second respondent suffering from non
application of mind and the law as laid
down by this Court.
7. On the issue of alternative
remedy, the Division Bench in Smt
1 All. Shri Sumati Nath Jain Vs. State of U.P. & Anr.
135
Vijaya Jain noticed the law as enunciated
by the Supreme Court in Government of
Andhra Pradesh and others Vs. Smt. P.
Laxmi Devi3 and Har Devi Asnani Vs.
State of Rajasthan4, and held as under:-
" The existence of an alternative
statutory remedy as has been consistently
held by the Courts is not a rule of
inflexible character nor is it an inviolable
condition. The Courts vested with the
power and jurisdiction under Article 226
of the Constitution of India have always
viewed this rule as a self imposed
restriction rather than a rule which is to be
blindly adhered to and which brooks of no
exception. Some of the well settled
exceptions to the rule of a petitioner being
relegated to an alternative remedy are
where the principles of natural justice
have been violated or where orders are
made without jurisdiction."
"The law as authoritatively laid down
by
the
Supreme
Court
in
the
aforementioned two judgments clearly
establishes that a petitioner before the
High Court is not liable to be relegated to
the alternative remedy as a matter of rule.
If in the facts of a particular case it is
established that the principles of natural
justice have been violated or that the
order
has
been
rendered
without
jurisdiction or if it is disclosed to the
Court that grave injustice has been caused
to the petitioner and it is found that his
relegation to the alternative remedy would
perpetuate injustice and cause prejudice, it
is always open to this Court to exercise its
prerogative constitutional powers and to
issue an appropriate writ striking at the
offending action. This principle stands
extended in light of the abovementioned
precedents to a case where the petitioner
is foisted with an exorbitant and arbitrary
demand in which case his relegation to
the alternative remedy would not be
justified."
8. We are, with respect, of the firm
opinion that the learned Single Judge has
yet again fallen in error in dismissing the
writ petition and relegating the appellant
to the alternative remedy.
9. In the facts of the present case, we
may note that the initial stamp duty which
stood paid on the instrument by the
appellant was Rs. 1,07,600/-. The order of
the second respondent held the appellant
liable to pay additional stamp duty as well
as penalty totaling Rs.8,93,313/-. This we
may note represents an increase of eight
times over the initial stamp duty which was
paid on the instrument. This was, therefore,
clearly one of the exceptional situations
which were envisaged by the Supreme
Court in Smt. P. Laxmi Devi and Har Devi
Asnani as instances where the petitioner
was not liable to be relegated to the
alternative remedy of an appeal or a
revision under Section 56 of the Act.
10. We further find that the
proceedings taken against the appellant
were
clearly
without
jurisdiction,
violative of the procedure prescribed
under the Act and there existed no
justification in the second respondent
invoking the powers conferred by sections
47A or 33 of the Act. We proceed to set
forth our reasons for arriving at the above
conclusions hereinafter.
11. Pausing here we deem it
appropriate to first briefly notice the
objections which were taken by the
appellant before the second respondent.
12. Referring to the deed in
question, it was pointed out that the land
136
 INDIAN LAW REPORTS ALLAHABAD SERIES
was recorded as agricultural and the
purpose disclosed in the sale deed also held
it out to be for agricultural purposes. The
appellant had contended that there was no
material before the second respondent to
assume that the land was residential on the
date of execution of the instrument or to
presume that it would be put to residential
use in the future. The appellant then placed
reliance upon the master plan of NOIDA,
orders passed by the National Green
Tribunal
(NGT)
as
also
upon
the
Government Orders issued by the State, all
of which restrained construction activities in
flood plain areas. It was submitted before
the second respondent that the land was in
the flood plain area of the Hindon river and
therefore in light of the various injunctions
operating thereupon, the property could
never be put to residential use. These
objections stood reiterated in the writ
petition preferred by the appellant. Dealing
with the order of the National Green
Tribunal [NGT] the appellant stated: -
"17.
That
the
National
Green
Tribunal
passed
an
order
dated
20.05.2013 in O.A. No. 89/2013 whereby
it was held that: -
"---It is an admitted position in law
that construction upon flood plain area is
prohibited. It not only affect the natural
flow of the river but even causes
environment problems besides raising risk
to human life and property."
---Similar order and injunction shall
operate in regard to river Hindon as well."
13. Referring to the Government
Order dated 16 March 2010, it was stated:
-
"The learned Tribunal also relied
upon the notification dated 16.03.2010
issued by the Chief Secretary of Uttar
Pradesh to all the Authorities including
the police in the State of Uttar Pradesh to
ensure that no constructions whatsoever is
raised on the flood plain zone and
whichever constructions have been raised
should be removed. The relevant extract
of the said notification state as under:-
"1. Clear depiction of flood plain
zones along rivers as flood affected areas
in the Master Plans and to prevent any
constructions in these areas, these areas
should be reserved as Green. It should be
ensured to ban all kinds of constructions
in flood plain zones under the Zoning
Regulations of the concerned cities.
2. No NOC will be granted, under
the RBO Act, U.P. Urban Planning &
Development Act 1973 and Industrial
Development Act 1973, to any kind of
construction inside the flood plain zone
and nor will be the lay-out plans of such
constructions be approved. To stop such
kind of illegal constructions, effective
action
would
be
taken
under
the
provisions of the above acts....."
14. We accordingly proceed to deal
with the issue of jurisdiction exercised by
the respondents under the following broad
heads.
VALIDITY
OF
THE
NOTICE
DATED 30 AUGUST 2012
15. A plain reading of the notice
indicates that the second respondent had
accepted the report of the Sub Registrar
and already formed an opinion that the
instrument was liable to be taxed with
additional stamp duty. There was no
opportunity provided to the appellant to
show cause why the second respondent
may not assume jurisdiction under section
1 All. Shri Sumati Nath Jain Vs. State of U.P. & Anr.
137
47A of the Act as mandated under Rule 7
of the U.P. Stamp (Valuation of Property
Rules) 1997. The appellant was neither
apprised of the basis nor provided the
material upon which the Collector formed
the opinion that the property comprised in
the instrument was undervalued or that
additional stamp duty was payable
thereon. Dealing with this aspect of the
matter the Division Bench in Smt Vijaya
Jain held: -
"From
the
provisions
extracted
above, it is apparent that the Collector
proceeds under sub section (3) of Section
47-A read with rule 7 when he has reason
to believe that the market value of the
property comprised in the instrument has
not been truly set forth and that in the
opinion of the Collector, circumstances
exist warranting him to undertake the
enquiry contemplated under rule 7. What
we however find from the notice dated 09
September 2013 is that the Collector has
proceeded to record, albeit prima facie,
that the instrument in question has been
insufficiently stamped to the extent of
Rs.8,89,000/-. The notice apart from
referring to a note dated 20 May 2013,
received from the Assistant Inspector
General of Registration neither carries nor
discloses any basis upon which the
Collector came to the prima facie
conclusion that the appellant was liable to
pay Rs. 8,89,000/ as deficit stamp duty. In
our opinion a notice of this nature must
necessarily
disclose
to
the
person
concerned the basis and the reasons upon
which the Collector has come to form an
opinion that the market value of the
property has not been truly set forth. In
the absence of a disclosure of even
rudimentary details on the basis of which
the Collector came to form this opinion,
the person concerned has no inkling of the
case that he has to meet. A notice in order
to be legally valid and be in compliance
with the principles of natural justice must
necessarily disclose, though not in great
detail, the case and the basis on which
action is proposed to be taken against the
person concerned. Not only this and as is
evident from a bare reading of rule 7, at
the stage of issuance of notice, the
Collector has to proceed on the basis of
material which may tend to indicate that
the market value of the property has not
been truly and faithfully disclosed in the
instrument. The stage of computation of
market value comes only after the
provisions of sub rules (2) (3) and (4) of
rule 7 come into play. At the stage of
issuance of notices, the Collector calls
upon the person concerned to show cause
"as to why the market value of the
property.... be not determined by him.....
In the facts of the present case, we
find that the Collector had already
prejudged the issue by recording that the
appellant had paid deficit stamp duty to
the extent of Rs.8,89,000/-."
16. It is apparent that the notice on
the basis of which proceedings were
initiated against the appellant suffered
from the same fundamental flaws and
defects as were noticed by the Bench in
Smt. Vijaya Jain. We may also note that
the requirements of a valid show cause
notice were lucidly explained by the
Supreme Court in Oryx Fisheries (P) Ltd.
Vs. Union of India5 in the following
terms: -
"27. It is no doubt true that at the
stage of show cause, the person proceeded
against must be told the charges against
him so that he can take his defense and
prove his innocence. It is obvious that at
that stage the authority issuing the charge-
138
 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet, cannot, instead of telling him the
charges, confront him with definite
conclusions of his alleged guilt. If that is
done, as has been done in this instant
case, the entire proceeding initiated by the
show cause notice gets vitiated by
unfairness and bias and the subsequent
proceedings become an idle ceremony.
31. It is of course true that the show
cause
notice
cannot
be
read
hypertechnically and it is well settled that
it is to be read reasonably. But one thing
is clear that while reading a show cause
notice the person who is subject to it must
get an impression that he will get an
effective
opportunity
to
rebut
the
allegations contained in the show cause
notice and prove his innocence. If on a
reasonable reading of a show cause notice
a person of ordinary prudence gets the
feeling that his reply to the show cause
notice will be an empty ceremony and he
will merely knock his head against the
impregnable wall of prejudged opinion,
such a show cause notice does not
commence a fair procedure..."
17. We find in the facts of the
present case that not only was there a
complete non disclosure of the relevant
material to which the appellant could
respond to establish his innocence, the
notice itself was couched in tenor and
language which would have led any
person to face the specter of what the
Supreme
Court
described
as
the
"impregnable wall of prejudged opinion".
INVOCATION OF SECTION 47A
18. Section 47A (3) as a plain
reading of the provision would indicate
comes into operation if the Collector has
before him material which may lead him
to believe that the market value of the
property comprised in an instrument has
not been truthfully disclosed. In the
present case the Collector proceeded in
the matter solely on the basis of the report
of the Sub Registrar dated 7 February
2012. This report doubted the valuation of
the property on the ground that in the area
abutting it, various residential houses had
come up and that Greater NOIDA had
become a development hub. Bearing in
mind the location of the plot and its likely
use, the Sub Registrar opined, it would be
inappropriate to value the property at
agricultural rates. We find that the very
bedrock upon which the opinion of the
Sub Registrar based his report was faulty
and could not have consequently formed
the basis for further action under section
47A (3).
19. We may note that on the date of
execution of the instrument the land was
admittedly recorded as agricultural. In
fact the Khasra of the property remained
unchanged throughout and continued to
represent the land as recorded for
agricultural purposes. The respondents
were in our opinion wholly unjustified in
initiating
proceedings
based
on
an
unsubstantiated
assumption
that
the
property in future was likely to be put to
non-agricultural use.
20. The perceived or presumed use
to which a buyer may put the property in
the future can never be the basis for
adjudging its value or determining the
stamp duty payable. The Act, we may
note is a fiscal statute. The taxable event
with which it concerns itself is the
execution of an instrument which is
chargeable to duty. The levy under the
statute gets attracted the moment an
instrument
is
executed.
These
propositions clearly flow from a plain
1 All. Shri Sumati Nath Jain Vs. State of U.P. & Anr.
139
reading of the definition of the words
"chargeable", "executed" and "instrument"
as carried in the Act. In the case of an
instrument which creates rights in respect of
property and upon which duty is payable on
the market value of the property comprised
therein, since the tax liability gets fastened
immediately upon execution it must
necessarily be quantified on the date of
execution. The levy of tax or its quantum
cannot be left to depend upon hypothetical
or imponderable facets or factors. The value
of the property comprised in an instrument
has to be adjudged bearing in mind its
character and potentiality as on the date of
execution of the instrument. For all the
aforesaid reasons we fail to find the
existence of the essential jurisdictional facts
which may have warranted the invocation
of the powers conferred by section 47A (3).
We are therefore of the firm opinion that the
initiation of proceedings as well as the
impugned order based upon a presumed
future use of the property for residential
purposes was wholly without jurisdiction
and clearly unsustainable. Dealing with this
aspect of the matter and after noticing the
consistent line of precedent on the subject
the Division Bench in Smt Vijaya Jain
observed: -
"This Court on more than one
occasion has held that the market value of
the land is not liable to be determined
with reference to the use to which a buyer
intends to put it in future. The market
value of the property is to be determined
with reference to its character on the date
of execution of the instrument and its
potentiality as on that date.
xxx xxx xxx
The
above
principles
of
law
enunciated
in
the
aforementioned
judgments
have
been
consistently
followed by this Court. We however find
that the order of the Collector relies upon
no
evidence
which
would
support
imposition of residential rates on a
property
which
was
stated
to
be
agricultural on the date of execution of
the instrument. "
ADDITIONAL REASON
21. We find that the proceedings
taken against the appellant were even
otherwise liable to be quashed outright.
The reason which compels us to arrive at
the above conclusion is this.
22.
The response filed before the
second respondent clearly asserted that the
property in question fell within the flood
plain area of the Hindon river. The order of
the NGT, NOIDA Master Plan as well as the
Government Order clearly restrained all
residential activities in this area. There was
therefore no basis for the Sub Registrar or for
that
matter
the
second
Respondent
presuming that the property was liable to be
treated as for residential purposes and taxed
at residential rates. For this additional reason
also we find that the proceedings initiated
against the appellant and the order impugned
in
the
writ
petition
are
rendered
unsustainable.
23. For all the aforesaid reasons we
find merit in the instant appeal. We are of
the opinion that the learned Single Judge
clearly erred in dismissing the writ
petition and relegating the appellant to
pursue the alternative remedy.
24. We accordingly allow the
special appeal and set aside the judgment
and order of the learned Single Judge
dated
21
December
2015.
We
consequently also allow the writ petition
and quash the order of the second
140
 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent dated 26 October 2015 and all
proceedings taken against the appellant.
-------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2016
BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
First Appeal from Order No. 165 of 2016
National Insurance Company Ltd. Appellant
Versus
Ashish Kumar Patel & Ors.
Respondents
Counsel for the Appellant:
Manish Kumar Nigam
Counsel for the Respondents:
--
Motor Vehicle Act 1988-173-appeal against
award by Tribunal-on ground-where in
vehicle in excess passengers travelingwithout
valid
driving
license-insurance
company
not
responsible-held-Tribunal
fastened liability upon the appellant-up to
extent of authorized capacity-can not be
interfered-appeal dismissed.
Held: Para-8
So far as the submission of the learned
counsel for the appellant disputing the
liability of the Insurance Company to pay
the awarded amount is concerned, I find
that it is wholly undisputed that authorized
seating capacity of the offending vehicle
was six while passengers travelling in the
vehicle
were
17
but
the
Insurance
Company can escape its liability to pay
compensation
with
respect
to
the
authorized number of passengers travelling
in the offending vehicle. That apart, in the
impugned award, the appellant-Insurance
Company
has
been
granted
right
of
recovery from the owner of the vehicle of
the awards over and above the awards of
six persons i.e. the awards which may be
given in respect of the persons over and
above the authorized sitting capacity of the
offending vehicle.
Case Law discussed:
TAC 2014 (3) SC 29; JT 2011 (3) SC 149; JT
2004 (1) SC 15:2004 (2) SCC 1; JT 2007 (10)
SC 209:2007 (7) SCC 445.
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)
1. Heard Shri Manish Kumar
Nigam, learned counsel for the appellant.
2.
This appeal has been filed
challenging the award dated 14.10.2015 in
M.A.C.P. No.145 of 2013 passed by the
Motor Accident Claims Tribunal/Additional
District Judge, Court No.1, Chandauli
awarding a sum of Rs.74,150/- to the
claimant-respondent on account of serious
injuries on 5.10.2013 in an accident caused
by the vehicle (Magic) bearing Registration
No.UP-45 T-1563 in which the injured and
some other passengers were travelling.
3.
Learned counsel for the appellant
submits that the authorized seating capacity
of the offending vehicle was 6 while 17
passengers were travelling and, therefore,
the Tribunal has committed a manifest error
of law in fixing the liability of the Insurance
Company to pay compensation instead of
the liability of the owner of the vehicle in
question. He submits that driver of the
offending vehicle was not having a valid
driving licence. Hence in view of the
decision of the Hon'ble Supreme Court in
the case of United Indian Insurance Co. Ltd.
vs. Sujata Arora and others, TAC 2014 (3)
SC 29, the appellant has no liability to pay
the awarded amount.
4. I have carefully considered the
submission of the learned counsel for the
appellant.