# Smt. Alimunnishan and others v. Om Prakash and another

- **Citation:** (2011) 1 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-10
- **Case number:** First Appeal From Order No. 896 of 2005
- **Bench:** Sunil Ambwani, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-alimunnishan-and-others-v-om-prakash-and-another-41892
- **Pages:** 7

## Text

48 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
to another service, shall be made on the
basis of seniority subject to the rejection
of the unfit.
By order,
(R.B. Bhaskar)
Secretary"

12. The petitioner has relied upon
seniority list dated 18th September, 2001 in
which he is placed as senior to Shri Ashok
Kuamr and Shri Munshi Lal. The petitioner
was placed at Sl.No.6, whereas Shri Ashok
Kumar and Shri Munshi Lal at Sl.Nos.8 and
9. The petitioner was thus entitled to be
considered
for
promotion
ahead
of
respondent Nos.8 and 9. The U.P. Public
Service Commission has not given any such
material on the basis of which it can be said
that the petitioner was unfit for promotion.
Along with rejoinder affidavit the petitioner
has annexed the entries given to him for the
years 2001-02 (Annexure R.A.7); 2002-03
(Annexure R.A.8) and 2003-04 (Annexure
R.A.6). In all the three entries the
petitioner's integrity has been certified and
his work and conduct has been assessed to
be 'outstanding'. The petitioner was thus
arbitrarily denied of promotion as compared
to his juniors both by applying the Rules of
1970, in which merit was assessed as
criteria for promotion, as well as the
General Rules applicable for promotion
namely U.P. Government Servants Criteria
for Recruitment by Promotion Rules, 1994,
which provides for seniority, 'subject to
rejection of unfit', as criteria for promotion.
The petitioner's entries for the relevant year
were also not taken into consideration for
promotion.

13. For the aforesaid reasons, we
allow the writ petition and direct the
respondents to reconsider the petitioner's
case for promotion taking into account the
criteria of 'seniority subject to rejection of
unfit', as the criteria for promotion to the
post of ARTO, and after taking into
consideration the entries awarded to him for
the
relevant
years.
The
required
consideration shall be made within a period
of two months from the date a certified
copy of this order is produced by the
petitioner before the State Government and
the U.P. Public Service Commission. In
case the petitioner is found entitled for
promotion, he will be given promotion with
effect from the date, his juniors were given
promotion as ARTO and that his seniority
shall be refixed accordingly.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.01.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DILIP GUPTA, J.

First Appeal From Order No. 896 of 2005

Smt. Alimunnishan and others ...Petitioner
Versus
Om Prakash and another ...Respondent

Motor Vehicle Act-Section-140-No fault
liability-deceased travelling with truckdue to broke down of Kamani of Vehiclelost balance and over turned killing the
deceased-Tribunal
treating
No
fault
liability-awarded Rs.50,000/-but refused
to consider the merit-held-illegal-in spite
of
No
fault
liability-claim
for
compensation
could
here
been
considered.

Held: Para 11

In the present case also, as in S.
Kaushnuma Begum (supra), the Tribunal
has only awarded Rs. 50,000/- as
compensation
under
the
'No
Fault
Liability Clause' under Section 140 of the
Act but has denied compensation as
there was no rash or negligent driving by
1 All] Smt. Alimunnishan and others V. Om Prakash and another
49
the driver of the truck. The claim of
compensation is, therefore, required to
be determined in the light of the
observations made by the Supreme
Court in S. Kaushnuma Begum (supra).
The matter, therefore, needs to go back
to the Tribunal for giving fresh award.
Case law discussed:
AIR 2001 SC 485.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. The First Appeal From Order
arises out of Claim Petition No. 33 of 2002
(Smt. Alimunnishan & 8 Ors. Vs. Om
Prakash & Anr.) filed on account of death
of Naqvi Ahmad in the accident that had
taken place on 17th November, 2001 with
Truck No. U.P.44-A/2098 owned by Om
Prakash Singh.

2. The said Claim Petition No. 33 of
2002 was filed by Smt. Alimunnishan & 8
Ors. under Section 166 of the Motor
Vehicles Act, 1988 with the averments that
the deceased Naqvi Ahmad was the sole
bread earner of the family; on 17th
November, 2001 he went to Sultanpur for
business purposes but Truck bearing No.
U.P.44-A/2098
which
was
being
negligently driven by the driver hit the
husband of Smt. Alimunnishan as a result
of which he and many others died and
many were injured; the husband of the
petitioner No. 1 used to earn Rs. 5,000/-
per month from the business; First
Information Report could not be lodged in
time
since
medical
treatment
was
immediately required to be provided to the
injured and, therefore, as the bread earner
had succumbed to the injuries, the
claimants suffered irreparable injury and
appropriate
compensation
should
be
awarded to them.

3. A reply was filed to the claim
petition. Opposite Party No. 1 Om Prakash
Singh stated that he was the owner of the
truck bearing No. U.P.44-A/2098; truck was
insured
with
the
National
Insurance
Company Branch Rai Bareilly upto 18th
December, 2001; truck was being driven by
Taufeeq Ahmad Khan, who had a valid and
effective driving license; truck was carrying
cement from Tikeriya Industrial Area to
Faizabad when the 'Kamani' of the truck
broke down as a result of which the truck lost
balance and over turned killing two persons
and inuring three; the injured were taken to
the hospital by the police; passengers were
not sitting in the truck at the time of accident
and the owner had also given instructions to
the driver not to permit any person to sit in
the truck and assurance had also taken from
the driver to this effect; the driver had
informed the owner that Naqvi Ahmad was
not sitting in the truck at the time of accident;
that there was no violation of the terms and
conditions contained in the Insurance policy;
that the accident was not caused due to rash
and negligent driving and that the owner was
not responsible for payment of any
compensation.

4. The National Insurance Company
also filed a reply to the claim petition. It was
stated that the driver did not have a valid and
effective license at the time of accident and
so the Insurance Company was not liable to
pay any compensation; the truck owner did
not inform the Insurance Company of the
accident; the accident was caused on account
of rash and negligent driving by the truck
driver and so the Insurance Company was
not liable to pay any compensation; the truck
was being driven contrary to the terms and
conditions of the Motor Vehicles Act since
passengers were being carried for which no
premium had been paid; the insured had not
followed the provisions of Section 64 of the
50 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Motor Vehicles Act and in any case the
claimants were not dependent on the
deceased.

The following issues were framed:-

(1) Whether the death of Naqvi Ahmad
had occurred on account of rash and
negligent driving by the driver of the truck
No. U.P.44-A/2098.

(2) Whether on the date of accident, the
driver of the truck had a valid and effective
driving license.

(3) Whether the truck was insured and
whether it was being used in accordance with
the terms and conditions stipulated in the
insurance policy.

(4) Whether the claimants were entitled
to compensation and if so then from which
opposite party and to what extent.

5. In support of the claim petition,
documentary evidence in the form of
postmortem report was filed and three
witnesses P.W.1, Safeeq Ahmad son of
Kasim Ali gave the evidence. On behalf of
the owner of the truck, driving license,
payment of deposit of tax, registration
papers, insurance cover, copy of judgment
dated 18th October, 2004, copy of order
dated 8th April, 2005 were filed. D.W. 1
Alimunnishan gave oral evidence.

6. While deciding Issue no.1, the
Tribunal held that the version of the driver of
the truck should be believed and the owner
of the truck and the Insurance Company
could not prove that the death occurred due
to rash and negligent driving. The Tribunal
also found that the Insurance Company could
not establish that the deceased Naqvi Ahmad
was travelling in the truck. Issue no. 2 was
decided by the Tribunal holding that at the
time of accident the driver of the truck had a
valid and effective driving license. Issue no.3
was decided by the Tribunal holding that the
truck was being driven in accordance with
the terms and conditions stipulated in the
insurance policy. Issue no. 4 was decided
holding that there was no negligence on the
part of the driver of the truck and the
accident had occurred on account of the
breakage of 'Kamani' and that the deceased
and his friends were not sitting in the truck at
the time of the accident and was walking on
the left path side of the road. The death
occurred because the truck overturned and so
the Insurance Company under the 'No fault
liability' clause should pay Rs. 50,000/- with
simple interest of 5%.

7. Learned counsel for the appellants
submitted that even if there was no
negligence or rashness on the part of the
driver of the truck, then too the owner should
be made liable for the damages to the
persons who suffers on account of such
accident. This has been disputed by learned
counsel for the respondents.

8. This issue was examined by the
Supreme Court in S. Kaushnuma Begum &
Ors., Vs. The New India Assurance Co.
Ltd. & Ors. AIR 2001 SC 485. The
accident which gave rise to the claim
occurred at about 7.00 P.M. on 20.3.1986.
The vehicle involved in the accident was a
jeep. It capsized while it was in motion. The
cause of the capsize was attributed to
bursting of the front tyre of the jeep. In the
process of capsizing the vehicle hit against
one Haji Mohammad Hanif who was
walking on the road at that ill-fated moment
and consequently that pedestrian was
crushed and subsequently succumbed to the
injuries sustained in that accident. The
widow and children filed a Claim Petition
1 All] Smt. Alimunnishan and others V. Om Prakash and another
51
before the Tribunal. The Tribunal dismissed
the claim for compensation holding that rash
and negligence of the jeep was not
established but directed the Insurance
Company to pay Rs. 50,000/- to the
claimants by way of 'No fault liability' under
Section 140 of the Motors Vehicles Act,
1988 (hereinafter referred to as the 'Act').
Aggrieved by the said rejection of the claim
the claimants moved the High Court. On
28.4.1999, a Division Bench of the High
Court dismissed the appeal and the order
reads thus:

"Heard
learned
counsel
for
the
appellant.

Finding has been recorded that the
tempo overturned and there was no
negligence or rashness of the driver. Hence
Rs.50,000/-
has
been
awarded
as
compensation which is the minimum
amount. There is no error in the order.
Dismissed."

9. The widow and the children
thereafter filed an appeal before the Supreme
Court which observed as follows:-

"It must be noted that the jurisdiction of
the Tribunal is not restricted to decide claims
arising out of negligence in the use of motor
vehicles. Negligence is only one of the
species of the causes of action for making a
claim for compensation in respect of
accidents arising out of the use of motor
vehicles. There are other premises for such
cause of action.

Even if there is no negligence on the
part of the driver or owner of the motor
vehicle, but accident happens while the
vehicle was in use, should not the owner
be made liable for damages to the person
who suffered on account of such accident?
This question depends upon how far the Rule
in Rylands vs. Fletcher (1861-73 All ER
(Reprint) 1) (supra) can apply in motor
accident cases. The said Rule is summarised
by Blackburn, J, thus:

"The true rule of law is that the person
who, for his own purposes, brings on his
land, and collects and keeps there anything
likely to do mischief if it escapes, must keep
it at his peril, and, if he does not do so, he is
prima facie answerable for all the damage
which is the naturalconsequence of its
escape. He can excuse himself by showing
that the escape was owing to the plaintiff's
default, or, perhaps, that the escape was the
consequence of vis major, or the act of God;
but, as nothing of this sort exists here, it is
unnecessary to inquire what excuse would be
sufficient."

The House of Lords considered it and
upheld the ratio with the following dictum:

"We think that the true rule of law is
that the person who, for his own purposes,
brings on his land and collects and keeps
there anything likely to do mischief if it
escapes, must keep it in at his peril, and, if he
does not do so, he is prima facie answerable
for all the damage which is the natural
consequence of its escape. He can excuse
himself by showing that the escape was
owing to the plaintiffs default, or, perhaps,
that the escape was the consequences of vis
major or the act of God; but, as nothing of
this sort exists, here, it is unnecessary to
inquire what excuse would be sufficient.

The above Rule eventually gained
approval in a large number of decisions
rendered by Courts in England and abroad.
Winfield on Tort has brought out even a
chapter on the "Rule in Rylands v. Fletcher".
At page 543 of the 15th Edn. of the
52 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
calibrated work the learned author has
pointed out that "over the years Rylands v.
Fletcher has been applied to a remarkable
variety of things: fire, gas, explosions,
electricity, oil, noxious fumes, colliery spoil,
rusty wire from a decayed fence, vibrations,
poisonous vegetation......" He has elaborated
seven defences recognised in common law
against action brought on the strength of the
rule in Rylands vs. Fletcher. They are: (1)
Consent of the plaintiff i.e. volenti non fit
injuria. (2) Common benefit i.e. where the
source of the danger is maintained for the
common benefit of the plaintiff and the
defendant, the defendant is not liable for its
escape. (3) Act of stranger i.e. if the escape
was caused by the unforeseeable act of a
stranger, the rule does not apply. (4) Exercise
of statutory authority i.e. the rule will stand
excluded either when the act was done under
a statutory duty or when a statute provides
otherwise. (5) Act of God or vis major i.e.
circumstances which no human foresight can
provide against and of which human
prudence is not bound to recognise the
possibility. (6) Default of the plaintiff i.e. if
the damage is caused solely by the act or
default of the plaintiff himself, the rule will
not apply. (7) Remoteness of consequences
i.e. the rule cannot be applied ad infinitum,
because even according to the formulation of
the rule made by Blackburn, J., the defendant
is answerable only for all the damage "which
is the natural consequence of its escape."

The Rule in Rylands vs. Fletcher has
been referred to by this Court in a number of
decisions. While dealing with the liability of
industries
engaged
in
hazardous
or
dangerous activities P.N. Bhagwati, CJ,
speaking for the Constitution Bench in M.C.
Mehta vs. Union of India and ors. (1987 (1)
SCC 395): (AIR 1987 SC 1086), expressed
the view that there is no necessity to bank on
the Rule in Rylands vs. Fletcher. What the
learned Judge observed is this:

"We have to evolve new principles and
lay down new norms which would
adequately deal with the new problems
which arise in a highly industrialised
economy. We cannot allow our judicial
thinking to be constricted by reference to the
law as it prevails in England or for the matter
of that in any other foreign country. We no
longer need the crutches of a foreign legal
order."

It is pertinent to point out that the
Constitution Bench did not disapprove the
Rule. On the contrary, learned judges further
said that "we are certainly prepared to
receive light from whatever source it comes."
It means that the Constitution Bench did not
foreclose the application of the Rule as a
legal proposition.

In Charan Lal Sahu vs. Union of India
{1990 (1)SCC 613):(AIR 1990 SC 1480)
another Constitution Bench of this Court
while dealing with Bhopal gas leak disaster
cases, made a reference to the earlier
decisions in M.C. Mehta (supra) but did not
take the same view. The rule of0.79" strict
liability was found favour with. Yet another
Constitution Bench in Union Carbide
Corporation vs. Union of India {1991(4)SCC
584 (AIR 1992 SC 248) referred to M.C.
Mehtas decision but did not detract from the
Rule in Rylands vs. Fletcher (1861-73 All
ER 1).

In Gujarat State Road Transport
Corporation, Ahmedabad vs. Ramanbhai
Prabhatbhai {1987 (3) SCC 234} the
question considered was regarding the
application of the Rule in cases arising out of
motor accidents. The observation made by
1 All] Smt. Alimunnishan and others V. Om Prakash and another
53
E.S. Venkataramiah, J. (as he then was) can
profitably be extracted here:

"Today,
thanks
to
the
modern
civilization, thousands of motor vehicles are
put on the road and the largest number of
injuries and deaths are taking place on the
roads on account of the motor vehicles
accidents. In view of the fast and constantly
increasing volume of traffic, the motor
vehicles upon the roads may be regarded to
some extent as coming within the principle
of liability defined in Rylands v. Fletcher.
From the point of view of the pedestrian the
roads of this country have been rendered by
the use of the motor vehicles highly
dangerous. 'Hit and run' cases where the
drivers of the motor vehicles who have
caused the accidents are not known are
increasing in number. Where a pedestrian
without negligence on his part is injured or
killed by a motorist whether negligently or
not, he or his legal representatives as the case
may be should be entitled to recover
damages if the principle of social justice
should have any meaning at all. In order to
meet to some extent the responsibility of the
society to the deaths and injuries caused in
road accidents there has been a continuous
agitation throughout the world to make the
liability for damages arising out of motor
vehicles accidents as a liability without
fault."

Like
any
other
common
law
principle, which is acceptable to our
jurisprudence, the Rule in Rylands vs.
Fletcher can be followed at least until any
other new principle which excels the
former can be evolved, or until legislation
provides differently. Hence, we are
disposed to adopt the Rule in claims for
compensation made in respect of motor
accidents.

"No Fault Liability" envisaged in
Section
140
of
the
MV
Act
is
distinguishable from the rule of strict
liability. In the former the compensation
amount is fixed and is payable even if any
one of the exceptions to the Rule can be
applied. It is a statutory liability created
without which the claimant should not get
any
amount
under
that
count.
Compensation on account of accident
arising from the use of motor vehicles can
be claimed under the common law even
without the aid of a statute. The
provisions of the MV Act permits that
compensation paid under 'no fault
liability' can be deducted from the final
amount
awarded
by
the
Tribunal.
Therefore, these two are resting on two
different premises. We are, therefore, of
the opinion that even apart from Section
140 of the MV Act, a victim in an accident
which occurred while using a motor
vehicle, is entitled to get compensation
from a Tribunal unless any one of the
exceptions would apply. The Tribunal and
the High Court have, therefore, gone into
error in divesting the claimants of the
compensation payable to them."

 (emphasis supplied)

10. Thus, in view of the aforesaid
decision of the Supreme Court, it has to be
held that even apart from Section 140 of the
Act, compensation can be claimed from a
Tribunal unless any one of the exceptions
laid down in Rylands vs. Fletcher applies.

11. In the present case also, as in S.
Kaushnuma Begum (supra), the Tribunal has
only awarded Rs. 50,000/- as compensation
under the 'No Fault Liability Clause' under
Section 140 of the Act but has denied
compensation as there was no rash or
negligent driving by the driver of the truck.
The claim of compensation is, therefore,
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
required to be determined in the light of the
observations made by the Supreme Court in
S. Kaushnuma Begum (supra). The matter,
therefore, needs to go back to the Tribunal
for giving fresh award.

12. The judgment given by the
Tribunal in so far as it rejects the claim is,
accordingly, set aside. The Tribunal shall
give a fresh award as expeditiously as is
possible.

13. The First Appeal From Order is
allowed to the extent indicated above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ANIL KUMAR, J.

Service Bench No. 1608 of 2009

Dharam Raj Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
S.C. Yadav,
Vishal Kumar Upadhyay

Counsel for the Respondent:
C.S.C.,
Sudeep Seth

U.P.
Cooperative
Society
Employees
Centerlised Services Regulations 1978Regulation-61
(a)-
Dismissal
from
service-Petitioner working as Dy.General
Manager
in
Cooperative
Bank-facing
disciplinary proceeding-after receiving
charge sheet-repeatedly demand copies
of supporting document-request for oral
evidence to cross examine the witnesses
by indicating place, time and date-order
passed
merely
after
receiving
explanation in pursuance of enquiry
report-held-not only principle of Natural
justice
but
statutory
provisions
regulating
disciplinary
proceeding
violated dismissal set-a-side with all
consequential benefits.

Held: Para 27 & 29

Accordingly, it shall not be open to the
respondents to proceed in a manner
different than what has been provided in
regulation
61
of
the
Regulations
provided
for
the
disciplinary
proceedings.

In all, what has been stated herein
above, the impugned order seems to be
violative of not only principle of natural
justice but also statutory provisions
(supra)
regulating
the
disciplinary
proceedings.
Case law discussed:
JT 2010 (1) SC 618; 1990 LCD 486; 1998 LCD
199; 1980 Vol. 3 SCC 459; 1998 (6) SCC 651;
1998 SC 117; 1985 SC 1121; (2009) 2 SCC
570; (2010) 2 SCC 772; AIR 1936 PC 253;AIR
1961 SC 1527; AIR 1963 Sc 1077; AIR 1964
SC 358; AIR 1967 SC 295; 1999 (8) SCC 266;
2000 (7) SCC 296; AIR 2001 SC 1512; 2002
(1) SCC 633; AIR 2004 SC 1657; (1876) 1
Ch.D. 426; AIR 1972 SC 2077; AIR 1975 SC
915; AIR 1979 SC 1573; AIR 1980 SC 326; AIR
1986 SC 3160; 1995 (1) SCC 156; 2008 (9)
SCC 31; 2010 (5) SCC 349.

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

1. Heard Sri S.C. Yadav, learned
counsel appearing for the petitioner and Sri
Sudeep Seth, learned counsel for the
respondents and perused the record.

2. Affidavits have been exchanged
between the parties.

With the consent of the parties'
counsel, the writ petition is finally heard
and is being decided at admission stage.