# Smt. Munisha Devi & Ors v. Kalyan Singh & Anr

- **Citation:** (2024) 2 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-13
- **Case number:** First Appeal From Order No. 2095 of 2005
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-munisha-devi-ors-v-kalyan-singh-anr-50903
- **Pages:** 5

## Headnote

Motor Vehicles Act, 1988-Claim petition of
the
claimants/appellants-
rejected-deceased
suffered injuries and died-dependents instituted
the claim petition- Tribunal held that the
accident was the result of rash and negligent
driving of deceased-driver, therefore did not
award
any
compensation
to
the
claimants/appellants- record reveals that in
order to save someone-deceased-driver lost
control over the truck-suffered injuries which
was the cause of his death- appropriate that
claimant/appellants may be awarded a lumpsum Rs.5,00,000/-.

Cases cited:

## Text

76 INDIAN LAW REPORTS ALLAHABAD SERIES
altering the pre-existing law applicable to a
claim in litigation.

34. The claim petition, in the present
case, was filed sometime in the year 2016,
and was registered as M.A.C.P. No. 479 of
2016, and related to an accident stated to
have occurred on 08.06.2016. The claim
petition was decided in terms of an award
dated 03.08.2023, of the Motor Accident
Claims Tribunal, Jhansi against which the
instant appeal has been preferred.

35. The Amending Act of 2019 does
not take away the right of appeal. It also
does not substantially alter the pre-existing
provision of an appeal under Section 173;
the only modification being that the
pecuniary limit of filing of an appeal has
been raised from 'ten thousand rupees' to
'one lakh rupees'. The Amending Act of
2019 which was published in the gazette
dated
09.08.2019,
was
not
given
retrospective effect; rather in terms of subsection (2) of Section 1 of the Amending
Act, its provisions were to come into
force on different dates to be appointed
by
the
Central
Government,
by
notification in the official gazette. The
legislative intent was clearly to apply
the provisions of the Amending Act
prospectively.
Section
27
of
the
Amending Act, which relates to the
amendment to the pecuniary limit of
filing an appeal under Section 173, was
also prospectively applied in terms of
the
notification
dated
25.02.20222,
which
came
into
force
w.e.f.
01.04.2022.

36. The Amending Act neither
expressly nor by implication seeks to apply
the provision retrospectively; accordingly,
the right to appeal crystallized in the
appellant on the institution of the claim
petition before the Tribunal of first
instance, cannot be held to have been
dislodged by the Amending Act. The
appellant would, therefore, have to be held
entitled to file the appeal, as per the
unamended provision, without in any
manner being effected by the enhancement
of the pecuniary limit for filing of the
appeal in terms of the amended provision.

37. Accordingly, it is held that an
appeal against an award of the Claims
Tribunal, even if the amount in
dispute in the appeal is less than 'one
lakh rupees' would be entertainable
provided that the amount in dispute is
not less than 'ten thousand rupees',
and it relates to a claim petition filed
prior to 01.04.2022.

38. The objection of the Stamp
Reporter with regard to maintainability of
the appeal under Section 173(2) of the
Motor Vehicles Act, 1988, is therefore held
unsustainable.

39. Let the appeal be listed for
admission as fresh on 22.01.2024 before
the appropriate Bench.
----------
(2024) 2 ILRA 76
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 2095 of 2005

Smt. Munisha Devi & Ors. ...Appellants
Versus
Kalyan Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri R.O.V.S. Chauhan, Sri S.O.V.S. Chauhan
2 All. Smt. Munisha Devi & Ors. Vs. Kalyan Singh & Anr.
77
Counsel for the Respondents:
Sri Radhey Shyam, Sri Krishna Shanker
Chaudhary

Motor Vehicles Act, 1988-Claim petition of
the
claimants/appellants-
rejected-deceased
suffered injuries and died-dependents instituted
the claim petition- Tribunal held that the
accident was the result of rash and negligent
driving of deceased-driver, therefore did not
award
any
compensation
to
the
claimants/appellants- record reveals that in
order to save someone-deceased-driver lost
control over the truck-suffered injuries which
was the cause of his death- appropriate that
claimant/appellants may be awarded a lumpsum Rs.5,00,000/-.

Cases cited:

1. Ram Murti & ors. Vs Punjab St. Electricity
Board, 2022 (4) T.A.C. 738 (S.C.)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
claimants/appellants
and
Sri
Radhey
Shyam,
learned
counsel
for
the
respondents.

2. The present appeal has been
preferred by the claimants/appellant against
the award dated 18.03.2005 passed by the
Motor Accident Claims Tribunal/Additional
District
Judge,
Court
No.8,
Etawah
whereby he has rejected the claim petition
of the claimants/appellants.

3. One Subhash Chandra was driver
on the Truck No.D.L-1-GB-0979 and on
the instruction of his employer, he was
taking the truck and while in order to save
someone, he lost control over the truck and
truck overturned. In the said accident,
Subhash Chandra came under the truck and
suffered injuries and died. The dependants
of Subhash Chandra instituted the claim
petition under Section 163A of the Motor
Vehicles Act.

4. The Tribunal framed several issues.
However, on the issue of occurrence of
accident, Tribunal returned a finding in
favour
of
claimants/appellants.
The
Tribunal found that the accident was the
result of rash and negligent driving of
deceased-driver, therefore, Tribunal did not
award
any
compensation
to
the
claimants/appellants.

5. On the issue of driving licence and
the insurance policy, Tribunal found that
the deceased was having a valid driving
licence at the time of accident and
offending vehicle was duly insured on the
date of the accident.

6. Challenging the award, learned
counsel for the claimants/appellants has
contended that it is not in dispute that
deceased was employed as driver on
offending truck, and accident had occurred
during the course of employment. It is
contended that it is the choice of the
claimants to claim compensation in case of
death of driver either in the court of Motor
Accident Claims Tribunal or before the
Commissioner
under
the
Workmen
Compensation Act. It is further submitted
that
in
the
present
case,
claimants/appellants
preferred
claim
petition before the Motor Accident Claims
Tribunal, and therefore, the question of
negligence is not to be seen in view of the
fact that driver of the truck is statutorily
covered under the insurance policy, and
once it is established that deceased was
employed as driver on the truck and had
died during the course of employment due
to the injuries suffered by him in the
accident, the compensation cannot be
denied to the claimants/appellants. Thus, it
78 INDIAN LAW REPORTS ALLAHABAD SERIES
is contended that Tribunal has erroneously
held that since the deceased himself was
negligent
in
the
accident,
therefore,
claimants/appellants are not entitled to
compensation.

7. It is further contended that in view
of the fact that the driving licence of the
driver of the truck was valid and further
offending vehicle was insured with the
insurance company, therefore, the liability
to pay compensation is upon the insurance
company, and this Court may not remand
the
matter
for
quantification
of
compensation rather this Court being an
Appellate
Court
can
determine
the
quantification of compensation.

8. Per contra, learned counsel for the
respondents would contend that it is not in
dispute that deceased was driving the truck
and truck overturned and deceased came
under the truck and on account of the
injuries suffered by him in the accident, he
died. It is submitted that the accident was
the result of sole negligence of deceaseddriver and in such view of the fact, the
Tribunal has rightly held that since the
accident had occurred due to rash and
negligent driving of deceased himself,
therefore, claimants/appellants cannot be
compensated
for
the
negligence
of
deceased in the accident. It is further
contended that it is a case where
claimants/appellants failed to make out any
case inviting interference by this Court in
its appellate jurisdiction and since the
appeal is devoid of merit, therefore, it
deserves to be dismissed.

9. I have considered the rival
submissions of the parties and perused the
record.

10. It is not disputed that deceased
was driving the truck at the time of
accident. The record reveals that in order to
save someone, deceased-driver lost control
over the truck due to which, the truck
overturned and deceased came under the
truck and suffered injuries which was the
cause of his death. It is also not disputed
that deceased was employed as driver on
the truck.

11. Under Section 167 of the Motor
Vehicles Act, it is the choice of the
claimants to claim compensation either
from the court of Motor Accident Claims
Tribunal or before the Commissioner under
the Workmen Compensation Act for the
death of an employee in the accident who
died during the course of employment.

12. At this stage, it is relevant to have
a glance at Section 147(1) provision (i) of
the Motor Vehicles Act, 1988 (prior to
substitution by Act 32 of 2019) which is as
under:-

"147. Requirement of policies
and limits of liability.-(1)...

Provided that a policy shall not be
required-

i. to cover liability in respect of
the death, arising out of and in the course
of his employment, of the employee of a
person insured by the policy or in respect of
bodily injury sustained by such an
employee arising out of and in the course
of his employment other than a liability
arising under the Workmen's Compensation
Act, 1923 (8 of 1923), in respect of the
death of, or bodily injury to, any such
employee-

a. engaged in driving the vehicle,
or
2 All. Smt. Munisha Devi & Ors. Vs. Kalyan Singh & Anr.
79

b. if it is a public service vehicle,
engaged as a conductor of the vehicle or in
examining tickets on the vehicle, or

c. if it is a goods carriage, being
carried in the vehicle, or

ii. to cover any contractual
liability.

Explanation.- For the removal of
doubts, it is hereby declared that the death
of or bodily injury to any person or damage
to any property of a third party shall be
deemed to have been caused by or to have
arisen out of, the use of a vehicle in a
public place notwithstanding that the
person who is dead or injured or the
property which is damaged was not in a
public place at the time of the accident, if
the act or omission which led to the
accident occurred in a public place."

13. Thus, proviso (i) of Section
147(1) of the Motor Vehicles Act, 1988
clearly stipulates that the driver of the truck
is statutorily covered under the insurance
policy in view of proviso (i) of Section
147(1) of the Motor Vehicles Act and the
negligence of driver in such cases is not to
be seen.

14. Once, claimants established that
deceased was employed as driver on the
offending truck, dependants of the deceased
are entitled to the compensation. In such
view of the fact, this Court is of the view
that Tribunal has committed manifest
illegality in denying compensation to the
claimants/appellants on the ground that
deceased himself was negligent in the
accident.

15. Normally, this Court would have
remanded the matter to the Tribunal to
assess the compensation, but considering
the fact that the accident had taken place on
01.06.2002 and claim petition has been
decided in the year 2005 and claimants
have not been paid even a single penny for
the loss of income suffered by them on
account of the death of sole bread earner
i.e. deceased, therefore, this Court proceeds
to
determine
the
quantification
of
compensation.

16. Now, the question arises as to
what amount of compensation to be
granted. The claim petition has been
instituted under Section 163A of the Motor
Vehicles Act, therefore, compensation is to
be computed as per the scheduled framed
under Section 163A of the Motor Vehicles
Act.

17. In the instant case, the claim
petition was filed in the year 2002 and
more
than
21
years
have
passed
claimants/appellants have not yet got even
a single penny for the loss of income
suffered by them for the death of sole bread
earner of the family i.e. deceased.

18. Considering the aforesaid fact and
hardship faced by the claimants/appellants,
this
Court
finds
it
appropriate
that
claimant/appellants may be awarded a
lump-sum Rs.5,00,000/- in view of the
judgement of Apex Court in the case of
Ram Murti and Others Vs. Punjab State
Electricity Board, 2022 (4) T.A.C. 738
(S.C.)

19. It would be apt to reproduce
paragraphs 6 to 8 of the judgement of Apex
Court in the case of Ram Murti (supra):-

"6. There is no cogent basis for
this Court to entertain the challenge
against the findings of fact which have been
recorded concurrently by the Tribunal and
by the High Court while dismissing the
80 INDIAN LAW REPORTS ALLAHABAD SERIES
claim under Section 166 of the Motor
Vehicles Act 1988.

7. The provisions of Section 140
which formed a part of Chapter 10 of the
Motor Vehicles Act, 1988 were omitted by
Act 32 of 2019. Simultaneously, Chapter 11
was substituted of which Section 164
provides for payment of compensation in
the case of death in the amount of Rs.5
lakhs and in the case of grievous hurt of
Rs.2.5 lakhs.

8. We are inclined to give the
appellants the benefit of the beneficial
provisions which have been enacted by
Parliament. Hence, in modification of the
order of the High Court, we direct that the
appellants shall be entitled to an amount of
Rs.5 lakhs as compensation. However, if the
amount of Rs.50,000 which has been
awarded by the High Court has already
been paid over, the balance (or the entirety
of 5 lakhs if no amount has been paid) shall
be paid over to the appellants by
30.11.2022."

20. Accordingly, this Court awards
Rs.5,00,000/-
in
lump-sum
to
the
claimants/appellants. Out of the said
amount, all the claimants are awarded equal
amount i.e. 1,25,000/-. It is further
provided
that
enhanced
amount
of
compensation shall carry 7% simple
interest from the date of institution of claim
petition till the amount is deposited.

21. Thus, for the reasons given above,
the appeal is partly allowed and the award
of the Tribunal is modified to the extent
indicated above. The insurance company is
directed to pay the awarded amount of
compensation to the claimants/appellants
within a period of three months from the
date of production of a certified copy of
this order. There shall be no order as to
costs.
----------
(2024) 2 ILRA 80
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

First Appeal No. 177 of 2017

Charu Chug @ Charu Arora ...Appellant
Versus
Madhukar Chugh ...Respondent

Counsel for the Appellant:
Sri Vinay Kumar Mishra, Sri Vishesh
Rajvanshi

Counsel for the Respondent:

Civil Law - The Hindu Marriage Act, 1955 -
Section 13(1)(ia) -Divorce Upheld on Ground
of Mental Cruelty The Allahabad High Court
upheld the divorce decree granted under
Section 13(1)(ia) of the Hindu Marriage Act,
1955, finding that the appellant-wife's false
allegations of dowry demand, physical assault,
and extramarital affair by the respondenthusband constituted mental cruelty. No cogent
evidence supported the wife's claims, and her
admissions in cross-examination disproved the
allegations. (Paras 9, 12, 17)

Irretrievable Breakdown as a Facet of Cruelty
The court recognized the marriage's irretrievable
breakdown, with the parties living separately for
over 13 years, as a facet of cruelty under
Section 13(1)(ia). Despite the absence of
desertion under Section 13(1)(ib), the prolonged
separation and lack of cohabitation rendered the
marital bond unviable, justifying divorce. (Paras
13-14)

Failure
of
Conciliation
and
Procedural
Compliance The court rejected the appellant's
claim that conciliation under Section 9 of the
Family Courts Act, 1984, was not attempted,
noting
that
both
parties
participated
in