# Smt. Pratima Srivastava and another v. Devi Prasad and others - **Citation:** (2007) 2 ILRA 392 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2006-12-14 - **Bench:** V.M.Sahai, Sanjay Misra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pratima-srivastava-and-another-v-devi-prasad-and-others-40895 - **Pages:** 3 ## Headnote Motor Vehicle Act 1988, Sect. 173 Accident Claim Tribunal- fixed the liability- on the ground the driver not possess Driving Licence and the vehicle was not insured-finding recorded by tribunal-patently erroneous-insurer cannot be absolved-from liability-if the amount already deposited-shall be recovered from the Insurance Company with 6% interest. Held: Para 7 In the present case the finding of the Tribunal on issue no.2 has been found - to be erroneous. The driver was holding a valid driving license on the day of the accident, therefore, when the contrary has not been established by the insurer it cannot absolve itself of the liability. Case law discussed: 2004(3) SCC 297 ## Text 392 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 holder. It is not disputed that no rules have been framed till date of notice issued to the petitioners. The expression otherwise than in accordance with the provisions of the Act and Rules made thereunder occurring in Section 4 (1-A) of the Act is significant in the sense that if both the Acts and Rules are silent about the procedure for transportation or storage, then it will be treated to be vague and arbitrary. 14. From the perusal of the aforesaid Act of 1957 Rules of 1963, no rules have been framed either by the Central Government or by the State Government. 15. Admittedly, now the legislature only to prevent the illegal transportation, mining and possession of minerals have notified a Rule namely Uttar Pradesh (Prevention of Illegal Mining Transportation and Storage) Rules 2002 but the nature of the aforesaid rules are prospective in nature it is not retrospective. 16. Now the question for consideration by this Court is whether the person involved in selling the minerals after purchasing it from the lease holder and stores in his godown for selling to the customers, whether it can be called an Act in view of the provision of Section 4 (1A) of 1957 Act or in view of the provision of Rule 70 of 1963 Rules because it clearly says that Form MM-11 is necessary and the minerals cannot be sent outside the mining area unless and until royalty is paid and the requirement given in Form MM-11 is complete. It clearly indicates that immediately when the mineral is excavated and it is shifted to other place royalty has to be paid. The Government has fixed the rate of royalty which is to be both before the goods are taken out by the lease holder from the quarries and the person who has purchased subsequently in terms of sale either from the lease holder or from any person then it will not be possible for the person like petitioners to have any document regarding payment of royalty. In this way these goods were coming to the market through several hands with the result that obviously the subsequent purchaser do not have and cannot have the royalty pay receipt relating to the articles. 17. From the record it is clear that no rules were framed till the notice to the petitioners have been given, therefore, we are of the view that notice given by the respondents to the petitioners itself is bad in law and no action under Section 21 of the Act for contravention of Section 4(1A) can be initiated against the petitioners. 18. In view of the aforesaid fact, the writ petition is allowed and the impugned notices dated 6.4.2002 and 22.2.2002 (Annexures 1 and 2 to the writ petition) are hereby quashed. No order as to costs. Petition allowed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 14.12.2006 BEFORE THE HON'BLE V.M.SAHAI, J. THE HON'BLE SANJAY MISRA, J. First Appeal From Order No.1226 of 2000s Smt. Pratima Srivastava and another ...Appellants Versus Debi Prasad @ Beni Prasad and others ...Respondents 2 All] Smt. Pratima Srivastava and another V. Devi Prasad and others 393 Counsel for the Appellants: Sri. R.P. Singh . Sri. Murlidhar. Sri. K.P. Upadhayay. Sri. V.P. Mishra. Counsel for the Respondents: Sri. A.B. Saran. Sri. Deepak Jaiswal. Motor Vehicle Act 1988, Sect. 173 Accident Claim Tribunal- fixed the liability- on the ground the driver not possess Driving Licence and the vehicle was not insured-finding recorded by tribunal-patently erroneous-insurer cannot be absolved-from liability-if the amount already deposited-shall be recovered from the Insurance Company with 6% interest. Held: Para 7 In the present case the finding of the Tribunal on issue no.2 has been found - to be erroneous. The driver was holding a valid driving license on the day of the accident, therefore, when the contrary has not been established by the insurer it cannot absolve itself of the liability. Case law discussed: 2004(3) SCC 297 (Delivered by Hon'ble V.M. Sahai, J.) 1. We have heard Sri R.P. Singh, learned counsel for the appellants. Though the list has been revised but none has appeared on behalf of the respondents. 2. This is a first appeal from order filed against the award dated 24.5.1997 passed by Motor Accident Claim Tribunal, Kanpur Nagar in Motor Accident Claim Petition No.283 of 1996. 3. Learned counsel for the appellant has contended that the finding recorded by the Tribunal on issue no.2 is that the driver was not having a driving licence of light motor vehicle for driving of private vehicle. It is contended that the finding is patently erroneous inasmuch as the driving licence a copy of which was a part of the record of the Tribunal and has been filed as Annexure along with this appeal indicates that the driving license of Driver-Virendra Kumar son of Sunder Lal, who was driver of the vehicle involved in the accident, was issued on 23.9.1991, it was made valid for LMV Transport w.e.f. 29.1.1993 and the aforesaid endorsement was again extended w.e.f.13.3.1996. It is submitted that the licence also bears another endorsement to the effect that it is valid for LMV (Private) and the same is valid from 29.1.1996 to 28.1.1999 under the order of the Licensing Authority. 4. Perusal of the aforesaid licence shows that licence of the driver i namely, Virendra Kumar was also valid for LMV (Pvt.) hence a contrary finding recorded by the Tribunal on issue no.2 appears to be patently erroneous. 5. It is also contended that the liability to pay the awarded amount has illegally been imposed upon the owner of the vehicle whereas since the vehicle was duly insured and the driver was having a valid driving licence hence the liability to pay the awarded amount could not be fastened upon the appellants. 6. Learned counsel has placed reliance on a three judges decision of the Hon'ble Supreme Court in the case of National Insurance Co.Ltd. Versus Swaran Singh and others (2004) 3 SCC 394 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 297 and has relied on paragraphs 69 and 98 which are quoted hereunder: "69. The proposition of law is no longer res integra that the person who alleges breach must prove the same The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi) 98. "Nicolletta Rohtagi was a case where a question arose as to whether an appeal by the insurer on the ground dehors those contained in Section 149(2) would be maintainable. It was held not to be. There cannot be any doubt or dispute that defences enumerated in Section 149(2) would be available to the insurance companies, but that does not and cannot mean that despite such defences having not been established, they would not be liable to fulfill their statutory obligation under subsection (1) of Section 149 of the Act." 7. In the present case the finding of the Tribunal on issue no.2 has been found -to be erroneous. The driver was holding a valid driving license on the day of the accident, therefore, when the contrary has not been established by the insurer it cannot absolve itself of the liability. 8. In view of the foregoing discussion, the appeal is allowed to the extent that the amount awarded to the claimant respondents is to be paid by the Insurance Company-respondent no.6 against whom the award is executable. In case any amount has been paid by the appellants in pursuance of impugned award, they shall be entitled to six percent interest on the amount from the date of deposit upto the date it is recovered from the insurer. 9. No order is passed as to costs. Appeal allowed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 14.12.2006 BEFORE THE HON,BLE DR. B.S. CHAUHAN, J. THE HON,BLE DILIP GUPTA, J Civil Misc. Writ Petition No. 67078 of 2006 Jayanta Bandhopadhyay and another. ...Petitioners Versus U.P. Power Corporation limited Lucknow & another. ...Respondents Counsel for the Revisionist: Sri. G.K. SINGH Sri. V.K. Singh Counsel for the Opposite parties: Sri. R.D. KHARE S.C. Constitution of India Act 226 -read with Limitation Act 1963 Section 5(1) (b), 14 claim petition-dismissed on the ground of limitation-petitioner instead of addressing the tribunal under section 14 of Limitation Act-approached under section 5 of the Act-held- petitioner entitled for the benefit of section 14 although not addressed the Court - tribunal directed to decide the claim on merit. Held Para 8: