# Smt. Pushpa Singh & Ors v. Manoj Kumar Singh & Ors

- **Citation:** (2023) 8 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-02
- **Case number:** First Appeal From Order No. 488 of 2014
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pushpa-singh-ors-v-manoj-kumar-singh-ors-50578
- **Pages:** 16

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section
173--Challenge
to-award
of
compensation-
enhancement
of
compensation for personal injury-Tribunal
has not considered the issue of pain and
suffering and non-pecuniary damages
in the correct perspective and not
noticing that a young child had suffered
an injury who had to undergo surgical
procedures, though simple on his foot,
and remained hospitalized and also
certain injuries which were received by
Smt. Pushpa Singh- the appellants
namely Master Ahan and Smt. Pushpa
Singh are entitled to an additional sum
of Rs.25,000/- each for suffering and
pain and other ancillary non-pecuniary
heads.
770 INDIAN LAW REPORTS ALLAHABAD SERIES
(a) Thus, First Appeal From Order No.488
of 2014 is partly allowed the claimants
shall now be entitled to a total sum of
Rs.18,55,008/- with interest at the rate of
7%
per
annum
from
the
date
of
application till the date of its payment
(b) The First Appeal From Order Nos. 439
of 2014 shall also stand partly allowed
,the claimant shall now be entitled to a
total sum of Rs.59,679/- with interest at
the rate of 7% per annum from the date
of application till the date of its payment.
(c) The First Appeal From Order No.442
of 2014 shall stand partly allowed the
claimant shall now be entitled to a total
sum of Rs.38,000/- with interest at the
rate of 7% per annum from the date of
application
till
the
date
of
its
payment.(Para 1 to 56)

B. One factor which must be kept in mind
while assessing the compensation in a
case like the present one is that the claim
can be awarded only once. The claimant
cannot
come
back
to
court
for
enhancement of award at a later stage
praying that something extra has been
spent.
Therefore,
the
courts
or
the
tribunals assessing the compensation in a
case of 100% disability, especially where
there is mental disability also, should take
a liberal view of the matter when
awarding compensation. While awarding
this amount we are not only taking the
physical disability but also the mental
disability and various other factors. This
child will remain bedridden for life. Her
mental age will be that of a nine month
old child. Effectively, while her body
grows, she will remain a small baby. We
are dealing with a girl who will physically
become a woman but will mentally remain
a 9 month old child. This girl will miss out
playing with her friends. She cannot
communicate;
she
cannot
enjoy
the
pleasures of life; she cannot even be
amused by watching cartoons or films;
she will miss out the fun of childhood, the
excitement of youth; the pleasures of a
marital life; she cannot have children who
she can love let alone grandchildren. She
will have no pleasure. Her's is a vegetable
existence. Therefore, we feel in the
peculiar facts and circumstances of the
case even after taking a very conservative
view of the matter an amount payable for
the pain and suffering of this child should
be at least Rs.15,00,000/-,(Para 27)

The three appeals are partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,942 of 54,382. This is a partial read: ask again with offset=39942 for what follows._

8 All. Smt. Pushpa Singh & Ors. Vs. Manoj Kumar Singh & Ors.
769
which shows a complete careless and
reckless long delay on the part of applicant
which has remained virtually unexplained
at all and the matter was also dismissed.
Therefore, I do not find any reason to
exercise judicial discretion so as to justify
condonation of delay in the present case.

14. Even on merits it is solemn duty
of the owner of the vehicle to produce the
licence of its driver to show that the driver
was a qualified driver, no doubt the vehicle
was insured and the accident occurred
during this period that will not shift the
burden. This Court is fortified in its view
by decision of Apex Court in Pappu and
others Vs. Vinod Kumar Lamba and
others, reported in AIR 2018 SC 592 ,
where it is held that it is prima facie duty of
owner to discharge the burden by holding
valid licence of driver which is not done in
this case.

15. Even in issue no. 2, the tribunal
has held that insurance company has
examined D.W.-1 who is an officer of
R.T.O, that the licence issued in name of
Sri Kailashi Chandra son of Sri Nahar
Singh was for light motor vehicle and
heavy goods vehicle which was operative
from 06.01.2004 to 05.01.2007. There is no
dispute that it was Kailashi Chandra who
was driving the vehicle. Kailashi Chandra
was not examined. And therefore, it was
found that the licence which was produced
was not of the driver of the bus. This fact
will not permit this Court to interfere in the
well penned judgment of the tribunal.

16. The issue of contributory
negligence cannot be interfered as the
accident took place on 22.06.2005 in the
morning at the by-pass and the injured was
not at all liable for the accident it was the
driver of the bus who has been considered
to be negligent by tribunal.

17. Hence, this appeal both on
question of delay and on question of merits
is dismissed. Amounts if not deposited be
deposited as expeditiously as possible.
----------
(2023) 8 ILRA 769
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.08.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal From Order No. 488 of 2014
with
First Appeal From Order Nos. 439 of 2014
 & 442 of 2014

Smt. Pushpa Singh & Ors. ...Appellants
Versus
Manoj Kumar Singh & Ors. ...Respondents

Counsel for the Appellants:
Mohd. Saeed

Counsel for the Respondents:
Anil Kumar Srivastava

A. Civil Law - Motor Vehicle Act, 1988 -
Section
173--Challenge
to-award
of
compensation-
enhancement
of
compensation for personal injury-Tribunal
has not considered the issue of pain and
suffering and non-pecuniary damages
in the correct perspective and not
noticing that a young child had suffered
an injury who had to undergo surgical
procedures, though simple on his foot,
and remained hospitalized and also
certain injuries which were received by
Smt. Pushpa Singh- the appellants
namely Master Ahan and Smt. Pushpa
Singh are entitled to an additional sum
of Rs.25,000/- each for suffering and
pain and other ancillary non-pecuniary
heads.
770 INDIAN LAW REPORTS ALLAHABAD SERIES
(a) Thus, First Appeal From Order No.488
of 2014 is partly allowed the claimants
shall now be entitled to a total sum of
Rs.18,55,008/- with interest at the rate of
7%
per
annum
from
the
date
of
application till the date of its payment
(b) The First Appeal From Order Nos. 439
of 2014 shall also stand partly allowed
,the claimant shall now be entitled to a
total sum of Rs.59,679/- with interest at
the rate of 7% per annum from the date
of application till the date of its payment.
(c) The First Appeal From Order No.442
of 2014 shall stand partly allowed the
claimant shall now be entitled to a total
sum of Rs.38,000/- with interest at the
rate of 7% per annum from the date of
application
till
the
date
of
its
payment.(Para 1 to 56)

B. One factor which must be kept in mind
while assessing the compensation in a
case like the present one is that the claim
can be awarded only once. The claimant
cannot
come
back
to
court
for
enhancement of award at a later stage
praying that something extra has been
spent.
Therefore,
the
courts
or
the
tribunals assessing the compensation in a
case of 100% disability, especially where
there is mental disability also, should take
a liberal view of the matter when
awarding compensation. While awarding
this amount we are not only taking the
physical disability but also the mental
disability and various other factors. This
child will remain bedridden for life. Her
mental age will be that of a nine month
old child. Effectively, while her body
grows, she will remain a small baby. We
are dealing with a girl who will physically
become a woman but will mentally remain
a 9 month old child. This girl will miss out
playing with her friends. She cannot
communicate;
she
cannot
enjoy
the
pleasures of life; she cannot even be
amused by watching cartoons or films;
she will miss out the fun of childhood, the
excitement of youth; the pleasures of a
marital life; she cannot have children who
she can love let alone grandchildren. She
will have no pleasure. Her's is a vegetable
existence. Therefore, we feel in the
peculiar facts and circumstances of the
case even after taking a very conservative
view of the matter an amount payable for
the pain and suffering of this child should
be at least Rs.15,00,000/-,(Para 27)

The three appeals are partly allowed. (E-6)

List of Cases cited:

1. Kajal Vs Jagdish Chand & ors. (2020) 4 SCC
413

2. Magma General Ins. Co. Ltd Vs Nanu Ram @
Chuhru Ram (2018) 18 SCC 130

3. Deokar Exports Pvt. Ltd. Vs New India Assr.
Co. Ltd.(2008) 14 SCC 598

4. Balu Krishna Chavan Vs Reliance Gen. Ins.
Co. Ltd. & ors. (2022) LiveLaw SC 932

5. Miss Devi Vs Rajkumar & anr.. (2021) 2
T.A.C. 413 Raj.

6. UOI Vs Ibrahim Uddin & anr. (2012) 8 SCC
148

(Delivered by Hon'ble Jaspreet Singh, J.)

1. These are a bunch of three
appeals arising out of the award dated
23.01.2014 passed by Motor Accident
Claims Tribunal/ Special Judge (Ayodhya
Prakaran), Lucknow. Amongst the four
initial appeals, Appeal bearing No.441 of
2014 (Smt. Shweta Lamba vs. Manoj
Kumar Singh and another) was dismissed
on 10.02.2017 on account of default and
though an application for recall was
moved, but that too was defective, hence,
the Court was not inclined to take the
matter forward. Consequently, the appeal
stood dismissed. Thus, only three appeals
bearing First Appeal From Order Nos.
488 of 2014, 439 of 2014 and 442 of
2014
are
before
this
Court
for
consideration.
8 All. Smt. Pushpa Singh & Ors. Vs. Manoj Kumar Singh & Ors.
771

2. In order to appreciate the
controversy and how the three appeals have
evolved, it would be relevant to notice that
one Shri Ajit Singh expired in a motor
accident on 11.02.2010 while he was
driving his Honda City Car bearing no.
UP78-AZ-1116. He was travelling along
with his family members, however the
offending vehicle bearing no. UP32-T8252, which was being driven rashly and
negligently, hit the Honda City as a result
of which, Shri Ajit Singh expired while his
wife Smt. Pushpa Singh, his daughter Smt.
Shweta Lamba and his grandson Master
Ahan suffered injuries.

3. It is in the aforesaid backdrop that
Claim Petition No.78 of 2011 came to be
filed by all the legal heirs of deceased Ajit
Singh, i.e. his wife Smt. Pushpa Singh,
daughter Smt. Shweta Lamba and son
Vivek Lamba and another daughter who
was impleaded as respondent no.3 in the
Claim Petition, namely Reshma (who was
not travelling in the car with the family
members).
This
Claim
Petition
was
primarily in respect of compensation on
account of death of Shri Ajit Singh.

4. Another Claim Petition was filed
by Smt. Pushpa Singh in her personal
capacity bearing no.77 of 2011 on account
of injuries sustained by her. Smt. Shweta
Lamba the daughter travelling with the
family filed her Claim Petition bearing no.
425 of 2010 seeking compensation for the
injuries sustained by her and so also a
Claim Petition bearing no.76 of 2011 was
filed on behalf of her son Master Ahan
(grandson of late Ajit Singh). In this
fashion four Claim Petitions were filed, one
for compensation for death of Ajit Singh,
whereas other three were for seeking
compensation on account of injuries
sustained by the respective persons as
mentioned above. All the four Claim
Petitions were clubbed and were contested
together.

5. Primarily the owner of the
offending vehicle/ Truck bearing no.UP32T-8252, namely Manoj Kumar Singh filed
his
written
statement
denying
the
allegations, however he stated that his
vehicle in question was duly insured and
also the driver possessed a valid and a
subsisting license and the truck also
possessed all necessary documents, thus, in
case if any award is passed, it would be the
Insurance Company who would be liable to
subrogate the award.

6. The Insurance Company filed its
separate written statement and contested on
the plea that the truck in question was not
insured on the given date and time
inasmuch as it was stated that the accident
occurred on 11.02.2010 at around 11 a.m.
whereas the insurance policy issued by the
Company though dated 11.02.2010 was
effective from 6.13 p.m. and thus at the
time when the accident occurred the truck
in question was not insured, hence no
liability could be fastened on the Insurance
Company.

7. Upon the exchange of pleadings,
the Tribunal framed 6 issues and the parties
respectively lead their documentary as well
as oral evidence. It will be relevant to
notice at this stage that Manoj Kumar
Singh, the owner of offending truck did not
put in appearance as a witness nor his
driver was examined as a witness and
practically the matter proceeded ex-parte
against him.

8. The Tribunal, while noticing the
Claim Petitions before it on merit, found
that
the
accident
had
occurred
on
772 INDIAN LAW REPORTS ALLAHABAD SERIES
11.02.2010 and also found that it was on
account of rash and negligent driving of the
offending truck driver bearing no. UP32-T8252. The Tribunal while considering the
issues nos.2 and 3 found that the driver did
possess a valid and subsisting license and
the truck also had a valid fitness certificate,
a pollution certificate, however it recorded
that the truck did not have any permit as no
such document was placed on record.

9. The Tribunal while considering the
fact whether the truck was insured or not,
noticed that the truck was insured on
11.02.2010 but since the policy which was
brought on record indicated that the policy
was valid with effect from 6.13 in the
evening, therefore, at the time when the
accident occurred, i.e. 11 a.m., the truck
could not be said to be duly insured. The
Tribunal thereafter went ahead to compute
the compensation and in the case relating
to the death of Ajit Singh awarded a sum
of Rs.10,69,000/- along with 7 percent
interest in favour of the claimants by
means
of
award
dated
23.01.2014,
however
it
absolved
the
Insurance
Company of its liability and directed the
award to be honoured by the owner
namely, Manoj Kumar Singh. This award
passed in Claim Petition No.78 of 2011
has given rise to First Appeal From Order
No.488 of 2014.

10. Similarly, in the Claim Petition
filed by Smt. Pushpa Singh bearing no. 77
of 2011 the Tribunal awarded a sum of
Rs.13,000/- as compensation towards the
injuries sustained by her by means of an
award dated 23.01.2014 also fastening the
liability of the award on the owner of the
truck
and
absolving
the
Insurance
Company. Thus the award passed in Claim
Petition No.77 of 2011 has given rise to
First Appeal From Order No.442 of 2014.

11. In so far as Claim Petition filed by
Smt. Shweta Lamba bearing no.425 of
2010, seeking compensation for her injuries
is concerned, the same was also allowed
awarding sum of Rs.50,939/- along with 7
percent
interest
vide
award
dated
23.01.2014 fastening the award on the
owner of the truck and absolving the
Insurance Company which has given rise to
First Appeal From Order No.441 of 2014.
As already noticed above, First Appeal
From Order filed by Smt. Shweta Lamba
bearing no.441 of 2014 was dismissed in
default on 10.02.2017 and the attempt of
the appellant- Smt. Shweta Lamba to
restore the appeal also failed, consequently,
First Appeal From Order No.441 of 2014
got a quietus.

12. The Claim Petition preferred by
Master Ahan bearing no.76 of 2010 was
also allowed for a sum of Rs.34,679/- along
with 7 percent interest and the owner of the
truck was required to pay the same, which
has given rise to First Appeal From Order
No.439 of 2014.

13. In the aforesaid factual backdrop,
the three subsisting appeals : (I) Appeal
bearing no. 488 of 2014, which relates to
the compensation on account of death of
Ajit Singh, (II) Appeal bearing no. 439 of
2014, filed by Master Ahan for the
enhancement of compensation for the
injuries sustained by him, and (III) Appeal
bearing no. 442 of 2014 filed by Smt.
Pushpa Singh seeking enhancement of
compensation for the injuries sustained by
her, are now being considered on merits.

14. The Court has heard Shri Mohd.
Saeed, learned counsel for the appellant in
all the three appeals and Shri Anil Kumar
Srivastava,
learned
counsel
for
the
respondent- Insurance Company. Even
8 All. Smt. Pushpa Singh & Ors. Vs. Manoj Kumar Singh & Ors.
773
before this Court, the owner of the truck
Manoj Kumar Singh despite service has not
put in appearance.

15. The submission of learned counsel
for the appellants is two-fold. It has been
urged that the Tribunal has erred in
fastening the liability on the owner,
whereas from the record it was clearly
established that the insurance policy was
issued on 11.02.2010 at 12 noon. Even
though if the time of commencement has
been mentioned as 18.13 hours yet it would
relate back from the midnight of the
previous day. He has further urged that the
record would indicate that the owner of the
truck had filed the insurance policy before
the criminal Court for getting his truck
released and the appellants had obtained
the documents from the said Court which
was filed before the claims Tribunal and the
said policy as filed by the appellants
indicated that the policy was valid from
11.02.2010 till 10.02.2011 midnight to
midnight. It is urged that the policy which
was furnished by the Insurance Company
indicated that though the insurance policy
was issued at 12 noon and it was made
effective from 18.13 hours, but there was a
discrepancy between the two policies.
Nevertheless,
the
witness
who
was
examined on behalf of Insurance Company,
Pawan Kumar Sharma, in his cross
examination
clearly
stated
that
the
insurance policy is issued only after
receiving the premium amount from the
customer. He further stated that the time of
issuance of the policy indicated 12 noon
which is the default time generated by the
system. The learned counsel has pointed
out that as per the aforesaid witness the
policy was issued at 12 noon yet it would
relate to the time of midnight of the
previous day.

16. It has been urged by the learned
counsel for the appellants that the policy
filed by the appellants has not been
disputed at any stage by the Insurance
Company. It is thus submitted that the
finding recorded by the Tribunal to the
extent that the truck was not insured at the
given time and date and fixing the liability
on the owner is apparently erroneous and is
against the dictum of the Apex Court in
Oriental Insurance Co. Ltd. Vs. Dharam
Chand & others; 2010 (28) LCD 1353 and
National Insurance Co. Ltd. vs. Mrs.
Chinto Devi; ALR (40) page 645 (SC).
Apart from the aforesaid two decisions of
the Apex Court the learned counsel for the
appellants has relied upon a decision of a
Division Bench of this Court in Oriental
Insurance Company Ltd. vs. Jagat Pal
and others; 2013 (31) LCD page 849 to
buttress his submissions.

17. The other limb of the argument
of learned counsel for the appellants is
that the Tribunal in case of death of Ajit
Singh noticing that there were four legal
heirs of the deceased yet it erred by going
against the decision of the Apex Court in
Sarla Verma and others vs. Delhi
Transport Corporation and another;
(2009) 6 SCC 121 and made deductions
for personal expense of one-third instead
of one-fourth.

18. Learned counsel for the appellants
further
submits
that
the
amount
of
compensation awarded to Master Ahan for
his injuries is also on a much lower side
inasmuch as merely a meager sum of
Rs.34,679/- has been awarded, whereas he
was entitled to a larger sum inasmuch he
had undergone a surgery and this aspect has
not been appropriately considered by the
Tribunal.
774 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In so far as the appeal preferred
by Smt. Pushpa Singh for enhancement of
her compensation towards personal injuries
is concerned, it has been urged that the
Tribunal has failed to consider the injuries
suffered and in a casual manner has
awarded a meager amount of Rs.13,000/-.
It is also submitted that the award is bad for
directing the owner to pay the liability apart
from the fact that appropriate compensation
has also not been awarded, thus the same
deserves to be enhanced.

20. Shri Anil Kumar Srivastava,
learned counsel for the Insurance Company
has submitted that the Tribunal has
correctly recorded a finding that the truck
was not insured on the given day and time.
It has further been submitted that the
claimants had filed a photocopy of a policy
bearing Paper No. C16/10 which indicated
that the period of insurance was from
11.02.2010 to 10.02.2011 from midnight to
midnight. It is further submitted that this
particular policy was verified and it was
contrary to the policy which was issued by
the Company, a copy of which has been
placed on record as Paper No. C-44/5.
Another policy has been placed on record
bearing Paper No. C-25/2, which indicates
that though the policy was issued on
11.02.2010 at 12 noon, but was made
effective from 18.13 hours commencing
from 11.02.2010 to 10.02.2011 midnight. It
is relying upon the aforesaid document
bearing Paper No. C-25/2 that it has been
urged that the Company is bound by the
aforesaid insurance policy which is nothing
but a contract and there is enough leverage
available with the Company to put terms on
the commencement of the insurance policy
and in this case it was made effective from
18.13 hours on 11.02.2010 and as the
accident occurred on 11.02.2010 at around
11 a.m., thus at the given date and time the
truck was not insured and this has been
appropriately dealt with by the Tribunal,
hence this finding of fact which is based on
evidence requires no interference.

21. It has further been submitted that
in so far as the deduction towards personal
expenses is concerned, the Insurance
Company does not have much objection as
the same is now well settled by the decision
of the Apex Court in case of Sarla Verma
(supra) which has further been approved
and reiterated in the Constitution Bench
decision of the Apex Court in National
Insurance Company Ltd. vs. Pranay
Sethi; (2017) 16 SCC 680. However, it is
further submitted that in so far as the
enhancement of compensation for the
personal injuries is concerned, the Tribunal
has taken a holistic view and has awarded
appropriate
compensation.
All
the
documents which were filed by the
claimants
have
been
appropriately
considered and noticing the same the
compensation has been awarded. It is also
urged that there is no evidence on record
that any functional disability was suffered
by
any
of
the
claimants
seeking
compensation for personal injuries and
taking note of the aforesaid as well as the
documents filed indicating the amounts
spent for the medical treatment, which has
been duly noticed by the Tribunal, the
award has been made which does not
require any interference. Hence, it is
submitted that all the three appeals deserve
to be dismissed.

22. The learned counsel for the
appellants in rejoinder has tried to point out
that the entire premise upon which the
Insurance
Company
has
laid
its
submissions is not quite correct and in
order to buttress his submissions he has
also relied upon an application preferred by
8 All. Smt. Pushpa Singh & Ors. Vs. Manoj Kumar Singh & Ors.
775
the appellant under Order XLI Rule 27 of
the Code of Civil Procedure, 1908 bringing
certain additional documents on record to
indicate that certain questionnaires were
served in the criminal Court which indicate
that the policy which was submitted before
the criminal Court did not contain any time
of commencement of the insurance policy.
The submission is that in so far as the
insurance
policy
submitted
by
the
appellants
is
concerned,
which
was
corroborated by the said questionnaires
hence in the aforesaid circumstances there
can be no manner of doubt that the
Insurance Company would be liable and
the appeals deserve to be allowed.

23. Before proceeding further it will
be necessary to take a glance at the
application filed by the appellants under
Order XLI Rule 27 of the Code of Civil
Procedure, 1908 bearing C.M. Application
No.111177 of 2017 along with which
certified copy of the application filed by
Manoj Kumar Singh for the release of his
truck, a questionnaire dated 29.04.2017
obtained from the Court of ACJM, Court
No.15, Raebareilly, a questionnaire dated
19.05.2017 obtained from the Court of
A.C.J.M., Court No.15, Raebareilly and
another questionnaire dated 30.05.2017
obtained from the Court of A.C.J.M., Court
No.15, Raebareilly and a statement of the
witness recorded in course of enquiry of
criminal case No.4017 of 2010 has been
filed. The respondent- Insurance Company
has also filed its objections to the same.

24. From the perusal of the said
application it would indicate that in
paragraph no.8 it has been stated that it is
only after the case was decided that the
appellants made efforts to get the copies of
the
documents
which
have
been
enumerated above and are being filed in
terms of Order XLI Rule 27 of the Code of
Civil Procedure, 1908.

25. At the very outset it may be stated
that Order XLI Rule 27 of the Code of
Civil Procedure, 1908 commences with a
non obstante clause and it is not as a matter
of right that any appellant is entitled to
introduce evidence at the appellate stage.
The said provision contains the conditions
which necessarily have to be fulfilled to
enable the Appellate Court to receive the
said documents on record. It is in the
aforesaid light if the facts of the instant
case are seen it would indicate that the
accident
in question
took place
on
11.02.2010 and the Claim Petitions have
been pending before the Tribunal from
2010 itself inasmuch as the earliest Claim
Petition was filed by Smt. Shweta Lamba,
however, the other Claim Petitions of the
claimants were filed in the year 2011 and
the award came to be passed in the year
2014. The documents said to have been
brought on record, all relate to the year
2010. It is only the said questionnaires
which have been obtained by the appellants
on 29.04.2017 there is nothing on record to
indicate or even in the affidavit to indicate
as to what prevented the appellants from
receiving the said questionnaires earlier.

26. In the first instance the veracity of
such questionnaires is in itself doubtful in
context of the fact and noticing the
provision under which such questionnaires
are issued. It will be relevant to notice Rule
141 of the General Rules (Criminal) and
Rule 224 and 225 of the General Rules
(Civil), which reads as under:-

"[Extracted from General Rules
(Criminal)]:

141. Application for information.
776 INDIAN LAW REPORTS ALLAHABAD SERIES

Any person desiring to ascertain the
serial number, date of institution or other
registered particulars respecting a case or
any proceeding therein, or of any judicial
proceeding, the record of which is in the
judge's or the magistrate's court or recordroom, shall present or send by post to the
officer in-charge of the record-room, an
application preferably in Form 7(Part IX,
no. 45), to which shall be affixed a courtfee label of five rupees52giving the best
particulars he can as to the year of
institution and names of parties. He shall
be entitled to have a search made and the
information, if obtainable, given to him in
writing signed by the record-keeper within
ten days of the date of receipt of
application.

The record-keeper shall mark each
application with a serial number. In case
the information be not supplied within ten
days as aforesaid, the recordkeeper shall
forthwith on the expiration of the said
period of ten days report in writing to the
court the cause of noncompliance with the
application.

The application shall after disposal be
pasted under a separate serial number in a
file book kept for the purpose and
consigned to the record-room annually.

Where the applicant desires that the
information be supplied to him by post, he
shall give his address at which it may be
sent and affix to his application postage
stamps of the requisite value.

A printed copy of this rule in Hindi
shall be posted on a notice-board in a
conspicuous place in every court and also
in the record-room.

[Extracted
from
General
Rules
(Civil)]:

224. Application for information.

Any person desiring to ascertain the
serial number and date of institution of any
suit
or
other
registered
particulars
respecting a suit, or any proceedings
therein, or of any judicial proceeding, shall
present or send by post to the Munsarim a
written application stamped with a Court
fee label of Rs. 5.0038 and giving the best
particulars he can as to the year of
institution and the names of parties. The
Munsarim shall mark such application with
a serial number and direct the official in
charge of the relevant register to make a
search. The information, if obtainable,
shall be given to the applicant in writing,
signed by the official in charge of the
register, within three days from the date of
the receipt of the application. In case such
information cannot be given within three
days, the Munsarim shall forthwith, on the
expiration of the said period, report in
writing to the Judge for his orders, the
cause of the noncompliance with the
application. A printed copy of this rule in
Hindi shall be kept posted on the notice -
board in a conspicuous place in every
Court, and also in the office of every
Munsarim.

After disposal the application for
search shall be posted in a file book in
serial order. Each such file book shall be
consigned to the record room at the end of
each calendar year.

225. Application for information in
pending cases.

In pending cases, it will be open to a
party to obtain certain information by
means of written questions and answers in
form No. VI-122. To this form must be
affixed a Court - fee label of 50 paise for
every
two
questions
or
less
asked
pertaining to the same case.

N.B.- In no circumstance shall the
right conferred by this rule be so exercise
as to be in substitution of the method of
obtaining more detailed information by
inspection of the record or by copies."
8 All. Smt. Pushpa Singh & Ors. Vs. Manoj Kumar Singh & Ors.
777

27. Apparently in terms of extracted
Rules (General Rules (Civil and Criminal))
from above, it is provided that no
questionnaire shall be issued in respect of
any document of which a certified copy can
be obtained. It is also to be noticed that the
questionnaire cannot be issued by any
authority to explain the content of any
document and thus the said documents in
terms of questionnaire are not valid to
substantiate the contents as sought to be
attempted by the appellants.

28. Leaving aside the aforesaid, for a
moment, yet the fact remains that the issue
raised by the Insurance Company was very
well in the knowledge of the appellants and
they had contested the entire proceedings
on the aforesaid plea. This Court finds that
the claimants themselves had filed the
document bearing Paper No. C-16/10 on
the record of the Tribunal along with the
document list on 17.07.2012. Even once the
award had been passed in the year 2014
and the appellants were aware of the
reasons which have been recorded by the
Tribunal in not accepting the submission of
the claimants, yet they waited and the
application has been moved in the year
2017.

29. Insofar as the statement of a
witness filed with the document list
alongwith the application under Order XLI
Rule 27 of the Code of Civil Procedure,
1908 is concerned, that does not have too
much of relevance to the issue involved in
the instant appeal however, much emphasis
has been laid by learned counsel for the
appellants on the questionnaire which has
been issued on 29.04.2017, 19.05.2017 and
30.05.2017. In light of the decision of the
Apex Court in the case of Union of India
vs. Ibrahim Uddin and another; (2012) 8
SCC 148 where the Apex Court had
considered the scope and the applicability
of the provisions of Order XLI Rule 27 of
the Code of Civil Procedure, 1908 and
noticing the principles culled out there
from, this Court finds that there has been
no worthwhile explanation given by the
appellants as to why the said documents
could not be filed earlier.

30. Apparently from the consideration
of the provisions contained in Order XLI
Rule 27 of the Code of Civil Procedure,
1908 neither Clause (a) nor Clause (aa) are
attracted in the instant case as it is not the
case of the appellants that these documents
were filed before the Tribunal but the
Tribunal has failed to take note of it or that
the documents came into light only after
the award was passed. Now the only
residue is Clause (B) of Order XLI Rule 27
of the Code of Civil Procedure, 1908 which
vests ample power with the Court to take it
on record if the said documents are
considered necessary in the opinion of the
Court to arrive at a conclusion and deliver
an effective judgment.

31. It is in this view of the matter that
the Court had heard the learned counsel for
the
parties
and
after
perusing
the
application and the documents sought to be
produced on record this Court cannot
persuade itself to come to the conclusion
that the documents which have been
produced as additional evidence have any
relevance and would be relevant and
imperative for this Court to consider and
would be helpful in passing an effective
order or to do complete justice between the
parties. Consequently, the said application
under Order XLI Rule 27 of the Code of
Civil Procedure, 1908 is rejected.

32. The reliance placed by the learned
counsel for the appellants on a decision of
778 INDIAN LAW REPORTS ALLAHABAD SERIES
the Rajasthan High Court in Miss Devi vs.
Rajkumar and another; 2021 (2) T.A.C.
413 (Raj.) would reveal that it is factually
quite different to the facts of the present
case and for the reasons recorded hereinabove, the decision of the Rajasthan High
Court is not helpful to the appellants.

33. Now coming to the merits of the
contentions raised by learned counsel for
the parties, the point for consideration
involved in the instant appeal is two-fold.
(I) Whether the appellants who otherwise
have been awarded the compensation and it
has been held that the truck was not
insured, consequently, the owner is entitled
to subrogate the award then in these
circumstances where the owner of the truck
has not assailed such finding whether the
claimant can raise such issue in its appeal.
(II) The other point involved is in respect of
enhancement as claimed by the appellants
on the ground as already noticed herein
above.

34. In respect of the first submission
and the point for consideration, apparently,
from the facts available on record, it is the
case of the appellant that the accident
occurred on 11.02.2010 at 11 a.m. Even
taking the submission of learned counsel
for the appellants on its face value it would
indicate that the insurance policy which has
been brought on record and relied upon by
the Insurance Company indicates that it has
been issued at 12 noon, however made
effective
from
18.13
hours. Another
insurance policy which has been brought
on record is Paper No. C-44 indicating that
the insurance policy though issued at 12
noon but was made effective from midnight
to midnight.

35. In the aforesaid backdrop, the
issue before the Tribunal in this regard was
regarding the rival insurance policies, to
arrive at a conclusion. The Tribunal noticed
that the witness who had come on behalf of
the Insurance Company clearly indicated
that the policy issued and filed on behalf of
the Insurance Company contained the logo
and the seal of the Insurance Company. The
witness stated that the time of issuance of
the policy is by default, as generated, from
the system and he further stated that in the
instant case since the owner of the
offending vehicle had come to the Office
and had paid the premium vide a demand
draft, consequently, the policy was made
effective from 18.13 hours on 11.02.2010.

36. Taking note of the aforesaid, the
Tribunal came to the conclusion that
apparently on the date when the accident
occurred the owner got the truck insured
and the premium was paid vide a demand
draft which is also dated 11.02.2010 and in
the circumstances the demand draft could
not have been received from the issuing
Bank prior to lunch hours, and therefore
after having received the consideration/
premium, the Tribunal held that, the policy
even if issued at 12 noon would not cover
the accident as it had occurred at 11 a.m.
and admittedly at that point of time no
insurance cover for the offending truck had
been purchased by the owner of the truck.

37. It is at this stage if the decision
sited by the learned counsel for the
appellants is noticed in case of Dharam
Chand (supra) it would reveal that in the
said case the Apex Court noticing the
concession made by the counsel for the
Insurance Company held that even though
the insurance policy was issued and the
premium was received at an earlier point of
time, yet it would deem that the policy has
become effective from the time of receipt
of premium. The said decision is based on
8 All. Smt. Pushpa Singh & Ors. Vs. Manoj Kumar Singh & Ors.
779
the concession of the counsel for the
Insurance Company hence for the said
reason it does not lay down a binding
precedent and even otherwise factually
seen it would reveal that in Dharam
Chand (supra) premium was received at 4
p.m. and accident took place 4 hours later
while policy was to commence from next
day. Even in the instant case if the policy is
made effective from the time of receiving
premium even then it would be clear that
there is no insurance as the accident took
place at 11 a.m. and the premium was paid
vide demand draft of same date, i.e.
11.02.2010 much after noon and moreover
there is no evidence to the contrary, hence
the said decision is of no help to the
appellant.

38. While in Mrs. Chinto Devi
(supra), the Apex Court noticed that
generally when a policy is issued it will
cover its liability from midnight preceding
the same date but in case of any special
contract as mentioned in the policy it will
be made operative as per special contract.
Since there was dispute regarding the time
of purchase of policy hence the matter was
remanded. However in the instant case it is
admitted that accident took place at 11 a.m.
and while the policy which was proved was
issued at 12 noon after the time of accident,
of which premium was paid through
demand draft much after noon and the
policy was to commence at 18.13 hours
much after the accident, hence this decision
of Mrs. Chinto Devi (supra) also does not
help the appellants.

39. The Division Bench of this Court
in Jagat Pal (supra) has held that the
contract of insurance which is voluntarily
signed by the parties then the time provided
in the contract and mentioned in the
insurance policy is binding on the parties.
In the said case before the Division Bench
the accident occurred on 26.07.1991 at 2
p.m. and the accident also occurred at the
same time therefore contention was since it
would
take
time
for
the
Insurance
Company to complete the formalities to
issue the policy and therefore it was not
possible that the insurance was procured
simultaneously at the time the accident
occurred. In the aforesaid circumstances
the Insurance Company had raised a plea
that the vehicle was not insured. Negativing
the aforesaid contention, the Division
Bench held that once in the policy it was
mentioned that the time and date is
indicated then the policy would come into
effect at the time i.e. 2 p.m. and accident
also occurred at 2 p.m. hence the Insurance
Company cannot avoid its liability. This
decision again is factually quite at variance
with the facts of the instant case and does
not aid the appellants, but if the ratio is
imported to the instant case and applied it
may go against the appellants as the time in
the policy in the instant case is 18.13 hours
much after the accident and as per Jagat
Pal (supra) case the Insurance Company is
bound by the time in the policy.

40. From the provisions as noticed
and for the decisions as stated by learned
counsel for the appellants, this Court finds
that if the propositions are made applicable
in the instant case apparently the accident
occurred at 11 a.m., this fact is not
disputed. Even if the insurance policy is
seen, it would indicate that it was issued at
12 noon and made effective from 18.13
hours on the same day. The fact that the
policy which has been relied upon by the
appellants is a copy which they say have
been received from the criminal Court but
is not accepted by the witness of the
Insurance Company. Another important
aspect which needs to be considered is that
780 INDIAN LAW REPORTS ALLAHABAD SERIES
the owner of the truck did not enter into the
witness box. He was the best person to
have explained about the original policy
which would be available with the said
owner however that was not placed on
record nor he was summoned as a witness
by the claimants. It will also be noticed that
there is another reason apart from the
discrepancy in the insurance policy and that
is that there was no permit of the truck
which was placed on record and this
finding has been recorded and not assailed
either by the owner or by the claimants.

41. It is understood that in so far as
claimants are concerned, they can be
treated as an aggrieved party seeking
enhancement
of
compensation
but
primarily a motor accidental claim is a
claim in the law of Tort where the liability
is between the tortfeasor and against whom
the tort has occurred. In the instant case the
claimants are the heirs of a deceased party
and also persons who have received
personal injuries. They have filed a claim
against the tortfeasor who is a driver who
was actually driving the truck but he has
not been made a party but for the reasons of
constructive/ vicarious liability it is the
owner who is liable, who is a party to the
proceedings.

42. The contract of insurance is
between the insurer and the insured and is a
separate contract altogether with which the
claimants are not concerned. They are only
entitled to recover the amount from
tortfeasor and in the instant case it would
be the driver and the owner of the truck,
who
is
vicariously
responsible.
The
provisions of the Motor Vehicle Act, 1988
makes it compulsory to get a vehicle
insured with a minimum third party risk
covered and in case of third party claim
arising against such insured vehicle then it
is the Insurance Company who is obliged to
indemnify the award provided and subject
to the provisions and defenses available to
an Insurance Company and only on such
limited grounds it can avoid its liability
which amongst others include where there
is no valid insurance policy on the date and
time of the accident.

43.