# The New India Assurance Co. Ltd v. Arjun Gaur & Ors

- **Citation:** (2024) 1 ILRA 1118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-10
- **Case number:** First Appeal From Order No. 1083 of 2006
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-arjun-gaur-ors-50835
- **Pages:** 9

## Headnote

First Appeal From Order - Dismissal of
Insurance Company's Challenge - The
appellant-insurance company challenged the
Motor Accident Claims Tribunal's award dated
06.01.2006, granting Rs.7,25,404/- with 7.5%
interest for the death of Indravati Devi in a
1 All. The New India Assurance Co. Ltd. Vs. Arjun Gaur & Ors.
1119
motor accident - Held, the Tribunal's findings on
negligence and driving licence were upheld, and
the appeal was dismissed for lack of merit.
(Paras 2, 29)

B. Negligence of Driver - Tribunal's
Finding Upheld - The Tribunal held that the
accident was caused by the rash and negligent
driving of the driver of Tempo No. U.P.-52-F0451, based on the testimony of eye-witness
P.W.2 - Held, the FIR and charge sheet alleging
negligence of the other vehicle (Tempo No.
U.P.-56-T-0054) could not override the eyewitness testimony, and in a case of composite
negligence, claimants could choose to claim
from either tortfeasor. (Paras 5, 11, 14, 15)

C. Composite Negligence - Claimant's
Right to Choose Tortfeasor - The accident
involved a head-on collision between two
tempos - Held, as per Khenyei Vs New India
Assurance Co. Ltd., in cases of composite
negligence, claimants can claim compensation
from either tortfeasor, and the insurance
company may pursue recovery from the other
vehicle's owner separately. (Paras 11, 15)

D. Burden of Proof on Driving Licence -
Insurance Company's Responsibility - The
Tribunal held that the insurance company failed
to prove the driver of Tempo No. U.P.-52-F0451 lacked a valid driving licence - Held, as
per National Insurance Co. Ltd. Vs Swaran
Singh, the burden lies on the insurance
company to prove both the breach of policy and
deliberate negligence by the owner, which the
appellant failed to establish. (Paras 6, 16, 20,
25)

E. Per Incuriam Ruling - Non-Binding
Precedent - The appellant relied on United
India Insurance Co. Ltd. Vs Rajesh Kumar
Tripathi to argue the burden was on the owner
to prove a valid driving licence - Held, this case
was per incuriam for not considering Swaran
Singh, and the latter's ruling that the insurance
company bears the burden remains binding.
(Paras 23, 24, 27)

Appeal Dismissed.

List of Cases cited:

## Text

1118 INDIAN LAW REPORTS ALLAHABAD SERIES
employing the words 'made by a District
Judge by virtue of the powers hereby
conferred'.

25. The right of an appeal under
Section 299 of the Act provided against
every order made by District Judge by
virtue of powers conferred, would therefore
have to be held, to be available only against
orders made by the District Judge by virtue
of powers conferred under the Act and the
said right of an appeal would not be
available against an order which has been
passed not in exercise of powers conferred
by the Succession Act, but in exercise of
powers made available under the provisions
of the Code.

26. It may also be noted that in a
contentious case although the procedural
provisions of the Code have been made
applicable, the proceedings are not to be
treated as a regular suit and upon
determination of the issues raised therein, a
decree is not to follow. The expression 'in
accordance with the provisions of Code of
Civil Procedure, 1908' finding place in
Section 299 of the Act, is not indicative of
substantive rights of the parties, but only
refers to the procedural aspect.

27. Any order of interlocutory nature
passed by the District Judge during the
course of proceedings in a case seeking
grant
of
Probate
or
Letters
of
Administration, cannot be held to be an
adjudication of a nature which conclusively
determines the rights of the parties and
therefore would not be a 'decree', so as to
be amenable to an appeal under Section 96
of the Code.

28. The order against which the
appeal has been preferred having been
passed by the District Judge exercising
powers referable to Order 14 Rule 5 of
Code, the said order cannot be said to be an
order made by the District Judge by virtue
of powers conferred upon him under the
Succession Act and therefore the same
cannot be held to be appealable under
Section 299 thereof. The order would also
not be covered under the description of the
term 'decree' so as to attract the provisions
of Section 96 of the Code, and be subject to
an appeal under the said provision.

29. The present appeal having
therefore been held to be not maintainable,
stands dismissed.

30. It would be open to the appellants
to seek appropriate legal remedy, as they
may be advised.
----------
(2024) 1 ILRA 1118
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 1083 of 2006

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Arjun Gaur & Ors. ...Respondents

Counsel for the Appellant:
Sri Rakesh Bahadur

Counsel for the Respondents:
Sri Vashistha Tewari

First Appeal From Order - Dismissal of
Insurance Company's Challenge - The
appellant-insurance company challenged the
Motor Accident Claims Tribunal's award dated
06.01.2006, granting Rs.7,25,404/- with 7.5%
interest for the death of Indravati Devi in a
1 All. The New India Assurance Co. Ltd. Vs. Arjun Gaur & Ors.
1119
motor accident - Held, the Tribunal's findings on
negligence and driving licence were upheld, and
the appeal was dismissed for lack of merit.
(Paras 2, 29)

B. Negligence of Driver - Tribunal's
Finding Upheld - The Tribunal held that the
accident was caused by the rash and negligent
driving of the driver of Tempo No. U.P.-52-F0451, based on the testimony of eye-witness
P.W.2 - Held, the FIR and charge sheet alleging
negligence of the other vehicle (Tempo No.
U.P.-56-T-0054) could not override the eyewitness testimony, and in a case of composite
negligence, claimants could choose to claim
from either tortfeasor. (Paras 5, 11, 14, 15)

C. Composite Negligence - Claimant's
Right to Choose Tortfeasor - The accident
involved a head-on collision between two
tempos - Held, as per Khenyei Vs New India
Assurance Co. Ltd., in cases of composite
negligence, claimants can claim compensation
from either tortfeasor, and the insurance
company may pursue recovery from the other
vehicle's owner separately. (Paras 11, 15)

D. Burden of Proof on Driving Licence -
Insurance Company's Responsibility - The
Tribunal held that the insurance company failed
to prove the driver of Tempo No. U.P.-52-F0451 lacked a valid driving licence - Held, as
per National Insurance Co. Ltd. Vs Swaran
Singh, the burden lies on the insurance
company to prove both the breach of policy and
deliberate negligence by the owner, which the
appellant failed to establish. (Paras 6, 16, 20,
25)

E. Per Incuriam Ruling - Non-Binding
Precedent - The appellant relied on United
India Insurance Co. Ltd. Vs Rajesh Kumar
Tripathi to argue the burden was on the owner
to prove a valid driving licence - Held, this case
was per incuriam for not considering Swaran
Singh, and the latter's ruling that the insurance
company bears the burden remains binding.
(Paras 23, 24, 27)

Appeal Dismissed.

List of Cases cited:
1. National Insurance Co. Ltd. Vs Swaran Singh,
(2004) 3 SCC 297

2. Pappu Vs Vinod Kumar Lamba, 2018 (1) TAC
360 (SC)

3. United India Insurance Co. Ltd. Vs Rajesh
Kumar Tripathi, 2023 (3) TAC 32 (All.)

4. Khenyei Vs New India Assurance Co. Ltd.,
(2015) 9 SCC 273

5. Rana Pratap Singh Vs St. of Uttar Pradesh,
(1996) All LJ 301

6. Punjab Land and Recreation Corporation Ltd.
Vs Presiding Officer Labour Court, (1990) 3 SCC
682

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

1. Heard learned counsel for the
appellant and learned counsel for the
respondents.

2. The present appeal has been
preferred
by
the
appellant-insurance
company challenging the award dated
06.01.2006 passed by the Motor Accident
Claims Tribunal/Special Judge (SC/ST
Act), Court No.3, Deoria (hereinafter
referred to as 'Tribunal') in M.A.C.P.
No.224 of 2004 whereby Tribunal has
awarded Rs.7,25,404/- along with 7.5%
interest
as
compensation
to
the
claimants/respondents.

3. The claimants/respondent nos.1 to
4 instituted the claim petition for the death
of one Indravati Devi who died in an
accident on 28.06.2004. According to
claimants/respondent nos.1 to 4, deceasedIndravati Devi was traveling on Tempo
No.U.P.-52-F-0451 and when the said
tempo reached near Khukhund crossing, it
met with an accident with delivery Tempo
No.U.P.-56-T-0054.
Indravati
Devi
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
suffered injuries in the said accident and
died.

4. The Tribunal framed as many as
four issues. The appeal has been filed
challenging the finding of the Tribunal on
the issue nos.1 & 2.

5. On the issue no.1 with regard to
occurrence of the accident and negligence
of the driver of tempo, the Tribunal
considered necessary evidence and material
on record and found that deceased died in
the accident due to rash and negligent
driving of driver of Tempo No.U.P.-52-F0451.

6. On the issue no.2 in respect of
driving licence of driver of Tempo
No.U.P.-52-F-0451, Tribunal held that no
driving licence was filed on record, and
burden was upon the appellant-insurance
company to prove that driver of the Tempo
No.U.P.-52-F-0451 was not holding a valid
driving
licence,
and
since
insurance
company failed to prove that driver of the
Tempo No.U.P.-52-F-0451 was not holding
a valid driving licence, therefore, the said
tempo was being driven by the driver
holding a valid driving licence.

7. Challenging the aforesaid award,
learned counsel for the appellant has
contended that the F.I.R. has been lodged
by Arjun Gaur husband of the deceased in
respect to the alleged accident wherein it is
stated that the accident had taken place due
to rash and negligent driving of driver of
Tempo
No.U.P.-56-T-0054,
therefore,
Tribunal has erred in law in holding that
the accident had taken place due to rash
and negligent driving of driver of Tempo
No.U.P.-52-F-0451. It is contended that
P.W.2-Jai Prakash Mishra was a planted
witness and there is nothing on record
clarifying under which circumstances the
husband of the deceased in F.I.R. stated
that the accident had taken place due to
rash and negligent driving of driver of
Tempo No.U.P.-56-T-0054. It is further
contended
that
admittedly,
both
the
vehicles involved in the accident were
coming from opposite direction and it was
a case of head on collision between two
vehicles, therefore, drivers of both the
vehicles were negligent in driving the
vehicles. Consequently, it is submitted that
Tribunal should have apportioned the
negligence of both the drivers equally in
the accident and should have accordingly,
fixed the liability upon the owner of both
the vehicles.

8. It is further contended that the
Tribunal has erred in law in holding that
burden is upon the insurance company to
prove that Tempo No.U.P.-52-F-0451 was
being driven by a person not holding a
valid driving licence. It is submitted that no
driving licence was filed on record and in
such an event, it was not possible for the
insurance company to verify the driving
licence of the driver of Tempo No.U.P.-52F-0451. Therefore, it is submitted that the
burden was upon the owner of Tempo
No.U.P.-52-F-0451 to prove that the
Tempo
No.U.P.-52-F-0451
was
being
driven by a person having a valid driving
licence, and after the owner of the Tempo
No.U.P.-52-F-0451
has
discharged
its
burden, the burden would shift upon the
insurance company to prove that the
Tempo
No.U.P.-52-F-0451
was
being
driven by a person not holding a valid
driving licence.

9. In support of the case, learned
counsel for the appellant has placed
reliance upon the judgement of Apex Court
in the case of Pappu and Others Vs. Vinod
1 All. The New India Assurance Co. Ltd. Vs. Arjun Gaur & Ors.
1121
Kumar Lamba and Another 2018(1)
T.A.C. 360 (SC) and judgement of this
Court in the case of United India
Insurance Company Ltd. Vs. Rajesh
Kumar Tripathi and Another 2023(3)
T.A.C 32 (All.).

10. Accordingly, it is submitted that
the appellant is entitled to right of recovery.
It is also urged that insurance company in
paragraph 14 of the written statement has
categorically stated that owner of the
Tempo No.U.P.-52-F-0451 intentionally
and deliberately entrusted the vehicle to a
driver not having a valid driving licence.
Thus, it is contended that in the instant
case, twin condition that driver of the
Tempo No.U.P.-52-F-0451 was not holding
a valid driving licence at the time of the
accident, and breach of policy was
committed by the owner deliberately which
are necessary for the insurance company to
establish in order to avoid its liability on
the ground of breach of policy are fulfilled,
therefore, Tribunal has erred in law in
fixing the liability upon the appellantinsurance company to pay compensation
and not giving right of recovery to it.

11. Per contra, learned counsel for the
respondents would contend that admittedly,
in the instant case, the deceased was
travelling in Tempo No.U.P.-52-F-0451. It
is submitted that the Tribunal has placed
reliance upon the testimony of P.W.2, who
was the eye witness of the accident and
who categorically stated that the accident
had taken place due to rash and negligent
driving of driver of Tempo No.U.P.-52-F0451, and there is no evidence in rebuttal to
the testimony of P.W.2, therefore, Tribunal
has rightly held that the accident was the
result of sole negligence of driver of
Tempo No.U.P.-52-F-0451 as record of
criminal cases cannot be given precedence
over the testimony of an eye witness. He
further contends that in the instant case,
deceased was traveling in Tempo No.U.P.-
52-F-0451, therefore, it was a case of
composite negligence qua deceased, and it
is the choice of the claimants/respondents
to claim compensation from either of the
tortfeasors, and if insurance company is of
the view that there was negligence of driver
of other vehicle i.e. Tempo No.U.P.-56-T0054, the insurance company may lay
separate claim against the owner of Tempo
No.U.P.-56-T-0054
and
recover
the
awarded amount paid by it to the extent of
negligence of driver of Tempo No.U.P.-56T-0054.

12. So far as the issue of driving
licence is concerned, it is submitted that the
law is settled that since the plea of breach
of insurance policy is set up by the
insurance company, therefore, burden is
upon the insurance company to prove that
the driver of Tempo No.U.P.-52-F-0451
was not holding a valid driving licence.
Thus, it is submitted that appeal is devoid
of merit and is liable to be dismissed.

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

14. So far as the question of
negligence of driver of other Tempo
No.U.P.-56-T-0054
is
concerned,
this
Court may note that claim petition has been
instituted by the claimants/respondents
alleging that the accident had taken place
due to rash and negligent driving of driver
of
Tempo
No.U.P.-52-F-0451.
The
claimants/respondents
also
produced
P.W.2, who was the eye witness of the
accident and who categorically stated that
the driver of Tempo No.U.P.-52-F-0451
was
driving
the
tempo
rashly
and
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
negligently due to which, the accident had
taken place. There is no evidence in
rebuttal to the testimony of eye witness
P.W.2. Though, learned counsel for the
appellant has placed heavy reliance upon
the allegations made in the F.I.R. wherein it
is stated that the accident had taken place
due to rash and negligent driving of driver
of Tempo No.U.P.-56-T-0054 and charge
sheet has also been filed by the police
against the driver of Tempo No.U.P.-56-T0054, but it is settled in law that contents of
F.I.R. and charge sheet cannot be given
precedence over the testimony of P.W.2,
who was the eye witness of the accident.

15. In such view of the fact, this Court
does not find any illegality committed by
the Tribunal in holding that the accident
had occurred due to rash and negligent
driving of driver of Tempo No.U.P.-52-F0451. Even otherwise, it is a case of
composite negligence, the Apex Court in
the case of Khenyei Vs. New India
Assurance Company Limited and others
(2015) 9 SCC 273 has held that in a case of
composite negligence, it is the choice of the
claimant to claim compensation from either
of the tortfeasors.

16. Now, so far as the issue of driving
licence is concerned, the law on the point
that in order to avoid its liability on the
ground of breach of policy, the burden is
upon the insurance company to prove the
breach of policy. The insurance company
further has to prove that breach of policy
committed by the owner was deliberate.

17. In the present case, the insurance
company had set up a plea that liability of
the insurance company is subject to
condition that driver of the offending
vehicle i.e. Tempo No.U.P.-52-F-0451 was
holding a valid driving licence at the time
of the accident. In other words, the plea
that insurance company is liable to pay
compensation only if offending vehicle was
being driven by a person holding a valid
driving licence has been set by the
insurance company.

18. In the case of National Insurance
Company Ltd. Vs. Swaran Singh & Others
(2004) 3 SCC 297, several awards were
assailed by the insurance company denying
its liability on the ground of breach of
policy by the owner wherein it was
contended that burden is upon the owner to
prove that offending vehicle was being
driven by a person having a valid driving
licence, and thereafter, burden would shift
upon the insurance company to prove that
the driver of the offending vehicle was not
holding a valid driving licence. In other
words, it was contended that in case owner
has failed to discharge its burden to prove
that driver of offending vehicle was
holding a valid driving licence, the owner
of the offending vehicle has committed
breach of policy and insurance company
cannot be held liable to pay compensation.
The Apex Court has summarized the
finding in paragraph 110 of the judgement
after considering the defence provided to
the insurer under Section 149(2)(a)(ii) of
the Motor Vehicles Act. Paragraph 110 of
the judgement is reproduced herein below:-

"110. The summary of our
findings to the various issues as raised in
these petitions is as follows:

(i) Chapter XI of the Motor
Vehicles Act, 1988 providing compulsory
insurance of vehicles against third-party
risks is a social welfare legislation to
extend relief by compensation to victims of
accidents caused by use of motor vehicles.
The provisions of compulsory insurance
1 All. The New India Assurance Co. Ltd. Vs. Arjun Gaur & Ors.
1123
coverage of all vehicles are with this
paramount object and the provisions of the
Act have to be so interpreted as to
effectuate the said object.

(ii) An insurer is entitled to raise
a defence in a claim petition filed under
Section 163-A or Section 166 of the Motor
Vehicles Act, 1988, inter alia, in terms of
Section 149(2)(a) (ii) of the said Act.

(iii)
The
breach
of
policy
condition e.g. disqualification of driver or
invalid driving licence of the driver, as
contained in sub-section (2)(a)(ii) of
Section 149, has to be proved to have been
committed by the insured for avoiding
liability by the insurer. Mere absence, fake
or
invalid
driving
licence
or
disqualification of the driver for driving at
the relevant time, are not in themselves
defences available to the insurer against
either the insured or the third parties. To
avoid its liability towards the insured, the
insurer has to prove that the insured was
guilty of negligence and failed to exercise
reasonable care in the matter of fulfilling
the condition of the policy regarding use of
vehicles by a duly licensed driver or one
who was not disqualified to drive at the
relevant time.

(iv)
Insurance
companies,
however, with a view to avoid their liability
must not only establish the available
defence(s) raised in the said proceedings
but must also establish "breach" on the
part of the owner of the vehicle; the burden
of proof wherefor would be on them.

(v) The court cannot lay down
any criteria as to how the said burden
would be discharged, inasmuch as the same
would
depend
upon
the
facts
and
circumstance of each case.

(vi) Even where the insurer is
able to prove breach on the part of the
insured concerning the policy condition
regarding holding of a valid licence by the
driver or his qualification to drive during
the relevant period, the insurer would not
be allowed to avoid its liability towards the
insured unless the said breach or breaches
on the condition of driving licence is/are so
fundamental
as
are
found
to
have
contributed to the cause of the accident.
The Tribunals in interpreting the policy
conditions would apply "the rule of main
purpose" and the concept of "fundamental
breach" to allow defences available to the
insurer under Section 149(2) of the Act.

(vii) The question, as to whether
the owner has taken reasonable care to find
out as to whether the driving licence
produced by the driver (a fake one or
otherwise), does not fulfil the requirements
of law or not will have to be determined in
each case.

(viii) If a vehicle at the time of
accident was driven by a person having a
learner's licence, the insurance companies
would be liable to satisfy the decree.

(ix)
The
Claims
Tribunal
constituted under Section 165 read with
Section 168 is empowered to adjudicate all
claims in respect of the accidents involving
death or of bodily injury or damage to
property of third party arising in use of
motor vehicle. The said power of the
Tribunal is not restricted to decide the
claims inter se between claimant or
claimants on one side and insured, insurer
and driver on the other. In the course of
adjudicating the claim for compensation
and to decide the availability of defence or
defences to the insurer, the Tribunal has
necessarily the power and jurisdiction to
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
decide dispute inter se between the insurer
and the insured. The decision rendered on
the claims and dispute inter se between the
insurer and insured in the course of
adjudication of claim for compensation by
the claimants and the award made thereon
is enforceable and executable in the same
manner as provided in Section 174 of the
Act for enforcement and execution of the
award in favour of the claimants.

(x) Where on adjudication of the
claim under the Act the Tribunal arrives at
a
conclusion
that
the
insurer
has
satisfactorily
proved
its
defence
in
accordance with the provisions of Section
149(2) read with sub-section (7), as
interpreted by this Court above, the
Tribunal can direct that the insurer is
liable to be reimbursed by the insured for
the compensation and other amounts which
it has been compelled to pay to the third
party under the award of the Tribunal.
Such determination of claim by the
Tribunal will be enforceable and the money
found due to the insurer from the insured
will be recoverable on a certificate issued
by the Tribunal to the Collector in the same
manner under Section 174 of the Act as
arrears of land revenue. The certificate will
be issued for the recovery as arrears of
land revenue only if, as required by subsection (3) of Section 168 of the Act the
insured fails to deposit the amount
awarded in favour of the insurer within
thirty days from the date of announcement
of the award by the Tribunal.

(xi) The provisions contained in
sub-section (4) with the proviso thereunder
and sub-section (5) which are intended to
cover specified contingencies mentioned
therein to enable the insurer to recover the
amount paid under the contract of
insurance on behalf of the insured can be
taken recourse to by the Tribunal and be
extended to claims and defences of insurer
against insured by relegating them to the
remedy before regular court in cases where
on
given
facts
and
circumstances
adjudication of their claims inter se might
delay the adjudication of the claims of the
victims."

19. In the case of Pappu (supra) the
Apex Court has also considered the
judgement of Swaran Singh (supra) in
paragraph 14 of the judgement and has
reproduced paragraph 110 of the judgement
of Swaran Singh (supra) in the said case.

20. Now, perusal of the paragraphs
110 (iii) & (iv) of the judgement in the case
of Swaran Singh (supra), extracted above,
reveals that the insurance company in order
to avoid its liability must not only establish
the available defence raised in the said
proceedings,
but
also
must
establish
'breach' on the part of the owner of the
vehicle was deliberate, and the burden of
proof was upon the insurance company.

21. In the case of Pappu (supra), the
Apex Court has considered a case where
the Tribunal after recording a finding that
the owner has committed breach of
insurance policy absolved the insurance
company and directed the owner to pay the
compensation. The appellant-Pappu who
was claimant preferred an appeal before the
High Court seeking modification of the
award in view of the law laid down in the
case
of
Swaran
Singh
(supra).
Accordingly, he prayed that the award may
be modified and the insurance company
may be directed to pay the award and
thereafter, recover it from the owner which
prayer was allowed by the Apex Court. In
the said case, there was no direct issue on
whom the burden to prove that that the
1 All. The New India Assurance Co. Ltd. Vs. Arjun Gaur & Ors.
1125
offending vehicle was being driven by a
person not holding a valid driving license
would lie was involved.

22. This Court is of the view that the
Apex Court in the case of Pappu (supra) in
altogether different factual backdrop
made an observation that the burden is
upon the owner to prove that the driver of
offending vehicle was having a valid
driving licence at the time of accident,
the law laid down by the Apex Court in
the case of Swaran Singh (supra) is still a
good law and is binding precedent which
is also evident from the fact that the Apex
Court has also considered the judgement
in the case of Swaran Singh (supra) and
placing reliance upon the same, it
modified the award in the case of Pappu
(supra).

23. Now, coming to the judgement
of this Court in the case of Rajesh Kumar
Tripathi (supra) wherein this Court in
paragraph 10 has held as under:-

"10. This takes this Court to this
issue of driving license of the driver
being not valid and electricity company
being not made party. Here the decision
in Pappu and others (Supra) will come to
aid of the appellant as it was for the
owner and driver to prove that the
vehicle was being plied by the driver
having valid driving license and only
after the driving license is filed, the
Insurance Company would be under an
obligation to prove otherwise."

24. This Court in deciding the case of
Rajesh Kumar Tripathi (supra) did not
consider the law laid down by the Apex
Court in the case of Swaran Singh (supra)
in paragraph 110 (iii) & (iv) of the
judgement, extracted above.

25. As per paragraph 110 (iii) & (iv)
of the judgement of Apex Court in the case
of Swaran Singh (supra), the insurance
company has to establish the twin
condition in order to avoid its liability to
pay compensation.

26. It is also pertinent to note that a
judgement can be said to be per incuriam
when it has been delivered by the Court
in ignorance of the relevant statutory
provisions and or the binding decision of
a Court of co-ordinate jurisdiction or that
of a higher Court. In this connection the
Full Bench of this Court in Rana Pratap
Singh... v. State Of Uttar Pradesh...,
(1995) 1 All CJ 200: (1996 All LJ 301)
has laid down as under (at p. 308 of All
LJ):-

"This is what now brings us to
what constitute the parameters of the per
incuriam rule. As the Supreme Court in
Punjab Land and Recreation Corporator
Ltd. v. Presiding Officer Labour Court,
(1990) 3 SCC 682 explained, "the Latin
expression per incuriam means through
inadvertance. A decision can be said
generally to be given per incuriam when
this Court has acted in ignorance of a
precious decision of this Court". Further
"in England a decision is said to be given
per incuriam when the Court has acted in
ignorance of a previous decision of its
own or of a Court of co-ordinate
jurisdiction which covered the case
before it, or when it has acted in
ignorance of a decision of the House of
Lords."

27. In the instant case, the law
postulated by the Apex Court in the case of
Swaran Singh (supra) has not been
considered by the Co-ordinate Bench of
this Court in the case of Rakesh Kumar
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
Tripathi (supra) and thus, it is not a
binding precedent on this Court.

28. It is also urged by the learned
counsel for the appellant that appellant has
proved that owner deliberately committed
breach of policy, this Court may note that
though, insurance company in paragraph 14
of the written statement has stated that
owner
deliberately
handed
over
the
offending vehicle to a driver who did not
have a valid driving licence, but the
insurance company did not get any issue
framed on the said point nor led any
evidence on record to prove the averments
made in paragraph 14 of the written
statement. Mere assertion is not sufficient
unless the assertions made in the written
statement are proved by leading cogent
evidence. In such view of the fact, the
aforesaid submission of learned counsel for
the appellant is also misconceived and is
hereby rejected.

29. Thus, for the reasons given above,
the appeal lacks merit and is hereby
dismissed with no order as to costs.
----------
(2024) 1 ILRA 1126
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 1455 of 2008

Mohd. Raseed Khan ...Appellant
Versus
Nagar Palika Parishad, Jhansi & Anr.
 ...Respondents

Counsel for the Appellant:
Sri B.N. Agarwal, Sri Sanjay Agrawal
Counsel for the Respondents:
Sri Pankaj Srivastava

First Appeal From Order - Remand Order
Set Aside - The plaintiff challenged the Lower
Appellate Court's order dated 19.02.2008, which
set aside the Trial Court's decree and remanded
the suit for fresh trial on Issue No. 1 - Held, the
remand was unwarranted as both parties had
adduced all evidence consciously, and the Lower
Appellate Court was directed to decide the appeal
on merits within three months. (Paras 13, 30)

B. Incorrect Framing of Issue - No
Prejudice to Parties - The Trial Court framed
Issue No. 1 incorrectly as "Whether the
constructions are an encroachment on Nagar
Palika land?" placing the burden on the
defendants - Held, despite the misframing, both
parties led evidence fully aware of each other's
case, and the error did not prejudice the
defendants, rendering remand unnecessary.
(Paras 16, 17, 21)

C. Burden of Proof - Academic in Presence
of Full Evidence - The Lower Appellate Court
held that the burden to prove title and possession
should have been on the plaintiff - Held, as per
Bhairab Chandra Nandan Vs Ranadhir Chandra
Dutta and P. Purushottam Reddy Vs Pratap Steels
Ltd., incorrect burden placement does not vitiate
findings when parties consciously adduce all
evidence. (Paras 18, 19, 20)

D. Scope of Remand - Limited Under
Order XLI CPC - The Lower Appellate Court
remanded the suit under Order XLI Rule 23-A
CPC
-
Held,
as
per
Shivakumar
Vs
Sharanabasappa and Nadakerappa Vs Pillamma,
remand
is
inappropriate
when
sufficient
evidence exists to decide the case on merits,
and courts must avoid prolonging litigation.
(Paras 24, 26, 27)

E. Direction for Expeditious Disposal - The
Court set aside the remand order and restored
the appeal (Civil Appeal No. 67 of 2006) to the
Lower Appellate Court - Held, the appellate
court was directed to decide the appeal on a
day-to-day basis within three months to ensure
speedy justice. (Paras 30, 31)

Appeal Allowed.