# The United India Insurance Co. Ltd v. Smt. Meera Devi & Ors

- **Citation:** (2014) 3 ILRA 1223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-10-17
- **Case number:** First Appeal from Order No. 83 of 2008
- **Bench:** Tarun Agarwala, Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-united-india-insurance-co-ltd-v-smt-meera-devi-ors-43103
- **Pages:** 4

## Headnote

Motor Vehicle Act, 1988 Section-2 (9)
and 166- Owner of vehicle-driving Tata
Sumo-died
in
accident-Tribunalconsidering difination of 'Driver' as given
under Section 2(9)-held owner being
behind
stearing
is
driver-awarded
compensation-appeal
by
Isnsurance
company as no separate premium paid for
owner-insurance company not liable-heldonce the comprehensive insurance policy
of vehicle there-Rs. 15/ extra paid to
cover the driver-keeping in view of
defination of Driver the owner-driving the
vehicle being behind the stearing-coveres
the personal insurance of owner alsoappeal dismissed.
Held: Para-14 & 15

## Text

3 All]. Rakesh Srivastava "Nyayik" Vs. State of U.P. & Anr.
1223
them to make reference for contempt to
this Court under Contempt of Courts Act
1971.
(IV)I also direct the Chief Secretary,
Government of U.P., Lucknow, Principal
Secretary, Home, Government of U.P.
Lucknow, Director General of Police,
U.P., Lucknow and Additional Director
General (Prison), U.P., Lucknow to take
appropriate steps in this regard and issue
necessary directions to all the jail
authorities to ensure presence of all
under-trials before the Court(s) concerned
on
the
date
fixed
for
trial.
(V)Similarly, if any other witness or
complainant is causing delay in trial,
appropriate action must be taken against
him/them also, in the same manner.
22. Registrar General is directed to
serve a copy of this order to the Chief
Secretary, Government of U.P. Lucknow,
Principal Secretary, Home, Government
of U.P., Lucknow, Director General of
Police,
U.P.,
Lucknow,
Additional
Director General (Prison) Government of
U.P.,
Lucknow
for
communication
forthwith.
They
shall
also
submit
compliance report after three months i.e.,
20th January 2015.
23. Let a copy of this order be
circulated to all the Judicial Officers in
the State of U.P. through concerned
District Judges for communication and
compliance.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2014
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE SHRI NARAYAN SHUKLA, J.
First Appeal from Order No. 83 of 2008
The United India Insurance Co. Ltd.
...Appellant
Versus
Smt. Meera Devi & Ors.
..Claimants
Counsel for the Appellant:
Sri Saral Srivastava
Counsel for the Claimants:
Sri S.C. Kesarwani
Motor Vehicle Act, 1988 Section-2 (9)
and 166- Owner of vehicle-driving Tata
Sumo-died
in
accident-Tribunalconsidering difination of 'Driver' as given
under Section 2(9)-held owner being
behind
stearing
is
driver-awarded
compensation-appeal
by
Isnsurance
company as no separate premium paid for
owner-insurance company not liable-heldonce the comprehensive insurance policy
of vehicle there-Rs. 15/ extra paid to
cover the driver-keeping in view of
defination of Driver the owner-driving the
vehicle being behind the stearing-coveres
the personal insurance of owner alsoappeal dismissed.
Held: Para-14 & 15
14. Section 2(9) of the Act defines driver,
which in our view encompasses the owner
also to be the person who is behind the
steering wheel and driving the vehicle. The
cover note of the insurance policy in the
instant case includes the insured and any
other person, who is entitled to drive. The
words used in the insurance policy are as
under:
"Persons or classes of persons entitled to
drive
Any person including insured:"
15. The premium of Rs.15/- was paid for
driver. Nothing has been indicated in the
appeal nor has anything been addressed
by the learned counsel for the appellant
to the effect that personal insurance of
the owner of the vehicle under the
comprehensive policy could invite a
different
premium
other
than
that
1224
 INDIAN LAW REPORTS ALLAHABAD SERIES
premium paid for the driver. In the
absence of any such pleading, we are of
the opinion, that the comprehensive
policy in the instance case also covered
the personal insurance of the owner of
the vehicle.
Case Law discussed:
2008 (2) T.A.C. 752 (S.C.); 2006 (9) SCC 174;
2004 (5) SCC 385; 2000 (3) TAC 585.
(Delivered by Hon'ble Tarun Agarwala, J.)
1.
The owner Sri Pravendra Singh
was driving his vehicle "Tata Sumo" and
collided with a tractor, on account of
which,
he
suffered
injuries
and
subsequently died. The dependants of the
deceased, Pravendra Singh, filed a claim
application claiming compensation of
Rs.22,36,768/-. The Tribunal gave an
award allowing the claim application
awarding
Rs.6,60,000/-
along
with
interest
@
6.5%
per
annum
as
compensation to the claimants. The
Insurance Company of the vehicle TATA
SUMO, being aggrieved by the said
award, has filed the present appeal under
Section 173 of the Motor Vehicles Act
(hereinafter referred to as the "Act").
2. Heard Sri Saral Srivastava, the
learned counsel for the appellant and Sri
S.C.Kesarwani, the learned counsel for
the claimants.
3. The learned counsel for the
appellant has attacked the award on three
grounds, namely:-
1.That the deceased was the owner
and driving the vehicle and was not
personally insured under the policy and,
therefore, his dependants were not entitled
for any compensation. In support of his
submission, the learned counsel placed
reliance on a decision of the Supreme
Court in Oriental Insurance Company Ltd.
vs. Rajni Devi and others, 2008 (2)T.A.C.
752(S.C.) as well as the decision of the
Supreme Court in New India Assurance
Company Ltd.vs. Meera Bai and others,
2006(9)SCC 174.
2.The claim application was filed
under Section 163-A of the Act showing
an
income
of
the
deceased
at
Rs.1,21,094/- which was more than
Rs.40,000/- per annum and, therefore, the
claim application was not maintainable in
view of the decision of the Supreme Court
in Deepal Girishbhai Soni and others vs.
United India Insurance Co. Ltd., 2004 (5)
SCC 385.
3.The
compensation
has
been
awarded without any proof of income of
the deceased being filed by the claimants
and, accordingly, notional income of
Rs.15,000/- per annum could have been
awarded.
4.
On the other hand, the learned
counsel for the claimant contended that a
comprehensive policy was taken of the
vehicle in question, in which the deceased
was also insured and, consequently, the
Insurance Company was liable to pay the
compensation. In support of his contention
the learned counsel placed reliance upon a
decision in Chimaji Rao Shirke and another
vs. Oriental Fire and General Insurance
Company Ltd., 2000 (3) TAC 585 wherein
the Supreme Court held, that the Insurance
Company was liable to pay compensation to
the heirs on the death of the owner who was
driving the vehicle.
5.
The learned counsel further
submitted that necessary proof of the income
of the deceased was filed before the Tribunal
by way of filing the Income Tax return of the
deceased, which was duly considered and
accepted by the Tribunal and, therefore, the
3 All]. The United India Insurance Co. Ltd. Vs. Smt. Meera Devi & Ors.
1225
contention of the appellant that no proof of
income of the deceased was filed, was
patently erroneous. It was also contended
that initially the claim application was filed
under Section 163-A of the Act, but,
subsequently, an amendment application was
filed, which was allowed by the Tribunal by
an order dated 6.8.2007 and thereafter the
appeal was converted as having been filed
under Section 166 of the Act. The learned
counsel contended that the contention of the
appellant that the claim application was not
maintainable, was wholly erroneous and
against the record.
6. Having heard the learned counsel for
the parties, we find that the claim application
was maintainable, inasmuch as, the claim
application was converted from Section 163A to Section 166 of the Act. Further, proof of
income of the deceased was filed by filing the
Income Tax return of the deceased, which was
duly accepted. The contention of the appellant
on these two issues is patently misconceived
and is rejected.
7. Admittedly, the owner was
driving his own vehicle, when it met with
an accident. The question is, whether the
insurance policy covered the personal
insurance of the owner or not. In this
regard the cover note and the insurance
policy has been filed before the Tribunal
as well as before this Court.
8. Upon its perusal, the Court finds that
the policy was given in the name of the
insured Sri Pravendra Singh Yadav, who was
the owner of the "Tata Sumo" and who died
in the accident. The insurance policy
indicates that any person including the
insured was entitled to drive the vehicle.
Under the heading "Liability" we find that a
premium of Rs.15/- was paid towards "legal
liability to paid driver as per Endt. IMT 19".
9. The question is, whether the word
"driver" would include owner of the
vehicle or not.
10. Section 2(9) of the Motor
Vehicles Act defines "driver" as under:
"2(9). "driver" includes, in relation to
a motor vehicle which is drawn by
another motor vehicle, the person who
acts as a steersman of the drawn vehicle;"
11. A perusal of the aforesaid
provision indicates that any person, who
is behind the steering wheel is a driver
and, consequently, we are of the opinion,
that the owner of the vehicle who is
behind the steering wheel of the vehicle
would also be a driver.
12. The learned counsel for the
appellant has relied upon the decision of
Rajni Devi (supra). We are of the opinion,
that the said decision has no application
as in that case a claim was made by the
claimants of the deceased/owner, on the
ground, that the policy covered the
personal insurance. The Supreme Court
held, that the premium paid under the
heading "own damage" was to cover the
damage occurred to a vehicle and not for
injury to a person or the owner. The
Supreme Court held, that the owner of the
vehicle can only claim compensation
provided the personal accident insurance
had been taken out, which in the said case
had not been done.
13. The Supreme Court, in Meera
Bai's case(supra) held, that the insurance
policy does not cover the risk to the driver
of the vehicle in view of the insurance
policy, which indicated liability to paid
driver and/or conductor and, in that
scenario, the Supreme Court held, that the
1226
 INDIAN LAW REPORTS ALLAHABAD SERIES
owner, who was driving the vehicle, was
not covered under the policy. The said
case in our humble view is distinguishable
for the following reasons.
14. Section 2(9) of the Act defines
driver, which in our view encompasses
the owner also to be the person who is
behind the steering wheel and driving the
vehicle. The cover note of the insurance
policy in the instant case includes the
insured and any other person, who is
entitled to drive. The words used in the
insurance policy are as under:
"Persons or classes of persons
entitled to drive
Any person including insured:"
15. The premium of Rs.15/- was paid
for driver. Nothing has been indicated in the
appeal nor has anything been addressed by
the learned counsel for the appellant to the
effect that personal insurance of the owner of
the vehicle under the comprehensive policy
could invite a different premium other than
that premium paid for the driver. In the
absence of any such pleading, we are of the
opinion, that the comprehensive policy in the
instance case also covered the personal
insurance of the owner of the vehicle.
16. Consequently, we do not find
any error in the order of the Tribunal. The
appeal fails and is dismissed.
17. In the circumstances of the case
parties shall bear their own cost.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2014
BEFORE
THE HON'BLE ANIL KUMAR, J.
Civil Misc. Application No. 306325 of 2013
In
Second Appeal No. 344 of 2009
Smt. Ganga Devi
...Appellant
Versus
Sri Bhagwan Dass & Ors.
...Respondents
Counsel for the Appellant:
Sri Sankatha Rai, Sri Vinod Kumar Rai,
Sri Vijay Kumar Rai, Sri Ashok Kumar Singh
Counsel for the Respondents:
Sri Madhav Jain, Sri M. Jain, Sri Mukesh
Kumar, Sri Nirvikar Gupta, Sri Prakash
Chandra
C.P.C.- Order XXXXI Rule-27-Additional
Evidence-Second
Appeal-document
sought to filed-already rejected by
lower Appellate Court-under challenge in
Second Appeal-unless the contingencies
of Rule 27 there-addition evidence can
not be allowed to fill up lacuna of caserejected.
Held: Para-18
Order 41 Rule 27 CPC is clearly not intend
to allow a litigant who had been
unsuccessful in the lower court to patch up
the weak parts of his case and to fill up the
omission in appeal. Additional evidence can
be admitted only where the Appellate court
requires it, i.e. finds it needful, to enable it
to pronounce judgment, or for any other
substantial cause. In either case it must be
the court that requires it. The legitimate
occasion for the exercise of this discretion is
when on an examination of the evidence as
it stands, some inherent lacuna or defect
becomes apparent, not where a discovery is
made, outside the court, of fresh evidence,
and an application is made to import it. It
may well be that the defect, but the
requirement must be the requirement of the
court upon its appreciation of the evidence
as it stands (See. Arjan Vs. Kartar, 1951
SCR 258, Parsotim Thakur and others Vs.
Lal Mohan and others, AIR 1931 P.C. 143).