# Uma Shankar Mishra v. The Oriental Insurance Co. Ltd., Alld. & Anr

- **Citation:** (2020) 12 ILRA 85
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-01
- **Case number:** First Appeal From Order No. 667 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-shankar-mishra-v-the-oriental-insurance-co-ltd-alld-anr-45527
- **Pages:** 3

## Headnote

Sri Amit Kumar Sinha, Sri Deepal Srivastava
Sinha, Sri Mohan Srivastava

A. Motor Accident Claim - Production of
insurance
policy-Liability
of
Insurance
Company Exoneration of the CompanyLegality-It is bounden duty of the Insurance
Company to have produced the insurance
policy-Held, the owner and Insurance
Company shall be jointly and severely liable
for the amount. (Para 4, 5 and 6)

Appeal and Cross Objection partly allowed
 (E-1)

Cases relied on :-

## Text

12 All. Uma Shankar Mishra Vs. The Oriental Insurance Co. Ltd., Alld. & Anr.
85
amount, modified the interest component at a
reasonable rate of 7.5% p.a. and we find no
reason to allow the interest in this matter at any
rate higher than that allowed by High Court."

16. As far as the other part is concerned,
the Judgment is maintained. Fresh decree will
be drawn by the Tribunal on receipt of the order
of this Court. The Insurance Company, if has
not deposited the amount as of yet despite the
order dated 23.11.2019, shall immediately
deposit the entire amount. It goes without
saying that no TDS shall be deducted in view of
New India Assurance Co. Ltd. Vs. Hussain
Babulal Shaikh and others, 2017 (1) TAC
400 (Bom.).

17. As far as other aspects are
concerned, lis is settled between the parties.

18. A copy of this order be placed
before the Registrar General so that it may
be circulated to the concerned Tribunal and
other Tribunals in the State so that such
mistake which is apparent on the face of
the record be not committed in future.

19. Appeal is partly allowed.
----------
(2020)12ILR A85
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J.

First Appeal From Order No. 667 of 2017

Uma Shankar Mishra ...Appellant
Versus
The Oriental Insurance Co. Ltd., Alld. &
Anr. ...Respondents

Counsel for the Appellant:
Sri Arvind Srivastava
Counsel for the Respondents:
Sri Amit Kumar Sinha, Sri Deepal Srivastava
Sinha, Sri Mohan Srivastava

A. Motor Accident Claim - Production of
insurance
policy-Liability
of
Insurance
Company Exoneration of the CompanyLegality-It is bounden duty of the Insurance
Company to have produced the insurance
policy-Held, the owner and Insurance
Company shall be jointly and severely liable
for the amount. (Para 4, 5 and 6)

Appeal and Cross Objection partly allowed
 (E-1)

Cases relied on :-

1. National Insurance Company Ltd. Vs Jugal
Kishore & ors., AIR 1988 SC 719
(Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.)

1. Heard learned counsel for the parties.

2. This appeal at the behest of the
appellant challenges the judgment and
award dated 6.12.2016 passed by the Motor
Accident Claims Tribunal, Allahabad in
M.A.C. Case No. 62 of 2013.

3. A very interesting issue has arisen
before this Court namely what should be the
fate of an owner who has not been permitted to
file the copy of the insurance policy belatedly
but before pronouncement of judgment.
Though the owner did not file the driving
license and/or policy along with written
statement, the policy number was mentioned in
the written statement. The Insurance company
also did not lead any evidence to show that the
vehicle was not insured with it. The owner gave
application to produce the driving license and
the policy. Very strangely the Tribunal rejected
the same on one ground that the matter was
listed for final argument. Could this has been
done? The empathic answer is, no.
86 INDIAN LAW REPORTS ALLAHABAD SERIES

4. May that as it may be, the practical
solution in this matter now is that the
driving license and the policy would be
checked and evaluated by the law officer of
the Insurance Company as it was a nano car
and prima facie license shown before this
Court. Copy appended at Page No.81 is the
driving license of Ghanshyam Mishra,
whose date of birth mentioned in the
driving license is 10.9.1977 and it was in
vogue at the time of accident. It appears
that hyper technical stand taken by the
Tribunal has led to preferring of this appeal
as it exonerated the Insurance Company on
the ground that policy was not in vogue and
that the driving license was not filed. This
stand of the learned Tribunal has caused
both the Insurance Company as well as the
owner loss of interest which they may have
to pay as the appellant herein has
challenged the award.

5. The learned Tribunal should not have
taken stand of an adversary at the behest of
learned counsel for the Insurance Company
just because he has objected to production of
document. Rather, as per the decision of the
Apex
Court
in
National
Insurance
Company Ltd. Vs. Jugal Kishore and
others, AIR 1988 SC 719, it was bounden
duty of the Insurance Company to have
produced the insurance policy.

6. May that as it may be, this Court
would give quietus to this lis. The amount
awarded is maintained and the Tribunal in
its over zeal though mentioned, has not
granted the amount of medical bills which
has not been added for which cross
objection has been filed by the claimants
before this Court.

The judgment of the Tribunal is
hereby modified as follows:

(i) The owner and the Insurance
Company shall be jointly and severely
liable for the amount.

(ii) The interest as granted by the
Tribunal up to the date of judgment is
maintained. However, there shall be an
addition of Rs.90,000/- (rounded figure) of
the bills which Tribunal has mentioned and
accepted but in its decree and award has
not calculated the same which is the
submission of Sri Amit Kumar Sinha,
learned counsel for respondent-claimant. A
rider is made that the officer of the
Insurance Company would be shown all the
bills and if he is satisfied, this additional
amount be deposited. However, liberty is
granted to both the parties to prefer review
for this additional amount if they do not
come to a consensus.

7. The Insurance Company will
deposit the sum of Rs.4,97,465/- plus
additional sum of Rs.90,000/-with 7%
interest from the date of filing of the claim
petition till the date of award and 4%
thereafter till the amount is deposited by
February, 2021 and meanwhile, look into
other grievances of the appellant as this
Court has treated this matter in a
conciliatory manner at this stage as the
policy is accepted now, but as far as driving
license is concerned, there are some
reservations, hence, the owner shall provide
the original copy of the driving license to
the Insurance Company.

8. Sri Amit Kumar Sinha, learned
Advocate states that Rs.25,000/- which the
owner has already deposited may be
considered to be the interest for these three
years and he has satisfied with the said
interest, hence, the owner may not deposit
any further interest.

9. In view of the above, this appeal
and the cross objections are partly allowed.
12 All. Dharam Veer & Ors. Vs. Kamal Singh & Ors.
87

10. This Court is thankful to all the
learned Advocates and Sri Rastogi, the Law
Officer of the Insurance Company. The record
and proceedings which according to the
knowledge of learned Advocate is kept in PRR
Section be sent to the Tribunal forthwith.
----------
(2020)12ILR A87
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 1194 of 2012

Dharam Veer & Ors. ...Appellants
Versus
Kamal Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri Mohan Srivastava

Counsel for the Respondents:
Sri Rahul Sahai, Sri K.K. Dwivedi, Sri Parihar

A.
Civil
Law-Motor
Accident
Claim-
'Negligence'-Principle
of
'Res
Ipsa
Loquitur' -Meaning - The term negligence
means failure to exercise care towards
others which a reasonable and prudent
person would in a circumstance or taking
action which such a reasonable person
would not -It can be both intentional or
accidental which is normally accidentalMore particularly, it connotes reckless
driving and the injured must always prove
that the either side is negligent-If the
injury
rather
death
is
caused
by
something owned or controlled by the
negligent party then he is directly liable
otherwise
the
principle
of
'res
ipsa
loquitur' meaning thereby 'the things
speak for itself' would apply. (Para 18)

B. Motor Accident Claim - Contributory
Negligence and Composite Negligence -
Difference - In the case of contributory
negligence, a person who has himself
contributed to the extent cannot claim
compensation for the injuries sustained by
him in the accident to the extent of his own
negligence,
whereas
in
the
case
of
composite negligence, a person who has
suffered
has
not
contributed
to
the
accident but the outcome of combination of
negligence of two or more other persons -
In case of composite negligence, injured
need
not
establish
the
extent
of
responsibility
of
each
wrong
doer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrong doer separately. (Para 22 and 23)

C. Motor Accident Claim - Civil Procedure
Code - Section 11 - Res Judicata -
Finding on negligence by Tribunal having
coordinate jurisdiction - If ingredients of
Section 11 of Code are satisfied the later
tribunal should not venture to substitute
its view without new and cogent evidence
produced before it - Tribunal committed
an error in giving its fresh finding on
negligence for the same accident - Held,
the earlier judgment would be binding on
the subsequent Tribunal deciding between
the same parties. (Para 29 and 33)

D.
Motor
Vehicle
Act,
1988-Civil
Procedure Code - Section 2(11) - Legal
Representative-Meaning-Entitlement of
husband
of
deceased
to
receive
compensation-Legal
representative
means any person who in law represents
the estate of a deceased person, and
includes any person who inter meddles
with the estate of the deceased-For
fatal accident of wife, earning husband
is
liable
to
be
treated
as
legal
representative of the deceased wifeHeld, deduction of compensation of
claimant by the tribunal cannot be
sustained. (Para 40 and 43)

E. Evidence Act, 1872 - Proof of age -
Relevance of Oral Testimony - Absence of
School Certificate - Principle to be applied - If
the School certificate is not proved otherwise
corroborated,
other
evidence
like
oral
testimony of PW-1 proving the age of deceased