Insurance Cliam under Sec.163 A - as per the terms of contract of insurance, the claimant is entitled only for Rs.1 lakh but not more - because the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. - Amendement of 2nd schdule for Rs.5 lakhs not applicable as accident took place in the year 2006

Insurance Cliam under Sec.163 A - as per the terms of contract of insurance, the claimant is entitled only for Rs.1 lakh but not more - because the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. - Amendement of 2nd schdule for Rs.5 lakhs not applicable as accident took place in the year 2006    

It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is
sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned.   
It is also true that the claim petition under Section 163A of the Act is based on the principle of
no fault liability.  However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed
by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811.
In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only.  In the present
case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811.     
There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance.  
As held by this Court in the case of Dhanraj  (supra), an insurance policy covers the liability incurred
by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle.   In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily
injury to the owner of the vehicle.  
In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which
was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a
claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the
offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle. 
  However,   at   the   same   time,   even   as   per   the   contract   of insurance, in case of personal accident the owner­driver is entitled to   a   sum   of   Rs.1   lakh.     Therefore,   the   deceased,   as   observed hereinabove, who would be in the shoes of the owner shall be entitled   to   a   sum   of   Rs.1   lakh,   even   as   per   the   contract   of insurance.       However,   it   is   the   case   on   behalf   of   the   original claimants that there is an amendment to the 2nd  Schedule and a
fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh.   The same cannot be accepted.  In the present case, the accident took place in
the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e.
much prior to the amendment in the 2nd Schedule.    In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule.   At
the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.  

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9393 OF 2019
Ramkhiladi & Anr. … Appellant
Versus
The United India Insurance Company & Anr.    … Respondent
J U D G M E N T
M. R. Shah, J.
1. Feeling   aggrieved   and   dissatisfied   with   the   impugned
Judgment and Order dated 10.05.2018 passed by the High Court of
Judicature for Rajasthan at Jaipur in SBCMA No. 2614 of 2009, by
which the High Court has allowed the said appeal preferred by the
respondent­insurance company by quashing and setting aside the
Judgment and Award passed by the learned Motor Accident Claims
Tribunal   and   consequently   has   dismissed   the   claim   petition
2
preferred   by   the  original  claimants,   the  original  claimants  have
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as
under:
2.1 That in a vehicular accident which occurred on 02.10.2006,
one Chotelal alias Shivram died.   The deceased was travelling on
motorcycle bearing registration No. RJ 02 SA 7811.  At this stage, it
is required to be noted that, even as per the claimants, the accident
occurred on account of rash and negligent driving of the driver of
another motorcycle bearing registration No. RJ 29 2M 9223.  That
the   appellants   herein   filed   a   claim   petition   before   the   Motor
Accident   Claims   Tribunal,   Laxmangarh   (Alwar),   Rajasthan
(hereinafter referred to as the learned Tribunal) under Section 163A
of the Motor Vehicles Act (hereinafter referred to as the Act).  At this
stage, it is required to be noted that the claim petition was preferred
only against the owner of the motorcycle bearing registration No. RJ
02 SA 7811 and its insurance company. Neither the driver nor the
owner or the insurance company of the vehicle bearing registration
No. RJ 29 2M 9223 were joined as opponents in the claim petition.
3
Therefore, as such, no claim petition was filed against the driver,
owner and the insurance company of the vehicle involved in the
accident i.e. motorcycle bearing registration No. RJ 29 2M 9223.
That   an   objection   was   raised   by   the   respondent­insurance
company­insurer of motorcycle bearing registration No. RJ 02 SA
7811 that as according to the claimants and even so stated in the
FIR, the driver of the motorcycle bearing registration No. RJ 29 2M
9223 was rash and negligent and the claimants have not filed the
claim   petition   against   the   owner   of   the   said   vehicle,   the   claim
petition is required to be dismissed against the insurance company
of the motorcycle bearing registration No. RJ 02 SA 7811.   The
learned Tribunal framed the following issues:
1. Whether accident was caused on 02.10.2006 by driver
Chhotelal   alias   Shivram   driving   Motorcycle   RJ   02   SA
7811 vehicle in question in rash and negligent manner?
2. Whether the driver was driving the said vehicle being in
the employment of vehicle owner opposite party No. 1
Bhagwan   Sahay   in   his   interest   or   with   his
permission/knowledge?
4
3. Consequent   to   occurring   death   of   Chhotelal   alias
Shivram (driver) in the alleged accident, how much valid
amount and in what manner, the applicants are entitled
to get and from which opposite parties?
4. Whether the objections raised in the preliminary/specific
statements are significant, if yes then its effect?
5. Relief?
2.2 On appreciation of evidence, the learned Tribunal answered
Issue Nos. 1 and 2 in favour of the claimants and held that the
death of the deceased Chotelal alias Shivram had occurred from the
motorcycle involved in the accident and the said motorcycle was
insured   with   the   respondent­insurance   company,   the   insurance
company is liable to pay the compensation under Section 163A of
the   Act.     Consequently,   by   the   Judgment   and   Award   dated
24.02.2009,   the   learned   Tribunal   partly   allowed   the   said   claim
petition and awarded a total sum of Rs.3,67,000/­as compensation
along with the interest @ 6% per annum from the date of filing of
the claim petition till the date of the actual payment
5
2.3 Feeling   aggrieved   and   dissatisfied   with   the   Judgment   and
Award   passed   by   the   learned   Tribunal   holding   the   insurance
company of the motorcycle bearing registration No. RJ 02 SA 7811
liable to pay the compensation, the respondent­insurance companyinsurer   of   motorcycle   bearing   registration   No.   RJ   02   SA   7811
preferred an appeal before the High Court.  That, by the impugned
Judgment and Order, the High Court has allowed the said appeal
and has quashed and set aside the Judgment and Award passed by
the learned Tribunal and consequently has dismissed the claim
petition   on   the   ground   that   even   as   per   the   informant   Vikram
Singh, who lodged the FIR, the accident had occurred on account of
rash   and   negligent   driving   by   the   driver   of   motorcycle   bearing
registration No. RJ 29 2M 9223, however, the claimants have not
filed the claim petition against the owner of the said vehicle and in
fact, the claim petition should have been filed by the claimants
against the owner of vehicle bearing No. RJ 29 2M 9223 to seek
compensation.
6
2.4 Feeling   aggrieved   and   dissatisfied   with   the   impugned
Judgment   and   Order   passed   by   the   High   Court,   the   original
claimants have preferred the present appeal.
3. Shri Abhishek Gupta, learned advocate appearing on behalf of
the appellants­original claimants has vehemently submitted that
the High Court has materially erred in dismissing the claim petition
solely on the ground that the claimants have not filed the claim
petition against the owner of the motorcycle bearing registration No.
RJ 29 2M 9223.
3.1 It is submitted by the learned advocate appearing on behalf of
the appellants­original claimants that, as such, the High Court has
not properly appreciated the fact that the claim petition preferred by
the original claimants was under Section 163A of the Act and,
therefore,   when   the   claim   petition   was   preferred   under   Section
163A of the Act, there is no need for the claimants to plead or
establish that the death in respect of which the claim petition has
been made was due to any wrongful act or neglect or default of
owner of vehicle concerned.  
7
3.2  It is further submitted by the learned advocate appearing on
behalf of the appellants­original claimants that the claim petition
filed by the original claimants was based on the principle of no­fault
liability.   It is submitted that the claimants could have elected to
file the claim petition either under Section 166 read with Section
140 of the Act against the owner/insurer of offending vehicle i.e. RJ
29 2M 9223 on the basis of the fault liability or under Section 163A
either against the owner/insurer of the vehicle being driven by the
deceased at the time of accident i.e. RJ 02 SA 7811 or against the
owner/insurer of offending vehicle i.e. RJ 29 2M 9223 on the basis
of   no­fault   liability.       It   is   submitted   by   the   learned   advocate
appearing on behalf of the appellants­original claimants that, as
such,   the   deceased   was   not   the   owner   of   the   vehicle   bearing
registration No. RJ 02 SA 7811 and in fact and as observed by the
learned Tribunal, he was in employment of owner of the vehicle No.
RJ 02 SA 7811 and therefore a third party.   It is submitted that
having elected to prefer the claim under Section 163A of the Act on
the principle of no­fault liability against the owner/insurer of the
vehicle being driver by the deceased at the time of the accident i.e.
8
RJ 02 SA 7811, the claim was perfectly just and maintainable and
the   learned   Tribunal   made   no   error   in   allowing   the   same.     In
support of the above, the learned advocate appearing on behalf of
the original claimants has heavily relied upon the decision of this
Court in the case of Reshma Kumari v. Madan Mohan  (2013) 9
SCC 65.
3.3 Learned counsel appearing on behalf of the original claimants
has   further   submitted   that   Section   163A   of   the   Act   has   to   be
interpreted in keeping with the intention of the Legislature and the
social perspective it seeks to achieve.   It is a provision which is
beneficial in nature and it has been enacted as a measure of social
security.   It is submitted that Section 163A of the Act commences
with a “non­obstante” clause.  Liability to pay the compensation is
on “owner of the motor vehicle” or “the authorized insurer”.  It is
submitted that the word “owner” has been defined under Section
2(30) to mean “a person in whose name a motor vehicle stands
registered, and where such person is a minor, the guardian of such
minor, and in relation to a motor vehicle which is the subject of a
hire­purchase, agreement or an agreement of lease or an agreement
9
of hypothecation, the person in possession of the vehicle under that
agreement.”  It is submitted that having regard to the said definition
of “owner”, this Court in Naveen Kumar v. Vijay Kumar  (2018) 3
SCC 1 has held the registered owner of the vehicle as per the
registering authority liable in respect of the offending vehicle despite
sale/purchase of vehicle by him.  It is submitted that, in paragraph
6, it is held that the person in whose name the motor vehicle stands
registered is the owner of the vehicle for the purpose of the Act. 
3.4 It is further submitted by the learned counsel appearing on
behalf of the appellants­original claimants that for claiming the
compensation under Section 163A of the Act, the claimants are only
required to prove that the death or permanent disablement is as a
result of the accident arising out of the use of motor vehicle and it
will   cover   those   who   are   themselves   driving   a   vehicle,   the
passengers   and   also   pedestrians.     It   is   submitted   that   in   an
application under Section 163A of the Act, fault of the owner of the
vehicle or vehicles concerned or of any other person need not be
established. 
10
3.5 It is further submitted by the learned counsel appearing on
behalf of the appellants­original claimants that, therefore, as the
present claim premised on the no­fault liability under Section 163A
of   the   Act   by   the   legal   heirs   of   the   deceased,   the   same   was
maintainable against the owner and insurer of the motor vehicle
which   was   being   driven   by   him,   more   particularly,   when   the
deceased was not the owner of the vehicle and that respondent No.
2 was the registered owner of the concerned vehicle and, therefore,
the insurance company cannot be absolved from its liability to pay
the compensation as awarded by the learned Tribunal. 
3.6 Making   the   above   submissions,   it   is   prayed   to   allow   the
present appeal and quash and set aside the impugned Judgment
and Order passed by the High Court and to restore the Judgment
and Award passed by the learned Tribunal holding the owner of the
vehicle bearing registration No. RJ 02 SA 7811 and the insurer of
the said vehicle to pay the compensation. 
3.7 It is further submitted by the learned counsel appearing on
behalf   of   the   appellants­original   claimants   that,   as   such,   the
amount   of   compensation   awarded   by   the   learned   Tribunal   i.e.
11
Rs.3,67,000/­ should be enhanced to Rs.5,00,000/­ with interest
as awarded by the learned Tribunal in light of the fact that the 2nd
Schedule to the Motor Vehicle Act has been amended with effect
from 22.05.2018 and a fixed compensation of Rs.5,00,000/­ has
been specified in the case of death.   It is submitted that this Court
has enhanced the compensation even in those cases wherein no
appeal for enhancement has been preferred against the order of the
Tribunal.   In support thereof, the learned counsel appearing on
behalf of the original claimants has relied upon the decision of this
Court in the case of  Jitender  Trivedi  v.  Kasam  Daud  (2015) 4
SCC 237.   
4. The present appeal is vehemently opposed by Shri Amit Kumar
Singh, learned advocate appearing on behalf of the respondentinsurance company.
4.1 It is submitted by the learned advocate appearing on behalf of
the respondent­insurance company that, in the present case, the
deceased borrowed the motorcycle bearing registration No. RJ 02
SA 7811 from the registered owner Bhagwan Sahay.  It is submitted
that another motorcycle bearing registration No. RJ 29 2M 9223
12
which was driven in a rash and negligent manner came and hit the
motorcycle on which the deceased was travelling.   It is submitted
that the FIR was lodged against the owner of motorcycle bearing
registration No. RJ 29 2M 9223.  It is thus clear that the insured
vehicle on which the deceased was travelling i.e. RJ 02 SA 7811
was not negligent.   It is submitted that, in the present case, the
claimants of the deceased filed an application under Section 163A
of the Act and sought compensation only from the owner of the
insured vehicle i.e. RJ 02 SA 7811.       It is submitted that the
learned Tribunal without any evidence on record has concluded
that   the   deceased   was   working   under   the   employment   of   the
registered owner.  It is submitted that, therefore, in the facts and
circumstances of the case, the High Court has rightly allowed the
appeal preferred by the insurer by observing that the claimants
ought to have filed the claim petition against the owner of the
vehicle bearing registration No. RJ 29 2M 9223.   In support of
impugned Judgment and Order passed by the High Court, learned
advocate appearing on behalf of the insurance company has made
the following submissions:
13
(i) That the deceased was not a third party with respect to the
insured vehicle.  He was a third party with respect to the motorcycle
bearing registration No. RJ 29 2M 9223;
(ii)   That the claimants when failed to claim the compensation
from the owner of the motorcycle bearing registration No. RJ 29 2M
9223, cannot be permitted, as the driver of the said motorcycle, to
claim   compensation   from   the   owner   of   the   vehicle   bearing
registration No. RJ 02 SA 7811;
(iii)   That under the Motor Vehicles Act, only the third party claims
are payable;
(iv)   That in the present case, the deceased was not a third party
given that he had borrowed the vehicle from the registered owner
Shri Bhagwan Sahay Meena;
(v)     That in the case of Ningamma v. United India Insurance
Co. Ltd. (2009) 13 SCC 710 and New India Assurance Co. Ltd. V.
Sadanand Mukhi (2009) 2 SCC 417, this Court has held that the
owner of the vehicle or his legal representatives or the borrower of
the vehicle cannot raise a claim for an accident in which there was
no negligence on the part of the insured vehicle.   It is submitted
14
that   in   the   aforesaid   decisions,   this   Court   has   held   that   the
borrower of the vehicle steps into the shoes of the owner and,
therefore, the borrower of the vehicle or his legal representatives are
not entitled to compensation from the insurer under the Act.   It is
submitted that the deceased in the present case has stepped into
the shoes of the owner and therefore not entitled to any third party
compensation from the insured vehicle; and
(vi)   That in the case of Dhanraj v. New India Assurance Co. Ltd.
(2004) 8 SCC 553 it is held by this Court that an insurance policy
covers the liability incurred by the insured in respect of death of or
bodily injury to any person (including an owner of the goods or his
authorized representative) carried in the vehicle or damage to any
property of a third party caused by or arising out of the use of the
vehicle.     It is further held that Section 147 does not require an
insurance company to assume risk for death or bodily injury to the
owner of the vehicle.  
4.2 It is further submitted by the learned advocate appearing on
behalf   of   the   insurance   company   that   in   the   present   case   the
contract of insurance specifically provides that in case of personal
15
accident the owner cum driver is only entitled to a sum of Rs.1
Lakh.  It is submitted that therefore the deceased who had stepped
into the shoes of the owner at the most may be entitled to a sum of
Rs.1   Lakh   only.     It   is   submitted   that   in   the   case   of  Oriental
Insurance   Co.   Ltd.  V.   Rajni   Devi  (2008) 5 SCC 736 when the
compensation is claimed for the death of the owner or another
passenger of the vehicle, the contract of insurance being governed
by the contract qua contract, the claim of the insurance company
would depend upon the terms thereof.   It is submitted that, in the
said decision, this Court did not accept the view taken by the
Tribunal that while determining the amount of compensation, the
only factor which would be relevant would be merely the use of the
motor vehicle.   It is submitted that, in the aforesaid decision, in
paragraph 11, it is further observed by this Court that the liability
under Section 163A of the Act is on the owner of the vehicle as a
person cannot be both, a claimant as also a recipient. 
4.3 Relying   upon   the   decision   of   this   Court,   in   the   case   of
National   Insurance   Co.   Ltd.  V.   Ashalata   Bhowmik    (2018) 9
SCC 801, it is submitted that the parties shall be governed by the
16
terms and conditions of the contract of insurance.  It is submitted
that, therefore, at the most, the claimants may be entitled to Rs. 1
lakh only, the deceased being in the shoes of the owner. 
4.4 Now, so far as the submission on behalf of the appellantsoriginal claimants that there is an amendment to the 2nd Schedule,
and a fixed compensation of Rs.5 lakhs has been specified in the
case of death and, therefore, the claimants shall be entitled to Rs.5
lakhs, it is vehemently submitted by the learned advocate appearing
on behalf of the insurance company that the said amendment shall
not   be   applicable   retrospectively.     It   is   submitted   that,   in   the
present case, the accident had taken place in the year 2006 and
even the Judgment and Award was passed by the learned Tribunal
in the year 2009, and the impugned Judgment and Order has been
passed   by   the   High   Court   on   18.02.2018,   i.e.   prior   to   the
amendment in the 2nd Schedule.
4.5 Making the above submissions, it is prayed to dismiss the
present appeal and/or partly allow the appeal to the extent of Rs.1
Lakh as per the terms and conditions of the contract of insurance.
17
5. Heard learned counsel appearing on behalf of the respective
parties   at   length.     We   have   also   perused   and   considered   the
Judgment and Award passed by the learned Tribunal as well as the
impugned Judgment and Order passed by the High Court and the
evidence   on   record.       The   short   question   which   is   posed   for
consideration   of   this   Court   is   whether,   in   the   facts   and
circumstances of the case and in a case where the driver, owner
and   the   insurance   company   of   another   vehicle   involved   in   an
accident and whose driver was negligent are not joined as parties to
the claim petition, meaning thereby that no claim petition is filed
against them and the claim petition is filed only against the owner
and the insurance company of another vehicle which was driven by
the deceased himself and the deceased being in the shoes of the
owner   of   the   vehicle   driven   by   himself,   whether   the   insurance
company of the vehicle driven by the deceased himself would be
liable to pay the compensation under Section 163A of the Act?;
Whether the deceased not being a third party to the vehicle No. RJ
02 SA 7811 being in the shoes of the owner can maintain the claim
under Section 163A of the Act from the owner of the said vehicle?
18
5.1 The learned Tribunal held that even in absence of the driver,
owner and the insurance company of another vehicle involved in an
accident   and   whose   driver   was   solely   negligent,   the   application
under Section 163A of the Act would be maintainable against the
owner and the insurance company of the vehicle which was driven
by the deceased himself, firstly on the ground that the deceased
was in employment of the owner of the vehicle which was driven by
him and secondly, in an application under Section 163A of the Act,
the negligence is not required to be established and proved and it is
enough to establish and prove that the deceased has died in a
vehicular accident and while driving a vehicle.  The High Court has
not agreed with the same and by the impugned Judgment and
Order   has   held   that   as   the   claimants   have   not   filed   the  claim
petition against the owner of another vehicle whose driver was in
fact negligent, even as per the claimants and the claim petition
should   have   been   filed   by   the   claimants   against   the   owner   of
another vehicle to seek the compensation, the application under
Section  163A  of the  Act  against  the  insurance  company  of the
vehicle driven by the deceased himself is liable to be dismissed.
19
5.2 While answering the aforesaid question involved in the present
case, first of all, the findings recorded by the learned Tribunal on
Issue No. 2 is required to be dealt with and considered.  The learned
Tribunal framed Issue No. 2 to the effect whether the deceaseddriver was driving the vehicle­motor cycle bearing registration No.
RJ 02 SA 7811 being in employment of the vehicle owner­opposite
party­Bhagwan   Sahay   in   his   interest   or   with   his
permission/knowledge?
5.3 While answering the finding recorded by the learned Tribunal
on Issue No. 2, it appears that, as such, the learned Tribunal has
not at all answered the aforesaid issue.  While answering Issue No.
2, there is no specific finding whether the deceased­driver was in
employment of the opponent­owner Bhagwan Sahay or not.   Even
otherwise, no evidence is led by the claimants to prove that the
deceased­driver   was   in   employment   of   the   opponent­owner
Bhagwan Sahay.  Despite the above, while answering Issue No. 4
there is some observation made by the learned Tribunal that the
deceased­driver   was   in   employment   of   the   opponent­owner
Bhagwan Sahay, which is not supported by any evidence on record.
20
Under the circumstances, the deceased­driver cannot be said to be
in   employment   of   the   opponent­owner   Bhagwan   Sahay   and,
therefore, he can be said to be permissible user and/or borrower of
motor vehicle owned by the opponent­owner Bhagwan Sahay.  With
these findings, the main question posed for consideration of this
Court referred to hereinabove is required to be considered.
5.4 An identical question came to be considered by this Court in
the case of  Ningamma  (supra).   In that case, the deceased was
driving a motorcycle which was borrowed from its real owner and
met with an accident by dashing against a bullock cart i.e. without
involving any other vehicle.   The claim petition was filed under
Section 163A of the Act by the legal representatives of the deceased
against the real owner of the motorcycle which was being driven by
the deceased.  To that, this Court has observed and held that since
the deceased has stepped into the shoes of the owner of the vehicle,
Section 163A of the Act cannot apply wherein the owner of the
vehicle himself is involved.   Consequently, it was held that the legal
representatives   of   the   deceased   could   not   have   claimed   the
compensation under Section 163A of the Act.  Therefore, as such, in
21
the   present   case,   the   claimants   could   have   even   claimed   the
compensation and/or filed the claim petition under Section 163A of
the Act against the driver, owner and insurance company of the
offending vehicle i.e. motorcycle bearing registration No. RJ 29 2M
9223, being a third party with respect to the offending vehicle.
However, no claim under Section 163A was filed against the driver,
owner   and/or   insurance   company   of   the   motorcycle   bearing
registration No. RJ 29 2M 9223.    It is an admitted position that
the claim under Section 163A of the Act was only against the owner
and the insurance company of the motorcycle bearing registration
No. RJ 02 SA 7811 which was borrowed by the deceased from the
opponent­owner Bhagwan Sahay.  Therefore, applying the law laid
down by this Court in the case of Ningamma (supra), and as the
deceased has stepped into the shoes of the owner of the vehicle
bearing registration No. RJ 02 SA 7811, as rightly held by the High
Court, the claim petition under Section 163A of the Act against the
owner and insurance company of the vehicle bearing registration
No. RJ 02 SA 7811 shall not be maintainable. 
22
5.5  It is true that, in a claim under Section 163A of the Act, there
is no need for the claimants to plead or establish the negligence
and/or that the death in respect of which the claim petition is
sought to be established was due to wrongful act, neglect or default
of the owner of the vehicle concerned.   It is also true that the claim
petition under Section 163A of the Act is based on the principle of
no fault liability.  However, at the same time, the deceased has to be
a third party and cannot maintain a claim under Section 163A of
the Act against the owner/insurer of the vehicle which is borrowed
by him as he will be in the shoes of the owner and he cannot
maintain a claim under Section 163A of the Act against the owner
and insurer of the vehicle bearing registration No. RJ 02 SA 7811.
In the present case, the parties are governed by the contract of
insurance and under the contract of insurance the liability of the
insurance company would be qua third party only.  In the present
case, as observed hereinabove, the deceased cannot be said to be a
third party with respect to the insured vehicle bearing registration
No. RJ 02 SA 7811.     There cannot be any dispute that the liability
of the insurance company would be as per the terms and conditions
23
of the contract of insurance.  As held by this Court in the case of
Dhanraj  (supra), an insurance policy covers the liability incurred
by the insured in respect of death of or bodily injury to any person
(including an owner of the goods or his authorized representative)
carried in the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle.   In the said
decision, it is further held by this Court that Section 147 does not
require an insurance company to assume risk for death or bodily
injury to the owner of the vehicle.  
5.6 In view of the above and for the reasons stated above, in the
present case, as the claim under Section 163A of the Act was made
only against the owner and insurance company of the vehicle which
was being driven by the deceased himself as borrower of the vehicle
from the owner of the vehicle and he would be in the shoes of the
owner, the High Court has rightly observed and held that such a
claim was not maintainable and the claimants ought to have joined
and/or ought to have made the claim under Section 163A of the Act
against the driver, owner and/or the insurance company of the
24
offending vehicle i.e. RJ 29 2M 9223 being a third party to the said
vehicle.   
5.7 Now,   so   far   as   the   reliance   placed   upon   by   the   learned
Advocate for the claimants on the decision of this Court in the case
of Naveen Kumar (supra), on considering the issue involved in that
decision, we are of the opinion that the said decision shall not be
applicable to the facts of the case on hand and/or the same shall
not be of any assistance to the claimants.  In that case, the issue
was as to who could be said to be the registered owner of the vehicle
and the liability of the owner who sold the vehicle, but his name
continued to be as the owner with the registering authority. To
that, it was held that the person in whose name the motor vehicle
stands registered is the owner of the vehicle for the purpose of the
Act.
5.8 However,   at   the   same   time,   even   as   per   the   contract   of
insurance, in case of personal accident the owner­driver is entitled
to   a   sum   of   Rs.1   lakh.     Therefore,   the   deceased,   as   observed
hereinabove, who would be in the shoes of the owner shall be
entitled   to   a   sum   of   Rs.1   lakh,   even   as   per   the   contract   of
25
insurance.       However,   it   is   the   case   on   behalf   of   the   original
claimants that there is an amendment to the 2nd  Schedule and a
fixed amount of Rs.5 lakh has been specified in case of death and
therefore the claimants shall be entitled to Rs.5 lakh.   The same
cannot be accepted.  In the present case, the accident took place in
the year 2006 and even the Judgment and Award was passed by
the learned Tribunal in the year 2009, and the impugned Judgment
and Order has been passed by the High Court in 10.05.2018, i.e.
much prior to the amendment in the 2nd Schedule.    In the facts
and circumstance of the present case, the claimants shall not be
entitled to the benefit of the amendment to the 2nd Schedule.   At
the same time, as observed hereinabove, the claimants shall be
entitled to Rs.1 lakh as per the terms of the contract of insurance,
the driver being in the shoes of the owner of the vehicle.  
5.9 Now, so far as the submission made on behalf of the claimants
that in a claim under Section 163A of the Act mere use of the
vehicle is enough and despite the compensation claimed by the
heirs of the owner of the motorcycle which was involved in the
accident resulting in his death, the claim under Section 163A of the
26
Act would be maintainable is concerned, in view of the decision of
this Court in Rajni Devi (supra), the aforesaid cannot be accepted.
In  Rajni  Devi  (supra), it has been specifically observed and held
that the provisions of Section 163A of the Act cannot be said to
have any application with regard to an accident wherein the owner
of the motor vehicle himself is involved.     After considering the
decisions of this Court in the cases of Oriental Insurance Co. Ltd.
V.  Jhuma   Saha  (2007) 9 SCC 263;  Dhanraj  (supra);  National
Insurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and
Premkumari  v.  Prahlad  Dev  (2008) 3 SCC 193, it is ultimately
concluded by this Court that the liability under Section 163A of the
Act is on the owner of the vehicle as a person cannot be both, a
claimant as also a recipient and, therefore, the heirs of the owner
could not have maintained the claim in terms of Section 163A of the
Act.  It is further observed that, for the said purpose, only the terms
of the contract of insurance could be taken recourse to.   In the
recent decision of this Court in the case of  Ashalata  Bhowmik
(supra), it is specifically held by this Court that the parties shall be
governed by the terms and conditions of the contract of insurance.
27
Therefore, as per the contract of insurance, the insurance company
shall be liable to pay the compensation to a third party and not to
the   owner,   except   to   the   extent   of   Rs.1   lakh   as   observed
hereinabove.   
6. In view of the above and for the reasons stated above, the
present appeal is partly allowed to the aforesaid extent and it is
observed and held that the original claimants shall be entitled to a
sum of Rs.1 lakh only with interest @ 7.5 per cent per annum from
the date of the claim petition till realization.   In the facts and
circumstance of the present case, there shall be no order as to
costs.
………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi,
January 7, 2020.

Cancelation of Bail ?- When order of bail are not perverse - when the allegations for cancellation of bail are so vague - the bail can not be cancelled.

Cancelation of Bail ?- When order of bail are not perverse - when the allegations for cancellation of bail are so vague - the bail can not be cancelled.

whether the order passed by the Sessions Court granting bail is perverse and suffers from infirmities which has resulted in the miscarriage of justice. 

No doubt, the Sessions Court did not discuss the material on record in detail, but there is
an indication from the orders by which bail was granted that the entire material was perused before grant of bail.
It is not the case of either the complainant-Respondent No.2 or the State that irrelevant considerations have been taken into account by the Sessions Court while granting
bail to the Appellants. 
The order of the Sessions Court by which the bail was granted to the Appellants cannot be termed as perverse as the Sessions Court was conscious of the fact that the investigation was completed and there was no likelihood of the Appellant tampering with the
evidence.

The petition filed for cancellation of bail is both on the grounds of illegality of the order passed by the Sessions Court and the conduct of the Appellants subsequent to their release after bail was granted. 
The complaint filed by one Bojja Ravinder to the Commissioner of Police, Karimnagar is placed on record by Respondent No.2. 
It is stated in the complaint that the Appellants were roaming freely in the village and threatening witnesses.
We have perused the complaint and found that the allegations made therein are vague. There is no mention about which accused out of the 15 indulged in acts of holding out threats to the witnesses or made an attempt to tamper with the evidence.

After considering the submissions made on behalf of the parties and examining the material on record, we are of the opinion that the High Court was not right in cancelling the bail of the Appellants. The orders passed by the Sessions Judge granting bail cannot be termed as perverse. The complaint alleging that the Appellants were influencing witnesses is vague and is without any details
regarding the involvement of the Appellants in threatening the witnesses. Therefore, the Appeals are allowed and the judgment of the High Court is set aside.

Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos. 1974- 1975 of 2019
(@ SLP (Crl.) Nos.8882-8883 of 2019)
MYAKALA DHARMARAJAM & ORS. ETC.
.... Appellants
Versus
THE STATE OF TELANGANA & ANR.
 ….
Respondent (s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. Respondent No.2 in the above Appeals lodged a
complaint which was registered under Sections 148, 120 B,
302 read with Section 149 of the Indian Penal Code, 1860
(IPC) at Karimnagar Rural Police Station vide FIR No.155
dated 19.04.2019. It was alleged in the complaint that the
husband of Respondent No.2, Bojja Thirupathi was the
Chairman of the Fishermen Co-operative Society of
Chamanapalli village, Karimnagar District. Members of the
Society alone were permitted to carry out fishing activities
in the tanks in Rajasamudram and Appanapalli villages.
The membership of the Appellants in the Fishermen Co1
operative Society was cancelled due to which they were
not permitted to carry out fishing activities. Three years
before the complaint the husband of Respondent No.2 was
attacked by the Appellants at the village Panchayat office
and a criminal case was registered against the Appellants,
which was pending. On 19.04.2019, the husband of
Respondent No.2 went to Chamanapalli village to inspect
the tank. At about 5.00 pm, the Appellants attacked the
husband of Respondent No.2 with stones and he
succumbed to the injuries.
2. The Appellants moved applications for bail before the
Principal Sessions Judge, Karimnagar who summoned the
case diary, statements of the witnesses and other
connected records. The Principal Sessions Judge released
the Appellants on bail by imposing conditions that the
Appellants shall appear before the Karimnagar Rural Police
Station on every alternative day between 10.00 am to
05.00 pm and shall not leave the territorial jurisdiction of
the First Additional Judicial Magistrate, First Class,
Karimnagar. Another condition was imposed that the
Appellants shall not influence or tamper with the evidence.
2 | P a g e
3. Respondent No.2 filed a petition for cancellation of
bail under Section 439(2) Cr. P.C. before the High Court for
the State of Telangana. On 10.07.2019, a charge sheet
was filed against the Appellants. According to the charge
sheet, all the accused gathered and planned to kill Bojja
Thirupathi on 19.04.2019. They formed into two groups.
The first group, consisting of A5, A7 to A11 and A15,
attacked the deceased and remaining persons were
standing guard near the tank. Even according to the
charge sheet, there is no overt act alleged against any of
the accused, except A6 who is alleged to have
strangulated the deceased with a towel.
4. We are informed at the bar that the case has been
committed for trial. The High Court allowed the
applications filed for cancellation of bail on the ground that
the Principal Sessions Judge did not consider the material
available on record before granting bail to the Appellants.
The High Court further held that the criminal antecedents
of the Appellants were not taken into account by the trial
Court. That apart, the High Court accepted the
submissions on behalf of Respondent No.2 that the
3 | P a g e
Appellants indulged in threatening the witnesses after
being released on bail.
5. The Appellants contended that no specific overt act
was attributed to any of the accused, except for omnibus
allegations made against them. It is argued that the
complaint that was made by Respondent No.2 is on the
basis of vague allegations regarding tampering with the
evidence. The Appellants urged that the order passed by
the High Court is liable to be set aside as there were no
compelling reasons for interfering with the order of the
Sessions Court by which they were released on bail.
6. The factors to be considered while granting bail have
been held by this Court to be the gravity of the crime, the
character of the evidence, position and status of the
accused with reference to the victim and witnesses, the
likelihood of the accused fleeing from justice and repeating
the offence, the possibility of his tampering with the
evidence and witnesses, and obstructing the course of
justice etc. Each criminal case presents its own peculiar
factual scenario and, therefore, certain grounds peculiar to
a particular case may have to be taken into account by the
Court. The court has to only opine as to whether there is
4 | P a g e
prima facie case against the accused. For the purpose of
bail, the Court must not undertake meticulous examination
of the evidence collected by the police and comment on
the same.1
7. In Raghubir Singh v. State of Bihar
2
 this Court
held that bail can be cancelled where (i) the accused
misuses his liberty by indulging in similar criminal activity,
(ii) interferes with the course of investigation, (iii) attempts
to tamper with evidence or witnesses, (iv) threatens
witnesses or indulges in similar activities which would
hamper smooth investigation, (v) there is likelihood of his
fleeing to another country, (vi) attempts to make himself
scarce by going underground or becoming unavailable to
the investigating agency, (vii) attempts to place himself
beyond the reach of his surety, etc. The above grounds
are illustrative and not exhaustive. It must also be
remembered that rejection of bail stands on one footing
but cancellation of bail is a harsh order because it
interferes with the liberty of the individual and hence it
must not be lightly resorted to.
1 Kanwar Singh Meena vs State of Rajasthan & Anr. (2012) 12 SCC 180
2 (1986) 4 SCC 481
5 | P a g e
8. It is trite law that cancellation of bail can be done in
cases where the order granting bail suffers from serious
infirmities resulting in miscarriage of justice. If the court
granting bail ignores relevant material indicating prima
facie involvement of the accused or takes into account
irrelevant material, which has no relevance to the question
of grant of bail to the accused, the High Court or the
Sessions Court would be justified in cancelling the bail3
.
9. Having perused the law laid down by this Court on
the scope of the power to be exercised in the matter of
cancellation of bails, it is necessary to examine whether
the order passed by the Sessions Court granting bail is
perverse and suffers from infirmities which has resulted in
the miscarriage of justice. No doubt, the Sessions Court
did not discuss the material on record in detail, but there is
an indication from the orders by which bail was granted
that the entire material was perused before grant of bail.
It is not the case of either the complainant-Respondent
No.2 or the State that irrelevant considerations have been
taken into account by the Sessions Court while granting
bail to the Appellants. The order of the Sessions Court by
which the bail was granted to the Appellants cannot be
3 Kanwar Singh Meena vs State of Rajasthan & Anr. (supra).
6 | P a g e
termed as perverse as the Sessions Court was conscious of
the fact that the investigation was completed and there
was no likelihood of the Appellant tampering with the
evidence.
10. The petition filed for cancellation of bail is both on
the grounds of illegality of the order passed by the
Sessions Court and the conduct of the Appellants
subsequent to their release after bail was granted. The
complaint filed by one Bojja Ravinder to the Commissioner
of Police, Karimnagar is placed on record by Respondent
No.2. It is stated in the complaint that the Appellants were
roaming freely in the village and threatening witnesses.
We have perused the complaint and found that the
allegations made therein are vague. There is no mention
about which accused out of the 15 indulged in acts of
holding out threats to the witnesses or made an attempt to
tamper with the evidence.
11. After considering the submissions made on behalf of
the parties and examining the material on record, we are
of the opinion that the High Court was not right in
cancelling the bail of the Appellants. The orders passed by
the Sessions Judge granting bail cannot be termed as
7 | P a g e
perverse. The complaint alleging that the Appellants were
influencing witnesses is vague and is without any details
regarding the involvement of the Appellants in threatening
the witnesses. Therefore, the Appeals are allowed and the
judgment of the High Court is set aside.

 ….................................J.
 [L. NAGESWARA RAO]
 ..……............................J.
 [HEMANT GUPTA]
New Delhi,
January 07, 2020.
8 | P a g e

Subletting - Eviction - Settled laws - tried to cover the subletting under the head of [fake] partnership plea with original tenant - Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

Subletting - Eviction - Settled laws -  tried to cover the subletting under the head of [fake] partnership plea with original tenant - Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the   premises   and   that   tenant   has   no   legal   possession   of   the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

“25. The legal position that emerges from the aforesaid decisions
can be summarised thus :
(i) In order to prove mischief of subletting as a ground for eviction
under rent control laws, two ingredients have to be established,
(one) parting with possession of tenancy or part of it by tenant in
favour of a third party with exclusive right of possession and (two)
that   such   parting   with   possession   has been   done   without   the
consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by
a tenant by itself does not amount to subletting. However, if the
purpose   of   such   partnership   is   ostensible   and   a   deed   of
partnership is drawn to conceal the real transaction of sub­letting,
the court may tear the veil of partnership to find out the real
nature of transaction entered into by the tenant.
(iii)   The   existence   of   deed   of   partnership   between   tenant   and
alleged   sub­tenant   or   ostensible   transaction   in   any   other   form
would not preclude the landlord from bringing on record material
and circumstances, by adducing evidence or by means of crossexamination,   making   out   a   case   of   sub­letting   or   parting   with
possession in tenancy premises by the tenant in favour of a third
person.
(iv) If tenant is actively associated with the partnership business
and retains the control over the tenancy premises with him, may
be along with partners, the tenant may not be said to have parted
with possession.
 (v) Initial burden of proving subletting is on landlord but once he
is able to establish that a third party is in exclusive possession of
the   premises   and   that   tenant   has   no   legal   possession   of   the
tenanted premises, the onus shifts to tenant to prove the nature of
occupation of such third party and that he (tenant) continues to
hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on landlord would stand
discharged by adducing prima facie proof of the fact that a party
other than tenant was in exclusive possession of the premises. A
15
presumption of sub­letting may then be raised and would amount
to proof unless rebutted.”
Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and on appreciation of
evidence   on   record,   we   are   of   the   opinion   that   there   is   no
genuine partnership between respondent no.1 and respondent
no.2.  Respondent no.1 has come out with a case of partnership
only to get out from the allegation of sub­letting.  The exclusive
possession   of   the   suit   premises   is   with   respondent   no.2.
Respondent no.2 is running the business in the suit premises as
an owner. Sales Tax Certificate and the licence are in the name
of respondent no.2.   The bank accounts are in the name of
respondent no.2 and respondent no.2 is exclusively dealing with
the bank accounts.   Under the circumstances, a clear case of
sub­letting has been made out.  The High Court has committed
a grave error in setting aside the decree of eviction on the ground
of sub­letting.


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9443 OF 2019
A.MAHALAKSHMI          …APPELLANT
VERSUS
BALA VENKATRAM (D) THROUGH LR & ANR. …RESPONDENTS
J U D G M E N T
M.R. SHAH, J.
Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order dated 24.04.2017 passed by the High Court
of Judicature at Madras in CRP (NPD) No. 2898/2013, by which
the High Court has allowed the said revision application preferred
by   the   respondents   herein   –   original   defendants,   the   original
plaintiff has preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as
under:
1
That one Dr. Sanjeevi and his wife Mrs. Porkodi, the earlier
owner of the suit premises in question had executed a power of
attorney dated 01.11.2016 in the name of the appellant herein
and   in   respect   of   the   said   property.     That   by   way   of   rental
agreement dated 23.05.2007, the appellant let out the premises
in question to original respondent no.1 herein – Bala Venkatram
(now dead and represented through legal heirs) for running ‘Best
Mark Super Market’ from June, 2007 to July, 2009 on a monthly
rent of Rs.11,000/­.  That an advance amount of Rs.1,00,000/­
was paid by way of security.  That the rent was payable on 7th
day   of   every   English   calendar   month.     That   the   appellant   –
landlady filed an eviction suit on the ground of sub­letting as well
as  on   the  ground  of  arrears  of  rent  against   the  respondents
herein   –   original   defendants   –   Bala   Venkatram   and   another
under Sections 10(2)(i), 10(2)(ii)(a)(b) and 10(2)(iii) of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter
referred to as the ‘Act’) in the Court of District Munsiff, Pollachi.
According to the landlady the rent was initially paid by original
defendant no.1 – Bala Venkatram till October, 2007.  It was the
case on behalf of the landlady that upon default in payment of
rent and noticing a change in the name as well as ownership of
2
the shop in the tenanted premises from ‘Best Mark Super Market’
to ‘Amutham Super Market’, she made enquiries and discovered
that not only there was a change in the name but a complete
change of hand from original defendant – Bala Venkatram to
respondent no.2 – Shahu Hameed which also on the face of it
was a gross breach of the rent agreement.   According to the
landlady,   the   sub­letting   was   evident   from   the   Certificate   of
Registration,   Government   of   Tamil   Nadu,   Commercial   Tax
Department.   Therefore, the landlady issued a legal notice to
original   defendant   –   Bala   Venkatram   pointing   out   the   said
breaches and called upon him to collect balance amount from the
advance payment deposited after adjusting the arrears of rent
and handover possession of the tenanted premises within 15
days failing which the appropriate legal action would be taken.
There was no reply to the legal notice from respondent no.1 –
original defendant no.1.   Therefore, the landlady, the appellant
herein, filed R.C.O.P. No. 4 of 2008 for decree of eviction on the
ground of sub­letting and arrears of rent.
2.1 The   suit   was   resisted   by   original   defendant   no.1   –   the
original tenant by filing a written counter.  It was stated that the
3
landlady has received the rent till December, 2007 and that the
first respondent has no necessity to get the permission from the
landlady for running business in any other name.   It was the
case on behalf of original respondent no.1 – the original tenant
that since the landlady was trying to evict the respondents, they
filed O.S. No. 122/2008 for permanent injunction.  According to
the first respondent – the original tenant, they were running
‘Amutham Super Market’ in the suit property.  According to the
original tenant there were many branches, namely, ‘Amutham
Jewellery,   Amutham   Foods,   Amutham   Electronics,   Amutham
Textiles   etc.     According   to   the   original   tenant   since   the
respondents refused to give the business in the name of the
landlady, she filed eviction petition with an ulterior motive.   A
similar written counter was filed on behalf of original respondent
no.2 – sub­tenant.
2.2 That   the   learned   Rent   Controller   dismissed   the   eviction
petition.   Aggrieved by the same, the landlady preferred R.C.A.
No. 1 of 2012.  That the learned Rent Control Appellate Authority
allowed the appeal in part.  The learned Rent Control Appellate
Authority passed the eviction decree on the ground of sub­letting
4
only and therefore allowed the petition filed under Sections 10(2)
(i) and 10(2)(ii)(a)(b) of the Act.  However, dismissed the petition
filed  under  Section  10(2)(iii)  of  the  Act  –  wastage &  material
alteration   of   the   premises.   That   the   original   tenant   –   Bala
Venkatram died.  Therefore, the legal heirs of the original tenant
–   Bala   Venkatram   and   the   second   respondent   –   sub­tenant
preferred the revision application before the High Court.  That by
the impugned judgment and order, the High Court has allowed
the said revision application and has quashed and set aside the
eviction order passed by the Rent Control Appellate Authority.
2.3 Feeling   aggrieved   and   dissatisfied   with   the   impugned
Judgment and order passed by the High Court in quashing and
setting aside the eviction decree on the ground of sub­letting, the
landlady has preferred the present appeal.
3. Shri Aniruddha Joshi, learned Advocate appearing on behalf
of the original plaintiff – landlady has vehemently submitted that
in the facts and circumstances of the case, the High Court has
committed   a   grave   error   in   quashing   and   setting   aside   the
eviction decree on the ground of sub­letting.  Learned Advocate
appearing on behalf of the appellant has vehemently submitted
5
that the High Court has committed a grave error in holding that
the landlady has not established and proved the sub­letting by
the original tenant in favour of respondent no.2 herein – subtenant.
3.1 It is further submitted by the learned Advocate appearing on
behalf of the original plaintiff that the finding recorded by the
High Court that the landlady has failed to establish and prove the
sub­letting   by   original   respondent   no.1   in   favour   of   original
respondent no.2 is contrary to the evidence on record.   It is
vehemently submitted that when the first appellate authority on
appreciation of evidence specifically found that there was a subletting of the premises by original respondent no.1 in favour of
original   respondent   no.2,   the   same   was   not   required   to   be
interfered with by the High Court in exercise of its revisional
jurisdiction.
3.2 It is further submitted by the learned Advocate appearing on
behalf   of   the   original   plaintiff   that   there   were   ample
material/evidence on record, such as, sales tax certificate, licence
of the shop which stood in the name of original respondent no.2
which establish and prove the sub­letting by the original tenant –
6
respondent no.1 in favour of sub­tenant – original respondent
no.2.  It is submitted that the aforesaid documents/evidence on
record have not at all been considered by the High Court.
3.3 It is further submitted by the learned Advocate appearing on
behalf of the original plaintiff that the High Court ought to have
appreciated that though the original tenant – respondent no.1 in
his cross­examination set up a case that he was a partner in the
business run by respondent no.2, however, no document was
placed on record to show the partnership.
3.4 It is further submitted by the learned Advocate appearing on
behalf of the original plaintiff that as all the ingredients of subletting   are   established   and   proved   by   the   landlady,   such   as,
parting with possession of the tenancy in favour of respondent
no.2 with exclusive rights of possession and that such parting
with   possession   has   been   done   without   the   consent   of   the
landlady, the landlady filed an eviction petition.
4. The   present   appeal   is   vehemently   opposed   by   Shri   C.
Paramasivam,   learned   Advocate   appearing   on   behalf   of   the
respondents.     It   is   vehemently   submitted   on   behalf   of   the
respondents that as the appellant is not the owner of the suit
7
premises and is only a power of attorney holder of the owner of
the premises, the eviction petition itself is not maintainable.  It is
submitted that therefore the appellant cannot be said to be a
landlady and therefore the eviction petition at the instance of the
appellant is not maintainable.
4.1 Now so far as the impugned judgment and order passed by
the High Court is concerned, it is vehemently submitted by the
learned Advocate appearing on behalf of the respondents that on
appreciation   of   evidence   and   considering   the   fact   that   the
appellant has failed to prove that respondent no.1 had sub­let
the suit premises to the second respondent, the High Court has
rightly set aside the order passed by the Rent Control Appellate
Authority.
4.2 It is further submitted by the learned Advocate appearing on
behalf of the respondents that even in the deposition/evidence of
the landlady, it has come on record that respondent no.1 and
respondent no.2 – Shahu Hameed were running the shop as
partners.  It is submitted therefore that when both, respondent
nos.   1   &   2   were   running   the   shop   as   partners,   there   is   no
question of sub­letting.  It is submitted that therefore the High
8
Court has rightly set aside the eviction decree on the ground of
sub­letting.
5. In   rejoinder   and   on   the   maintainability   of   the   eviction
petition by the appellant, as objected by the respondents, learned
Advocate appearing on behalf of the landlady has submitted that
as such no such contention was raised in the written counter to
the eviction petition.   It is submitted that no such issue was
framed.  It is submitted that as such in the written counter, they
have not disputed the status of the appellant as landlady.  It is
submitted that even otherwise and considering Section 2(6) of the
Act and even considering the fact that lease deed was executed
by the appellant in favour of respondent no.1, the appellant can
be   said   to   be   a   landlady/landlord   and   therefore   the   eviction
petition at the instance of the appellant would be maintainable.
6. We   have   heard   the   learned   Counsel   for   the   respective
parties at length.  We have also perused the impugned judgment
and order passed by the High Court. We have considered and
appreciated the entire evidence on record, more particularly the
rental agreement as well as deposition of original respondent no.1
– Bala Venkatram.
9
6.1 At   the   outset,   it   is   required   to   be   noted   that   the   suit
premises   was   leased   in   favour   of   original   respondent   no.1   –
original   tenant   –   Bala   Venkatram   pursuant   to   the   rental
agreement dated 23.05.2007 executed by the appellant herein.
Therefore, the rental agreement was between the appellant and
original defendant no.1 – Bala Venkatram.  Defendant no.1 was
put in possession as a tenant pursuant to the aforesaid rental
agreement dated 23.05.2007 executed by the appellant in favour
of original defendant no.1 – original tenant – Bala Venkatram.
Therefore, as such, it would not be open for the respondents to
deny the status of the appellant as a landlady.   Therefore, the
original   respondents   cannot   challenge   the   authority   of   the
appellant to file an eviction petition.  Even otherwise, considering
Section 2(6) of the Act and considering the fact that respondent
no.1   was   paying   the   rent   to   the   appellant   pursuant   to   the
aforesaid rental agreement dated 23.05.2007, the appellant can
be said to be the landlord/landlady and therefore the eviction
petition at the instance of the appellant would be maintainable.
At this stage, it is required to be noted that as such no such
objection was raised either before the High Court and/or before
the Rent Control authorities.   Be that as it may, as observed
10
hereinabove, the appellant can be said to be the landlady even
within the definition of Section 2(6) of the Act and therefore the
eviction   petition   at   the   instance   of   the   appellant   would   be
maintainable.
6.2 Now so far as the merits of the case are concerned, at the
outset, it is required to be noted that the landlady filed a suit for
eviction mainly on the ground of arrears of rent as well as on the
ground of sub­letting.  The Rent Controller dismissed the eviction
petition.  However, the Rent Control Appellate Authority passed
the eviction decree on the ground of sub­letting and arrears of
rent which has been upset by the High Court by the impugned
judgment   and   order.     Therefore,   the   short   question   which   is
posed for consideration of this Court is, whether in the facts and
circumstances of the case, the High Court is justified in setting
aside the eviction decree on the ground of sub­letting and arrears
of rent?
7. It   is   not   in   dispute   that   in   the   rental   agreement   dated
23.05.2007, the suit premises was let out to respondent no.1 –
the original tenant for running ‘Best Mark Super Market’ for a
period of two years from June, 2007 to July, 2009.  However, it
11
has been found that in the suit premises, respondent no.2 was
running the business in the name of ‘Amutham Super Market’
and the original tenant was confronted with the same and was
served with a legal notice, initially original respondent no.1 –
tenant did not respond to the legal notice. However, before the
Rent Control Authority, it was the case on behalf of respondent
No.1 – Bala Venkatram that because of the old age he was not in
a position to manage the affairs of the shop and that is why he
has handed over the possession of the shop to Shahu Hameed –
original respondent no.2 through a general power of attorney.  It
was also the case on behalf of the original tenant that on the
basis of an oral agreement, he and Shahu Hameed were running
the business as partners.  However, in the cross­examination, the
original   tenant   has   specifically   admitted   that   in   the   bank
accounts of the firm – Amutham Super Market, Shahu Hameed is
shown as the owner of the shop.   He has also admitted that
licence for the shop is also in the name of Shahu Hameed.  He
has also specifically admitted that Shahu Hameed is running the
shop as the owner.  He has also specifically admitted that he is
not in possession of any document to show that he is running the
shop.  He has also specifically admitted that he has handed over
12
the shop to Shahu Hameed through a power of attorney.  He has
also specifically admitted that the application/sales tax certificate
in respect of the suit property is registered in the name of Shahu
Hameed.     He   has   also   specifically   admitted   that   the   bank
accounts are maintained by Shahu Hameed in the capacity of
owner   of   the   shop.   Thus,   from   the   deposition   of   original
respondent no.1 – the original tenant and the material/evidence
on record, we are of the opinion that this is a clear case of subletting.  All the ingredients suggesting sub­letting are established
and proved.  As such, the High Court has not at all discussed the
evidence   on   record   including   even   the   deposition   of   original
respondent no.1 – the original tenant.
8. Sub­letting means transfer of an exclusive right to enjoy the
property in favour of the third party. To constitute a sub­letting,
there must be a parting of legal possession, i.e., possession with
the right to include and also right to exclude others.  Sub­letting,
assigning or otherwise parting with the possession of the whole
or   any   part   of   the   tenancy   premises,   without   obtaining   the
consent in writing of the landlord, is not permitted and if done,
the same provides a ground for eviction of the tenant by the
13
landlord.   When the eviction is sought on the ground of subletting, the onus to prove sub­letting is on the landlord.  As held
by this Court in the case of Associated Hotels of India Limited v.
S.B. Sardar Ranjit Singh, AIR 1968 SC 933, if the landlord prima
facie shows that the third party is in exclusive possession of the
premises let out for valuable consideration, it would then be for
the tenant to rebut the evidence.  At the same time, as held by
this Court in the case of G.K. Bhatnagar v. Abdul Alim, (2002) 9
SCC 516  and  Helper Girdharbhai v. Saiyed Mohmad Mirasaheb
Kadri, (1987) 3 SCC 538, where a tenant becomes a partner of a
partnership firm and allows the firm to carry on business in the
premises while he himself retains the legal possession thereof,
the act of the tenant does not amount to sub­letting.  It is further
observed and held that however inducting the partner in his
business or profession by the tenant is permitted so long as such
partnership is genuine. It is further observed that if the purpose
of   such   partnership   is   ostensible   in   carrying   on   business   or
profession in a partnership but the real purpose in sub­letting
such premises to such other person who is inducted ostensibly
as a partner then the same shall be deemed to be an act of subletting.                                                      After considering catena of decisions of this Court on
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sub­letting,   in   the   case   of  Celina   Coelho   Pereira   v.   Ulhas
Mahabaleshwar   Kholkar,   (2010)   1   SCC   217,   this   Court   has
summarised in paragraph 25 as under:
“25. The legal position that emerges from the aforesaid decisions
can be summarised thus :
(i) In order to prove mischief of subletting as a ground for eviction
under rent control laws, two ingredients have to be established,
(one) parting with possession of tenancy or part of it by tenant in
favour of a third party with exclusive right of possession and (two)
that   such   parting   with   possession   has been   done   without   the
consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by
a tenant by itself does not amount to subletting. However, if the
purpose   of   such   partnership   is   ostensible   and   a   deed   of
partnership is drawn to conceal the real transaction of sub­letting,
the court may tear the veil of partnership to find out the real
nature of transaction entered into by the tenant.
(iii)   The   existence   of   deed   of   partnership   between   tenant   and
alleged   sub­tenant   or   ostensible   transaction   in   any   other   form
would not preclude the landlord from bringing on record material
and circumstances, by adducing evidence or by means of crossexamination,   making   out   a   case   of   sub­letting   or   parting   with
possession in tenancy premises by the tenant in favour of a third
person.
(iv) If tenant is actively associated with the partnership business
and retains the control over the tenancy premises with him, may
be along with partners, the tenant may not be said to have parted
with possession.
 (v) Initial burden of proving subletting is on landlord but once he
is able to establish that a third party is in exclusive possession of
the   premises   and   that   tenant   has   no   legal   possession   of   the
tenanted premises, the onus shifts to tenant to prove the nature of
occupation of such third party and that he (tenant) continues to
hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on landlord would stand
discharged by adducing prima facie proof of the fact that a party
other than tenant was in exclusive possession of the premises. A
15
presumption of sub­letting may then be raised and would amount
to proof unless rebutted.”
9. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and on appreciation of
evidence   on   record,   we   are   of   the   opinion   that   there   is   no
genuine partnership between respondent no.1 and respondent
no.2.  Respondent no.1 has come out with a case of partnership
only to get out from the allegation of sub­letting.  The exclusive
possession   of   the   suit   premises   is   with   respondent   no.2.
Respondent no.2 is running the business in the suit premises as
an owner. Sales Tax Certificate and the licence are in the name
of respondent no.2.   The bank accounts are in the name of
respondent no.2 and respondent no.2 is exclusively dealing with
the bank accounts.   Under the circumstances, a clear case of
sub­letting has been made out.  The High Court has committed
a grave error in setting aside the decree of eviction on the ground
of sub­letting.
10. In view of the above and for the reasons stated above, the
present appeal is allowed.   The impugned judgment and order
passed by the High Court is set aside and the judgment and
16
decree passed by the Rent Control Appellate Authority is hereby
restored.  There shall be a decree on the ground of sub­letting.
Respondents to handover the peaceful possession of the suit
premises to the appellant herein within a period of three months
from today on filing usual undertaking before this Court and on
payment of full arrears of rent within a period of four weeks from
today.
………………………………J.
[ASHOK BHUSHAN]
NEW DELHI; ………………………………J.
JANUARY 07, 2020.         [M.R. SHAH]

 
17

New year Greetings 2020

Wishing you all a Happy , Beautiful, Blisfull & Prosperous New Year 2020
God bless you all with great health, wealth and Prosperity
                                       with regards
                                                                                                                      Advocatemmmohan