Keeping in mind the enormous growth of vehicle population and demand for good drivers and by considering oral evidence on record we may take the income of the deceased at Rs.8000/­ per month for the purpose of loss of dependency. Deceased was aged about 32 years on the date of the accident and as he was on fixed salary, 40% enhancement is to be made towards loss of future prospects. At the same time deduction of 1/3rd is to be made from the income of the deceased towards his personal expenses. Accordingly the income of the deceased can be arrived at Rs.7467/­ per month. By applying the multiplier of ‘16’ the claimants are entitled for compensation of Rs.14,33,664/­. As an amount of Rs.10,99,700/­ is already paid towards the loss of dependency the appellant­parents are entitled for differential compensation of Rs.3,33,964/­. Further in view of the judgment of this Court in the case of Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram & Ors.3 the appellants are also entitled for parental consortium of Rs.40,000/­ each. The finding of the Tribunal that parents cannot be treated as dependents runs contrary to the judgment of this Court in the case of 3 2018 SCC OnLine SC 1546 = (2018) 18 SCC 130

C.A.@S.L.P.(C)No.6466 of 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6152 OF 2021

[Arising out of S.L.P.(C)No.6466 of 2019]

Chandra @ Chanda @ Chandraram & Anr. …..Appellants

Versus

Mukesh Kumar Yadav & Ors. …..Respondents

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted. 

2. Unfortunate parents who lost their son aged about 32 years

in the motor vehicle road accident on 27.02.2016, are before this

Court   claiming   enhancement   of   compensation   arising   out   of   an

application filed under Section 166 of the Motor Vehicles Act, 1988.

3. The appellants are the parents; 4th respondent is the wife; 5th

respondent is the minor son; 6th  respondent is the brother; and 7th

respondent is the sister of the deceased Shivpal.  The appellants and

1

C.A.@S.L.P.(C)No.6466 of 2019

respondent nos.4 to 7 were the applicants in the application filed

under Section 166 of the Motor Vehicles Act, 1988 before the Motor

Vehicle Accident Claims Tribunal, Ajmer, Rajasthan (for short, ‘the

Tribunal’) claiming compensation of Rs.93,08,000/­ with interest @

15% p.a.  The Tribunal by judgment dated 25.11.2017 has awarded

the total compensation of Rs.10,99,700/­ with interest @ 6% p.a.  The

appellant­parents alone have filed appeal before the High Court.  The

High Court by impugned judgment dated 06.07.2018 dismissed the

appeal.  As such the appellants are before this Court.  

4. The deceased Shivpal was employed as driver on the vehicle,

i.e., truck trailer bearing No.RJ­06­GA­6576.   When he was driving

the vehicle on 27.02.2016, within the limits of Adarsh Nagar Police

Station, Ajmer, the vehicle – truck trailer ­ bearing no.RJ­14­GD1156, driven by the 1st respondent; belonging to the 2nd respondent;

and insured with the 3rd  respondent, came on the wrong side and

rammed into the vehicle of the deceased resulting in the accident, as a

result of which Shivpal died in the said accident. 

5.   It was the case of the claimants before the Tribunal that

deceased Shivpal was in possession of heavy vehicle driving licence

and was earning Rs.15,000/­ per month.   Apart from the claim on

account of loss of dependency, they also claimed compensation on all

2

C.A.@S.L.P.(C)No.6466 of 2019

other   conventional   heads.     The   Tribunal   has   held   that   accident

occurred due to rash and negligent driving of the vehicle, driven by

the 1st respondent.  The Tribunal by taking into account the income of

the   deceased   at   Rs.5746/­   per   month   has   awarded   a   total

compensation   of   Rs.10,99,700/­   inclusive   of   consortium   of

Rs.40000/­ to the wife and minor child.   The Tribunal had merely

awarded an amount of Rs.10000/­ each to the appellant­parents, of

the deceased. 

6. We   have   heard   Sri   Aditya   Singh,   learned   counsel   for   the

appellants and Sri Sahil Raveen, learned counsel for respondent no.3.

7. Mainly it is contended by learned counsel for the appellants

that though the deceased was earning Rs.15,000/­ per month, being a

heavy   vehicle   driver,   the   Tribunal   has   awarded   compensation   on

account of loss of dependency by taking the income of the deceased at

Rs.5746/­ per month.  It is submitted that wife of the deceased, i.e.

respondent no.4 has clearly stated in her deposition that deceased

was earning Rs.15000/­ per month.   It is submitted that inspite of

such evidence on record the Tribunal has committed error in taking

the income of the deceased at Rs.5746/­ as per the minimum wage

notified to the skilled labour.   Further it is submitted that Tribunal

has committed error in recording a finding that the appellants are not

3

C.A.@S.L.P.(C)No.6466 of 2019

dependents as they were living separately.  Lastly it is submitted that

appellants are also entitled to compensation under the head of ‘loss of

consortium’.

8. The learned counsel appearing for the 3rd  respondent has

submitted that in absence of any documentary evidence on record to

show   the   salary   of   the   deceased   at   Rs.15,000/­   per   month   the

Tribunal has correctly taken into account the monthly earnings of the

deceased at Rs.5746/­.  By relying on a judgment of this Court in the

case   of  Kirti   &   Anr.  v.  Oriental   Insurance   Company   Limited1

,

learned counsel has submitted that there are no grounds to interfere

with the impugned judgment of the High Court. 

9. Having heard the learned counsels on both sides, we have

perused the impugned order and other material placed on record.  At

the   outset,   we   may   note   that   the   High   Court   by   a   cryptic   order

dismissed the appeal preferred by the appellants without considering

the various grounds raised in the appeal.

10. It is the specific case of the claimants that the deceased

was   possessing   heavy   vehicle   driving   licence   and   was   earning

Rs.15000/­ per month.  Possessing such licence and driving of heavy

vehicle on the date of accident is proved from the evidence on record.

1 (2021) 2 SCC 166

4

C.A.@S.L.P.(C)No.6466 of 2019

Though the wife of the deceased has categorically deposed as AW­1

that her husband Shivpal was earning Rs.15000/­ per month, same

was not considered only on the ground that salary certificate was not

filed.  The Tribunal has fixed the monthly income of the deceased by

adopting minimum wage notified for the skilled labour in the year

2016.  In absence of salary certificate the minimum wage notification

can be a yardstick but at the same time cannot be an absolute one to

fix the income of the deceased.  In absence of documentary evidence

on record some amount of guesswork is required to be done. But at

the same time the guesswork for assessing the income of the deceased

should not be totally detached from reality.  Merely because claimants

were unable to produce documentary evidence to show the monthly

income of Shivpal, same does not justify adoption of lowest tier of

minimum wage while computing the income.  There is no reason to

discard the oral evidence of the wife of the deceased who has deposed

that late Shivpal was earning around Rs.15000/­ per month.  In the

case of Minu Rout & Anr. v. Satya Pradyumna Mohapatra & Ors.2

this Court while dealing with the claim relating to an accident which

occurred on 08.11.2004 has taken the salary of the driver of light

motor vehicle at Rs.6000/­ per month.  In this case the accident was

2 (2013) 10 SCC 695

5

C.A.@S.L.P.(C)No.6466 of 2019

on   27.02.2016   and   it  is   clearly   proved   that   the   deceased   was   in

possession   of   heavy   vehicle   driving   licence   and   was   driving   such

vehicle on the day of accident.  Keeping in mind the enormous growth

of vehicle population and demand for good drivers and by considering

oral evidence on record we may take the income of the deceased at

Rs.8000/­ per month for the purpose of loss of dependency.  Deceased

was aged about 32 years on the date of the accident and as he was on

fixed salary, 40% enhancement is to be made towards loss of future

prospects.  At the same time deduction of 1/3rd is to be made from the

income of the deceased towards his personal expenses.  Accordingly

the income of the deceased can be arrived at Rs.7467/­ per month.

By   applying   the   multiplier   of   ‘16’   the   claimants   are   entitled   for

compensation of Rs.14,33,664/­.  As an amount of Rs.10,99,700/­ is

already paid towards the loss of dependency the appellant­parents are

entitled for differential compensation of Rs.3,33,964/­.   Further in

view of the judgment of this Court in the case of  Magma  General

Insurance Company Limited v. Nanu Ram @ Chuhru Ram & Ors.3

the appellants are also entitled for parental consortium of Rs.40,000/­

each.  The finding of the Tribunal that parents cannot be treated as

dependents runs contrary to the judgment of this Court in the case of

3 2018 SCC OnLine SC 1546 = (2018) 18 SCC 130

6

C.A.@S.L.P.(C)No.6466 of 2019

Sarla Verma (Smt). & Ors. v. Delhi Transport Corporation & Anr.4

.

The judgment in the case of  Kirti   &   Anr.  v.  Oriental   Insurance

Company Limited1

 relied on by the counsel for the respondent would

not render any assistance in support of his case having regard to facts

of the case and the evidence on record.

11. For   the   aforesaid   reasons   this   appeal   is   allowed   and

appellants   are   entitled   for   further   compensation   amount   of

Rs.3,33,964/­   on   account   of   loss   of   dependency   and   consortium

amount of Rs.40,000/­ each.  Thus total compensation payable to the

appellants is fixed at Rs.4,13,964/­ with interest @ 6% p.a. from the

date of filing of claim petition.

12. For the aforesaid reasons the appeal is partly allowed, with no

order as to costs.

………………………………J.

[R. Subhash Reddy] 

………………………………J.

[Hrishikesh Roy]

New Delhi.

October 01, 2021.

4 (2009) 6 SCC 121

7

High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report.

 C.A.@ SLP(C) No.4705 of 2019

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 6151 OF 2021

(Arising out of Special Leave Petition (C) No.4705 of 2019)

National Insurance Company Ltd. ...Appellant

versus

Chamundeswari & Ors. ...Respondent(s)

J U D G M E N T

R.SUBHASH REDDY,J.

1. Leave granted.

2. This appeal is filed by National Insurance

Company Ltd. (3rd Respondent before the High

Court), aggrieved by the judgment and order dated

03.08.2018, passed by the High Court of

Judicature at Madras in CMA No.1204 of 2018. By

the aforesaid order, the High Court has partly

1

 C.A.@ SLP(C) No.4705 of 2019

allowed the Civil Miscellaneous Appeal filed by

the Respondent Nos. 1 and 2, by enhancing

compensation to Rs.1,85,08,832/-.

3. The 1st Respondent is wife and the 2nd

Respondent is minor son of the deceased Mr.

Subhash Babu, who died in a road accident on

14.10.2013. The deceased Mr. Subhash Babu, aged

about 35 years was working as Manager HR in a

Private Limited Company. On the date of accident,

he was driving Maruti car bearing No.DL-2C-P-5414

on NH-47 – main road from Perumanallur to Erode.

At that time, the Eicher van bearing Registration

No.TN-33-AZ-5868 was proceeding in front of the

car driven by the deceased. It is the case of the

respondents–claimants that all of a sudden, the

driver of Eicher van has turned towards right

side without giving any signal or indicator. In

the said accident, driver of the Maruti car, Mr.

Subhash Babu, died and other passengers in the

car i.e. 1st Respondent–wife, 2nd Respondent–minor

son and sister of the 1st Respondent, suffered

injuries.

2

 C.A.@ SLP(C) No.4705 of 2019

4. In the Claim Petition, filed by the

Respondent Nos. 1 and 2 before the Motor Accident

Claims Tribunal / Additional District Court,

Tiruppur, respondents claimed compensation of

Rs.3 crores. The respondents pleaded negligence

on the part of the driver of Eicher van as he has

taken right turn without giving any signal or

indicator, as such, accident occurred only due to

negligence of driver of Eicher van. The appellant

and others have appeared before the Claims

Tribunal and opposed the claim. The Claims

Tribunal vide order dated 11.12.2017 passed in

M.C.O.P. No.842 of 2014 has allowed the claim

partly and awarded compensation of Rs.10,40,500/-

with a finding that there was a contributory

negligence on the part of drivers of both the

vehicles in ratio of 75% and 25% on the part of

the deceased and the driver of Eicher van

respectively. On appeal, the High Court by

recording a finding that accident occurred only

due to the negligence of the driver of the Eicher

van and the annual income of the deceased was

3

 C.A.@ SLP(C) No.4705 of 2019

Rs.12,29,949/-, has awarded a total compensation

of Rs.1,85,08,832/-, including the compensation

on conventional heads. Aggrieved by the judgment

and order of the High Court, the Insurance

Company filed this Appeal before this Court.

5. We have heard Mr. K. K. Bhat, learned counsel

appearing for the Appellant–Insurance Company and

Mr. V. Balaji, learned counsel appearing for the

Respondents–Claimants.

6. The submission of the learned counsel for the

appellant is twofold. Firstly, it is submitted

that though the Tribunal has correctly

apportioned the negligence on the part of the

deceased and the driver of Eicher van, the same

was overturned by the High Court, contrary to the

evidence on record. Mainly it is contended that

in the First Information Report, it was

categorically mentioned that accident occurred

only due to negligence by the deceased. In spite

of the same, such important documentary evidence

is ignored by the High Court. The learned counsel

in support of his arguments placed reliance on

4

 C.A.@ SLP(C) No.4705 of 2019

the judgments of this Court in the case of

Oriental Insurance Company Limited v. Premlata

Shukla and Others1 and in the case of Nishan Singh

and Others v. Oriental Insurance Company Limited2.

It is, further, submitted by the learned counsel

that the compensation awarded by the High Court

is exorbitant in absence of any acceptable

evidence on record to show income of the

deceased, as pleaded in the Claim Petition.

7. On the other hand, Mr. V. Balaji, learned

counsel for the respondents submitted that the

accident occurred only due to the sheer

negligence on the part of the driver of Eicher

van. It is submitted that the deceased was

driving Maruti car and ahead of them the Eicher

van was proceeding and the driver of the said van

turned towards right side without any signal or

indicator and the said lapse resulted in the

accident. It is, further, submitted that the

deceased was working as Manager HR in a Private

Limited Company and was earning a sum of

1

 2007 (13) SCC 476

2

 2018 (6) SCC 765

5

 C.A.@ SLP(C) No.4705 of 2019

Rs.1,33,070/- per month, in spite of the same,

the High Court has taken income of the deceased

at Rs.12,29,949/- per annum and awarded the

compensation. It is submitted that in view of the

oral and the documentary evidence on record, a

just compensation is awarded by the High Court

and there are no grounds to interfere with the

same.

8. It is clear from the evidence on record of

PW–1 as well as PW–3 that the Eicher van which

was going in front of the car, has taken a sudden

right turn without giving any signal or

indicator. The evidence of PW–1 & PW–3 is

categorical and in absence of any rebuttal

evidence by examining the driver of Eicher van,

the High Court has rightly held that the accident

occurred only due to the negligence of the driver

of Eicher van. It is to be noted that PW–1

herself travelled in the very car and PW–3, who

has given statement before the police, was

examined as eye–witness. In view of such evidence

on record, there is no reason to give weightage

6

 C.A.@ SLP(C) No.4705 of 2019

to the contents of the First Information Report.

If any evidence before the Tribunal runs contrary

to the contents in the First Information Report,

the evidence which is recorded before the

Tribunal has to be given weightage over the

contents of the First Information Report. In the

judgment, relied on by the appellant’s counsel in

the case of Oriental Insurance Company Limited v.

Premlata Shukla and Others1

, this Court has held

that proof of rashness and negligence on the part

of the driver of the vehicle, is therefore, sine

qua non for maintaining an application under

Section 166 of the Act. In the said judgment, it

is held that the factum of an accident could also

be proved from the First Information Report. In

the judgment in the case of Nishan Singh and

Others v. Oriental Insurance Company Limited2

,

this Court has held, on facts, that the car of

the appellant therein, which crashed into truck

which was proceeding in front of the same, was

driven negligently by not maintaining sufficient

distance as contemplated under Road Regulations,

7

 C.A.@ SLP(C) No.4705 of 2019

framed under Motor Vehicles Act, 1988. Whether

driver of the vehicle was negligent or not, there

cannot be any straitjacket formula. Each case is

judged having regard to facts of the case and

evidence on record. Having regard to evidence in

the present case on hand, we are of the view that

both the judgments relied on by the learned

counsel for the appellant, would not render any

assistance in support of his case.

9. Even with regard to quantum of compensation,

it is clear from the judgment of the High Court

that the accident occurred on 14.10.2013, the

High Court has correctly taken into account the

salary disclosed by the deceased in Form–16 for

the Financial Year 2012-2013 and income of the

deceased is taken as Rs.12,29,949/- per annum for

the purpose of determination of loss of

dependency. Though, it was the claim of the

respondents–claimants that the deceased was

earning Rs.1,33,070/- per month, the same was not

accepted and the High Court itself assessed the

income of the deceased at Rs.12,29,949/- per

8

 C.A.@ SLP(C) No.4705 of 2019

annum. As the deceased was in permanent job and

having regard to age of the deceased on the date

of the accident, the future prospects and the

multiplier were correctly applied by the High

Court, which is in conformity with the judgment

of this Court in the Case of Sarla Verma (Smt)

and Others v. Delhi Transport Corporation and

Another3 and also in the case of National

Insurance Company Limited v. Pranay Sethi and

Others4. Even the amount of compensation on other

conventional heads is awarded correctly by the

High Court. For the aforesaid reasons, we do not

find any merit in this Civil Appeal and the same

is accordingly dismissed with no order as to

costs.

10. While issuing notice, this Court vide order

dated 18.02.2019 granted stay of enforcement of

the impugned judgment, subject to condition of

depositing the lumpsum compensation of Rs.25

Lakhs before the Tribunal with a direction to

deposit the same in an interest earning Fixed

3

 2009 (6) SCC 121

4

 2017 (16) SCC 680

9

 C.A.@ SLP(C) No.4705 of 2019

Deposit in a Nationalised bank. The said amount

shall be paid to the respondents–claimants with

accrued interest. The balance amount payable by

the appellant–Insurance Company shall be paid

within a period of two months from today.

 ………………………………………………………J

 (R. SUBHASH REDDY)

 ………………………………………………………J

 (HRISHIKESH ROY)

NEW DELHI;

October 01, 2021

10

mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Court's findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. OF 2021

 (ARISING OUT OF SLP (C) NO. 35655 OF 2016)

AVTAR SINGH & ORS. ...APPELLANT(S)

VERSUS

BIMLA DEVI & ORS. ...RESPONDENT(S)

JUDGMENT

S. RAVINDRA BHAT, J.

1. Special leave granted. Counsel for parties were heard, with their consent, for

final disposal of the appeal which questions a judgment and order of the Punjab and

Haryana High Court1

.

2. The relevant facts are that the property marked 'ABCD' in the site plan

(produced along with the suit), located at GT Road, Shahabad Markanda was

purchased in the name of the first defendant, allegedly in lieu of claim of properties

left in Pakistan. It was stated that the joint family properties belonged to a Hindu

undivided family consisting of second plaintiff (hereafter Rajpal), his father and the

first defendant (hereafter Girdhari Lal). Girdhari Lal being brother of Rajpal agreed

to sell portion marked 'GFEDCB' along with the first floor roof of the entire building

(marked ‘ABCD’) to Rajpal’s wife, Bimla Devi (the first plaintiff/first respondent,

referred to by her name hereafter) for a total consideration of ₹ 2500/- in 1961. This

sum was allegedly received by Girdhari Lal who agreed to execute the sale deed as

1Dated 24.8.2016 in RSA 932/2010 (O & M).

2

and when required by Bimla Devi. Girdhari Lal also delivered possession to Rajpal

and since then the plaintiffs claim to have been in peaceful possession of the

property. The suit alleged that Girdhari Lal was left with no right, title or interest in

the suit property except a formal sale deed which remained to be executed. In the

year 1978, Bimla Devi purchased portion marked 'IHDA' shown in blue colour in the

site plan and thereafter the plaintiffs demolished the existing construction and

constructed a residential house in portion marked 'OJHC'. They also reconstructed the

shop marked 'GFOB' and 'IJEA'. The plaintiffs being in exclusive possession as

prospective purchasers, also constructed a residential house on the entire portion

marked 'IHCB' on the first floor, which includes the portion purchased by the

plaintiffs in 1978. The Market Committee, Shahabad (M) assessed the portion

marked 'OJHC' as a separate unit (bearing No. 647, Ward No. 13, Shahabad (M)) in

the name of Bimla Devi. Since the staircase to access the roof was only in the said

residential portion and there was no access to the roof from any other side as such,

the roof too was in their exclusive possession.

3. The suit alleged that on 05.03.2000, Defendant Nos. 2 to 4 broke the lintel

portion of the roof (from point X to Y shown in the site plan, of the first floor)

illegally and with intention to take forcible possession of the plaintiffs’ house

constructed on the first floor. It was also alleged that they had secretly constructed a

staircase in the portion marked 'AEFG' for forcible occupation of the first floor of the

building.

4. Girdhari Lal, in his written statement denied that the plaintiffs had any cause of

action and claimed that they lacked locus standi to file and maintain the suit. The

written statement alleged that the property which was acquired in his name in the

year 1961 did not belong to any Hindu joint family as alleged by the plaintiffs, as he

had spent his own funds. He denied entering into an agreement to sell the property to

Rajpal, and claimed that he had neither received any sale consideration nor handed

over possession to Rajpal. Girdhari Lal sold the shop marked 'AGFE' to the second 

3

defendant (hereafter, Avtar Singh) by a registered sale deed dated 06.08.1999

together with first floor of the shop. It was alleged that Avtar Singh was in exclusive

possession of the property ever since.

5. The allegations in the written statement of Girdhari Lal, were endorsed by

Defendant Nos. 2 to 4 in a joint written statement. They reiterated that Avtar Singh

purchased the shop in dispute from Girdhari Lal along with chaubara (a room

surrounded by door/windows on all fours sides) situated on the roof, for a valuable

consideration of ₹ 3 lakhs by a sale deed dated 06.08.1999 and possession was

delivered to him. Avtar Singh was in possession of the shop for over 30 years prior to

the purchase as a tenant and doing business of spare parts of electrical goods and

submersible pumps. It was urged that the defendants are in peaceful possession of the

shop, roof as well as chaubara constructed thereon.

6. The trial court and the first appellate court after considering the evidence on

record - including the report of a local commissioner who, pursuant to the orders

made during the trial, visited the site - dismissed the suit. Bimla Devi (the first

plaintiff) preferred a second appeal. The High Court, framed a substantial question of

law, as required by Section 100 of the Code of Civil Procedure (CPC) which reads as

follows:

“Whether the findings of the Courts below in regard to claim of the appellants

qua their possession of the chobaras on the first floor of the three shops and

mandatory injunction to close the holes in the lintel of the shop in occupation of

Avtar Singh are the result of ignoring material evidence and misreading of

evidence rendering it perverse”.

The High Court answered the substantial question, in favour of the plaintiffs, Bimla

Devi and Rajpal, and, consequently allowed the second appeal, thus resulting in

decree of the suit. The High Court’s judgment is impugned before this Court.

7. Mr. K.K. Mohan, learned counsel appearing for the appellants/defendants

argued that the impugned judgment is in clear error of law because it upsets

concurrent findings of fact, based upon a complete misappreciation of the 

4

circumstances bearing from the record. Mr. Mohan underlines that the substantial

question of law framed by the High Court cannot be termed as falling within the

framework of Section 100 CPC. He complained that the High Court assumed

perversity on the part of the reasoning of the trial court and the district court and

ignored relevant and material evidence in the form of documents as well as the oral

depositions.

8. It was argued by the appellant that Avtar Singh is the father of the other two

defendants (Defendant Nos. 3 and 4); they purchased the shop in question, measuring

43.33 square yards along with the disputed chaubara for ₹ 3 lakhs by a registered

sale deed in 1999 from Girdhari Lal, who died during the pendency of the suit. This

fact was appreciated by the trial court, which gave credence to the registered

document rather than the allegations in the suit that a prior agreement to sell – which

was an unregistered document – was executed, favouring Bimla Devi and Rajpal, and

on which they based their claim.

9. It was urged that the entire story of the respondents/plaintiffs was that Rajpal

Singh was brother of Girdhari Lal and he purchased the northern half portion of the

building received by the latter, in lieu of his claim. This was a false and concocted

story, disbelieved quite rightly, by the trial court. In fact, they argued that this was not

supported by evidence of any kind. The court noticed that there was due execution of

the sale deed dated 06.08.1999 (exhibited as Ex.D-1) during the course of the trial.

This document unequivocally stated that the chaubara was part and parcel of the

property purchased by Avtar Singh. In the absence of a challenge to that sale deed,

that Rajpal and Bimla Devi had purchased the property through an agreement (Ex. P3 dated 24.08.1999) merely 18 days after the execution of Ex.D-1, was not believed.

That claim was never taken in the plaint filed by the respondent Bimla Devi but saw

the light of the day only during the trial. Consequently, the so-called agreement

(Ex.P-3) was disbelieved and discredited by both the trial court and the first appellate

court. This aspect was completely brushed aside by the High Court which proceeded 

5

to discuss the pure findings of fact even though it purported to frame substantial

questions of law.

10. It was urged that once the plaintiffs admitted to the due execution of Ex.D-1,

the evidence appreciated by the High Court and its observations that it was agreed by

the parties that ownership of the suit property was pending adjudication in separate

proceedings was a superfluity and untenable. Mr. Mohan also submitted that the

plaintiffs had admitted to Avtar Singh’s tenancy prior to the execution of Ex.D-1. It

was highlighted that the lower courts gave importance to the fact that the registered

document could not be brushed aside and its contents had to be taken at face value. It

was submitted that in view of all these factors, the interference by the High Court

with concurrent findings of fact was unwarranted.

11. Mr. Tarunvir Singh Khehar, learned counsel appearing for the

respondents/plaintiffs supported the judgment in appeal. He submitted that the suit

averments clearly mentioned that after the agreement to sell was entered into in 1978,

the plaintiffs were given possession with the property. It was underlined that the

plaintiffs reconstructed portions of the property and clearly mentioned that on the

first floor of the three shops, there were two portions. It was importantly argued that

the dimensions of the chaubara were different from what was alleged by the

appellants/defendants.

12. Learned counsel appearing for the respondents/plaintiffs also drew the

attention of this court to the report of the Local Commissioner which had been

challenged. He submitted that the Commissioner was asked to inspect the site and

report to the trial court about the precise dimensions of the various premises. It was

stated that Avtar Singh’s possession in the capacity as owner of the shop was not a

matter of dispute, and what was in issue was only regarding the possession of the

chaubara. Learned counsel submitted that the dimensions alleged in the plaint and

the dimensions of the chaubara found on the first floor were in accord with each

other. It was also submitted that the allegations in the suit that holes had been drilled 

6

on the lintels in order to make separate staircase from within the shop premises (of

Avtar Singh) was borne out because the Local Commissioner found such holes.

Analysis and Conclusions

13. One of the main arguments of the appellants/defendants is that the impugned

judgment is erroneous, because it upsets concurrent findings of fact. It is emphasized

that even though a substantial question of law was framed for consideration in the

second appeal, the exercise of jurisdiction and interference in the findings of the two

lower courts, was unwarranted.

14. The Local Commissioner's report corroborated the respondents/plaintiffs' case

that a staircase did not exist, or rather that it was in the stage of construction and was

not completed. The report also bore out the plaintiffs’ allegation that holes had been

made in the lintel of the roof. Furthermore, the dimensions of the chaubara, as found

by the Local Commissioner, differed from what was stated by Avtar Singh.

15. From an overall discussion of the evidence, it is apparent that undeniably Avtar

Singh's possession - and perhaps even ownership - of the ground floor shop, could

not be denied. The findings of the lower courts, therefore, based upon the registered

documents cannot be faulted. However, both these courts ignored the other evidence -

in the form of the Local Commissioner's report - with regard to the issue of

possession of the chaubara. The Local Commissioner was neither cross-examined,

nor was his report objected to.

16. In these circumstances, the question that arises, is whether the High Court

justly interfered with what are unquestionably, concurrent findings of fact. This court

in its five-judge bench ruling, in Pankajakshi v. Chandrika2 held that the provisions

of Section 41 of the Punjab Courts Act, 1918 continued to be in force, and not

Section 100 CPC. The Court observed that:

2

(2016) 6 SCC 157.

7

“27. …. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore,

it is not a law made by the Legislature of a State after the Constitution of India has

come into force. It is a law made by a Provincial Legislature under Section 80A of

the Government of India Act, 1915, which law was continued, being a law in force in

British India, immediately before the commencement of the Government of India Act,

1935, by Section 292 thereof. In turn, after the Constitution of India came into force

and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts

Act was continued being a law in force in the territory of India immediately before

the commencement of the Constitution of India by virtue of Article 372(1) of the

Constitution of India. This being the case, Article 254 of the Constitution of India

would have no application to such a law for the simple reason that it is not a law

made by the Legislature of a State but is an existing law continued by virtue of

Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would

apply to such law which is to continue in force until altered or repealed or amended

by a competent Legislature or other competent authority. We have already found that

since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no

application to Section 41 of the Punjab Courts Act, it would necessarily continue as

a law in force.”

As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh

Mann3 which held that Section 41 is inconsistent with Section 100 CPC after its

amendment in 1976, and that the latter prevails, was expressly overruled.

17. The decision in Pankajakshi (supra) came up for discussion in two subsequent

judgments of this Court. In Dhanpat v. Sheo Ram4

, citing the ruling in the earlier

decision Randhir Kaur v. Prithvi Pal Singh5

, it was held as follows:

“13. It may be noticed that in view of Constitution Bench judgment of this Court

in Pankajakshi v. Chandrika [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016)

3 SCC (Civ) 105] , substantial question of law may not be required to be framed in

Punjab and Haryana but still, the finding of fact recorded cannot be interfered with

even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was

examined by this Court in Randhir Kaur v. Prithvi Pal Singh [Randhir

Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein,

the scope for interference in the second appeal under Section 41 of the Punjab

Courts Act applicable in the States of Punjab and Haryana was delineated and held

as under : (Randhir Kaur case [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC

71 : (2020) 3 SCC (Civ) 372], SCC p. 80, paras 15-16)

3

(2001) 4 SCC 262.

4

(2020) 16 SCC 209.

5

(2019) 17 SCC 71.

8

“15. A perusal of the aforesaid judgments would show that the jurisdiction in

second appeal is not to interfere with the findings of fact on the ground that

findings are erroneous, however, gross or inexcusable the error may seem to be.

The findings of fact will also include the findings on the basis of documentary

evidence. The jurisdiction to interfere in the second appeal is only where there is

an error in law or procedure and not merely an error on a question of fact.

16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir

Kaur, 2015 SCC OnLine P&H 4792] could not interfere with the findings of fact

recorded after appreciation of evidence merely because the High Court thought

that another view would be a better view. The learned first appellate court has

considered the absence of clause in the first power of attorney to purchase land on

behalf of the plaintiff; the fact that the plaintiff has not appeared as witness.”

18. It is thus evident, therefore, that mere findings of fact cannot be interfered with

in exercise of second appellate jurisdiction given the three limbs of jurisdiction

available under Section 41 of the Punjab Courts Act. Findings of fact which are

unreasonable, or which are rendered by overlooking the record, therefore, per se do

not appear to fall within the scope of second appellate review by the High Court. In

these circumstances, the High Court's findings – which are based entirely on the

reappreciation of the record – and consequent interference with the concurrent

findings of the lower courts, cannot be upheld.

19. In view of the foregoing reasons, the impugned judgment has to be set aside.

The appeal is accordingly allowed, without orders on cost.

.......................................................J

 [K.M. JOSEPH]

......................................................J

 [S. RAVINDRA BHAT]

New Delhi,

September 29, 2021.

hile considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr2 made following observations:- “14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed.

1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. OF 2021

(Arising out of Special Leave Petition (Civil)Nos……..…………………...of 2021)

(Arising out of Special Leave Petition (Civil)D.No.1855 of 2020)

VISHWABANDHU …Appellant

Versus

SRI KRISHNA AND ANR. …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. Delay condoned.

2. Leave granted.

3. These appeals challenge: (i) the Judgment and order dated 21.04.2006

passed by the High Court1

in FAFO (First Appeal From Order) No.2473 of

2005; and (ii) the Order dated 18.10.2019 passed by the High Court in CMRA

(Civil Miscellaneous Recall Application) No. 107616 of 2009 preferred in

said FAFO No. 2473 of 2005.

1 High Court of Judicature at Allahabad

2

4. Respondent No.2 herein filed a Suit in the court of Civil Judge (Junior

Division), Mainpuri, Uttar Pradesh, for recovery of money along with interest

submitting inter alia that the defendant in the Suit i.e. Respondent No.1 herein

had failed to refund Rs.22,400/- received by him towards part sale

consideration for sale of property comprising of Gata No.1616/0.93 acres

situated at Nangle Rate, Village Panchayat Mainpuri Rural, Tehsil and

District Mainpuri. The Suit was filed on 25.05.1993 and as the summons sent

to Respondent No.1 by registered post was received back with postal

endorsement of ‘refusal’, the order dated 19.02.1997 passed by the Trial Court

was :-

“Case called out. On behalf of plaintiff her counsel is

present. Nobody present on behalf of defendant. The

registered notice which was sent to defendant, had

received with remark refusal. Notice is deemed to be

sufficient. No one is present on behalf of defendant, the

defendant is being proceed ex-party accordingly. Put

up for the ex-parte proceeding on 01.04.1997.”

The matter was thereafter adjourned on few dates and finally on

16.09.1997 an ex-parte decree was passed in favour of Respondent No.2 in

the sum of Rs.22,400/- along with interest @ 9%.

5. In the application filed by Respondent No.2 seeking execution of the

decree dated 16.09.1997, the property admeasuring 0.93 acres which was 

3

subject matter of the agreement to sell, was sought to be attached vide notice

of attachment dated 29.05.1999. Later, the property was attached vide order

dated 04.12.1999 on the basis of a report filed by the Ameen. The report

indicated that since the judgment debtor i.e. Respondent No.1 could not be

found on search, drum beats were carried out at the place of residence of

Respondent No.1.

6. On 29.01.2000 the following order was passed by the trial court:-

“Case presented today. Case called out. Decree Holder

with her counsel present. The report of attachment of

property is filed. The decree holder shall take steps for

notice under O XXI Rule 66 within 15 days.”

7. On 04.04.2000 a report was filed by the Process Server to the following

effect:-

“Today 02.04.2000 I came to Nagla Rate district

Mainpuri, and searched Sri Krishna, and served a notice

on him and the receipt of the same have been duly

acknowledged by him by putting him signature on the

copy of notice.”

8. In the aforesaid circumstances, the executing court issued warrant of

sale of property on 06.12.2000 whereunder the property was directed to be

auctioned on 16.12.2000 and the warrant was to be returned on or before

23.12.2000, duly executed. Accordingly, on 16.12.2000 the property was put

to auction in which the present appellant as the highest bidder with a bid of 

4

Rs.1,25,000/-. In accordance with the prescribed procedure, 1/4th of the

amount was deposited by the appellant.

9. On 19.12.2000 Respondent No.1, for the first time, appeared before the

court and filed an application under Order IX Rule 13 of Code of Civil

Procedure (‘the Code’, for short) praying that the ex-parte decree dated

16.09.1997 be set aside.

In the application it was asserted:-

“…The applicant executed an agreement to sale in

favour of plaintiff, and the applicant was always ready

to execute the same till today. Applicant have no

money. That the plaintiff by misleading the court and

got passed an ex-parte judgment on 16.09.1997 in her

favour and an execution petition filed before the

Hon’ble Court. That no summon or notice issued from

this executing court. That the plaintiff get the execution

proceeding transferred to the court of Civil Judge

(Senior Division) Mainpuri, which is pending there, by

which the applicant facing the irreparable loss and the

applicant had not defaulted intentionally and applicant

have no knowledge about suit as well as execution

proceeding. Due to ex-parte Judgment the applicant

facing irreparable loss and injury. In the interest of

justice the judgment and decree dated 16.09.1997 to be

set aside. The applicant got the knowledge of the suit

and execution proceeding from the information given

by plaintiff’s husband on 16.12.2000, so this application

is within time.”

10. The aforesaid application was dismissed on 05.07.2005 by the

Additional District Judge, Mainpuri with following observations:-

5

“It is also noted that after passing the ex-parte judgment

and decree the respondent initiated the execution

proceeding which was registered as 04/1998. In this

execution proceeding the summons were sufficiently

served on applicant. In spite of this the applicant filed

a restoration application on 19.12.2000. From the

knowledge of execution proceedings on 02.04.2000, the

present application is filed after more than 8 months

from the knowledge about the pendency of the

execution proceedings, indicates that in spite of having

specific knowledge of the same he has filed this

application after the period of limitation and the reason

which was shown in applications is totally false,

frivolous and baseless. That no evidence is produced to

deny the report of the process server dated 04.04.2000

in which he stated that on 02.04.2000 the summons was

duly served on applicant, nor the said report is to be

manipulated.”

11. Respondent No.1, being aggrieved, filed FAFO No. 2473 of 2005 in the

High Court challenging the order dated 05.07.2005. During the pendency of

said FAFO, sale certificate was issued in favour of the Appellant on

30.03.2006 by virtue of order dated 10.01.2006 passed by the concerned court

in Execution No.4 of 1998.

12. On 21.04.2006 FAFO No. 2473 of 2005 was allowed by the High Court

with following observations:-

“In the instant case, the appellant appears not to be

vigilant as he ought to have been, yet the conduct does

not on the whole warrant to castigate him as an

irresponsible litigant. Further, the inconvenience

caused to the plaintiff respondent on account of the

absence of appellant may be compensated by warding

appropriate cost. In the interest of justice and under the 

6

peculiar circumstances of the case, I set aside the

impugned judgment and decree.

In the result of this appeal is allowed with the costs of

Rs.1000/-. The trial court is directed to decide the case

on merits after affording opportunities to the parties.”

13. Thereafter, Respondent No.2 filed CMRA No. 107616 of 2009 seeking

recall inter alia on the ground that Respondent No.1 had full knowledge of

the proceedings since 17.02.1997 and had intentionally and deliberately

avoided to appear and contest the matter. The application was, however,

dismissed by the High Court by its order dated 18.10.2019 observing that after

the order dated 21.04.2006 passed by the High Court, the Suit was restored to

the file and the issues were already framed.

14. These two orders dated 21.04.2006 and 18.10.2019 are presently under

challenge.

15. While issuing notice in the instant appeals, by Order dated 20.02.2020

passed by this Court, further proceedings were stayed.

16. We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for

the appellant and Mr. Pradeep Kumar Yadav, learned Advocate for

Respondent No.1.

7

17. It was submitted by Mr. Sankaranarayanan, learned Senior Advocate

that Respondent No.1 was always aware of the proceedings and had

deliberately avoided to appear and contest the matter; that his stand in the

application under Order IX Rule 13 of the Code itself indicated that he was

ready to execute sale deed in favour of the original plaintiff and that he had

no money to repay the amount received by him way of part consideration. It

was submitted that as an auction purchaser the Appellant had complied with

all the legal requirements and sale certificate was also issued in his favour.

18. On the other hand, Mr. Pradeep Kumar Yadav, learned Advocate

submitted that the orders passed by the High Court did not call for any

interference and that the Suit having been restored to the file, the matter be

allowed to be taken to the logical conclusion.

19. The summons issued by registered post was received back with postal

endorsement of refusal, as would be clear from the order dated 19.02.1997.

Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the

defendant or his agent had refused to take delivery of the postal article

containing the summons, the court issuing the summons shall declare that the

summons had been duly served on the defendant. The order dated 19.02.1997

was thus completely in conformity with the legal requirements. In a slightly 

8

different context, while considering the effect of Section 27 of the General

Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji

vs. Palapetty Muhammed and Anr2 made following observations:-

“14. Section 27 gives rise to a presumption that service

of notice has been effected when it is sent to the correct

address by registered post. In view of the said

presumption, when stating that a notice has been sent by

registered post to the address of the drawer, it is

unnecessary to further aver in the complaint that in spite

of the return of the notice unserved, it is deemed to have

been served or that the addressee is deemed to have

knowledge of the notice. Unless and until the contrary

is proved by the addressee, service of notice is deemed

to have been effected at the time at which the letter

would have been delivered in the ordinary course of

business. This Court has already held that when a notice

is sent by registered post and is returned with a postal

endorsement “refused” or “not available in the house”

or “house locked” or “shop closed” or “addressee not in

station”, due service has to be presumed. [Vide Jagdish

Singh v. Natthu Singh3

: State of M.P. vs. Hiralal &

Ors.4

and V. Raja Kumari vs. P. Subbarama Naidu &

Anr.5

]. … ….”

20. Even after the passing of the ex-parte decree, the report filed by the

process server on 04.04.2000 clearly indicated that notice was served upon

Respondent No.1 which was duly acknowledged by him by putting signature

on the copy of the notice. Despite such knowledge, Respondent No.1 allowed

2 AIR 2007 SC (Supp) 1705

3 AIR 1992 SC 1604

4

(1996) 7 SCC 523

5

(2004) 8 SCC 774

9

the property to be put to auction in the month of December, 2000. It was only

after the auction was so undertaken, that he preferred the application under

Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in

its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the

High Court proceeded to grant relief in favour of Respondent No.1.

21. In the light of the features indicated above and the fact that the auction

was allowed to be undertaken, Respondent No. 1 was disentitled from

claiming any relief as was prayed for. Further, after completion of

proceedings in auction, sale certificate was also issued in favour of the

Appellant.

22. We, therefore, allow these Appeals, set aside the orders dated

21.04.2006 and 18.10.2019 passed by the High Court and dismiss the

application preferred by Respondent No.1 under Order IX Rule 13 of the

Code. No costs.

……………………………..J.

[Uday Umesh Lalit]

……………………………..J.

[S. Ravindra Bhat]

New Delhi;

September 29, 2021.

on the date of theft, the vehicle had been driven/used without a valid registration, amounting to a clear violation of Sections 39 and 192 of the Motor Vehicles Act, 19886 . This results in a fundamental breach of the terms and conditions of the policy, as held by this Court in Narinder Singh (supra), entitling the insurer to repudiate the policy.

1

REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 5887 OF 2021

UNITED INDIA INSURANCE CO. LTD. ...APPELLANT(S)

VERSUS

SUSHIL KUMAR GODARA ....RESPONDENT(S)

ORDER

S. RAVINDRA BHAT, J.

1. Counsel for parties were heard, with their consent, for final disposal of the

appeal. The appellant (hereby “insurer”) questions the judgment and order of the

National Consumer Disputes Redressal Commission, New Delhi1

("hereafter the

NCDRC"). In the impugned order, the NCDRC dismissed the appellant’s revision

petition, that challenged the order2 of the Rajasthan State Consumer Disputes

Redressal Commission, Circuit Bench at Bikaner (hereafter “the State Commission”).

2. The respondent-complainant obtained an insurance policy3

from the insurer for

his Bolero car, somewhere in Punjab, though he was a resident of Sri Ganganagar,

Rajasthan. The vehicle had a temporary registration (No. PB-11-T-5101 from 20-06-

1 Dated 11/12/2020 in Revision Petition No. 1984/ 2015

2 dated 20/03/2015, in FA No. 244/2013

3 bearing policy no. 200104/31/11/0100000947

2

2011 to 19-07-2011). The sum insured was ₹ 6,17,800/-. The temporary registration

of the vehicle, however, expired on 19-07-2011.

3. As the respondent/complainant was engaged in business as a private contractor,

for business purposes he had to be outside the city. On 28-07-2011 the complainant

went to Jodhpur for business purposes; and stayed in Geeta Guest House at night.

Whilst there, his vehicle was parked outside the guest house premises. When the

respondent awoke in the morning, he found that the Bolero car had been stolen. He

lodged a first information report (FIR) on 29-07-2011 with PS Ratanada, Jodhpur

alleging commission of offences under Section 379, IPC. However, on 30-09-2011

the police lodged a final report stating that the vehicle was untraceable.

4. The respondent claimed the loss, from the appellant/insurer. The insurance

claim, however was repudiated by order dated 23-01-2013 on three grounds:

(i) Intimation of theft of vehicle was given to the insurer after delay which was

in violation of the policy condition.

(ii) The temporary registration of the vehicle expired on 19-07-2011 and the

respondent did not get the vehicle permanently registered; and

(iii) The complainant left the vehicle unattended outside the guesthouse in

violation of the policy conditions.

5. Aggrieved by the repudiation of his claim the respondent/complainant filed a

complaint before the District Forum Consumer Protection, Shri Ganganagar

(hereafter the “District Forum”) for a direction that the insurer ought to pay him the 

3

sum insured for the vehicle with rent amount of ₹1,40,000/- and also claimed relief

for mental agony and costs of litigation.

6. The insurer's position before the District Forum was that till the incidence of

theft, the complainant’s vehicle was not registered which was in violation of

conditions of insurance policy; the insurer therefore requested for dismissal of the

complaint. The District Forum dismissed the complaint against the insurer while

observing that on 28-07-2011 (date of the incident) the vehicle’s temporary

registration had expired and relying upon two previous orders of the NCDRC had

concluded that if at the time of theft, the vehicle was not registered then the claim

was not payable to the complainant. It was held that repudiation of the claim by the

insurer did not amount to deficiency in service on its part. Aggrieved by the dismissal

of his complaint, the respondent/complainant approached the State Commission. The

State Commission set aside the order of the District Forum and allowed the appeal,

and held that as the insurer had covered the complainant's vehicle with particular

engine and chassis number, and issued a policy during the currency of which, the

vehicle was stolen it could not repudiate the insured’s genuine claim on technical,

petty and frivolous grounds of absence of permanent registration certificate from the

competent authority and thus escape its liability to indemnify the insured for the loss

of the vehicle. The State Commission directed the insurer to pay to the

respondent/complainant an amount of ₹ 6,17,800/- (Rupees Six Lakhs Seventeen

Thousand Eight Hundred Only) along with 9% interest per annum from the date of

filing of the complaint and also pay to the respondent/complainant ₹ 20,000/- as 

4

litigation costs. The insurer preferred a revision petition before the NCDRC which

was dismissed, affirming the State Commission’s reasoning.

7. This Court issued notice; despite service, the respondent did not cause

appearance to be entered. In the circumstances, Ms. Gauri Puri was appointed to

assist the Court, as amicus curie. The Court heard the learned counsel for the

petitioner Mr. Amit Singh, AOR and learned amicus.

8. It was argued by Mr. Amit Singh that the NCDRC committed an error in not

appreciating the judgment of this Court in Narinder Singh Vs. New India Assurance

Co. Ltd4

. He also relied on a previous order of the NCDRC, i.e., Naveen Kumar Vs.

National Insurance Company Ltd5

. It was urged that the impugned order should be

set aside, since the NCDRC ignored a binding judgment of this court, and disregarded

the circumstance that the vehicle in question, had no registration. This constituted a

fundamental breach of the policy, entitling the insurer to repudiate the claims under

it.

9. The learned amicus, on the other hand, urged that this Court should not disturb

the findings of the State Commission or the NCDRC. It was argued by the learned

counsel that the judgment in Narinder Singh (supra) pertained to claim for

compensation for a damaged vehicle on account of accident, and not on account of

theft of a vehicle, and was thus not applicable to the present case. She urged that in

the present case, it could not be said that the policy holder’s vehicle was an

4

(2014) 9 SCC 324.

5

[RP/250/2019] decided on 26.11.2019

5

unregistered one; rather a temporary number had been assigned to it, but a few days

after its expiry, the theft occurred. In the given circumstances, the preclusion of

liability, in the manner expressed in Narinder Singh (supra) by this court, was

inapplicable.

10. What is discernible from the above narration of facts, is that the policy holder

had purchased a new Bolero which had a temporary registration. That registration

lapsed on 19-07-2011. The respondent/complainant never alleged or proved that he

applied for a permanent registration, or sought extension of the temporary registration

beyond 19-07-2011. He travelled outside his residence, to Jodhpur, in his car, and

stayed overnight in a guest house. In the morning of 28-07-2011, he discovered that

the car had been stolen, when parked outside the guest house premises in Jodhpur.

11. In Narinder Singh (supra), the claim was in the context of an accident,

involving a vehicle, the temporary registration of which had expired. This Court held

that the insurer was not liable, and observed that:

“12. A bare perusal of Section 39 shows that no person shall drive the motor

vehicle in any public place without any valid registration granted by the

registering authority in accordance with the provisions of the Act.

13. However, according to Section 43, the owner of the vehicle may apply to

the registering authority for temporary registration and a temporary registration

mark. If such temporary registration is granted by the authority, the same shall be

valid only for a period not exceeding one month. The proviso to Section

43 clarified that the period of one month may be extended for such a further

period by the registering authority only in a case where a temporary registration

is granted in respect of chassis to which body has not been attached and the same

is detained in a workshop beyond the said period of one month for being fitted

with a body or unforeseen circumstances beyond the control of the owner.

14. Indisputably, a temporary registration was granted in respect of the

vehicle in question, which had expired on 11.1.2006 and the alleged accident took 

6

place on 2.2.2006 when the vehicle was without any registration. Nothing has

been brought on record by the appellant to show that before or after 11.1.2006,

when the period of temporary registration expired, the appellant, owner of the

vehicle either applied for permanent registration as contemplated under Section

39 of the Act or made any application for extension of period as temporary

registration on the ground of some special reasons. In our view, therefore, using a

vehicle on the public road without any registration is not only an offence

punishable under Section 192 of the Motor Vehicles Act but also a fundamental

breach of the terms and conditions of policy contract.”

12. In Naveen Kumar (supra), NCDRC decided a reference, to its bench, and held

that:

" 9. For the reasons stated hereinabove, the reference is answered in following

terms:-

(i) If a vehicle without a valid registration is or has been used/driven on a public

place or any other place that would constitute a fundamental breach of the terms

and conditions of the contract of insurance even if the vehicle is not being driven

at the time it is stolen or is damaged:

(ii) If a vehicle without a valid registration is used/driven on a public place or any

other place, it would constitute a fundamental breach of terms and conditions of

the policy even if the owner of the vehicle has applied for the issuance of a

registration in terms of S.41 of the Act before expiry of the temporary

registration, but the regular registration has not been issued".

 (emphasis supplied)

13. In the present case, the temporary registration of the respondent’s vehicle had

expired on 28-07-2011. Not only was the vehicle driven, but also taken to another

city, where it was stationed overnight in a place other than the respondent’s premises.

There is nothing on record to suggest that the respondent had applied for registration

or that he was awaiting registration. In these circumstances, the ratio of Narinder

Singh (supra) applies, in the opinion of this court. That Narinder Singh (supra) was

in the context of an accident, is immaterial. Despite this, the respondent plied his

vehicle and took it to Jodhpur, where the theft took place. It is of no consequence,

that the car was not plying on the road, when it was stolen; the material fact is that

concededly, it was driven to the place from where it was stolen, after the expiry of 

7

temporary registration. But for its theft, the respondent would have driven back the

vehicle. What is important is this Court’s opinion of the law, that when an insurable

incident that potentially results in liability occurs, there should be no fundamental

breach of the conditions contained in the contract of insurance. Therefore, on the date

of theft, the vehicle had been driven/used without a valid registration, amounting to a

clear violation of Sections 39 and 192 of the Motor Vehicles Act, 19886

. This results in a fundamental breach of the terms and conditions of the policy, as held by this

Court in Narinder Singh (supra), entitling the insurer to repudiate the policy.

14. This Court is of the opinion that the NCDRC’s order cannot be sustained.

Furthermore, the NCDRC should not have overlooked and disregarded a clear

binding judgment of this Court – it also should not have disregarded its ruling in

6

39. Necessity for registration. - No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:

Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.

192. Using vehicle without registration.--(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both:

Provided that the court may, for reasons to be recorded, impose a lesser punishment.

(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injuries or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:

Provided that the persons using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.

(3) The court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub-section

(1), may set aside or vary any order made by the court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.

Explanation.--Use of a motor vehicle in contravention of the provisions of section 56 shall be deemed to be a contravention of the provisions of section 39 and shall be punishable in the same manner as provided in sub-section (1).

8

Naveen Kumar (supra), as well. Before parting, this Court expresses its appreciation

for the assistance rendered by the learned amicus, Ms. Gauri Puri.

15. For these reasons, the impugned order and the order of the State Commission

are hereby set aside; the respondent’s complaint is dismissed. The appeal is allowed

in these terms, without order on costs.

.......................................................J

 [UDAY UMESH LALIT]

.......................................................J

 [S. RAVINDRA BHAT]

......................................................J

 [BELA. M. TRIVEDI]

New Delhi,

September 30, 2021.