We, therefore, as a one-time relaxation in favour of those candidates who were enrolled during the academic years 2001-2005 and who, in terms of the judgment, are eligible to appear at the test to be conducted by AICTE, direct:- a] All such candidates, who wish to appear at the forthcoming test to be conducted by AICTE in May-June 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees in 11 question and all the advantages flowing therefrom till one month after the declaration of the result of such test or till 31.07.2018 whichever is earlier. b] This facility is given as one-time exception so that those who have the ability and can pass the test in the first attempt itself, should not be put to inconvenience. If the candidates pass in such first attempt, they would be entitled to retain all the advantages. But if they fail or choose not to appear, the directions in the judgment shall apply, in that the degrees and all advantages shall stand suspended and withdrawn. At the cost of repetition, it is made clear that no more such chances or exceptions will be given or made. They will undoubtedly be entitled to appear on the second occasion in terms of the judgment but this exception shall not apply for such second attempt. c] We direct AICTE to conduct the test in May-June 2018 and declare the result well in time, in terms of our directions in the judgment and this Order. AICTE shall however extend the time to exercise the option to appear at the test suitably. 8] Except for the directions given in the preceding paragraph i.e. paragraph 7 and the clarification as regards courses leading to award of diplomas as mentioned hereinabove, we reject all the other submissions. 12

1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M.A. NOS.1795-1796 OF 2017
IN
CIVIL APPEAL NOS.17869-17870 OF 2017
ORISSA LIFT IRRIGATION CORP. LTD ……APPELLANTS
VERSUS
RABI SANKAR PATRO & ORS. .…..RESPONDENTS

WITH
Diary No(s).39667/2017
IA 138802/2017 in C.A. No.17870/2017)
MA 1807-1808/2017 in C.A. No. 17869-17870/2017
MA 1797-1798/2017 in C.A. No. 17869-17870/2017
MA 1799-1800/2017 in C.A. No. 17869-17870/2017
MA 1801-1802/2017 in C.A. No. 17869-17870/2017
MA 1803-1804/2017 in C.A. No. 17869-17870/2017
MA 1805-1806/2017 in C.A. No. 17869-17870/2017
MA 1864-1865/2017 in C.A. No. 17869-17870/2017
MA 1866-1867/2017 in C.A. No. 17869-17870/2017
MA 1870-1871/2017 in C.A. No. 17869-17870/2017
MA 1868-1869/2017 in C.A. No. 17869-17870/2017
MA 1872-1873/2017 in C.A. No. 17869-17870/2017
MA 11-12/2018 in C.A. No. 17869-17870/2017
MA 1874-1875/2017 in C.A. No. 17869-17870/2017
MA 1876-1877/2017 in C.A. No. 17869-17870/2017
Diary No(s). 42444/2017
IA 487/2018 in C.A. No.17870/2017)
MA 5-6/2018 in C.A. No. 17869-17870/2017
Diary No(s).356/2018
IA 1080/2018 in C.A. No.17870/2017)
MA 17-18/2018 in C.A. No. 17869-17870/2017
MA 13-14/2018 in C.A. No. 17869-17870/2017
MA 15-16/2018 in C.A. No. 17869-17870/2017
Writ Petition (Civil) No. 1233 of 2017
M.A. No. 38 of 2018 in C.A. No.17907/2017
2
ORDER
Uday Umesh Lalit, J.
1. These applications have been preferred seeking clarification and
modification of directions issued by this Court in its Judgment and Order dated
03.11.2017 (“the judgment” for short) in Civil Appeal Nos.17869-17870 of
2017. Various directions were issued in the judgment and more particularly in
paragraph No.53 of the judgment. The gist of the applications and the
contentions advanced by the learned counsel were as follows:-
A] M.A. Nos. 1795-1796 of 2017 in CIVIL APPEAL Nos.17869-17870 of
2017 (I.A. No.138771 of 2017)
MA 1797-1798/2017 in C.A. No. 17869-17870/2017 (I.A. No.138778 of
2017)
MA 1799-1800/2017 in C.A. No. 17869-17870/2017(I.A. No.13890 of
2017)
MA 1801-1802/2017 in C.A. No. 17869-17870/2017 (I.A. No.138791 of
2017)
MA 1803-1804/2017 in C.A. No. 17869-17870/2017 (I.A. No.138793 of
2017)
MA 1805-1806/2017 in C.A. No. 17869-17870/2017(I.A. No.138795 of
2017)
The applicants, holding diplomas in Engineering, enrolled themselves in
2005 in courses leading to award of B.Tech degree offered by Deemed to be
University in question through distance learning mode. Later, on the basis of
the degrees awarded by the Deemed to be Universities, they underwent
independent selection undertaken by Union Public Service Commission and
entered certain services as direct recruits and have presently either been
3
engaged in the same service or have advanced in career on the basis of such
selection by UPSC.
Mr. V. Giri, learned Senior Advocate submitted that the controversy in the
judgment was principally concerning the cases of in-service candidates who
were initially employed as diploma holders but while in service had been
awarded degrees in Engineering by Deemed to be Universities in question
through distance learning mode; and that this Court was not called upon to
consider cases where such degrees themselves became the foundation for a
subsequent employment or selection and further advancement in career. He
further submitted that an exception be made in favour of such candidates whose
qualifications were independently considered by an authority such as UPSC and
were selected through competitive selection process and in any case, even if the
Judgment were to apply to such candidates, the suspension of their degrees and
all advantages flowing therefrom till they pass the test as indicated in the
judgment ought not to be insisted upon. He submitted that unlike in-service
candidates who may not be losing their jobs, such candidates, who had
independently undergone fresh selection and were directly appointed would
lose their jobs completely and even if they were to successfully pass the test
conducted by AICTE, restoration of their original position and jobs would itself
become a difficult proposition.
B] M.A. Nos.13-14/2018 in C.A. No.17869-17870 of 2017(I.A. No.991 &
994 of 2018
4
M.A. Nos.15-16/2018 in C.A. No.17869-17870 of 2017(I.A. No.1019 of
2018
The applicants had completed B.Tech courses in Computer Science
through distance education mode in 2004. According to them, instructions were
imparted in ITM International and they were awarded degrees by Allahabad
Agricultural Institute, Deemed to be University. Later they acquired degrees in
M.Tech and other qualifications based on such B.Tech degree and have
thereafter advanced in career.
Ms. Meenakshi Arora, learned Senior Advocate while adopting the
submissions of Mr. V. Giri, learned Senior Advocate submitted that ITM
International is an Institution of repute and no infirmity could be attributed to
their degrees. Further, her clients in any case had undergone further selection
process where knowledge of the candidates was independently tested and they
were appointed in others posts.
C] Diary No.356 of 2018 in C.A. No.17869-17870 of 2017 (I.A. No.1080
of 2018)
M.A. Nos.17-18 of 2018 in C.A. No.17869-17870 of 2017 (I.A.
Nos.1049 and 1054 of 2018
The candidates had acquired first degrees in Engineering from a regular
and approved Institution and as such their first degrees are not invalid or
irregular on any count. However, these candidates had later acquired Master’s
degrees in Engineering from Deemed to be Universities through
5
distanceM.A.1795-1796 of 2017 in C.A. Nos.17869-17870 of 2017(1).docx
education mode.
Mr. Kapil Sibal, learned Senior Advocate invited our attention to the
advertisement issued by AICTE in which all candidates including those who
had secured Master’s degrees in Engineering from Deemed to be Universities in
question through distance education mode were also required to appear at the
test. In his submission this Court was principally concerned with first degrees
in engineering which were acquired through distance education mode and not
the Master’s degrees. He further submitted that those candidates who had
acquired such Masters’ Degrees in engineering were not covered by the
judgment.
D] M.A. Nos.1866-67/2017 in C.A. Nos.17869-17870 of 2017 (I.A.
Nos.141892 of 2017
M.A. Nos.1868-1869/2017 in C.A. Nos.17869-17870 of 2017 (I.A.
Nos.141912 of 2017
M.A.Nos.1872-73/17 in C. A. Nos.17869-17870 of 2017 (I.A.
Nos.141948 of 2017 ON IA 516/2018 ON IA516/2018
The applicants were awarded diplomas in Engineering through distance
education mode by the concerned Deemed to be Universities.
Mr. Dhruv Mehta, learned Senior Advocate invited our attention to
paragraphs 34 and 46 of the Judgment and submitted that this Court was
concerned with courses leading to degrees of Engineering and not to diplomas
and as such rigor of the Judgment ought not to apply to pure and simply
diploma holders. In his submission, the public notice issued by AICTE was
6
beyond the scope of the matter.
E] Diary No.39667 of 2017 in C. A. No.17869-17870 of 2017 (I.A.
No.138802 of 2017)
M.A. No.S1807-1808 of 2017 in C. A. No.17869-17870 of 2017 (I.A.
Nos.138799 of 2017
Diary No.42444 of 2017 in C.A. Nos.17869-17870 of 2017 (I.A. No.487
of 2018
M.A. Nos.5-6 of 2017 in C.A. No.17869-17870 of 2017 (I.A. No.511 of
2018
In the present case, the applicants had enrolled themselves in courses
offered by Vinayaka Missions Research Foundation (VMRF) through distance
education mode.
Mr. Anupam Lal Das, learned Advocate submitted that as is evident from
the affidavit of Mr. Ved Prakash, Chairman, UGC as extracted in the judgment,
VMRF was granted Deemed to be University status for its excellence in
subjects including engineering and technology unlike other Deemed to be
Universities, namely, JRN, IASE and AAI. He invited our attention to
Paragraphs 21, 34 and 39 of the judgment and submitted that the case of VMRF
stood on a different footing and the courses offered by VMRF were not in any
way found to be on the wrong side.
F] M.A. Nos.1874-1875/2017 in C.A. No.17869/2017 (I.A. No.141960 of
2017)
M.A. Nos.1876-1877/2017 in C.A. No.17869/2017 (I.A.
No.141971/2017
These applicants after being awarded degrees in Engineering by Deemed
7
to be Universities through distance education mode had completed their
post-graduate courses.
While adopting submissions of Mr. V. Giri and Ms. Meenakshi Arora,
learned Senior Advocates, Mr. R.S. Suri, learned Senior Advocate submitted
that some weightage be given to the higher qualifications acquired by
candidates.
G] M.A. Nos.11-12/2018 in C.A. Nos.17869-17870 of 2017 (I.A. Nos.972/
2017, 644/2018, 645/2018 and 973/2018
The applicants had acquired degrees in Mining Engineering through
distance education mode and have advanced in their career in NMDC, a
Statutory Corporation.
Mr. Vikramjit Banerjee, leaned Senior Advocate submitted that their
ability was tested by said organization and his clients be exempted from
appearing in examination.
H] Writ Petition Civil No.1233 of 2017
These applicants were awarded degrees in Engineering through distance
education mode by Deemed to be Universities in question. It is stated that most
of the applicants have joined Private, Corporate and Government services and
some of them are in Corporate jobs and even in Foreign Countries. Some of
them are stated to have obtained M.Tech and further degrees and have advanced
in life.
8
Mr. Ranajit Kumar, Mr. P.N. Mishra and Mr. Huzefa Ahmadi, learned
Senior Advocates, appearing for the applicants advanced submissions on lines
similar to the submissions advanced by Mr. V. Giri, Ms. Arora and Mr. Sibal.
I] M.A. No. 38 of 2018 in C.A. No.17907/2017
The applicant, IASE, Deemed to be University seeks clarification that the
judgment applied only to courses leading to degrees in Engineering awarded by
Deemed to be Universities through distance education mode and that diploma
courses are not covered by the judgment.
Mr. M.L. Verma, learned Senior Advocate invited our attention to the
advertisement issued by AICTE. His submissions on the issue in question are
on lines similar to the submissions advanced by Mr. Dhruv Mehta, learned
Senior Advocate.
2] We also heard Mr. Maninder Singh, learned Additional Solicitor General
who appeared on behalf of AICTE.
3] It is true, as is evident from paragraphs 34 and 46 of the judgment that the
controversy in the present case pertained to validity of degrees in Engineering
conferred by the Deemed to be Universities through distance education mode
and this Court was not called upon to consider validity of diplomas conferred
by such Deemed to be Universities. However the advertisement issued by
AICTE covers diploma courses as well. We therefore accept the submissions
advanced by Mr. Dhruv Mehta and Mr. M.L. Verma, learned Senior Advocates
9
and clarify that validity of such courses leading to diplomas was not the subject
matter of the judgment.
4] At the same time, courses leading to award of degrees, whether graduate
or post graduate degrees, was certainly the matter in issue. We therefore reject
the submission of Mr. Kapil Sibal, learned Senior Advocate and do not find any
infirmity in the understanding of and the advertisement issued by AICTE.
5] Mr. Anupam Lal Das, learned Advocate is right that JRN, AAI and IASE
had no expertise in the field or subjects of Engineering and the status of
Deemed Universities conferred on them was not because of their excellence in
the field of Engineering. As against these three Deemed to be Universities, the
case of VMRF stood on a better footing as its field of activity and excellence
also included subjects in Engineering. However that was not the only basis of
the judgment. The facts still remain that conferral of degrees in Engineering
through distance education mode was never approved in principle by AICTE
and the Study Centres were never inspected or approved. We therefore reject
the submission of Mr. Anupam Lal Das, learned Advocate.
6] If award of degrees in Engineering through distance education mode by
Deemed to be Universities, as a concept or principle was not accepted by
AICTE, it is immaterial whether the Study Centre in question was ITM
International. Said Institution was not by itself authorized to award degrees in
Engineering on its own nor was it affiliated to any State or Central University at
10
the relevant time. The courses conducted by said institution led to award of
degrees of AAI, which had no expertise or excellence in the field of
Engineering and through distance education mode. We therefore reject the
submission advanced by Ms. Meenakshi Arora, learned Senior Advocate.
7] We now turn to the general submission advanced by all the learned
counsel that the candidates after securing the degrees in Engineering through
distance education mode, have advanced in career and that their ability was
tested at various levels and as such requirement of passing the examination in
terms of the judgment be dispensed with in their case. We cannot make any
such exception. The infirmity in their degrees is basic and fundamental and
cannot be wished away. At the same time, we find some force in their
submission that if the suspension of their degrees and all advantages were to
apply as indicated in the judgment, the concerned candidates may lose their jobs
and even if they were to successfully pass the test, restoration of their jobs and
present position would pose some difficulty.
We, therefore, as a one-time relaxation in favour of those candidates who
were enrolled during the academic years 2001-2005 and who, in terms of the
judgment, are eligible to appear at the test to be conducted by AICTE, direct:-
a] All such candidates, who wish to appear at the forthcoming test to
be conducted by AICTE in May-June 2018 and who exercise option to
appear at the test in terms of the judgment, can retain the degrees in
11
question and all the advantages flowing therefrom till one month after the
declaration of the result of such test or till 31.07.2018 whichever is
earlier.
b] This facility is given as one-time exception so that those who have
the ability and can pass the test in the first attempt itself, should not be
put to inconvenience. If the candidates pass in such first attempt, they
would be entitled to retain all the advantages. But if they fail or choose
not to appear, the directions in the judgment shall apply, in that the
degrees and all advantages shall stand suspended and withdrawn. At the
cost of repetition, it is made clear that no more such chances or
exceptions will be given or made. They will undoubtedly be entitled to
appear on the second occasion in terms of the judgment but this
exception shall not apply for such second attempt.
c] We direct AICTE to conduct the test in May-June 2018 and declare
the result well in time, in terms of our directions in the judgment and this
Order. AICTE shall however extend the time to exercise the option to
appear at the test suitably.
8] Except for the directions given in the preceding paragraph i.e. paragraph
7 and the clarification as regards courses leading to award of diplomas as
mentioned hereinabove, we reject all the other submissions.
12
9] All applications, petitions and writ petitions stand disposed of in
aforesaid terms. No costs.
………………………..J.
(Adarsh Kumar Goel)
…………………..……J.
(Uday Umesh Lalit)
New Delhi,
22nd January, 2018.

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caste is determined by birth and the caste cannot be changed by marriage with a person of scheduled caste = Merely because her husband is belonging to a scheduled caste category, the appellant should not have been issued with a caste certificate showing her caste as scheduled caste. In that regard, the orders of the authorities as well as the judgment of the High Court cannot be faulted. However, having regard to the fact that the appellant has already served as a Teacher and Vice-Principal of Kendriya Vidyalaya without any black spot in her service career for about 21 years, and that she is going to retire shortly, we take lenient view by exercising jurisdiction under Article 142 of the Constitution of India and order to convert the order of termination to an order of compulsory retirement. While exercising leniency, we have also kept in mind that the appellant has neither played fraud nor misrepresented before any of the authorities for getting the caste certificate and while continuing in service based on the caste certificate. No questions were raised against her till the complaint in question came to be lodged, even when the authorities had seen the High School Certificate, Marks Sheet etc. showing her caste as Agarwal at the initial stage. Having regard to the totality of the facts of the case, the impugned judgment of the High Court is 5 modified. “The order of termination from service” passed against the appellant shall be treated as “the order of compulsory retirement”. However, we make it clear that this shall not be treated as a precedent in future.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._487 OF 2018
(Arising from SLP(C) No.7181 of 2016)
Sunita Singh ..Appellant
Versus
State of Uttar Pradesh and others ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. Judgment dated 21.12.2015 passed by the High Court of
Judicature at Allahabad in Writ-C No. 53689 of 2015, dismissing
the writ petition filed by the appellant and confirming the order of
termination from service passed against the appellant, is called in
question in this appeal.
3. Appellant was born in “Agarwal” family. She married Dr.
Veer Singh, who happens to belong to “Jatav” Community (said to
be one of the Scheduled Castes). A caste certificate dated
29.11.1991 was issued by District Magistrate/Collector,
2
Bulandshahar certifying the appellant as of Scheduled Caste
(Jatav). Based on the academic qualifications and the caste
certificate, she was appointed initially as a Post Graduate Teacher
(Hindi) vide letter dated 16.12.1993 at Kendriya Vidyalaya No.1,
Pathankot, Punjab. During the course of her service, she completed
her M.Ed and served the institution for about 21 years as teacher.
4. A complaint was lodged against the appellant to the effect
that she was born in “Agarwal” family (general caste category) and
after her marriage with a person of scheduled caste, she obtained a
caste certificate in question. After making preliminary verification,
the jurisdictional officer directed to conduct an enquiry in respect of
the caste certificate of the appellant. The Tehsildar vide his order
dated 22/27.6.2013 cancelled the caste certificate of the appellant
and asked the appellant to return the caste certificate issued earlier
to the appellant.
City Magistrate, Bulandshahar vide letter dated
18.07.2013 communicated to the Deputy Commissioner, Kendriya
Vidyalaya Sangathan that the caste certificate issued to the
appellant treating her as “Jatav” has been cancelled. Subsequently,
the appellant made a representation to District Magistrate,
3
Bulandshahar on 6.1.2014 requesting him to reconsider the matter
and the said representation came to be dismissed on 3.9.2014 by
District Magistrate, Bulandshahar. The appeal filed by the
appellant against the order of the Tehsildar cancelling her caste
certificate and the order of the District Magistrate dismissing her
representation was also dismissed by the appellate authority i.e.,
Commissioner, Meerut Division, Meerut on 27.12.2014. As a result
of cancellation of the caste certificate, an order was passed by the
Kendriya Vidyalaya Sangathan on 18.03.2015 terminating the
appellant from the services of Kendriya Vidyalaya Sangathan. The
appeal filed by the appellant before the State Level Committee
against the order of the appellate authority cancelling her caste
certificate also came to be dismissed on 15.05.2015. The
appellant’s further efforts of approaching the High Court by filing
the writ petition also failed, inasmuch as the High Court dismissed
the writ petition by the impugned judgment. Hence, this appeal.
5. There cannot be any dispute that the caste is determined
by birth and the caste cannot be changed by marriage with a
person of scheduled caste. Undoubtedly, the appellant was born in
“Agarwal” family, which falls in general category and not in
4
scheduled caste. Merely because her husband is belonging to a
scheduled caste category, the appellant should not have been
issued with a caste certificate showing her caste as scheduled caste.
In that regard, the orders of the authorities as well as the judgment
of the High Court cannot be faulted.
However, having regard to the fact that the appellant has
already served as a Teacher and Vice-Principal of Kendriya
Vidyalaya without any black spot in her service career for about 21
years, and that she is going to retire shortly, we take lenient view by
exercising jurisdiction under Article 142 of the Constitution of India
and order to convert the order of termination to an order of
compulsory retirement. While exercising leniency, we have also
kept in mind that the appellant has neither played fraud nor
misrepresented before any of the authorities for getting the caste
certificate and while continuing in service based on the caste
certificate. No questions were raised against her till the complaint in
question came to be lodged, even when the authorities had seen the
High School Certificate, Marks Sheet etc. showing her caste as
Agarwal at the initial stage. Having regard to the totality of the
facts of the case, the impugned judgment of the High Court is
5
modified. “The order of termination from service” passed against
the appellant shall be treated as “the order of compulsory
retirement”. However, we make it clear that this shall not be
treated as a precedent in future.
6. The appeal stands disposed of in the aforesaid terms. No
order as to costs.
………………………………………………..J.
[ARUN MISHRA]
………………………………………………..J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
JANUARY 19, 2018.

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we are at a loss to understand as to how there could be 250 trees or 396 trees in 7 kanals and 2 marlas of land (less than one acre) that too of B category as is sought to be 16 contended by the respondent. 9. In view of the above, it is clear that the High Court has over looked certain material aspects of the evidence before coming to the conclusion. The High Court needs to consider the entire material in proper perspective afresh. Hence, the matter is to be remitted to the High Court 17 of Punjab & Haryana for fresh disposal in accordance with law.

1
[Non-Reportable]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 488 OF 2018
(Arising out of SLP (Civil) No. 2223 of 2017)
State of Punjab and Ors. ………..Appellants
Versus
Thuru Ram ……..Respondent
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. The Judgment
dated
06.05.2015
passed by the
High Court of
Punjab &
Haryana at
Chandigarh in
R.F.A. No. 2435
2
of 1996 is
called in
question by the
State of Punjab
on the ground
that the
compensation
ordered to be
paid in respect
of the fruit
trees standing
on the acquired
land is liable to
be reduced
substantially.
3. Land of the
respondent was
acquired along
with trees
standing on it
for
construction of
3
Hydel Channel.
A notification
under Section 4
of the Land
Acquisition Act,
1894
(hereinafter
referred to as
‘the Act’) was
issued on
12.01.1990 and
the declaration
under Section 6
of the Act was
made on
28.02.1990.
The Land
Acquisition
Collector
passed the
supplementary
4
award
awarding
compensation
of the fruit
trees standing
on the acquired
land on
10.03.1993.
Reference
Court had
rejected the
reference
sought by the
respondent
holding that
the award
made by the
Land
Acquisition
Collector was
proper and
5
correct. The
respondent
approached the
High Court of
Punjab &
Haryana by
filing the
appeal which
came to be
allowed by the
impugned
judgment and
reference was
accepted
awarding
compensation
to the tune of
Rs. 5,77,377/-
for the standing
trees on the
acquired land
6
along with
other statutory
benefits as per
Sections
23(1-A), 23(2)
and 28 of the
Act. Hence, this
appeal by the
State.
4. Heard the
parties. The
counsel for
appellant
taking us
through the
material on
record submits
that the
judgment of the
High Court is
liable to be set
aside inasmuch
7
as it has not
considered the
evidence in
proper
perspective
while coming to
the conclusion.
She has drawn
our attention to
certain
paragraphs of
the judgment of
the reference
court in
support of the
said
contention. Per
contra, learned
advocate for the
respondent
argued in
8
support of the
judgment of the
High Court.
5. The
respondent/the
claimant relied
upon Exhibit
A.1. i.e. the
assessment
report of AW-2
prepared by an
expert, in
support of his
contention
seeking
enhancement.
On the other
hand, the State
relied upon the
opinion of
another expert
i.e. RW-2 (the
9
report of RW-2
is at Exhibit
R.1.) to contend
that the
respondent is
not entitled for
compensation
as sought in
respect of the
trees.
6. According to
respondent,
396 fruit trees
were standing
on the acquired
land of the
respondent.
They were,
orange 28,
peach 76,
mausami 135
and mango
10
157. The Land
Acquisition
Collector
awarded total
compensation
of Rs.
37,321.12
including 30
percent
solatium and
12 percent
increase in
respect of such
fruit trees. As
mentioned
supra, the
reference court
on evaluating
the material on
record
confirmed the
11
award of the
Land
Acquisition
Collector.
7. Though, the
respondent
(AW-1) claimed
that the 396
fruit trees were
standing, in his
deposition he
stated that they
were 250 fruit
trees which
included
amrood, orange
and mango.
Such trees were
4 to 5 years
old. The expert
examined by
the respondent
12
i.e. AW-2
Sunder Singh
is a retired
District
Agricultural
Officer who
served for 34
years in various
capacities.
According to
his report total
value of all the
trees was
Rs.6,35,114.70.
Certain other
factors such as
distance of land
from the town
etc. are also
deposed by
him.
13
Per contra, the Patwari (RW-1) examined on behalf of the
appellant State has produced khasra girdawari register of the
relevant village in respect of certain years. The total area of the
acquired land belonging to the respondent is 7 kanals 2 marlas
(less than 1 acre). In 1985-86, wheat and other crops were shown
to have sown in the land. However, subsequently orchard
(Bagicha) has been added with different ink in the crops column
and according to him such entry was made, i.e. adding the word
Bagicha, without any order from the competent authority. No
initials were also found. According to RW-2, Horticulture
Development Officer the acquired trees of the respondent were
found to be of ‘D’ category. He has given the value of every kind
of standing fruit trees. The valuation of RW-2 is far less than the
valuation provided by AW-2.
8. The expert
examined by
the respondent
(AW-2) has
admitted that
there was a
tank for storing
water and
14
buckets were
lying. Meaning
thereby the
respondent was
allegedly
watering the
fruit trees by
pouring water
with the help of
buckets. There
was no
perennial
source of water.
In that regard
the reference
court
concluded that
the irrigation
facility was
scanty. AW-2
has further
15
deposed that
there could be
90 fruit trees in
one killa (equal
to one acre). If,
only 90 fruits
trees can be
planted in one
killa (one acre),
we are at a loss
to understand
as to how there
could be 250
trees or 396
trees in 7
kanals and 2
marlas of land
(less than one
acre) that too of
B category as is
sought to be
16
contended by
the respondent.
9. In view of the
above, it is
clear that the
High Court has
over looked
certain material
aspects of the
evidence before
coming to the
conclusion. The
High Court
needs to
consider the
entire material
in proper
perspective
afresh. Hence,
the matter is to
be remitted to
the High Court
17
of Punjab &
Haryana for
fresh disposal
in accordance
with law.
Ordered
accordingly, the
matter is
remitted to the
High Court.
The impugned
judgment is set
aside. Appeal
stands
disposed off
accordingly.
………………………………………….J.
(ARUN MISHRA)
………………………………………….J.
(MOHAN M. SHANTANAGOUDAR)
New Delhi
Dated: January 19, 2018

Posted in Uncategorized

(i) Both the Tribunal and the High Court erred in declining to accept the income certificates produced to indicate that the deceased had a monthly income of Rs 15,000/-; (ii) No addition on account of future prospects was made; (iii) The multiplier to be adopted should have been based on the age of the deceased and not on the age of the parents; and (iv) interest should have been awarded @ 9% p.a. instead of 6% p.a. On the other hand, the learned counsel appearing on behalf of the insurer has supported the view which has been taken by the Tribunal and by the High Court and submitted that no case has been made out for interference by this court with the concurrent findings of both the courts below.= The Tribunal has given cogent reasons for declining to accept the income certificates which were relied upon by the father of the deceased. No witnesses were examined on behalf of the companies which were alleged to have issued the certificates to prove the certificates. Evidently there was a failure to establish that the deceased, who was a student pursuing his C.A. was in receipt of a monthly income of Rs 15,000/-. Hence, we are of the view that the assessment of income by the Tribunal cannot be faulted.; in National Insurance Company Limited v Pranay Sethi1 and in Sarla Verma v Delhi Transport Corporation2 the correct multiplier should be 17 having regard to the age of the deceased. An addition of 40 per cent towards future prospects would also be warranted in terms of the judgment of the Constitution Bench. On this basis and since the deceased was a bachelor, the loss of dependency would work out to Rs 8,56,800/-. The appellants would be entitled to an amount of Rs 15,000/- towards loss of estate and Rs 15,000/- towards funeral expenses. The award of compensation accordingly stands quantified at Rs 8,86,800/-. The appellants are allowed interest @7.5% p.a. from the date of the filing of the petition before the M.A.C.T. till realization.

1

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO 448 OF 2018
[Arising out of SLP(C) No.26853 of 2016]
SHRI NAGAR MAL AND ORS ..Appellants
VERSUS
THE ORIENTAL INSURANCE COMPANY
LTD. AND ORS ..Respondents
J U D G M E N T
Dr D Y CHANDRACHUD, J
1 The present appeal has arisen from a judgment of the High Court of
Judicature for Rajasthan at its Jaipur bench confirming the award of the Motor
Accident Claims Tribunal (M.A.C.T.).
2 An accident took place on 15 November 2008 when at about 9 p.m. Sonu
Kumar Goyal was proceeding on a motor cycle from Mandi Neem Ka Thana to
his home. A truck bearing Registration No.RJ-32-GA-0398 dashed against the
motor cycle as a result of which Sonu Kumar sustained grievous injuries and
died on the spot. The third respondent is the registered owner of the motor
vehicle which was insured with the first respondent. The appellants filed a claim
for compensation before the Tribunal. By its order dated 16 July 2013 the
REPORTABLE
2
Tribunal held that the accident was caused due to the negligence of the driver
of the truck. The insurer was held jointly and severally liable together with the
owner and driver.
3 While assessing the claim of compensation, the Tribunal noted that the
deceased was a bachelor, aged 20 years. On the income of the deceased, the
Tribunal did not accept the certificates for the months of August, September
and October 2008 produced by the first appellant who is the father of the
deceased in support of the case that the deceased had a monthly earning of
Rs 15,000/-. The Tribunal indicated that the certificates have not been duly
proved. The deceased was pursuing the professional Chartered Accountancy
course. The Tribunal adopted an income of Rs.6,000/- per month and since the
deceased was a bachelor, it deducted a sum of Rs 3,000/- per month towards
personal expenses. A multiplier of 11 was applied on the basis of the age of the
parents of the deceased. Accordingly, the loss of dependency was computed
at Rs 3,96,000/- and after addition of conventional heads, a total compensation
of Rs.4,31,000/- was awarded.
4 The appellants as well as the insurer filed the appeals before the High
Court. By its judgment dated 30 May 2016 the High Court has declined to
interfere with the award of the Tribunal.
5 Learned counsel appearing on behalf of the appellants has assailed the
award of compensation by urging that :
3
(i) Both the Tribunal and the High Court erred in declining to accept the
income certificates produced to indicate that the deceased had a monthly
income of Rs 15,000/-;
(ii) No addition on account of future prospects was made;
(iii) The multiplier to be adopted should have been based on the age of the
deceased and not on the age of the parents; and
(iv) interest should have been awarded @ 9% p.a. instead of 6% p.a.
On the other hand, the learned counsel appearing on behalf of the insurer has
supported the view which has been taken by the Tribunal and by the High Court
and submitted that no case has been made out for interference by this court
with the concurrent findings of both the courts below.
6 The Tribunal has given cogent reasons for declining to accept the income
certificates which were relied upon by the father of the deceased. No witnesses
were examined on behalf of the companies which were alleged to have issued
the certificates to prove the certificates. Evidently there was a failure to
establish that the deceased, who was a student pursuing his C.A. was in receipt
of a monthly income of Rs 15,000/-. Hence, we are of the view that the
assessment of income by the Tribunal cannot be faulted.
7 However, we find merit in the submission which has been urged on behalf
of the appellants that the Tribunal failed to apply the correct multiplier and erred
in not granting the benefit of future prospects in computing the income of the
4
deceased and the loss of dependency. Having due regard to the judgment
delivered by the Constitution Bench of this Court in National Insurance
Company Limited v Pranay Sethi1 and in Sarla Verma v Delhi Transport
Corporation2
the correct multiplier should be 17 having regard to the age of
the deceased. An addition of 40 per cent towards future prospects would also
be warranted in terms of the judgment of the Constitution Bench. On this basis
and since the deceased was a bachelor, the loss of dependency would work
out to Rs 8,56,800/-. The appellants would be entitled to an amount of Rs
15,000/- towards loss of estate and Rs 15,000/- towards funeral expenses. The
award of compensation accordingly stands quantified at Rs 8,86,800/-.
The appellants are allowed interest @7.5% p.a. from the date of the filing of the
petition before the M.A.C.T. till realization.
8 The appeal is accordingly allowed. There shall be no order as to
costs.
…………………………………….CJI
[DIPAK MISRA]
…………………………………….J
[A M KHANWILKAR]
…………………………………….J
[Dr D Y CHANDRACHUD]
New Delhi;
January 19, 2018

1
(2017) 13 SCALE 12
2
(2009) 6 SCC 121

Posted in Uncategorized

The High Court has partly allowed the appeal of the insurer and reduced the award of compensation by the Motor Accident Claims Tribunal from Rs 61,55,000/- to Rs 26,45,000/-.= In terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi1 and the judgment in Sarla Verma v Delhi Transport Corporation2 , the correct multiplier to be applied in the present case would be 17 having regard to the age of the deceased. As regards future prospects, an addition of 50 per cent would be warranted. On the above basis and making a deduction of 50 per cent towards personal expenses (the deceased being a bachelor), the total compensation would stand quantified at Rs 61,20,000/-. After making an addition on account of conventional heads, the total compensation would stand computed at Rs 61,90,000/-. The aforesaid amount shall carry interest @ 9% p.a. from the date of the filing of the claim petition. Apportionment shall be carried out in terms of the award of the Tribunal. RAMRAO LALA BORSE AND ANR ..Appellants VERSUS NEW INDIA ASSURANCE COMPANY LTD. AND ANR ..Respondents

1

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO 418 OF 2018
[Arising out of SLP(C) No.7375 of 2017]
RAMRAO LALA BORSE AND ANR ..Appellants
VERSUS
NEW INDIA ASSURANCE COMPANY
LTD. AND ANR ..Respondents
J U D G M E N T
Dr D Y CHANDRACHUD, J
1 The present appeal arises from a judgment and order of a Division
Bench of the High Court of Judicature at Bombay dated 23 October 2015.
The High Court has partly allowed the appeal of the insurer and reduced the
award of compensation by the Motor Accident Claims Tribunal from Rs
61,55,000/- to Rs 26,45,000/-.
2 The claim before the Tribunal arose thus:
On 19 February 2006, Deepak was travelling as a passenger in a luxury bus
on Mumbai-Agra road and was occupying a seat on the driver’s side. When
the bus was at Atgaon in Nashik district, a truck bearing Registration
No.RJ-01-G-6386 came from the opposite direction and collided with the bus
REPORTABLE
2
resulting in grievous injuries to the passengers including Deepak. Deepak
was shifted to the Government hospital at Nashik where he succumbed to his
injuries.
3 At the time of the accident, the deceased was serving as an Assistant
Teacher in Dadasaheb Dandekar Vidyalaya, a school run by Shishu Vihar
Education Society. The claimants, who were his parents, filed a claim under
Section 166 of the Motor Vehicles Act 1988 seeking compensation against the
owner of the offending truck and the insurer. The Tribunal held that the
accident was caused due to the rash and negligent act of the driver of the
offending truck. The Tribunal accepted the evidence adduced by the
Claimants that had the deceased survived, he would have been made
permanent and would have been entitled to the benefit of 6th Pay Commission
wages of at least Rs 40,000 per month. Adopting a multiplier of 17, the
Tribunal awarded compensation of Rs 61,20,000/- to which it added a further
sum of Rs 35,000/- under conventional heads. Interest was awarded @9%
p.a.
4 The High Court, on an analysis of the evidence, confirmed the finding of
negligence arrived at by the Tribunal. On compensation, the High Court noted
that the salary certificate (Exh.42) dated 18 March 2013 indicated that the
deceased was working as an Assistant Teacher on a temporary basis in the
secondary section of Shishu Vihar Education Society between June 2001 and
3
February 2006. The income certificate indicated that in February 2006 the
deceased was in receipt of a salary of Rs 2,800 per month. Another
certificate issued by the Headmaster on 20 March 2006 (Exh.47) indicated the
same position.
5 The case of the claimants rested on the premise that the deceased was
likely to be made permanent in which event, he would be entitled to a higher
salary. PW 3, who was the Secretary of the Trust, deposed that though the
strength of the students had increased, and the workload had increased,
persons such as the deceased continued in service on a contract basis for
want of sanction from the government for the post. The High Court observed
that the evidence of PW 3 was that if the government were to sanction the
post, considering the seniority and experience of the deceased, the Trust
would have appointed him as a permanent teacher in which event his salary,
according to the scales of the 6th Pay Commission, would have been Rs
40,000 per month. The finding was that the deceased at the relevant time was
29 years of age; that he had completed his B.Ed. from the University of
Mumbai and was an Assistant Teacher employed on a temporary/contract
basis for teaching English from 2001 to 2006. The High Court adverted to the
provisions contained in the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977. In this background, the High
Court arrived at the finding that if the deceased were to be alive, he would
have been regularized and would have drawn a salary of Rs 40,000/- per
4
month. The High Court held that an addition of 50 per cent on account of
future prospects ought to have been made. However, the High Court held
that the Tribunal erred in applying a multiplier of 17. Having regard to the fact
that the father of the deceased was 65 years old in 2006 and his mother was
50 years old, the High Court came to the conclusion that a multiplier of 7
should be adopted, taking the average age of the parents as 61 years. The
High Court held that since the deceased was a bachelor, a deduction of 50
per cent should be made on account of personal expenses. On the above
basis, the High Court computed the yearly income of the deceased at Rs
4,80,000; enhanced the income by 50% on the ground of future prospects to
Rs 7,20,000, deducted a sum of Rs 3,60,000 towards personal expenses and
on the basis of a multiplier of 7 arrived at a total compensation of
Rs 25,20,000. The amount payable to each of the two claimants for loss of
love and affection was enhanced to Rs 50,000 and funeral expenses of Rs
25,000 were allowed. The High Court has, accordingly, awarded a total
compensation of Rs 26,45,000 together with interest @ 9% p.a.
6 The principal ground which has been urged in support of the appeal is
that the High Court erred in applying a multiplier of 7. Since the age of the
deceased at the time of the accident was 29 years, it was urged that the
correct multiplier to be applied would be 17.
5
7 The insurer had challenged the judgment of the High Court before this
Court in Special Leave Petition (C ) No 7717 of 2016. The Special Leave
Petition was dismissed on 25 April 2016. The challenge of the insurer to the
judgment of High Court has hence failed. Consequently, for the purpose of
the present appeal, we will have to proceed on the basis of the income as
accepted by the High Court. The finding of fact in regard to the income of the
deceased would not be challenged in the present appeal, at the behest of the
insurer in view of the above background.
8 In terms of the judgment of the Constitution Bench of this Court in
National Insurance Company Limited v Pranay Sethi1 and the judgment in
Sarla Verma v Delhi Transport Corporation2
, the correct multiplier to be
applied in the present case would be 17 having regard to the age of the
deceased. As regards future prospects, an addition of 50 per cent would be
warranted. On the above basis and making a deduction of 50 per cent
towards personal expenses (the deceased being a bachelor), the total
compensation would stand quantified at Rs 61,20,000/-. After making an
addition on account of conventional heads, the total compensation would
stand computed at Rs 61,90,000/-. The aforesaid amount shall carry interest
@ 9% p.a. from the date of the filing of the claim petition. Apportionment shall
be carried out in terms of the award of the Tribunal.
1 (2017) 13 SCALE 12
2 (2009) 6 SCC 121
6
9 The appeal shall accordingly stand allowed. There shall be no order as
to costs.
…………………………………….CJI
[DIPAK MISRA]
…………………………………….J
[A M KHANWILKAR]
…………………………………….J
[Dr D Y CHANDRACHUD]
New Delhi;
January 19, 2018

Posted in Uncategorized

only question raised before it regarding absolving the Insurance Company (Respondent No.2) from any liability in respect of truck bearing No.DIL-5955, which was duly insured by respondent No.2 Insurance Company, on the ground that the same was not driven by a person having a valid licence, as found by the Motor Accident Claims Tribunal, District Allahabad in Claim Petition No.215 of 1999. = (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish ‘breach’ on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. 15 (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are 16 intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No. DIL- 5955 was comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law. PAPPU AND ORS. …..APPELLANT(S) :Versus: VINOD KUMAR LAMBA AND ANR. …..RESPONDENT(S)

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 20962 OF 2017
(Arising out of SLP(C) No.29032 of 2015)
PAPPU AND ORS. …..APPELLANT(S)
:Versus:
VINOD KUMAR LAMBA AND ANR. …..RESPONDENT(S)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal questions the legality and tenability of the
judgment of the High Court of Judicature at Allahabad in First
Appeal from Order No.1138 of 2000, dated 9th October, 2014,
whereby the appeal filed by the appellants was dismissed by
the High Court whilst rejecting the only question raised before
it regarding absolving the Insurance Company (Respondent
No.2) from any liability in respect of truck bearing
No.DIL-5955, which was duly insured by respondent No.2
Insurance Company, on the ground that the same was not
driven by a person having a valid licence, as found by the
Motor Accident Claims Tribunal, District Allahabad in Claim
Petition No.215 of 1999.
2
2. In the claim petition it was asserted that on 12.08.1995
Om Prakash, son of Satku Lal, was driving Truck
No.URS-2735 when it was knocked down by a rashly and
negligently driven Truck No.DIL-5955 coming from the
opposite direction, as a result of which Om Prakash
succumbed to fatal injuries. The claim petition was filed by the
widow of deceased Om Prakash. Om Prakash left behind his
children Pappu, aged 16 years, Ramu, 12 years, Kumari
Geeta, 14 years, Kumari Neetu, 10 years, Kumari Guriya, 8
years and his mother, Smt. Shiv Rani, at the time of the
accident. The widow of deceased Om Prakash claimed
compensation of Rs.7 lakh under Fault Liability and
Rs.25,000/- under No Fault Liability. The mother of Om
Prakash claimed compensation of Rs.50,000/- separately. On
the date of the accident, Om Prakash was around 35 years of
age and was a driver by profession.
3. In the context of the sole contention raised before the
High Court and reiterated before this Court, it is not necessary
for us to dilate on factual aspects considered by the Tribunal
except to state that the Tribunal, on analysis of the evidence
on record, held that Om Prakash died because of the accident
3
caused by rash and negligent driving of Truck No.DIL-5955.
Although the Tribunal allowed the claim petition in part, it
absolved respondent No.2 Insurance Company by dismissing
the claim petition against the said respondent. The Tribunal
awarded a sum of Rs.25,000/- to opposite party No.3 Shiv
Rani and Rs.1,75,000/- to claimant Nos.1 to 6, with interest
at the rate of 12% per annum from the date of petition till the
date of payment. In other words, the claim petition was partly
allowed against respondent No.1 – the owner of the offending
vehicle DIL-5955.
4. In the appeal preferred by the appellants/claimants
against the said decision, the only question urged before the
High Court was about the correctness of the view taken by the
Tribunal in absolving the respondent No.2 Insurance
Company even though the offending Truck No.DIL-5955 was
duly insured by the said Insurance Company. The High Court
affirmed the view taken by the Tribunal that there was no
pleading or any evidence adduced by the owner of the
offending Truck to substantiate the fact that the Truck was
driven by one Joginder Singh, whose driving licence was
produced on record. The High Court also noted that there
4
could be no presumption that Joginder Singh was driving the
offending vehicle. The appellants have assailed the aforesaid
view taken by the Tribunal and affirmed by the High Court.
5. According to the appellants, the Insurance Company did
not produce any evidence before the Tribunal. As a result, it
was not open to the respondent No.2 Insurance Company to
extricate itself from the liability, having duly insured the
offending vehicle DIL-5955, which fact has been substantiated
by production of the Insurance Policy. A defence being
available to the Insurance Company, that the offending vehicle
was not driven by an authorised person and/or person not
having a valid driving licence, it was obligatory on the part of
the Insurance Company to substantiate that defence and more
so, to rebut the plea taken by the owner of the offending
vehicle that the offending vehicle was being driven by an
authorised person having a valid driving licence. To buttress
this argument, reliance has been placed on the decision of this
Court in the case of National Insurance Co. Ltd. Vs. Swarn
Singh and Ors.1
1
(2004) 3 SCC 297
5
6. We have heard Mr. Sharve Singh, learned counsel
appearing for the appellants and Mr. Rishi Malhotra, learned
counsel appearing for the Insurance Company.
7. In the context of the issue that arises for our
consideration, we may first advert to the claim petition. In the
claim petition, the name of the driver of the offending vehicle
DIL-5955 has not been mentioned. The assertion made in the
claim petition is that Truck No.URS-2735 driven by Om
Prakash was knocked down by the offending Truck
No.DIL-5955 coming from the opposite direction by rash and
negligent driving. The reply filed by respondent No.1 – owner
of the offending Truck DIL-5955 also does not mention the
name of the driver of the offending Truck No.DIL-5955.
Indeed, the reply filed by respondent No.1 asserts that the
vehicle No.DIL-5955 was comprehensively insured by the
respondent No.2 Insurance Company for unlimited liability.
The details of the Insurance Certificate have been mentioned
in the Written Statement. In paragraph 18 of the Written
Statement, however, a vague assertion has been made that on
the alleged date of incident, the offending vehicle DIL-5955
6
was plied by an authorised person having a valid driving
permit.
8. In the Written Statement filed by the respondent No.2
Insurance Company to oppose the claim petition, it is asserted
that the claimants should be put to strict proof about the
occurrence of the accident and other related matters. It is then
asserted that no insurance is directly issued by the Head
Office of respondent No.2. The name of the Branch Office by
which the vehicle in question was allegedly insured has not
been disclosed and in its absence, it was difficult to trace out
the insurance policy. Further, the original insurance policy
will have to be summoned from the Insurer or owner of the
vehicle. It is then asserted that neither has the alleged owner
of the vehicle (respondent No.1) informed about any claim nor
have the claimants made any claim to the Insurance
Company. As regards the plea taken by respondent No.1 –
owner of the offending vehicle, in paragraph 29 of the Written
Statement, it has been asserted by respondent No.2 as follows:
“29. That in petition anywhere or in column 16 of the
petition details or driving licence of the alleged driver are
not given and in absence of details it is quite impossible
for answering opposite party to ascertain the driving
licence and its validity on the alleged date of accident,
hence the driving licence if any and its validity on the
7
alleged date of accident is denied. The answering
opposite party could not be held liable for payment of
any award if made, unless it is proved that the vehicle
allegedly involved in the alleged accident was driving
under valid driving licence by its authorized driver with
due permission and under control of its owner and under
valid road, permit, fitness, road tax etc. as required
under the provisions of M.V. Act and also was driven
with full compliance of the terms and conditions of the
alleged insurance policy.”
It is not necessary to reproduce the other averments in the
Written Statement filed by respondent No.2.
9. On the basis of these pleadings, the matter proceeded
before the Tribunal. Admittedly, the respondent No.1 – owner
of the vehicle did not produce any evidence in support of his
plea taken in the Written Statement that the offending vehicle
was plied by an authorised person having a valid driving
permit. All that respondent No.1 did was to produce a driving
licence purportedly of one Joginder Singh. The Tribunal
adverted to the said driving licence but found that nowhere
the owner of the vehicle has asserted that the Truck
No.DIL-5955 was in fact driven by said Joginder Singh at the
time of the accident. On the basis of the pleadings, the
Tribunal framed issue No.3 and answered the same in favour
of the Insurance Company as follows:
8
“Issue No.3: Whether the Truck No. DIL-5955 was not
being driven by a person having valid and effective
driving licence?
As it has been stated earlier, that the owner of
Truck No. DIL-5955 has filed original driving licence of
one Joginder Singh but he has not mentioned anywhere
that Joginder Singh was driving his truck at the time of
accident. The owner has filed photo copy of insurance
policy in which at paragraph 5 proviso A, it is written
that the insurance company will be liable when driver
was holding a valid and effective driving licence. The
owner of the vehicle has not proved that his driver was
holding a valid and effective driving licence. This issue is
decided in the negative.”
10. This view taken by the Tribunal was assailed before the
High Court by the claimants. No other contention was raised
before the High Court except about the liability of the
Insurance Company. The High Court, after analysing the
record, negatived the said contention in the following words:
“5. The only question which has been raised before this
Court is, whether Insurance Company has rightly been
held not liable by holding that Truck No. DIL 5955 was
not being driven by a person having valid licence. This
Court has to consider, whether findings recorded in
respect of issue no.3 is correct or not.
6. Learned counsel for the appellants could not dispute
that neither any pleadings nor evidence have been led
before Tribunal to suggest or to tell, as a matter of fact,
that aforesaid truck was being driven by Sri Joginder
Singh. It is not in dispute that owner of aforesaid vehicle
produced driving licence which was in the name of Sri
Joginder Singh but at no stage it is pleaded or brought on
9
record before Tribunal that Sri Joginder Singh was the
person who was driving aforesaid Truck. This fact has
been noticed by Tribunal in the impugned order as under.
‘Joginder Singh Ko Prastut Kiya Gaya Hai Parantu
Joginder Singh Truck No. 5955 Ka Chalak Tha Yah Kahi
Par Bhi Nahi Kaha Gaya Hai.’
7. Learned counsel for the appellants could not dispute
this fact. In view of above statement of fact that it was
not pleaded or proved before Tribunal, the mere
production of driving licence of Sri Joginder Singh, by
owner of vehicle, cannot raise a presumption that he was
a person who was driving vehicle. The findings recorded
by Tribunal, therefore, cannot be faulted in any manner.
No other argument has been advanced.”
11. The question is: whether the fact that the offending
vehicle bearing No.DIL-5955 was duly insured by respondent
No.2 Insurance Company would per se make the Insurance
Company liable? This Court in the case of National
Insurance Co. Ltd. (supra), has noticed the defences available
to the Insurance Company under Section 149(2)(a)(ii) of the
Motor Vehicles Act, 1988. The Insurance Company is entitled
to take a defence that the offending vehicle was driven by an
unauthorised person or the person driving the vehicle did not
have a valid driving licence. The onus would shift on the
Insurance Company only after the owner of the offending
vehicle pleads and proves the basic facts within his knowledge
10
that the driver of the offending vehicle was authorised by him
to drive the vehicle and was having a valid driving licence at
the relevant time. In the present case, the respondent No.1
owner of the offending vehicle merely raised a vague plea in
the Written Statement that the offending vehicle DIL-5955 was
being driven by a person having valid driving licence. He did
not disclose the name of the driver and his other details.
Besides, the respondent No.1 did not enter the witness box or
examine any witness in support of this plea. The respondent
No.2 Insurance Company in the Written Statement has plainly
refuted that plea and also asserted that the offending vehicle
was not driven by an authorised person and having valid
driving licence. The respondent No.1 owner of the offending
vehicle did not produce any evidence except a driving licence
of one Joginder Singh, without any specific stand taken in the
pleadings or in the evidence that the same Joginder Singh
was, in fact, authorised to drive the vehicle in question at the
relevant time. Only then would onus shift, requiring the
respondent No.2 Insurance Company to rebut such evidence
and to produce other evidence to substantiate its defence.
Merely producing a valid insurance certificate in respect of the
11
offending Truck was not enough for the respondent No.1 to
make the Insurance Company liable to discharge his liability
arising from rash and negligent driving by the driver of his
vehicle. The Insurance Company can be fastened with the
liability on the basis of a valid insurance policy only after the
basic facts are pleaded and established by the owner of the
offending vehicle – that the vehicle was not only duly insured
but also that it was driven by an authorised person having a
valid driving licence. Without disclosing the name of the
driver in the Written Statement or producing any evidence to
substantiate the fact that the copy of the driving licence
produced in support was of a person who, in fact, was
authorised to drive the offending vehicle at the relevant time,
the owner of the vehicle cannot be said to have extricated
himself from his liability. The Insurance Company would
become liable only after such foundational facts are pleaded
and proved by the owner of the offending vehicle.
12. In the present case, the Tribunal has accepted the claim
of the appellants. It has, however, absolved the respondent
No.2 Insurance Company from any liability for just reasons.
The High Court has also affirmed that view. It rightly held that
12
there can be no presumption that Joginder Singh was driving
the offending vehicle at the relevant time.
13. Be that as it may, no grievance about the quantum of
compensation awarded by the Tribunal has been made by the
appellants – claimants (either before the High Court or before
us in this appeal). Hence, that issue does not warrant any
scrutiny. Similarly, the owner of the vehicle (respondent No.1)
has not challenged the findings of the Tribunal as affirmed by
the High Court in favour of the insurer (respondent No.2),
including on the factum that the vehicle was driven by a
person who did not have a valid driving licence at the relevant
time.
14. The next question is: whether in the fact situation of this
case the insurance company can be and ought to be directed
to pay the claim amount, with liberty to recover the same from
the owner of the vehicle (respondent No.1)? This issue has
been answered in the case of National Insurance Company
Ltd. (supra). In that case, it was contended by the insurance
company that once the defence taken by the insurer is
accepted by the Tribunal, it is bound to discharge the insurer
and fix the liability only on the owner and/or the driver of the
13
vehicle. However, this Court held that even if the insurer
succeeds in establishing its defence, the Tribunal or the Court
can direct the insurance company to pay the award amount to
the claimant(s) and, in turn, recover the same from the owner
of the vehicle. The three-Judge Bench, after analysing the
earlier decisions on the point, held that there was no reason to
deviate from the said well-settled principle. In paragraph 107,
the Court then observed thus:
“We may, however, hasten to add that the Tribunal and
the court must, however, exercise their jurisdiction to
issue such a direction upon consideration of the facts
and circumstances of each case and in the event such a
direction has been issued, despite arriving at a finding of
fact to the effect that the insurer has been able to
establish that the insured has committed a breach of
contract of insurance as envisaged under sub-clause (ii)
of clause (a) of sub-section (2) of Section 149 of the Act,
the insurance company shall be entitled to realize the
awarded amount from the owner or driver of the vehicle,
as the case may be, in execution of the same award
having regard to the provisions of Sections 165 and 168
of the Act. However, in the event, having regard to the
limited scope of inquiry in the proceedings before the
Tribunal it has not been able to do so, the insurance
company may initiate a separate action therefor against
the owner or the driver of the vehicle or both, as the case
may be. Those exceptional cases may arise when the
evidence becomes available to or comes to the notice of
the insurer at a subsequent stage or for one reason or the
other, the insurer was not given an opportunity to defend
at all. Such a course of action may also be resorted to
when a fraud or collusion between the victim and the
owner of the vehicle is detected or comes to the
knowledge of the insurer at a later stage.”
14
Further, in paragraph No.110, the Court observed thus:
110. The summary of our findings to the various issues
as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third party
risks is a social welfare legislation to extend relief by
compensation to victims of accidents caused by use of
motor vehicles. The provisions of compulsory insurance
coverage of all vehicles are with this paramount object
and the provisions of the Act have to be so interpreted as
to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition
filed under Section 163A or Section 166 of the Motor
Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)
(ii) of the said Act.
(iii) The breach of policy condition, e.g. disqualification of
driver or invalid driving licence of the driver, as contained
in Sub-section (2)(a)(ii) of Section 149, have to be proved
to have been committed by the insured for avoiding
liability by the insurer. Mere absence, fake or invalid
driving licence or disqualification of the driver for driving
at the relevant time, are not in themselves defences
available to the insurer against either the insured or the
third parties. To avoid its liability towards insured, the
insurer has to prove that the insured was guilty of
negligence and failed to exercise reasonable care in the
matter of fulfilling the condition of the policy regarding
use of vehicles by duly licensed driver or one who was
not disqualified to drive at the relevant time,
(iv) The insurance companies are, however, with a view
to avoid their liability must not only establish the
available defence(s) raised in the said proceedings but
must also establish ‘breach’ on the part of the owner of
the vehicle; the burden of proof where for would be on
them.
(v) The court cannot lay down any criteria as to how said
burden would be discharged, inasmuch as the same
would depend upon the facts and circumstance of each
case.
15
(vi) Even where the insurer is able to prove breach on the
part of the insured concerning the policy condition
regarding holding of a valid licence by the driver or his
qualification to drive during the relevant period, the
insurer would not be allowed to avoid its liability
towards insured unless the said breach or breaches on
the condition of driving licence is/ are so fundamental as
are found to have contributed to the cause of the
accident. The Tribunals in interpreting the policy
conditions would apply “the rule of main purpose” and
the concept of “fundamental breach” to allow defences
available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken
reasonable care to find out as to whether the driving
licence produced by the driver, (a fake one or otherwise),
does not fulfil the requirements of law or not will have to
be determined in each case.
(viii) xxx
(ix) xxx
(x) Where on adjudication of the claim under the
Act the tribunal arrives at a conclusion that the
insurer has satisfactorily proved its defence in
accordance with the provisions of Section 149(2)
read with Sub-section (7), as interpreted by this
Court above, the Tribunal can direct that the
insurer is liable to be reimbursed by the insured for
the compensation and other amounts which it has
been compelled to pay to the third party under the
award of the tribunal Such determination of claim
by the Tribunal will be enforceable and the money
found due to the insurer from the insured will be
recoverable on a certificate issued by the tribunal
to the Collector in the same manner under Section
174 of the Act as arrears of land revenue. The
certificate will be issued for the recovery as arrears
of land revenue only if, as required by Sub-section
(3) of Section 168 of the Act the insured fails to
deposit the amount awarded in favour of the
insurer within thirty days from the date of
announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with
proviso thereunder and Sub-section (5) which are
16
intended to cover specified contingencies
mentioned therein to enable the insurer to recover
amount paid under the contract of insurance on
behalf of the insured can be taken recourse of by
the Tribunal and be extended to claims and
defences of insurer against insured by, relegating
them to the remedy before, regular court in cases
where on given facts and circumstances
adjudication of their claims inter se might delay
the adjudication of the claims of the victims.”
(emphasis supplied)
15. In the present case, the owner of the vehicle (respondent
No.1) had produced the insurance certificate indicating that
vehicle No. DIL- 5955 was comprehensively insured by the
respondent No.2 (Insurance Company) for unlimited liability.
Applying the dictum in the case of National Insurance
Company Ltd. (supra), to subserve the ends of justice, the
insurer (respondent No.2) shall pay the claim amount awarded
by the Tribunal to the appellants in the first instance, with
liberty to recover the same from the owner of the vehicle
(respondent No.1) in accordance with law.
16. Accordingly, the appeal is allowed to the extent that the
compensation amount awarded by the Tribunal and confirmed
by the High Court shall be paid and satisfied by the insurer
(respondent No.2) in the first instance, with liberty to recover
17
the same from the owner of the vehicle (respondent No.1) in
accordance with law.
17. Appeal is disposed of in the aforementioned terms with
no order as to costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
January 19, 2018.

Posted in Uncategorized

whether the appellant is right in his persuasive argument to restore and revive the decision of the Trial Court on the quantum of sentence. The Trial Court awarded the sentence of rigorous imprisonment for five years only for offence under Section 304 Part-II of IPC and fine of Rs.10,000/- and in 15 default, to undergo rigorous imprisonment for a further period of one year. For that no special reason has been recorded by the Trial Court. Considering the nature of offence and the trivial reason for which the appellant got enraged and assaulted Hitesh Thakur, that too by a knife and also gave multiple blows, does not warrant a light punishment. We would, however, accept the argument of the respondents that in the fact situation of the present case, the sentence period should not be less than 10 years imprisonment with fine. That would meet the ends of justice. The appellant is held guilty for an offence punishable under Section 304 Part-II of IPC and is sentenced to undergo rigorous imprisonment for a period of 10 (Ten) years with fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo further imprisonment for one year. = ATUL THAKUR … APPELLANT(S) :Versus: STATE OF HIMACHAL PRADESH ETC. ETC. …. RESPONDENT(S)

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 522-523 OF 2016
ATUL THAKUR … APPELLANT(S)
:Versus:
STATE OF HIMACHAL PRADESH
ETC. ETC. …. RESPONDENT(S)
J U D G M E N T
A.M. Khanwilkar, J.
1. These appeals have been filed against the judgment and order
dated 1st April, 2016 passed by the High Court of Himachal
Pradesh, Shimla in Criminal Appeal Nos.75 & 227 of 2015,
modifying the order of conviction and sentence passed by the
Sessions Judge (Forests), Shimla, dated 31st December, 2014 in
Sessions Trial No.39-S/7 of 2012 thereby convicting the appellant
under Section 302 of the Indian Penal Code (IPC) and sentencing
him to imprisonment for life along with fine.
2
2. Shorn of details, the appellant along with three others were
tried for offence punishable under Sections 302, 201 read with
Section 34 of IPC by the Sessions Judge (Forests), Shimla. The case
of the prosecution is that a telephone message was received at
Police Station, West Shimla at around 4.45 A.M. on 28.07.2011,
informing that a quarrel had taken place near Tunnel 103, from
where one Hunny was brought to IGMC Hospital (Shimla) in
seriously injured condition. On reaching the hospital, the SHO
Shakuntala Sharma was informed that the injured had succumbed
to the injuries. She then recorded the statement of Rajinder Singh
under Section 154 of the Code of Criminal Procedure. In his
statement, Rajinder Singh disclosed that he had two children. His
daughter Pooja was doing computer course and his younger son
Hitesh Thakur, 22 years of age, was also doing computer course
from Lakhar Bazar. He stated that Hitesh had left home on
27.07.2011 after taking meal, on his motorcycle bearing registration
No.HP-63-3235, for attending computer course. He had then
informed his sister Pooja on her mobile that he was going with his
friend Akhilesh and would not be returning during the night. He
3
requested his sister to inform their mother. At about 3 a.m. on
28.07.2011 one Atul Thakur (appellant herein) telephonically
informed him that his son Hitesh was brought to IGMC Hospital,
Shimla as he was not feeling well and asked him to come to the
hospital. On receiving that telephonic information he rushed to the
hospital and found that his son was lying dead in wounded
condition. At that time, the appellant was also present there.
3. After recording the statement, investigation proceeded and
four accused, who had visited the house of Mukesh Thakur
(Accused No.2) where a drink party was arranged during the night
of 27.07.2011 and 28.07.2011, were sent for trial for the stated
offence. The Trial Court after analysing the evidence acquitted the
other three accused but found the appellant guilty of the offence
punishable under Section 304, Part-II and sentenced him to
rigorous imprisonment for five years and to pay fine of Rs.10,000/-,
in default to undergo further imprisonment for one year vide
judgment dated 31st December, 2014.
4. Against the said decision, the appellant filed an appeal before
the High Court, being criminal Appeal No.75 of 2015. The
complainant also filed an appeal before the High Court, being
4
Criminal Appeal No.227 of 2015 against the acquittal of three
accused as well as for enhancement of sentence of the appellant.
Both the appeals came to be disposed of by common judgment
dated 1st April, 2016. The High Court upheld the finding of fact
regarding the involvement of the appellant in the commission of
crime. However, it reversed the finding and conclusion recorded by
the Trial Court regarding the nature of offence. It concluded that
taking an overall view of the matter, the appellant was guilty of
offence punishable under Section 302 of IPC for the murder of
Hitesh Thakur and not under Section 304 Part-II, as held by the
Trial Court. At the same time, the High Court affirmed the order of
acquittal in favour of the other accused who were tried along with
the appellant. In the present appeals, the aforementioned decision
of the High Court has been assailed only by the original accused
No.1.
5. Mr. Aditya Dhawan, learned counsel appearing for the
appellant, made a fervent effort to persuade this Court that there is
an obvious contradiction between the evidence of the eye-witnesses
which should enure to the benefit of the appellant. According to
him, the appellant deserves to be acquitted as in the case of
5
co-accused, as the genesis of the offence is doubtful. Further, the
involvement of the appellant in the commission of crime has not
been proved beyond reasonable doubt. He took us through the
evidence of the prosecution witnesses and also of the defence
witness (DW1) who was examined at the instance of the appellant.
He submits that in any case, the fact situation established by the
prosecution, even if taken as it is, does not warrant a finding of
commission of offence of murder of Hitesh Thakur. At best it is a
case of culpable homicide not amounting to murder, covered by the
Exception under Section 300 of IPC and, thus, punishable under
second part of Section 304 of IPC. The Trial Court had justly
invoked that offence and sentenced the appellant to undergo five
years rigorous imprisonment which the appellant has already
undergone. He, therefore, submits that this appeal be allowed and
the appellant be set free by reviving the order of the Sessions Court
and setting aside the impugned judgment and order of the High
Court. He submits that the appellant has already undergone
sentence for a period of 7 years 3 months 24 days as on 24th
November, 2017 including remission period of one year 2 months
and 6 days.
6
6. Learned counsel for the respondents, however, has opposed
these appeals. According to the respondents, the finding of guilt
recorded by the two Courts below is supported by the evidence on
record which has established the involvement of the appellant in
the commission of crime beyond doubt. The finding of guilt so
recorded by the Trial Court and affirmed by the High Court does not
warrant any interference. Similarly, the finding recorded by the
High Court reversing the opinion of the Trial Court to convict the
appellant under Section 302 of IPC is also unexceptionable. The
High Court justly noted that it was a case of murder of Hitesh
Thakur which is punishable under Section 302 of IPC and not
under Section 304 Part-II, in which case the appellant will have to
suffer the sentence period of life imprisonment. The respondents
would submit that the appeals are devoid of merit and ought to be
dismissed.
7. We have carefully considered the oral evidence adduced by the
prosecution, in particular the evidence of PW-11 and PW-12 who
were the eye-witnesses to the incident during which Hitesh Thakur
was assaulted by the appellant with knife causing serious bodily
7
injuries to which he finally succumbed. In addition to the said oral
evidence, the other circumstances also point towards the complicity
of the appellant in the commission of crime such as recovery of the
knife at his instance and the nature of injuries suffered by the
deceased attributable to the assault by the same knife by the
appellant. We find that the Trial Court has justly analysed the
evidence to record a finding about the complicity of the appellant in
the commission of crime. That has been affirmed by the High Court
after reappreciation of the relevant evidence. We are in agreement
with the view so taken by the two Courts below. In other words, we
are inclined to uphold the concurrent finding recorded by the
Courts below that the appellant caused six injuries to deceased
Hitesh Thakur by attacking him with a knife on the night of
27.07.2011 in the presence of their friends (including PW-11 and
PW-12) who had gathered at the house of Mukesh Thakur for
celebrating a drink party arranged at the behest of Hitesh Thakur.
Further, Hitesh Thakur succumbed to the injuries caused by the
appellant. Thus, it is a case of homicidal death.
8. Notably, the evidence on record plainly establishes that a
sudden fight took place between the appellant and Hitesh Thakur
8
and in the heat of passion, the appellant assaulted Hitesh Thakur
causing serious bodily injuries. There is no shred of evidence, much
less even a remote suggestion that the appellant had assaulted
Hitesh Thakur with an intention to cause his death. Though the
High Court found the appellant guilty, it has not held that the
bodily injuries caused by the appellant were with an intention to
cause the death of Hitesh Thakur. The High Court overturned the
finding recorded by the Trial Court regarding the nature of offence,
principally on the ground that the appellant gave repeated knife
blows to Hitesh Thakur and Hitesh Thakur could not defend
himself as he was unarmed. Thus, the appellant was found guilty of
offence punishable under Section 302 of IPC.

9. In other words, the controversy in these appeals boils down to
the nature of offence and the sentence to be awarded in that behalf.
As aforesaid, the evidence on record, as held by two Courts below
and with which finding we are in full agreement, is that the
appellant gave six knife blows to Hitesh Thakur on the fateful night
to which he succumbed. Thus, it is a case of homicidal death.
However, there is no evidence that the injuries inflicted by the
appellant were with an intention to cause the murder of Hitesh
9
Thakur. On the other hand, the evidence clearly establishes that
the appellant assaulted Hitesh Thakur without any premeditation.
The whole incident took place suddenly and, in the heat of passion
a sudden quarrel started as Hitesh Thakur, while smoking, blew
smoke on the face of the appellant. Resultantly, the appellant got
enraged. He told him that he was senior in age and thus should not
smoke in his presence much less blow the smoke towards him.
Then a sudden physical fight started between them, in which the
appellant, in heat of passion, gave six knife blows to Hitesh Thakur
on different parts of his body.
10. The evidence of PW-11 and PW-12 (eye-witnesses) would
establish that the appellant and others including deceased Hitesh
Thakur had gathered at the spot for a drink party arranged at the
instance of Hitesh Thakur. They had consumed drinks when the
incident took place. Soon after assaulting Hitesh Thakur by knife,
when the appellant realised that Hitesh has been badly injured, he
offered him water and took him to the hospital along with his other
friends. He was in the hospital till Hitesh Thakur succumbed to the
injuries. He had also informed the father of Hitesh on telephone and
called him to the hospital. Further, when Hitesh was taken to the
10
hospital, the doctors did not provide him immediate treatment but
insisted on calling his father. This can be culled out from the
evidence of PW-11 and PW-12, who were eye-witnesses and also
present throughout and until the last rites of Hitesh Thakur were
performed.
11. Taking into account the events as unfolded, it leaves no
manner of doubt that the appellant had no intention to cause the
death of Hitesh Thakur. The incident happened without any
premeditation in a sudden fight between Hitesh Thakur and the
appellant and in heat of passion the appellant inflicted six knife
blows on Hitesh Thakur. On the contrary, after realising his
mistake, he immediately offered water to Hitesh Thakur and also
took him to hospital and stayed there till his last rites were
performed. PW-2 father of deceased Hitesh Thakur also
corroborates the position that the appellant had contacted him to
inform that Hitesh had been brought to the hospital in serious
condition.
12. Taking overall view of the matter, the facts of the present case
warrant invocation of Exception 4 to Section 300 of IPC. For, it is a
case of culpable homicide not amounting to murder inasmuch as
11
the incident happened on account of sudden fight between the
friends who had gathered for a drink party arranged at the behest
of Hitesh Thakur. There was no pre-mediation and the act done by
the appellant was in the heat of passion without the appellant
taking any undue advantage or acted in a cruel manner. The
number of wounds caused by the appellant, it is a well established
position, by itself cannot be a decisive factor. The High Court
committed manifest error in being influenced by the said fact. What
is relevant is that the occurrence was sudden and not premeditated
and the offender acted in the heat of passion. The evidence
supports the case of the appellant in this behalf. The fact that the
appellant used weapon such as knife, is also not a decisive factor to
attract Section 302 of IPC. Neither the use of a knife in the
commission of offence nor the factum of multiple injuries given by
the appellant would deny the appellant of the benefit of
Exception 4.
13. Dealing with a somewhat similar situation, in the case of
Surain Singh Vs. State of Punjab 1
, this Court has restated the
settled legal position about the purport of Exception 4 to Section
1
(2017) 5 SCC 796
12
300 of IPC. Even in that case, the accused had repeatedly
assaulted the deceased with a Kirpan and caused injuries resulting
into death. After restating the legal position, the Court converted
the offence to one under Section 304 Part-II instead of Section 302
IPC. Following the same legal principle and keeping in mind the
factual position as unfolded, the view taken by the Trial Court of
convicting the appellant for offence punishable under Section 304
Part-II, is unexceptionable. The Trial Court had observed thus:
“60. The evidence placed on record by the
prosecution, reveals that deceased Hitesh and the
accused were having cordial relations since long,
knowing to each other and were good friends. A
party was organized by the deceased in the room of
accused Mukesh and deceased himself invited all the
accused to attend the party. In this party, large
quantity of alcohol was consumed by them and
suddenly an altercation took place between
deceased Hitesh and accused Atul Thakur as a
result of which accused Atul stabbed Hitesh, which
resulted into his death……
61. There is no doubt that Hitesh met a homicidal
death on the night intervening 27/28.07/2011 at
IGMC, Shimla consequent to stab injury inflicted by
accused Atul Thakur. The queston which arises for
consideration is whether this action of the accused
which caused the death of Hitesh would amount to
murder or culpable homicide not amounting to
murder. It is an admitted fact that there was no
enmity between the deceased and this accused
rather they were having cordial relations. The fact
13
that there was a physical fight between the
deceased and the accused Atul, cannot be denied
because it has come in the evidence of PW-11
Himanshu, PW-12 Manoj Bansal and PW-1 Ashutosh
that a physical fight has taken place between them.
In these circumstances, this Court will have to
examine the prosecution evidence whether the
accused Atul had taken an undue advantage or
acted in a cruel or inimical manner so as to deprive
him of the benefit of exception 4 of Section 300. In
fact, the prosecution could not prove any motive for
killing the deceased by the accused. The drinking
session in the room of the accused Mukesh Thakur
was by mutual consent. From these circumstances,
it can be held that the incident in question took place
in a sudden fight in the heat of possession. The next
question which arises for consideration is whether
the accused Atul did take an undue advantage of the
said fight or acted in a cruel or inimical manner.
Keeping in view the fact that both the deceased and
accused had consumed considerable amount of
alcohol which is established from the evidence of the
prosecution witnesses, it cannot be altogether ruled
out that the stab injuries inflicted were not with an
intention of taking undue advantage by the accused
Atul. It is probable that in an inebriated condition
the accused inflicted the injuries because of the
physical fight between them. Moreover, keeping in
view the nature of the injuries noticed by Dr.
Sandeep Kaushik in the MLC Ext. PW-18/A, it is
difficult to accept the accused Atul Thakur intended
to cause the death of Hitesh or that the injuries were
so dangerous that they would in all probability,
cause death. Nevertheless, the injuries were quite
serious, the accused can surely by credited with the
knowledge that if an injury is caused with a knife on
the chest or abdomen of a person then this act is
likely to cause the death of the victim.
14
62. Having considered the material on record this
Court is of the opinion that the accused Atul Thakur
can only be found guilty of an offence punishable
under Section 304 Part II, Indian Penal Code.”
14. As aforesaid, the High Court overturned this finding of the
Trial Court on the question of nature of offence, by mainly
observing that the appellant had caused repeated blows with a
weapon like knife, causing six serious injuries to Hitesh Thakur to
which he succumbed. We are of the opinion that neither the factum
of use of knife by the appellant during the assault nor the multiple
blows (six) given by the appellant can be the sole basis to deny the
appellant of the benefit available under Exception 4 to Section 300
of IPC. The Court is obliged to take an overall view of the matter on
the basis of the established facts. This principle is restated in
Surain Singh’s case (supra).
15. The next question is whether the appellant is right in his
persuasive argument to restore and revive the decision of the Trial
Court on the quantum of sentence. The Trial Court awarded the
sentence of rigorous imprisonment for five years only for offence
under Section 304 Part-II of IPC and fine of Rs.10,000/- and in
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default, to undergo rigorous imprisonment for a further period of
one year. For that no special reason has been recorded by the Trial
Court. Considering the nature of offence and the trivial reason for
which the appellant got enraged and assaulted Hitesh Thakur, that
too by a knife and also gave multiple blows, does not warrant a light
punishment. We would, however, accept the argument of the
respondents that in the fact situation of the present case, the
sentence period should not be less than 10 years imprisonment
with fine. That would meet the ends of justice.
16. Accordingly, we partly allow these Criminal Appeal Nos.75 and
227 of 2015 filed by original accused No.1 Atul Thakur. We modify
the impugned judgment of the High Court against the appellant in
respect of nature of offence and instead restore the order of the
Trial Court in that behalf. The appellant is held guilty for an offence
punishable under Section 304 Part-II of IPC and is sentenced to
undergo rigorous imprisonment for a period of 10 (Ten) years with
fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo
further imprisonment for one year. Needless to mention that the
appellant shall be entitled to set off under Section 428 of the Code
of Criminal Procedure.
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17. These appeals are disposed of in the aforementioned terms.
…………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
January 19, 2018.

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