NATIONAL INSURANCE COMPANY LTD. versus THE CHIEF ELECTORAL OFFICER & ORS. on 8 February 2023

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SUPREME COURT REPORTS

[2023] 2 S.C.R.

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NATIONAL INSURANCE COMPANY LTD.

v.

THE CHIEF ELECTORAL OFFICER & ORS.(Civil Appeal No.4769 of 2022)BFEBRUARY 08, 2023

[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]

Insurance – MOU entered into between Appellant-Insurancecompany and Respondent No.1 to provide insurance cover to thepersons deployed for election related work for Bihar LegislativeCAssembly Elections in 2000 – Respondent No.2’s husband, aConstable died due to sun stroke while performing election duty –Respondent No.2 sought compensation in 2008 – Respondent No.1acknowledged the eligibility for payment, Single Judge assignedthe liability to pay the amount on the Respondent No.1 and the DMD– Appeal filed by Respondent No.1, Division Bench fastened theliability on the appellant – Held: Respondent No.2’s claim wasbeyond reasonable time period – It was negligence of RespondentNo.1 in lodging the claim – If it was not admissible then there wasno reason to forward the claim to the Appellant – Further,considering the Specific clause in the MoU governing the insuranceEpolicy providing for payment of compensation in the event of death,even in the event of a death, it is only in the scenario where it issolely and directly from an accident caused by external violence –However, the death of Respondent No.2’s husband was by sun stroke– There was no semblance of any violence being the cause of deathF– A proximate causal relationship between the accident and thebody injury is a necessity – The cause arising from a sun strokecannot be included within the parameters of the ‘Scope of Cover’in the insurance policy defining when such insurance amount wouldbecome payable – Thus, Appellant is not liable – Impugned judgmentof the Division Bench set aside – However, the amount already standsGpaid by Respondent No.1 to Respondent No.2 in pursuance of thejudgment of the Single Judge – It would not be appropriate to permitRespondent No.1 to recover any amount from Respondent No.2 andthat aspect now stands closed.

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Insurance – Insurance contracts – Held: Words used in acontract of insurance must be given paramount importance and itis not open for the Court to add, delete or substitute any words.

Insurance – Law governing insurance contracts – Discussed.Insurance – Insurance claims – Distinction between“accidental means” and “accidental result” – Discussed.

Allowing the appeal, the Court

Conclusion

HELD: 1.1 On consideration of the rival contentions, thereare two aspects which needs to be flagged: firstly, theconsequences of delay in claiming the amount from the Appellantinsurance company; secondly, whether at all the insurance policycovered the scenario of the death of the constable. On the firstaspect, the admitted position is that Respondent No.2 neverraised a claim even on the Chief Electoral Officer seeking anentitlement of the claim till the letter dated 21.11.2008 after sevenand a half years. Thus, by any standards this claim was beyondany reasonable time period. Even if the wife had not claimed andthe Appellant insurance company were of the view, that the casewas covered by the policy, then it was the bounden duty ofRespondent No. 1 to have lodged that claim. It cannot countenancethe submission that while on one hand the claim made by the wifewas initially rejected, subsequently, it is re-examined, almost asif making it a pre-condition to fasten the liability on the Appellantinsurance company. The conditions of the MoU required the claimto be made immediately on the occurrence. It appears that intheir own wisdom Respondent No.1 never thought that it was acase for which claim should be lodged with the Appellantinsurance company. Thus, whether the claim was admissible underthe insurance policy or not, the conduct of Respondent No.1 wouldnot entitle them to fasten the liability on the Appellant and wouldhave to be borne by them if they are of the view that such anamount ought to have been made. It would be negligence ofRespondent No.1 in lodging the claim. If it was not admissiblethen there is no reason to forward the claim to the Appellant.Respondent No.1 has been actually playing ducks and drakeswith this issue for reasons best know to them. [Para 21-24][321-D-H; 322-B-D]

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A1.2 Now turning to the specific clause in the MoU, whichwould govern the insurance policy providing for payment ofcompensation in the event of death (only) resulting “solely anddirectly” from the accident caused by external violent and anyother visible means. On a plain reading itself, leave aside thequestion of strict interpretation of the clauses, it is quite apparentBthat the admissibility of the claim is in the event of death. Thesecond part of the same sentence begins with “only”. Thus, evenin the event of a death, it is only in the scenario where theconsequent situation arises, i.e., it has to be solely and directlyfrom an accident caused by external violence. Here the death isCby sun stroke. There was no semblance of any violence beingthe cause of death. The last aspect which reads as “any othervisible means” would be an expression to be read in the contextof ejusdem generis with the external violent death and cannot beread in isolation itself. [Para 31][323-E-G; 324-A]

D1.3 The cause arising from a sun stroke cannot be includedwithin the parameters of the ‘Scope of Cover’ in the insurancepolicy defining when such insurance amount would becomepayable. Thus, on the second account also, the Appellantinsurance company is not liable. [Paras 34 and 35][324-F-G]

EAlka Shukla v. Life Insurance Corporation of India(2019) 6 SCC 64 : [2019] 6 SCR 762 – relied on.

1.4 The impugned judgment of the Division Bench of theHigh Court is clearly unsustainable and is set aside. In fact, theorder passed by the Single Judge was predicated on the ownFadmission of Respondent No.1, which is now sought to be resiledfrom by giving a slightly different interpretation but then if theclaim was not admissible, there was no reason for RespondentNo.1 to forward the claim to the Appellant insurance companymerely because it was made and with the objective of somehowbenefiting Respondent No.2 at the cost of the Appellant. ThatGbeing the position, this Court is quite cognizant of the fact thatthe amount already stands paid by Respondent No.1 toRespondent No.2 wife in pursuance of the judgment of the learnedSingle Judge. De hors the complexity of any legal issue,Respondent No.2 having enjoyed the benefit for so many years, H

NATIONAL INSURANCE COMPANY LTD. v. THE CHIEFELECTORAL OFFICER & ORS.

the stand as taken by Respondent No.1 qua the liability to payRespondent No.2, it would not be appropriate to permitRespondent No.1 to recover any amount from Respondent No.2and that aspect should now stand closed. [Para 36][324-G-H; 325-A-C]

Suraj Mal Ram Niwas Oil Mills (P) Ltd. vs. United IndiaInsurance Co. Ltd. 2010 SCC OnLine SC 1148; ExportCredit Guarantee Corporation of India Limited vs. GargSons International (2014) 1 SCC 686 : [2013] 1 SCR336; Vikram Greentech India Ltd. v. New IndiaAssurance Co. Ltd. (2009) 5 SCC 599 : [2009] 5 SCR437 – relied on.

Delhi Electric Supply Undertaking v. Basanti Devi &Anr. (1999) 8 SCC 229 : [1999] 3 Suppl. SCR 219;Oriental Insurance Co. Ltd. v. Sony Cheriyan (1999) 6SCC 451 : [1999] 1 Suppl. SCR 622; Polymat India(P) Lid. v. National Insurance Co. Ltd. (2005) 9 SCC174 : [2004] 6 Suppl. SCR 535; Sumitomo HeavyIndustries Ltd. v. ONGC Ltd. (2010) 11 SCC 296 : [2010]9 SCR 176; RashtriyaIspat Nigam Lid. v. Dewan ChandRam Saran (2012) 5 SCC 599; Lilawanti Devi v. TheState of Bihar & Ors. 1998 (2) PLJR 692; KamlawatiDevi v. The State of Bihar & Ors. (2002) 3 PLJR 450 –referred to.

Justice K Kannan, Principles of Insurance Law Chapter3 (Volume 1, 10th ed. 2017, pg. 31); Colinvaux’s Lawof Insurance (11th Edn.) discusses the effect and theimpact of the expressions “violent, external and visible– referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No.4769Bof 2022.

From the Judgment and Order dated 03.10.2017 of the High Courtof Judicature at Patna in LPA No.1049 of 2011.

Ms. Shantha Devi Raman, Garvesh Kabra, Arihant Jain, Advs.for the Appellant.C

Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Advs. for theRespondents.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.D

1. The non-application of the general strict liability principle, incase of an insurance policy, is sought to be questioned, where an expandedmeaning has been given to the relevant term of the insurance policy inorder to grant insurance claim, now assailed before us by the insurancecompany, the Appellant herein, in view of the order dated 03.10.2017Epassed by the Division Bench of Patna High Court in favour ofRespondent No. 1 herein. The original claim was made by a writ petitionfiled by the prospective beneficiary i.e. Respondent No.2 herein, butwhile granting the benefits to the beneficiary, a liability was placed onRespondent no.1 and not on the insurance company, which aspect wasreversed by the Division Bench vide its judgment dated 03.10.2017Ffastening the liability on the insurance company.

Facts:

Facts

Facts:

2. The Appellant, insurance company, and Respondent No.1, theChief Electoral Officer, Bihar, Patna, entered into a Memorandum ofGUnderstanding (hereinafter referred to as ‘MoU’) on 09.02.2000 toprovide insurance cover to the persons deployed for election relatedwork for Bihar Legislative Assembly Elections in the year 2000. Therelevant Clause in question of the MoU is Clause 3, which reads asunder:

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“Scope of Cover

The insurance is intended to provide for the payment ofcompensation in the event of death only resulting solely and directlyfrom accident caused by external violent and any other visiblemeans.”

On the MoU being executed, the State Government opted for aGroup Insurance Scheme vide letter dated 10.02.2000 to cover itspremium paying employees, who were appointed for election relatedactivities. It appears that keeping in mind the period of the by-polls, theduration of the insurance scheme was extended from 24.05.2000 to23.06.2000 by way of a supplementary policy. The incident, we areconcerned with, was during these by-poll elections.

3. The husband of Respondent No.2, late Deval Ravidas,Constable, Shivhar District Force, was a member of the Static ArmedForce, posted at Booth no.67, Primary School, Mathura Sultanpur, PoliceStation Bidupur, District Vaishali, who died due to a sun stroke/heat strokewhile performing election duty for the Bihar Legislative Assembly. Asstated, this was during the extended period of the insurance policy. Itappears that the matter rested at that for a fairly long time and it is onlyin the year 2008 that Respondent No.2, wife of the deceased ConstableDeval, sought to raise the issue of compensation vide her letter dated21.11.2008.

4. The Assistant Election Officer, Bihar-cum-Under Secretary tothe Government, vide letter dated 20.11.2009 addressed to the UnderSecretary to the Lokayukta, Patna, Bihar, noted that the death of thedeceased Constable had occurred on account of heat stroke on26.05.2000 during election duty and had not occurred on account of anyexternal violent activity/accident. Thus, compensation to Respondent No.2could not be found admissible for payment.

5. Respondent No.2 wife filed a Writ Petition, being CWJCNo.1781/2011, before the High Court of Judicature at Patna for quashingthe aforementioned letter dated 20.11.2009 and sought payment ofcompensation amount of Rs.10 lakhs as per the insurance policy sinceher husband had died while performing election duty. Apparently, onaccount of some directions of the learned Single Judge, the DistrictElection Officer placed a notice of claim dated 24.04.2011 to the Appellant A

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Ainsurance company regarding the claim for insurance. This was,however, not accepted.

6. The learned Single Judge in the Writ Petition, CWJC No.1781/2011, decided not to go into the issue whether the accidental death wasin terms of the policy because the Chief Electoral Officer in aBsupplementary counter affidavit had already acknowledged the eligibilityfor payment to the wife of the deceased police official. The Court, relyingon the judgment in Lilawanti Devi v. The State of Bihar & Ors[1], opinedthat after the expiry of a given policy, no direction could be given forpayment of insurance amount. The claim was required to be lodgedwithin the duration of the policy, i.e., 24.05.2000 to 23.06.2000. Thus,Cthe Court opined that the primary responsibility to raise the claim underthe policy was with the officials of the State Government and that theydid not raise the claim within the duration of the policy and permitted thepolicy to lapse. Therefore, the liability to pay the amount to the deceasedwife was assigned to the Chief Electoral Officer and the DistrictDMagistrate, Vaishali.

7. The Chief Electoral Officer, preferred an appeal before theDivision Bench of the High Court against the order dated 17.05.2011,which is the subject matter of the impugned judgment dated 03.10.2017.

The controversy debated before the Division Bench:E

8. In LPA No.1049/2011 in so far as the insurance company isconcerned, it washed its hands of the liability relying on the judgment inLilawanti Devi[2]case. Thus, primarily, the defence was raised on theabsence of any claim being lodged in time, though the death of the PoliceConstable during the election period of by-poll was not disputed.F

9. The appeal filed by the Chief Electoral Officer was premisedon the plea to burden the liability to pay the insurance amount on theAppellant insurance company, as the insurance policy was stated to besubsisting on the relevant date. The entitlement of the family of thedeceased officer to receive the amount and that to as claimed, however,Gwas not disputed and it was stated that the family had already been paidthe amount by Respondent No.1 during the pendency of the appeal beforethe High Court. The grievance was solely assigning the liability on theChief Electoral Officer and the District Magistrate, Vaishali. In this behalf, 11998 (2) PJLR 692H2 (supra)

reliance was placed, inter alia, on a judgment of this Court in DelhiElectric Supply Undertaking v. Basanti Devi & Anr.,[3]opining thatthe employer of the deceased had assumed the role of an agent of theinsurance company under Section 182 of the Indian Contract Act becausethe employer had the responsibility of deducting the premium from themonthly salary of the deceased and remitting it to the insurance company.Therefore, on account of the employer’s failure, as an agent, to remitthe premium amount, the insurance company, as the principal, will stillhave the liability to make payment of the insured amount.

10. We may observe, at this stage itself, that the factual controversyand the legal controversy in this case are quite different. We really donot see how it was relevant for the issue being debated.

11. The Division Bench, however, distinguished the instant casefrom Lilawanti Devi[4]predicated on the premise that the Constable haddied while the insurance cover existed, unlike in Lilawanti Devi[5]. Thefactum of death, occurring during the existence of the policy, was notdisputed, which was before the expiry of the insurance policy andsurprisingly, in our view, applied the ratio of Basanti Devi[6]on the agencyprinciple. To support its view, the Court made the following observations:

Firstly, the net premium for the policy was paid to the insurancecompany by the Headquarters directly after deducting from the salariesof the police personnel; Secondly, insurance was taken on behalf of the police personnelunder the signature of Director General and Inspector General of thePolice or their name nominee; Thirdly, the police personnel was prohibited under rules frommaking any direct contact with the insurance company and allcommunications were restricted between the Headquarters and theinsurance company; Fourthly, the police personnel did not have an individual right totake out the policy.

12. On the issue of time for raising the insurance claim, it wasopined that no time limit was prescribed and since all pre-requisites to 3 (1999) 8 SCC 229

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Athe claim for the insurance policy were available, it was the exclusiveliability of the insurance company to pay the insured amount.

13. The insurance company but naturally came into appeal beforethis Court.

Appellant’s contentions:B

14. The Appellant contended before us that the Assistant ElectionOfficer had actually rejected the claim vide letter dated 20.11.2009 butsubsequently sought to admit their liability in the writ petition and paidthe claim to Respondent No.2. The endeavour thereafter was to somehowfasten the liability on the Appellant.

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15. The policy was also stated to have expired by efflux of timeon 23.06.2000. Learned counsel for the Appellant also sought to contendthat the cause of death was due to a sun stroke/heat stroke and was noteven covered within the scope of the policy as the ‘Scope of Cover’ ofthe MoU required it to be “external violent and any other visibleDmeans.”

16. On the issue of time period within which the claim was to bemade, the terms of the MoU were referred to, requiring the claim to bemade and notified immediately to the Appellant, which had admittedlynot been done. In fact, it was notified to the Appellant insurance companyEon 24.04.2011 i.e. after eleven years and after the Respondent No. 2had filed the writ petition before the High Court of Patna.

17. The crucial issue, emphasised before us, was that the termsof the insurance policies are to be strictly construed and undisputedlyaccepted.

FRespondent No.1’s case:

18. On behalf of the Chief Electoral Officer, a slightly divergentcase as apparent from the impugned order was sought to be made beforeus countering any admission of liability to pay the insurance amount inthe supplementary counter affidavit. It was submitted that theGSupplementary Counter Affidavit in the Writ petition only stated that itwas a fit case to be recommended for payment in view of the judgmentin Kamlawati Devi v. The State of Bihar & Ors.[7]

19. The letter dated 10.02.2000 issued by the Chief ElectoralOfficer had clarified that the primary burden to file the claim for H7(2002) 3 PLJR 450

insurance amount before the Appellant insurance company was on thewife of the deceased. It is mentioned that there was also an inordinatedelay in the representation made by Respondent No.2 wife and that itwas made for the first time on 21.11.2008, almost seven and a half yearsafter the death of the police official.

20. It had been clarified that the death of the police official wascaused by a heat stroke and his death was not covered under the MoUand, thus, delay in raising claim was not exclusively driven by the ChiefElectoral Officer.

The role of the Chief Electoral Officer was limited to forwardingthe recommendation, which it duly did. The husband of Respondent No.2died during the currency of the insurance policy and, thus, it was pleadedthat the Appellant insurance company as the insurer was under anobligation to honour the promise of paying the insured amount in case ofdeath of an employee while on election duty during the sustenance ofthe insurance policy.

Our view:

21. On consideration of the rival contentions, there are two aspectswhich needs to be flagged: firstly, the consequences of delay in claimingthe amount from the Appellant insurance company; secondly, whetherat all the insurance policy covered the scenario of the death of theconstable.

22. On the first aspect, the admitted position is that RespondentNo.2 never raised a claim even on the Chief Electoral Officer seekingan entitlement of the claim till the letter dated 21.11.2008 after sevenand a half years. Thus, by any standards this claim was beyond anyreasonable time period.

23. Let us say that even if the wife had not claimed and theAppellant insurance company were of the view, that the case wascovered by the policy, then it was the bounden duty of Respondent No.1 to have lodged that claim. It cannot countenance the submission thatwhile on one hand the claim made by the wife was initially rejected,subsequently, it is re- examined, almost as if making it a pre-condition tofasten the liability on the Appellant insurance company. The conditionsof the MoU required the claim to be made immediately on the occurrence.The relevant clause is as under:

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A“INVOICE OF CLAIM

The claim will be intimated to the National Insurance Co. Ltd.immediately on its occurrence at its Regional office, Sone Bhawan,Birchand Patel Marg, Patna (Phone: 220979, 223103 Fax: 0612-220973). On receipt of the intimation, the local office at the placeBof occurrence shall be liasioning with the govt. Agencies in gettingthe desired papers completed in all respect.”

24. It appears to us that in their own wisdom Respondent No.1never thought that it was a case for which claim should be lodged withthe Appellant insurance company. Thus, whether the claim was admissibleCunder the insurance policy or not, the conduct of Respondent No.1 wouldnot entitle them to fasten the liability on the Appellant and would have tobe borne by them if they are of the view that such an amount ought tohave been made. It would be negligence of Respondent No.1 in lodgingthe claim. If it was not admissible then there is no reason to forward theclaim to the Appellant. Respondent No.1 has been actually playing ducksDand drakes with this issue for reasons best know to them.

25. The aforesaid could actually end the discussion before us butsince the issue of the liability of Respondent No.1 has in turn raised thequestion about the incident being covered by the insurance policy, weconsider it appropriate to even answer that question.

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26. We would first like to elucidate the principles on which a claimunder any insurance policy is examined. It is trite to say that the terms ofthe insurance policy are to be strictly construed.

27. The insurance contracts are in the nature of special class ofFcontracts having distinctive features such as utmost good faith, insurableinterest, indemnity subrogation, contribution and proximate cause whichare common to all types of insurances. Each class of insurance also hasindividual features of its own. The law governing insurance contracts isthus to be studied in three parts, namely, (1) general characteristics ofinsurance contracts, as contracts; (2) special characteristics of insuranceGcontracts, as contracts of insurance, and (3) individual characteristics ofeach class of insurance[8].

28. Now turning to some of the judicial pronouncements, whereinit hasbeen opined that the words used in a contract of insurance must8Justice K Kannan, Principles of Insurance Law Chapter 3 (Volume 1, 10th ed. 2017,Hpg. 31)

be given paramount importance and it is not open for the Court to add,delete or substitute any words (Suraj Mal Ram Niwas Oil Mills (P)Ltd. vs. United India Insurance Co. Ltd[9].). Insurance contracts arein the nature where exceptions cannot be made on ground of equity andthe Courts ought not to interfere with the terms of an insurance agreement(Export Credit Guarantee Corporation of India Limited vs. GargSons International[10]).

29. This Court in Vikram Greentech India Ltd. v. New IndiaAssurance Co. Ltd.[11]reiterated that the insured cannot claim anythingmore than what is covered by the insurance policy. The terms of thecontract have to be construed strictly, without altering the nature of thecontract as the same may affect the interests of the parties adversely.The clauses of an insurance policy have to be read as they are.Consequently, the terms of the insurance policy, that fix the responsibilityof the insurance company must also be read strictly.

30. In several other judgements[12], this court has held that theinsurance contract must be read as a whole and every attempt should bemade to harmonise the terms thereof, keeping in mind that the rule ofcontra proferentem does not apply in case of commercial contract, forthe reason that a clause in a commercial contract is bilateral and hasmutually been agreed upon.

31. Now we turn to the specific clause in the MoU, which wouldgovern the insurance policy providing for payment of compensation inthe event of death (only) resulting “solely and directly” from the accidentcaused by external violent and any other visible means. On a plain readingitself, leave aside the question of strict interpretation of the clauses, it isquite apparent that the admissibility of the claim is in the event of death.The second part of the same sentence begins with “only”. Thus, even inthe event of a death, it is only in the scenario where the consequentsituation arises, i.e., it has to be solely and directly from an accidentcaused by external violence. Here the death is by sun stroke. There wasno semblance of any violence being the cause of death. The last aspect 9 2010 SCC OnLine SC 114810 2014 1 SCC 686

11(2009) 5 SCC 599

12Oriental Insurance Co. Ltd. v. Sony Cheriyan (1999) 6 SCC 451,Polymat India (P)Lid. v. National Insurance Co. Ltd. (2005) 9 SCC 174, Sumitomo Heavy Industries Ltd.v. ONGC Ltd. (2010) 11 SCC 296 and RashtriyaIspat Nigam Lid. v. Dewan ChandRam Saran (2012) 5 SCC 599.

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Awhich reads as “any other visible means” would be an expression to beread in the context of ejusdem generis with the external violent deathand cannot be read in isolation itself.

32. We have benefit of elucidation in this behalf arising from thejudgment of this Court in Alka Shukla v. Life Insurance CorporationBof India[13]. The Court noted the divergence of opinion of courts betweencourts across international jurisdictions making a distinction between“accidental means” and “accidental result” while deciding insuranceclaims. Thus, an unexpected accident and unforeseen consequence orresult from a normal or routine activity may constitute an accident but itwould not qualify as “accidental means”. Two illustrative examples givenCare: (a) a fatal heart attack while dancing would be called “accidental”but would fail to attract insurance cover as not due to “accidental means”;(b) heart attack suffered as a result of over-exertion on being chased bya ferocious dog the death might attract the insurance cover as it wascaused by “accidental means”. In the first example it was a normalDactivity while in the second it was an unintended activity and not a normalactivity. The given type of injury may thus, fall within or outside thepolicy according to the event which led to the death and it is this particularcause which is required to be examined.[14] The accident, thus, per sepostulates a mishap or untoward happening, something which isunexpected or unforeseen.E

33. The aforesaid judgment also emphasises the importance of aplain reading of the policy as a guiding principle. A proximate causalrelationship between the accident and the body injury is a necessity.

34. If in the aforesaid context, the policy is analysed, the causearising from a sun stroke cannot, in our view, be included within theFparameters of the ‘Scope of Cover’ in the insurance policy definingwhen such insurance amount would become payable.

35. Thus, on the second account also we are of the view that theAppellant insurance company is not liable.

Conclusion:G

36. We have, thus, no hesitation in concluding that the impugnedjudgment of the Division Bench of the Patna High Court is clearlyunsustainable and is set aside. In fact, the order passed by the learned 13(2019) 6 SCC 6414 Colinvaux’s Law of Insurance (11[th ]Edn.) discuses the effect and the impact of theHexpresions” violent, external and visible:

Single Judge was predicated on the own admission of Respondent No.1,which is now sought to be resiled from by giving a slightly differentinterpretation but then if the claim was not admissible, there was noreason for Respondent No.1 to forward the claim to the Appellantinsurance company merely because it was made and with the objectiveof somehow benefiting Respondent No.2 at the cost of the Appellant.That being the position, we are quite cognizant of the fact that the amountalready stands paid by Respondent No.1 to Respondent No.2 wife inpursuance of the judgment of the learned Single Judge. We do believethat de hors the complexity of any legal issue, Respondent No.2 havingenjoyed the benefit for so many years, the stand as taken by RespondentNo.1 qua the liability to pay Respondent No.2, it would not be appropriateto permit Respondent No.1 to recover any amount from RespondentNo.2 and that aspect should now stand closed.

37. The appeal is accordingly allowed leaving the parties to beartheir own costs.

Divya Pandey

Appeal allowed.

(Assisted by : Roopanshi Virang, LCRA)

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