M/S. ELITE ENGINEERING AND CONSTRUCTION (HYD.) PRIVATE LIMITED REP. BY ITS MANAGING DIRECTOR versus M/S. TEACHTRANS CONSTRUCTION INDIA PRIVATE LIMITED REP. BY ITS MANAGING DIRECTOR on 23 February 2018

M/S. ELITE ENGINEERING AND CONSTRUCTION (HYD.)PRIVATE LIMITED REP. BY ITS MANAGING DIRECTOR

v.

M/S. TEACHTRANS CONSTRUCTION INDIA PRIVATELIMITED REP. BY ITS MANAGING DIRECTOR

(Civil Appeal No. 2439 of 2018)

FEBRUARY 23, 2018

[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]

Arbitration and Conciliation Act, 1996 – s. 7(5) –Incorporation of arbitration clause in contract by reference – Ifmade out – National Highway Authority of India entered intoConcession agreement, whereby it awarded a contract to M/s. T.K.(Concessionaire) for maintenance of the Project Highway on BuildOperate and Transfer (BOT) basis – Concessionaire vide EPCagreement awarded that work to M/s. UE (EPC Contractor) – EPCContractor, in turn, executed a Construction agreement withrespondent to execute the works as per terms and conditions entailedin that agreement – Respondent sub-contracted the work to theappellant – Some dispute arose between the appellant andrespondent in connection with execution of the said work – Appellantinvoked arbitration – Respondent contended that there was noarbitration agreement – Appellant contended that the agreemententered into between the parties (appellant and respondent), byimplication, incorporated the arbitration agreement contained inthe agreement entered into between the EPC Contractor and therespondent – High Court held that there was only a reference toanother document with no intention to incorporate the arbitrationclause thereof in a contract between the parties – Propriety of –Held: Proper – In instant case, it was not intended to make thearbitration clause as a part of the contract between the appellantand the respondent – When the incorporation clause refers to certainparticular terms and conditions, only those terms and conditionsare incorporated and not the arbitration clause.

Dismissing the appeal, the Court

HELD: 1. As per sub-section (5) of section 7 of Arbitrationand Conciliation Act, 1996, an arbitration clause contained in an

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Aindependent document can also be imported and engrafted inthe contract between the parties, by reference to suchindependent document in the contract, even if there is no specificprovision for arbitration. However, such a recourse can beadopted only ‘if the reference is such as to make the arbitrationclause in such document, a part of the contract.’ [Para 16] [593-BE-F]

2. The High Court has correctly held that, in the instantcase, it was not intended to make the arbitration clause as a partof the contract between the appellant and the respondent. Clause2 and clause 9.10 are given correct interpretation by the HighCCourt. By these clauses, only those conditions and sub-conditionsof the contract, specification etc. which relate to the works andquality are incorporated. Clause 9.10 only talks of ‘items’ whichare not mentioned in the contract and terms and conditionsrelating to the execution of those items are to be taken from theDmain contracts. Reference to clause 8.7 is also inconsequential.By this clause only, those terms contained in the main agreementwhich relate to ‘terms of work’ are incorporated. Procedurerelating to ‘termination’ is altogether different from resolution ofdisputes. Dispute may arise even de hors the termination of thecontract and is an altogether different aspect, not necessarilyEconnected with the termination of work. [Para 18] [596-B-D]

M.R. Engineers and Contractors Private Limited v. SomDatt Builders Ltd. (2009) 7 SCC 696 : [2009] 10SCR 373; Groupe Chimique Tunisien SA v. SouthernPetrochemicals Industries Corpn. Ltd. (2006) 5 SCCF275 : [2006] 2 Suppl. SCR 954; Larsen & ToubroLimited v. Mohan Lal Harbans Lal Bhayana (2015) 2SCC 461 : [2014] 3 SCR 162; Sharma and AssociatesContractors Private Limited v. ProgressiveConstructions Limited (2017) 5 SCC 743 – referredGto.

Alimenta S. A. v. National Agricultural Coop. Mktg.Federation of India Ltd. (1987) 1 SCC 615 : [ 1987] 1 SCR 957 – relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2439of 2018.

From the Judgment and Order dated 18.09.2015 by the High Courtof Judicature at Madras in Original Petition No. 203 of 2014.

C

Sridhar Potaraju, Prabhat Kumar, Ms. Sindeora VNL, Ms. AnkitaSharma, Udai Khanna, Advs. for the Appellant.

A. K. Ganguli, Sr. Adv., Dr. Amit George, R. Sathish, Mohan DasK. K., Rajesh Kumar, Ms. S. Geetha, Ms. Smitha Rani, Ms. SoniaVasudev, Advs. for the Respondent.

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The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. Leave granted.

2. National Highway Authority of India (NHAI) had entered intoagreement dated July 19, 2007 (hereinafter referred to as the ‘ConcessionAgreement’) whereby it had awarded a contract to M/s. T.K. Toll RoadPvt. Ltd. (hereinafter referred to as the ‘Concessionaire’) for undertaking,inter alia, the design, engineering, financing, procurement, construction,operation and maintenance of the Project Highway on Build Operateand Transfer (BOT) basis on the National Highway 67 connectingCoimbatore and Nagapattinam. The Concessionaire vide EPC agreement(Engineering, Procurement and Construction Agreement) dated January31, 2008 awarded the said work on a fixed lump sum turnkey basis to M/s. Utility Energytech and Engineers Private Limited (hereinafter referredto as the ‘EPC Contractor’). EPC Contractor, in turn, executed aConstruction Agreement dated March 14, 2008 with the respondent herein(M/s. Techtrans Construction India Pvt. Ltd.) to execute the works asper terms and conditions entailed in that agreement. Clause 8 of thatagreement permitted the respondent to sub-contract the structural work.Pursuant thereto, the respondent floated a tender for sub-contractingtheir work in which the appellant also submitted its bid and was ultimatelyawarded the said work by the respondent vide agreement dated July 29,2009.

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A3. Some disputes arose between the appellant and the respondentin connection with the execution of the said work and the appellant videits letter dated March 25, 2013 raised certain claims against therespondent. The appellant also filed Original Petition under Section 9 ofthe Arbitration and Conciliation Act, 1996 (hereinafter referred to as the‘Act’) on the file of Principal Judge, Karur. This petition was contestedBby the respondent who in its reply denied all the allegations raised by theappellant and also submitted that since there was no arbitration agreementbetween the parties, the petition under Section 9 of the Act was notmaintainable. While this was pending, the appellant moved applicationunder Section 11(3) and (5) of the Act for appointment of an arbitrator inCthe High Court of Judicature at Madras on January 28, 2014. Notice inthis petition was issued by the High Court. In the meantime, on June 30,2014, the Principal Judge, Karur allowed the petition of the appellantunder Section 9 of the Act, but left open the issue of existence ofarbitration agreement.

D4. Insofar as the appellant’s petition under Section 11 of the Act isconcerned, it was contested by the respondent taking the objection tothe maintainability of the petition on the ground of absence of anyagreement. The High Court has vide impugned orders dated September18, 2015 dismissed the said petition of the appellant upholding thecontention of the respondent that there is no arbitration agreementEbetween the parties and, therefore, remedy under the Act for appointmentof arbitrator or constitution of Arbitral Tribunal is not available.

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5. It may be clarified at this juncture that Agreement dated July29, 2009 entered into between the appellant and the respondent does notcontain any arbitration clause. There is no independent arbitrationFagreement between the parties either. However, case set up by theappellant was that this Agreement dated July 29, 2009 entered into betweenthe parties, by implication, incorporates the arbitration agreement that iscontained in the Agreement dated March 14, 2008 that was entered intobetween the EPC Contractor and the respondent.G

6. Indubitably, clause 45 of the Agreement dated March 14, 2008between EPC Contractor and the respondent contains procedure forresolution of disputes and sub-clause (3) thereof refers to arbitrationprocedure. In case of any dispute, as per clause 45.1, first attempt is for‘amicable resolution’. Thereafter, under clause 45.2, process of H

M/S. ELITE ENGRG. & CONST. (HYD.) PVT. LTD. v. M/S.TEACHTRANS CONST. INDIA PVT. LTD. [A. K. SIKRI, J.]

‘mediation’ is to be resorted to and if that also fails then the ‘arbitrationprocedure’ is provided. Clause 45.3 and clause 45.4 read as under:

“45.3.Arbitration Procedure:

Subject to the provisions of Article 45.1 and 45.2, any dispute,which is not resolved by amicable resolution between the partiesor by a reference to mediation, shall be finally settled by bindingarbitration under the Arbitration and Conciliation Act, 1996. Thearbitration shall be by a panel of three arbitrators, one to beappointed by each Party and the third to be appointed by the twoarbitrators appointed by the Parties. The Party requiring arbitrationshall appoint an arbitrator in writing, inform the other party aboutsuch appointment and call upon the other party to appoint itsarbitrator. If within 15 days of receipt of such intimation the otherparty fails to appoint its arbitrator, the Party seeking appointmentof arbitrator may take further steps in accordance with ArbitrationAct.

45.4. Place of Arbitration:

The place of arbitration shall be Mumbai for all Disputes.”

7. According to the appellant, this clause gets incorporated in theAgreement dated July 29, 2009 that was entered into between therespondent and the appellant, by virtue of following clauses in the saidagreement:

“2.Subcontractor hereby agrees, undertakes to execute the saidvalue of work, and is responsible for the efficient and successfulexecution of the work and is to be completed as per the contractperiod specified in the contract document.

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All the conditions and special conditions of contract, specifications(general and additional clauses relating to the works and qualityspecified in the relevant agreement between the ConstructionContractor and the Employer are binding on the Subcontractor.”

Annexure-I specifying the ‘Terms and Conditions’ Annexed theretointer alia provides Clause - 9.10 as under:

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A“9.10. For items which are not mentioned in this Agreement Clauses,terms and conditions of Agreement between Contractor and EPCConcessionaire will be applicable.’’

8. It is, thus, argued by the learned counsel for the appellant thatas per the aforesaid clause, when the appellant had agreed and undertakenBto execute the work as per contract specified in the contract documentand the said clause also specifically provided that all the special conditionsof the contract, specifications etc. relating to the works and qualitiesspecified in the relevant agreement between the construction contractorand the employer are binding on the respondent, the clause relating toarbitration agreement i.e. 45 entered into between EPC Contractor andCthe respondent also became applicable by incorporation. It was submittedthat the aforesaid clause read with clause 9.10 of Annexure 1 whichcategorically mentions that in respect of items which are not mentionedin the Agreement clauses, terms and conditions of the Agreement betweenthe Contractor and EPC Concessionaire will be applicable, would alsoDlead to same result.

9. These very arguments were raised before the High Court. Theappellant had also referred to certain communications addressed by it tothe respondent before invoking legal remedy wherein it has stated thatthe parties had agreed for settlement of disputes in accordance withEclause 45.3. The respondent, on the other hand, had drawn attention ofthe High Court to paragraph 23 of the petition filed by the appellantunder Section 9 of the Act wherein it had categorically stated that theappellant would be constrained to initiate legal proceedings against therespondent for recovery of amount by approaching the competent civilcourt. The High Court, thus, opined that from the communications only,Fit could not be said that parties had agreed for arbitration and, in fact, theappellant in his petition filed under Section 9 of the Act had professedignorance of the agreement between the respondent and the employer.As it had gone to the extent of making an averment to the effect that‘the petitioner is totally kept in dark about the terms and conditions ofGthe agreement till now’. The High Court thereafter construed clauses 2and 9.10 of the Agreement that was entered into between the appellantand the respondent and came to the conclusion that those clauses nevermeant to incorporate arbitration agreement into the Agreement datedJuly 29, 2009 executed between the parties. On this aspect, discussiongoes as follows:H

“18. On a careful perusal of the pleadings and documents as alsosubmissions of the learned counsel for the parties, more specificallythe reading of the clauses, this court is of the view that part ofclause-2 of the agreement dated 29.07.2009 extracted aforesaidrefers to only ‘’works and quality specified in the relevantagreement between the construction contractor and theemployer’’. All the conditions and the sub-conditions of contractare binding on the sub contractor/petitioner, but the unambiguousreference is only to ‘’work and quality specified’’ without anyrefence to the arbitration clause. It is not a case of only absenceof a reference to arbitration clause, but the reference being specificto the ‘’work and quality specified.’’ An expanded meaning cannotbe given to this Clause. It is in this context that Clause-9.10 ofAnnexure-I specifying the terms and conditions has to be read.Once again, it refers to ‘’Items’’ which are not mentioned in theagreement clauses where conditions of the earlier agreementwould be applicable. Thus, this would refers to the items to beused.

10. The High Court also drew distinction between the referenceto the another document and incorporation of another document in acontract by reference, which has been explained by this Court in M.R.Engineers and Contractors Private Limited v. Som Datt BuildersLtd.[1] and held that, in the instant case, there was only a reference toanother document with no intention to incorporate the arbitration clausethereof in a contract between the parties.

11. Questioning the aforesaid approach of the High Court, learnedcounsel for the appellant submitted that when the appellant was requiredto execute the work on the terms and conditions contained in the principalagreement, it was clear intention to incorporate all the terms includingclause 45.3. Additionally, he referred to clause 8.7 of the agreementbetween the parties which stipulates as under:

“8.7 Other terms related to Termination of work will be same asAgreement between EPC, Concessionaire and Constructioncontractor.”

12. His submission was that when the terms related to terminationof work contained in the Agreement between EPC, Concessionaire and AB

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Athe respondent were to govern their agreement as well, these wouldinclude settlement of disputes on termination of work through arbitrationwhich was the term provided in the contract between the employer andthe respondent. Relying upon the judgment in the case of GroupeChimique Tunisien SA v. Southern Petrochemicals Industries Corpn.Ltd.[2], he submitted that mere fact that appellant had mentioned aboutBfiling suit against the respondent in his petition under Section 9 of the Actwould not enure to the benefit of the respondent who said so on accountof mistaken understanding of law. Para 9 reads as under:

“9. It is true that the petitioner had contended before the Jordaniancourt that there was no arbitration agreement between the parties.CBut the said contention was not accepted and the suit filed by thepetitioner has been dismissed on the ground of want of jurisdiction.Thereafter, on reconsidering the matter and taking legal advice,with reference to the contentions of the respondent, the petitionerhas now proceeded on the basis that an arbitration agreementDexists between the parties. If, on account of mistake or wrongunderstanding of law, a party takes a particular stand (that is,there is no arbitration agreement), he is not barred from changinghis stand subsequently or estopped from seeking arbitration.[See U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd. [(1996)2 SCC 667] where the contention based on estoppel was negativedEwhile considering a reserve (sic reverse) situation [Ed.: Para12] .]”

13. Mr. Ganguli, the learned senior counsel appearing for therespondent, on the other hand, submitted that clause 2 of the Agreemententered into between the appellant and the respondent clearly evincedFthat there was only a qualified incorporation of those terms and conditionsof the contract between the employer and the respondent which relatedto the works and the quality. Insofar as clause 45 is concerned, therewas no conscious acceptance thereof between the parties and that wasthe reason that even the respondent had no knowledge about the saidGclause and, therefore, he did not mention so even in his petition filedunder Section 9 of the Act. He, therefore, submitted that the High Courthas rightly relied upon M.R. Engineers and Contractors Private Limitedcase in dismissing the petition of the petitioner. He also placed relianceupon the judgments of this Court in Larsen & Toubro Limited v. Mohan H2 (2006) 5 SCC 275

Lal Harbans Lal Bhayana[3] and Sharma and Associates ContractorsPrivate Limited v. Progressive Constructions Limited[4].

14. After considering the respective submissions, we are inclinedto agree with the respondent and, therefore, do not find any fault withthe impugned judgment of the High Court.

15. In M.R. Engineers and Contractors Private Limited case,this Court considered the true intent and scope of Section 7 of the Actwhich deals with ‘arbitration agreement’. Relevant portion of Section 7reads as under:

“7. Arbitration agreement.—(1) In this Part, ‘arbitrationagreement’ means an agreement by the parties to submit toarbitration all or certain disputes which have arisen or which mayarise between them in respect of a defined legal relationship,whether contractual or not.

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(5) The reference in a contract to a document containing anarbitration clause constitutes an arbitration agreement if thecontract is in writing and the reference is such as to make thatarbitration clause part of the contract.”

16. As per sub-section (5), an arbitration clause contained in anindependent document can also be imported and engrafted in the contractbetween the parties, by reference to such independent document in thecontract, even if there is no specific provision for arbitration. However,the Court noted that such a recourse can be adopted only ‘if the referenceis such as to make the arbitration clause in such document, a part of thecontract.’ This interpretation to sub-section (5) of Section 7 waselaborated in the following manner:

“14. The wording of Section 7(5) of the Act makes it clear that amere reference to a document would not have the effect of makingan arbitration clause from that document, a part of the contract.The reference to the document in the contract should be suchthat shows the intention to incorporate the arbitration clausecontained in the document, into the contract. If the legislative intentwas to import an arbitration clause from another document, merely 3 (2015) 2 SCC 461

4 (2017) 5 SCC 743

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on reference to such document in the contract, sub-section (5)would not contain the significant later part which reads: “and thereference is such as to make that arbitration clause part of thecontract”, but would have stopped with the first part which reads:

“7. (5) The reference in a contract to a document containingan arbitration clause constitutes an arbitration agreement ifthe contract is in writing….”

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15. Section 7(5) therefore requires a conscious acceptance ofthe arbitration clause from another document, by the parties, as apart of their contract, before such arbitration clause could be readas a part of the contract between the parties. But the Act doesnot contain any indication or guidelines as to the conditions to befulfilled before a reference to a document in a contract can beconstrued as a reference incorporating an arbitration clausecontained in such document into the contract. In the absence ofsuch statutory guidelines, the normal rules of construction ofcontracts will have to be followed.

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16. There is a difference between reference to another documentin a contract and incorporation of another document in a contract,by reference. In the first case, the parties intend to adopt onlyspecific portions or part of the referred document for the purposesEof the contract. In the second case, the parties intend to incorporatethe referred document in entirety, into the contract. Thereforewhen there is a reference to a document in a contract, the courthas to consider whether the reference to the document is with theintention of incorporating the contents of that document in entiretyFinto the contract, or with the intention of adopting or borrowingspecific portions of the said document for application to thecontract.”

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17. After some further discussion on this aspect with reference tothe existing case law as well as extracts from Russell on arbitration, theGCourt summed up the position as under:

“24. The scope and intent of Section 7(5) of the Act may thereforebe summarised thus:

(i) An arbitration clause in another document, would getincorporated into a contract by reference, if the followingconditions are fulfilled:

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(1) the contract should contain a clear reference to the documentscontaining arbitration clause,

(2) the reference to the other document should clearly indicatean intention to incorporate the arbitration clause into thecontract,

(3) the arbitration clause should be appropriate, that is capable ofapplication in respect of disputes under the contract and shouldnot be repugnant to any term of the contract.

(ii) When the parties enter into a contract, making a generalreference to another contract, such general reference would nothave the effect of incorporating the arbitration clause from thereferred document into the contract between the parties. Thearbitration clause from another contract can be incorporated intothe contract (where such reference is made), only by a specificreference to arbitration clause.

(iii) Where a contract between the parties provides that theexecution or performance of that contract shall be in terms ofanother contract (which contains the terms and conditions relatingto performance and a provision for settlement of disputes byarbitration), then, the terms of the referred contract in regard toexecution/performance alone will apply, and not the arbitrationagreement in the referred contract, unless there is specialreference to the arbitration clause also.

(iv) Where the contract provides that the standard form of termsand conditions of an independent trade or professional institution(as for example the standard terms and conditions of a tradeassociation or architects association) will bind them or apply tothe contract, such standard form of terms and conditions includingany provision for arbitration in such standard terms and conditions,shall be deemed to be incorporated by reference. Sometimes thecontract may also say that the parties are familiar with those termsand conditions or that the parties have read and understood thesaid terms and conditions.

(v) Where the contract between the parties stipulates thatthe conditions of contract of one of the parties to the contractshall form a part of their contract (as for example the generalconditions of contract of the Government where theGovernment is a party), the arbitration clause forming part A

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Aof such general conditions of contract will apply to thecontract between the parties.”

18. When we apply the aforesaid ratio, we find that the HighCourt has correctly held that, in the instant case, it was not intended tomake the arbitration clause as a part of the contract between the appellantBand the respondent. Clause 2 and clause 9.10 are given correctinterpretation by the High Court and discussion in this behalf has alreadybeen extracted above. By these clauses, only those conditions and sub-conditions of the contract, specification etc. which relate to the worksand quality are incorporated. Clause 9.10 only talks of ‘items’ whichCare not mentioned in the contract and terms and conditions relating tothe execution of those items are to be taken from the main contracts.Reference to clause 8.7 is also inconsequential. By this clause only,those terms contained in the main agreement which relate to ‘terms ofwork’ are incorporated. Procedure relating to ‘termination’ is altogetherdifferent from resolution of disputes. Dispute may arise even de horsDthe termination of the contract and is an altogether different aspect, notnecessarily connected with the termination of work.

19. In Alimenta S.A. v. National Agricultural Coop. Mktg.Federation of India Ltd.[5], the question was as to whether the arbitrationclause in Fosfa-20 was incorporated in the first contract by way of clauseE11 and in the second contract by virtue of clause 9. The Court held thatwhile the arbitration clause was incorporated in the first contract, thesame was not incorporated in the second contract. How the matter hasto be looked into, for determining the same, was discussed in the followingmanner:

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“13. … There is a good deal of difference between Clause 9 ofthis contract and Clause 11 of the first contract. Clause 11 hasbeen couched in general words, but Clause 9 refers to all otherterms and conditions for supply. The High Court has taken theview that by Clause 9 the terms and conditions of the first contractGwhich had bearing on the supply of HPS were incorporated intothe second contract, and the term about arbitration not beingincidental to supply of goods, could not be held to have beenlifted as well from the first contract into the second one.

14. It is, however, contended on behalf of the appellant that theHigh Court was wrong in its view that a term about arbitration isnot a term of supply of goods. We do not think that the contentionis sound. It has been rightly pointed out by the High Court thatthe normal incidents of terms and conditions of supply arethose which are connected with supply, such as, its mode andprocess, time factor, inspection and approval, if any, reliabilityfor transit, incidental expenses, etc. We are unable to acceptthe contention of the appellant that an arbitration clause is a termof supply. There is no proposition of law that when a contract isentered into for supply of goods, the arbitration clause must formpart of such a contract. The parties may choose some othermethod for the purpose of resolving any dispute that may arisebetween them. But in such a contract the incidents of supplygenerally form part of the terms and conditions of the contract.The first contract includes the terms and conditions of supply andas Clause 9 refers to these terms and conditions of supply, it isdifficult to hold that the arbitration clause is also referred to and,as such, incorporated into the second contract. When theincorporation clause refers to certain particular terms andconditions, only those terms and conditions are incorporatedand not the arbitration clause. In the present case, Clause 9specifically refers to the terms and conditions of supply ofthe first contract and, accordingly, only those terms andconditions are incorporated into the second contract and notthe arbitration clause. The High Court has taken the correctview in respect of the second contract also.”

(emphasis supplied)

20. This judgment is noted in M.R. Engineers and ContractorsPrivate Limited case as well and in the facts of M.R. Engineers andContractors Private Limited, the Court held that there was noincorporation of arbitration clause. Following discussion throws light todecide the issue in this case as well:

“37. In the present case the wording of the arbitration clause inthe main contract between the PW Department and the contractormakes it clear that it cannot be applied to the sub-contract betweenthe contractor and the sub-contractor. The arbitration clause in ABC

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Athe main contract states that the disputes which are to be referredto the committee of three arbitrators under Clause 67.3 are disputesin regard to which the decision of the Engineer (“Engineer” refersto person appointed by the State of Kerala to act as Engineer forthe purpose of the contract between the PW Department and therespondent) has not become final and binding pursuant to ClauseB67.1 or disputes in regard to which amicable settlement has notbeen reached between the State of Kerala and the respondentwithin the period stated in Clause 67.2. Obviously neither Clause67.1 nor 67.2 will apply as the question of “Engineer” issuing anydecision in a dispute between the contractor and the sub-contractor,Cor any negotiations being held with the Engineer in regard to thedisputes between the contractor and the sub-contractor does notarise. The position would have been quite different if thearbitration clause had used the words “all disputes arisingbetween the parties” or “all disputes arising under thiscontract”. Secondly, the arbitration clause contemplates aDcommittee of three arbitrators, one each to be appointedby the State of Kerala and the respondent and the third(Chairman) to be nominated by the Director General, RoadDevelopment, Ministry of Surface Transport, Roads Wing,Government of India. There is no question of suchEnomination in the case of a dispute between the contractorand the sub-contractor.”

21. In view of the aforesaid, the appeal stands dismissed.

FAnkit Gyan

Appeal dismissed.

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[2018] 4 S.C.R. 599

SHIVAWWA AND ANR.

v.

THE BRANCH MANAGER, NATIONAL INDIA INSURANCECO. LTD. AND ANR.

(Civil Appeal No. 2247 of 2018)

MARCH 28, 2018

[DIPAK MISRA, CJI AND A.M. KHANWILKAR, J.]

Motor Vehicles Act, 1988 – s.166 – Person died after fallingoff from the tractor-trailer owned by respondent No.2 – Claimpetition filed by appellant No.1, father of the deceased beforeTribunal seeking compensation from respondent No.1-insurancecompany, respondent No.2 and the driver (employee of respondentno.2) – Tribunal passed award against the respondents, jointly andseverally, to compensate the family members of the deceased with asum of Rs.3,20,000/- with interest @ 6% p.a. – High Court in appealheld that respondent No.1 insurance company could not be saddledwith any liability as the deceased had not travelled along with hisgoods in the tractor-trailer and therefore, it could not be made liableto pay any compensation – Held: Tribunal analysed the evidence inits entirety and also took into account the charge-sheet filed inrespect of the accident in question for accepting the factum thatdeceased had travelled in the tractor along with his goods toHolealur where he had gone to unload the foodgrains of Maizeloaded on the tractor belonging to respondent No.2 and whilereturning therefrom met with the accident – High Court by a sweepingobservation proceeded to reverse the finding of fact recorded bythe Tribunal – Conclusion reached by the Tribunal is a possibleview, which could not have been disturbed by the High Court in acasual manner – Finding of the Tribunal that the deceased hadtravelled along with his goods, affirmed and restored – Insurancepolicy brought on record was a valid policy in respect of theoffending tractor and thus, insurer would be obliged to satisfy thecompensation amount awarded to the claimants– Award passed byTribunal restored.

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AAllowing the appeal, the Court

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HELD: 1.1 The Tribunal had analysed the evidence of PW-2 (eye-witness) and PW-1 (mother of the deceased) in its entiretyand also took into account other evidence in the shape of charge-sheet filed by the Investigating Officer, in respect of the accidentBin question for accepting the factum that deceased had travelledin the tractor along with his goods to Holealur where he had goneto unload the foodgrains of Maize loaded on the tractor belongingto respondent No.2, which was driven by employee of respondentNo.2 and while returning from Holealur, met with the accident.When cross-examined, PW-2 stated that on the date of accidentCthey had taken maize crop in the said tractor. Notably, the factthat the deceased had loaded his agricultural produce on thetractor and also accompanied the tractor for unloading the sameto Holealur and while returning met with an accident, has goneunchallenged. [Para 7] [604-B-C, H; 605-A]

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1.2 The High Court by a sweeping observation proceededto reverse the finding of fact recorded by the Tribunal. Theconclusion reached by the Tribunal is a possible view, which couldnot have been disturbed by the High Court in the appeal filed bythe insurer, much less in such a casual manner, as has been doneEby the High Court. [Para 9] [608-C-E]

1.3 The High Court based its conclusion that the insurercannot be saddled with the liability to satisfy the award, on thefinding that the deceased was not travelling along with his goodsat the time of accident. No more and no less. However, as theFsaid finding recorded by the High Court cannot be sustained, thefinding of the Tribunal on the factum that the deceased hadtravelled along with his goods is affirmed and restored. It wouldnecessarily follow that the insurer was not absolved of its liabilityto pay the compensation amount awarded to the claimants. TheTribunal had found, as of fact, that the insurance policy broughtGon record was a valid policy in respect of the offending tractor.Assuming that the insurance company was not liable to paycompensation amount awarded to the claimants as the offendingtractor was duly insured, the insurer would be still liable to paythe compensation amount in the first instance with liberty to H

SHIVAWWA v. THE BRANCH MANAGER, NATIONAL INDIAINSURANCE CO. LTD.

recover the same from the owner of the vehicle owner(respondent No.2). However, in the facts of the present case,consequent to affirmation and restoration of the finding of factrecorded by the Tribunal regarding the factum that deceased hadtravelled along with his goods at the time of accident, the insurerwould be obliged to satisfy the compensation amount awarded tothe claimants. [Paras 10, 11 and 12] [608-F-H; 609-A-B; 610-G]

National Insurance Co. v. Swarn Singh and Ors. (2004)3 SCC 297 – relied on.

Case Law Reference

(2004) 3 SCC 297relied onPara 11

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2247of 2018.

From the Judgment and Order dated 09.07.2015 of the High Courtof Karnataka, Dharwad Bench in M. F. A. No. 4401 of 2008(MV).

Sharanagouda Patil, Ms. Supreeta Sharanagouda, Advs. for theAppellants.

Ms. Meenakshi Midha, Kapil Midha, Bhavya Lakhwara, ChanderShekhar Ashri, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. This appeal emanates from thethjudgment of the High Court of Karnataka dated 9 July, 2015 in M.F.A.No.4401/2008 (MV) which had allowed the appeal filed by respondentNo.1 (Insurance Company) and set aside the award of the Motor AccidentClaims Tribunal (for short “the Tribunal”) granting compensation to theappellants.

2. A claim petition was filed in reference to the death of oneChanabasayya Sidramayya Hiremath, son of appellant No.1 and brotherrdof appellant No.2 herein. On 23 January, 2001, the deceased wasreturning, after unloading food-grains, on tractor-trailer bearing No. KA-29/T-1651/T-1652 belonging to respondent No.2, and being driven by anemployee of respondent No.2, one Mallikarjuna Beemappa Ganiger. Ataround 1.00 AM, it is alleged that owing to the rash and negligent drivingof the said Mallikarjuna Beemappa Ganiger, the deceased fell off the

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Atractor-trailer and suffered fatal injuries. A claim petition under Section166 of the Motor Vehicles Act, 1988 was subsequently filed before theTribunal, Bagalkot, by the legal representatives of the deceased seekingcompensation of Rs. 8 lakh from respondent No.1 - insurance company,respondent No.2 - owner and the driver, Mallikarjuna Beemappa Ganiger.After considering the facts and evidence on record, the Tribunal rejectedBthe respondents’ contention that the deceased had himself been negligentby standing on a tractor hook which connected the tractor and the trailerand concluded that the accident had occurred due to the negligence ofthe driver of the motor vehicle. The Tribunal, thus, passed an awardagainst the respondents, jointly and severally, to compensate the familyCmembers of the deceased with a sum of Rs.3,20,000/- (Rupees threelakh twenty thousand only) with interest at the rate of 6% per annum,from 3.7.2001 to 29.4.2003 and from 11.7.2007 till date of realisation ofthe award amount.

3. Aggrieved, respondent No.1 insurance company assailed theDTribunal’s award before the High Court of Karnataka, contending thatthe deceased had not travelled along with his goods in the tractor-trailerand therefore, it could not be made liable to pay any compensation. TheHigh Court found merit in the contention raised by respondent No.1, thatthe deceased was not travelling along with his goods at the time of theaccident and thus held that respondent No.1 insurance company couldEnot be saddled with any liability in that regard.

4. The appellants have challenged the impugned judgmentincluding on the ground that the High Court failed to appreciate theevidence on record and the fact that the deceased was the sole earningmember of the family without whom, the family had no other source ofFincome. The appellants also submit that the quantum of compensationawarded by the Tribunal was meager and unjustifiable and therefore,also seek enhancement of the Tribunal’s award.

5. We have heard Mr. Sharanagouda Patil, learned counsel forthe appellants and Ms. Meenakshi Midha, learned counsel for theGrespondents. Be it noted, the driver of the offending vehicle has notbeen arrayed as a party either before the High Court or before thisCourt and the claim of the appellants is only against respondent No.1 -Insurance Company and the respondent No.2 – owner of the vehicle.

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6. The High Court has held that the insurer (respondent No.1)cannot be saddled with the liability to satisfy the award and on thatfinding, allowed the appeal preferred by respondent No.1. The reasonwhich weighed with the High Court for arriving at that conclusion, ascan be discerned from the impugned judgment, is based on the selectivereading of evidence of PW-2 (eye-witness) who had stated that thedeceased was standing on the hook connecting the tractor and trailerand the deceased fell down due to rash driving of the tractor, which ranover his head and chest. The High Court has also selectively adverted tothe evidence of PW-1, mother of the deceased and opined that even herevidence was to the same effect. Additionally, she has stated that thedeceased was studying in B.A. and running a Pan-Beedi shop. After sonoting, the High Court jumped to a conclusion that a combined readingof the evidence of these witnesses leads to an inference that the victimwas not travelling with his goods at the time of accident which occurredat about 01.00 Hours in the night. On recording this opinion, the HighCourt absolved the insurer. The analysis by the High Court is in thefollowing words:

“6. Per contra, learned counsel for the respondents strongly relieson the evidence of P.W.2 and contends that P.W.2 is an eyewitnessand deposed before the Court that while returning from Holealur,the driver of the tractor was driving the vehicle in a rash andnegligent manner and caused the accident in which the deceaseddied on the spot. Ex. P-1 is the complaint given by the father ofthe deceased. It is stated therein that on 22.01.2001 his son hadgone to Holealur in the tractor belonging to respondent No.1 andndwhile returning at about 01:00 hours in the night intervening 22rdand 23 January, 2001 has son sustained fatal injuries in theaccident. It is also clearly stated therein that the deceased wasstanding in the hook which connects tractor to the trailer and thevictim fell down due to rash driving and the tractor ran over hishead and the chest. The evidence of P.W.1, mother is also to thesame effect. She has also stated in her evidence that the deceasedwas studying in B.A. and running a Pan Beedi shop.

7. A combined reading of all witnesses leads to an inference thatthe victim was not travelling with his goods at the time of accident.The accident has occurred at about 00:01 hours in the night. Inthe circumstances, the insurer cannot be saddled with the liability A

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Ato satisfy the award. The appeal merits consideration andaccordingly allowed.”

7. On the other hand, a perusal of the judgment of the Tribunalreveals that the Tribunal had analysed the evidence of PW-2 and PW-1in its entirety and also took into account other evidence in the shape ofBcharge-sheet filed by the Investigating Officer, in respect of Crime No.12/2001 registered in respect of the accident in question for accepting thefactum that deceased had travelled in the tractor along with his goods toHolealur where he had gone to unload the foodgrains of Maize loadedon the tractor belonging to respondent No.2, which was driven byMallikarjuna Beemappa Ganiger and while returning from Holealur, metCwith the accident. In her examination-in-chief, PW-1 deposed as follows:

“On the fatal day of accident i.e., on 23.01.2001 in the evening atabout 5:00 p.m., my son deceased Chanabasayya gone to Hole-Alur for unloading the foodgrains in Commission Agent shop forsale of the same in a TT Unit bearing No.KA, 29/T-1651 T-1652Dbelongs to Basanagouda Hireniganagoudar, after unloading thefoodgrains belongs to us while returning to the village by my sonin the said TT unit the driver of the said T.T. unit was driving thevehicle in rash and Regulations and caused the accident nearHeballi village at anappana halls (stream) due to this negligentEdriving of the driver, my son fell down from the T.T. unit and thesaid vehicle passed on the head of my and due to gracious injuriesto head my son was succumbed on the spot, and P.M. wasconducted at Govt. Hospital Badami.”

PW-2 in his examination-in-chief stated as follows:F

“On 23.11.2001 Lt. chanabasayya and myself together wentto Rone in the tractor of Basanagouda Hireninganagouder byloading the maize in the said tractor and while returning back nearour city near Ganapan village the driver of the tractor drove atractor in very rash and negligent manner and in a high speedGendangering the human life and injured Lt. Chanabasayya and hedied on the spot. I have witnessed the said accident. Like meothers were also in the tractor.”

When cross-examined, PW-2 stated that on the date of accident theyhad taken maize crop in the said tractor. Notably, the fact that thedeceased had loaded his agricultural produce on the tractor and alsoH

accompanied the tractor for unloading the same to Holealur and whilereturning met with an accident, has gone unchallenged.

8. In light of the entire evidence, the Tribunal found thus:

“7. …..This fact has been denied by respondent no.3 and as suchthe burden of proving of issue No.1 is on the petitioner and inorder to prove issue No.1 second petitioner is examined as PW-1who has filed her affidavit evidence and PW-1 deposed in herevidence regarding the accident caused to her son deceasedChanabasayya on 23.1.2001 involved with tractor and trailerbelongs to respondent no.1 driven by respondent no.2 on the dateof accident. Through counsel for respondent no.3 cross examinedPW-1, but PW-1 has not given admissions in order to discard herevidence. Even PW-1 has denied the suggestion that deceasedwas standing on a hook portion in the tractor trailer which connectsthe tractor Engine and trailer portion of the vehicle and travellingon that day, but PW-1 has denied this suggestion. In order to provethe accident an independent witness PW-2 is examined by thepetitioner wherein this witness has also filed affidavit evidenceand stated regarding the accident caused to deceasedChanabasayya on 23.1.2001 involved with tractor and trailer unitbelongs to respondent no.1. This witness is also cross-examinedby counsel for respondent no.3, but nothing is elicited to discardthe evidence of PW-2. The petitioners have relied upon policedocuments, which are marked through PW-1 as per Exp-1 to Ex.P-5. ExP-1 is the true copy of FIR registered before Badami P.S inCrime No.12/2001 as per the complaint filed by first petitioner i.e,father of the deceased u/sec.279 and 304 (A) of IPC. The Copyof complaint is also annexed to the FIR wherein petitioner no.1has filed this complaint before the Badami P.S. on 23.1.2001 againstthe driver of T.T. Unit. ExP-2 is the charge sheet filed by the I.O.against respondent no.2, driver of the T.T. unit before JMFCBadami wherein a criminal case bearing C.C.No.314 of 2001 wasregistered against driver of T.T. unit for the offence punishableu/Secs. 279 and 304 (A) of IPC. Ex.P3 is the spot mahazar andcontents of Ex.P-3 clearly proves the spot and accident and alsoit corroborated with spot of accident as relief by the petitioners intheir claim petitioner. ExP-4 is the IMV report filed by the MotorVehicle Inspector after examination of T.T. unit involved in the A

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accident and this document proves that accident in question didnot cause due to any mechanical defect in the vehicle. ExP-5 isthe post mortem examination report of the deceased Chanabasayyaconducted by M.O. Community Health Center at Badami and asper P.M. report the death had occurred due to head injuries andalso damage to the vital organs of brain of the deceased.”

The Tribunal also considered the plea taken by the insurer(respondent No.1) which was sought to be established through evidenceof its officer working as an administrative officer, in the following words:

“8. Respondent No.3 has examined its officer who is working asAdministrative officer in the office of respondent no.3 and thiswitness has filed affidavit evidence accepted u/0 18 rule 4 ofCPC wherein RW-1 stated that, deceased Chanabasayya died ashe was standing on a hook portion of Tractor Trailer and died dueto his negligence on the date of accident. But in support of thiscontention RW-1 has not produced any rebuttal documents to thatof Ex.P-1 to Ex.P-5. However, RW-1 in his cross examinationclearly admitted that in the complaint marked at Ex.P-1 it is notrecited with deceased obtained T.T. unit from respondent no.1 onhire basis and RW-1 has denied the suggestion made to him duringcross examination that he is deposing false evidence regardingdeceased was standing on a tractor hook which connects theengine and trailer portion. After considering the evidence of RW-1 though respondent no.3 in its petition filed to the claim petitionand also RW-1 in his oral evidence stated that the accident hadoccurred due to the gross negligence of deceased himself, but tosupport this contention there is no cogent and oral evidence nordocumentary evidence placed on record by the respondent no.3.On the contrary, there is evidence of PW-1 and 2 and also Ex.P-1 to Ex.P-5 which are the documents obtained from C.C. filewherein as per the complaint filed by the petitioner No.1, a crimewas registered against the accused i.e., driver of T.T. unit andI.O. after due investigation has filed charge sheet againstrespondent no.2 who was driver of the T.T. unit on the date ofaccident and hence there documents are not denied by therespondent no.3. on the contrary, Ex.P-1 to Ex.P-5 clearly establishthat the accident in question was occurred due to actionablenegligence of driver of T.T. unit wherein respondent No.2 was driving the said tractor and trailer on 23.1.2001 and caused accidentat 1.00 a.m. near Ganappan Halla just 1.00 k.m. away fromHebballi village on Cholchagudda-Govankoppa PWD road andthe gross negligence of driver caused the death of Chanabasayyawho succumbed to injuries and died on the spot as he was travellingin the said T.T. unit on that day and hence the negligence is clearlyattributed on the part of driver of T.T. unit and death ofChanabasayya was the proximate cause of road traffic accidentwhich comes under the preview of Sec. 166 of M.V. Act and thispositive evidence lead by the petitioners is proved by thedocumentary evidence, but the contention of respondent no.3 hasto be rejected and also there is no cogent evidence to hold that thedeath of Chanabasayya was due to his own negligence. Hence,after appreciation of evidence of PW-1 and 2 and RW-1 and byperusal of Ex.P-1 to Ex.P-51 I hold that, the petitioners have proveissue No.1 as against respondent no.1 to 3. Accordingly, issuedno.1 is answered in affirmative.”

And again in paragraph 11, on the issue of entitlement of compensationit noted thus:-

“…The petitioners claimed compensation from respondent No.1to 3 jointly and severally wherein respondent No.1 is owner ofoffending vehicle respondent No.2 driver of vehicle and respondentNo.3 is the insurer, but RW-1 representing insurance companyhas given evidence denying its liability contending that, there isbreach of policy conditions particularly there is violation ofcondition clause “A” of Ex.R-1 wherein deceased had hired thevehicle of respondent No.1 in order to load maize corns to dumpat hole Alur in Commission Agent shop. In the evidence of RW-1insurance cover note is produced and it is marked at Exhp-1. Thecontention of respondent No.3 is rejected by this Tribunal regardingthe defence taken that death of Chanabasayya was due to hisgross negligence. On perusal of Ex. R1 it is valid policy obtainedfrom respondent No.1 over his T.T. unit wherein policy periodcommences from 12.2.2000 to 11.2.2001. In view of admission ofRW-1 in cross examination wherein RW-1 admitted in his crossreads as follows:- “…..On the contrary, the deceased had went to dump maizecorns belongs to them in the vehicle owned by respondent No.1.

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AHence, the contention of respondent No.3 that vehicle and its usewas for hire and reward is not proved by any cogent evidence onrecord. On the contrary, the offending vehicle T.T. unit was usedfor carrying foodgrains to each the sale point i.e., CommissionAgent shop at Hole-Alur which an agricultural produce ofpetitioners family carried called Tractor- Trailer. Therefore thisBdecision relied by the petitioners is aptly applicable wherein theuse of vehicle is for agricultural purpose and not for any othercommercial purpose. Once it is held use of vehicle by the deceasedfor agricultural purpose then question of violating any policyconditions by respondent No.1 will not arise…..”

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9. As mentioned earlier, the High Court by a sweeping observationproceeded to reverse the finding of fact recorded by the Tribunal.Whereas, the Tribunal had duly considered the evidence of PW-1, PW-2 and the material accompanying the charge-sheet filed in respect ofCrime No.12/2001 as also the plea taken by the insurer and the evidenceDof RW-1. In our opinion, the conclusion reached by the Tribunal is apossible view, which could not have been disturbed by the High Court inthe appeal filed by the insurer, much less in such a casual manner, as hasbeen done by the High Court.

10. Notably, the High Court has not even adverted to the otherEfindings recorded by the Tribunal as regards the manner in which accidentoccurred and, in particular, about the rash and negligent act of the driverof the tractor which had caused the accident resulting into the death ofChanabasayya on the spot due to grievous injuries suffered by him.The High Court has also not adverted to the finding recorded by theTribunal in respect of Issue Nos.2 and No.3 regarding the proof of age,Foccupation and income of the deceased and the quantum of just andreasonable compensation. The High Court based its conclusion that theinsurer cannot be saddled with the liability to satisfy the award, on thefinding that the deceased was not travelling along with his goods at thetime of accident. No more and no less. However, as the said findingGrecorded by the High Court cannot be sustained, the finding of the Tribunalon the factum that the deceased had travelled along with his goods willhave to be affirmed and restored. It would necessarily follow that theinsurer was not absolved of its liability to pay the compensation amountawarded to the claimants. We say so because the Tribunal has found, asof fact, that the insurance policy brought on record was a valid policy inH

respect of the offending tractor for the period commencing from12.02.2000 to 11.02.2001.

11. Assuming for the sake of argument that the insurance companywas not liable to pay compensation amount awarded to the claimants asthe offending tractor was duly insured, the insurer would be still liable topay the compensation amount in the first instance with liberty to recoverthe same from the owner of the vehicle owner (respondent No.2), inlight of the exposition in the case of National Insurance Co. Vs. SwarnSingh and Ors.[1]In paragraph 110 of the said decision, a three-JudgeBench of this Court observed thus:

“110. The summary of our findings to the various issues as raisedin these petitions are as follows:

(i) Chapter XI of the Motor Vehicles Act, 1988 providingcompulsory insurance of vehicles against third party risks is asocial welfare legislation to extend relief by compensation to victimsof accidents caused by use of motor vehicles. The provisions ofcompulsory insurance coverage of all vehicles are with thisparamount object and the provisions of the Act have to be sointerpreted as to effectuate the said object.

(ii) Insurer is entitled to raise a defence in a claim petition filedunder 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) xxx

(iv) The insurance companies are, however, with a view to avoidtheir liability must not only establish the available defence(s) raisedin the said proceedings but must also establish ‘breach’ on thepart of the owner of the vehicle; the burden of proof where forwould be on them.

(v) xxx(vi)xxx(vii)xxx(viii)xxx(ix)xxx

1 (2004) 3 SCC 297

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(x) Where on adjudication of the claim under the Act thetribunal arrives at a conclusion that the insurer hassatisfactorily proved its defence in accordance with theprovisions of Section 149(2) read with Sub-section (7), asinterpreted by this Court above, the Tribunal can directthat the insurer is liable to be reimbursed by the insuredfor the compensation and other amounts which it has beencompelled to pay to the third party under the award of thetribunal Such determination of claim by the Tribunal will beenforceable and the money found due to the insurer fromthe insured will be recoverable on a certificate issued bythe tribunal to the Collector in the same manner underSection 174 of the Act as arrears of land revenue. Thecertificate will be issued for the recovery as arrears of landrevenue only if, as required by Sub-section (3) of Section168 of the Act the insured fails to deposit the amountawarded in favour of the insurer within thirty days from thedate of announcement of the award by the tribunal.

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(xi) The provisions contained in Sub-section (4) with provisothereunder and Sub-section (5) which are intended to coverspecified contingencies mentioned therein to enable theinsurer to recover amount paid under the contract ofinsurance on behalf of the insured can be taken recourseof by the Tribunal and be extended to claims and defencesof insurer against insured by, relegating them to the remedybefore, regular court in cases where on given facts andcircumstances adjudication of their claims inter se mightdelay the adjudication of the claims of the victims.”

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(emphasis supplied)

12. However, in the facts of the present case, we have no hesitationin taking a view that consequent to affirmation and restoration of thefinding of fact recorded by the Tribunal regarding the factum of deceasedGhad travelled along with his goods at the time of accident, the insurerwould be obliged to satisfy the compensation amount awarded to theclaimants.

13. Reverting to the argument of the appellants that the Tribunalcommitted manifest error in computing the compensation amount, we H

find that the appellants (claimants) did not file an appeal for enhancementof compensation amount against that part of the award passed by theTribunal nor chose to file any cross-objection in the First Appeal filed bythe insurer before the High Court. Moreover, from the judgment of theHigh Court there is no indication that any attempt was made on behalfof the appellants to ask for enhanced compensation amount on thegrounds as would have been available to the appellants in that behalf.Significantly, in the present appeal also, the appellants have not askedfor any “relief” against that part of the award passed by the Tribunal,regarding the quantum of compensation. The relief claimed in this appealis only to set aside the decision of the High Court passed in the FirstAppeal preferred by the insurer. In this backdrop, it will not be appropriatefor this Court to consider the argument regarding the quantum ofcompensation at the instance of the appellants (claimants).

14. As a result, the appeal would succeed only to the extent ofsetting aside the impugned judgment of the High Court passed in theFirst Appeal filed by the insurer (respondent No.1) as prayed andstconsequently, by restoring the Award dated 21 January, 2008 passedby the Motor Accident Claims Tribunal, Badalkot. We order accordingly.

15. The appeal is allowed in the above terms with costs.

Divya Pandey

Appeal allowed.

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