Allahabad High Court
Smt. Rachna Kesarwani vs State Of U.P. And Others on 15 May, 2013
Author: Manoj Kumar Gupta
Bench: Prakash Krishna, Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 32 Case :- WRIT TAX No. - 1233 of 2011 Petitioner :- Smt. Rachna Kesarwani Respondent :- State Of U.P. And Others Petitioner Counsel :- Rishi Raj Kapoor Respondent Counsel :- C.S.C., Arvind Kumar, Nagendra Kumar Srivastava Hon'ble Prakash Krishna,J.
Hon'ble Manoj Kumar Gupta,J.
(delivered by Manoj Kumar Gupta, J.)
1. Smt. Rachna Kesarwani, petitioner herein is the widow and legal representative of Amit Kumar Kesarwani, who died on 4th June, 2009 in an accident. He was a registered dealer under the U.P. Trade Tax Act, 1948 (hereinafter referred as ''the erstwhile Act') since 3rd February, 2005. After introduction of U.P. Value Added Act, 2008 (hereinafter referred as ''U.P. VAT Act, 2008'), he filed applications dated 12th February, 2008 in Form VII and VIII purporting to be under section 17(5) of the U.P. VAT Act, 2008 for validation of registration certificate issued under the erstwhile Act. It appears that the aforesaid applications were accompanied by requisite fees and other documents. However, no formal order was passed by the registering authority on the aforesaid applications.
2. It seems that the State Government had floated a scheme of Group Insurance for all registered dealers by the name of Traders Accident Insurance Scheme. For the period 12th November, 2008 to 11 November, 2009, United India Assurance Co. Ltd. was appointed as the insurer liable to settle claims under the Group Insurance Scheme. The Additional Commissioner (Accounts), Trade Tax, Uttar Pradesh vide letter dated 25th November, 2008 circulated information in this regard to all Joint Commissioners. Paragraph 3 of the said letter contains the salient features of the Insurance Scheme some of which relevant for the purpose of the instant case are reproduced below :-
(i) okf.kT;dj foHkkx mRrj izns'k 20 tksUl esa foHkDr gS] ftlds vUrxZr dqy 45 lEHkkx gSaA bu 45 lEHkkxksa ds TokbUV dfe'uj ¼dk;Z0½ okf.kT;dj ds ikl vius lEHkkx esa iathd`r O;kikfj;ksa dh foLr`r lwpuk miyC/k gS ftls chek dEiuh }kjk vius Lrj ls] vko';drkuqlkj] izR;sd lEHkkx ls izkIr fd;k tk ldrk gSA lEcfU/kr foRrh; o"kZ esa lEHkkxokj u;s iathd`r O;kikfj;ksa ,oa iathdj.k fujLr fd;s x;s O;kikfj;ksa ls lEcfU/kr lwpuk Hkh izR;sd lEHkkx ds TokbUV dfe'uj ¼dk;Z0½ okf.kT;dj ls chek dEiuh }kjk izkIr dh tk ldrh gS A
(ii) iathd`r O;kikfj;ksa dh nq?kZVuk ls e`R;q gksus dh n'kk esa chek dEiuh }kjk lEHkkxh; TokbUV dfe'uj ¼dk;Z0½ okf.kT;dj dh laLrqfr ij izFker% iz'uxr chfer /kujkf'k :0 4]00]000&00 ¼:0 pkj yk[k ek=½ ,oa vU; YkkHk] ;fn dksbZ gS] thfor fof/kd fookfgrk iRuh@ifr dks miyC/k djkbZ tk;sxh vkSj ;fn nks ;k nks ls vf/kd fof/kd ifRu;ka thfor gSa rks chfer /kujkf'k cjkcj cjkcj lHkh fof/kd ifRu;ksa eas ckWVh tk;sxh A thfor iRuh@ ifr u gksus dh n'kk esa lEcfU/kr O;kikjh }kjk e`R;q ls iwoZ bl chek ds lEcU/k es fd;s x;s ukfeus'ku rFkk ukfeus'ku ds vHkko es l{ke U;k;ky; ds mRrjkf/kdkj izek.ki= ds vk/kkj ij lEHkkxh; TokbUV dfe'uj ¼dk;Zikyd½ dh laLrqfr ij chfer /kujkf'k dk Hkqxrku chek dEiuh }kjk fd;k tk;sxkA
(iii) izR;sd iathd`r O;kikjh] tks fnukad 12&11&2008 dks iathd`r Fkk rFkk nq?kZVuk dh frfFk rd iathd`r cuk jgk vFkok mDr chek vof/k ds nkSjku nq?kZVuk dh frfFk ls iwoZ iathd`r gqvk ,oa nq?kZVuk dh frfFk rd iathd`r cuk jgk] Lor% vkPNkfnr ekuk tk;sxk
3. It appears that Anil Kumar Kesarwani, husband of the petitioner died in a road accident on 4th June, 2009 and thereafter the petitioner being his widow and legal representative moved an application for insurance claim on 7th October, 2009. She also filed an application before the respondent no. 3, for cancellation of registration under U.P. VAT Act, 2008 w.e.f. 4th June, 2009.
4. The department, taking into consideration the application filed by late Anil Kumar Kesarwani for validation of the registration certificate issued under the erstwhile Act,and the application for the grant of new registration after expiry of the said period, proceeded to issue a certificate of registration in Form XI validating the registration certificate under the erstwhile Act w.e.f. 26th January, 2005 till 4th June, 2009, when business was discontinued on account of death of Anil Kumar Kesarwani. However, the Insurance Co. after considering the claim for insurance filed by the petitioner refused to honour the same and the decision of the Insurance Co. was communicated to the petitioner by Dy. Commissioner, Trade Tax, Division-13, Allahabad vide letter dated 23rd June, 2011. The aforesaid letter states that the Insurance Co. has refused to honour the claim for insurance of the petitioner on two grounds :-
(a) The registration of the petitioner in Form XI has been granted 15 months after death of Anil Kumar Kesarwani.
(b) The biometric of Anil Kumar Kesarwani has not been carried out.
5. Aggrieved by the decision of the Insurance Co. refusing to honour the claim for insurance and as communicated to the petitioner by the Dy. Commissioner, Trade Tax, Division-13, Allahabad vide letter dated 23rd June, 2011, the petitioner has come before this Court challenging the said order and praying for further relief of mandamus directing the Insurance Co. to honour the insurance claim of the petitioner.
6. Shri Rishi Raj Kapoor, learned counsel for the petitioner contended that the reasonings given by the Insurance Co. for refusing the insurance claim are manifestly illegal. He submits that since Anil Kumar Kesarwani was a registered dealer under the erstwhile Act and therefore, upon his filing application in Form VII, after depositing requisite renewal fee, he will be deemed to be a registered dealer by virtue of section 17(3) and 17(5) of the Act. He further submits that in any case, the registering authority having granted registration certificate, the same is final and conclusive in so far as the Insurance Co. is concerned and it cannot challenge its validity on any ground whatsoever. He further submitted that under the old Act, there is no requirement for the registered dealer to get his biometric done and since under the new Act, Anil Kumar Kesarwani will be deemed to be a registered dealer and therefore, there is no requirement for such exercise being held. He further submits that the requirement of obtaining biometric is an obligation of Trade Tax department and Anil Kumar Kesarwani cannot be held liable for the same nor claim for insurance can be declined on the said ground.
7. A counter affidavit has been filed in the instant writ petition on behalf of respondent nos. 1 and 3 in which they have supported the case of the petitioner by stating that the registration certificate issued on 18th September, 2010 to the petitioner was valid for the period 26th January, 2005 to 4th June, 2009 and it was incumbent upon the Insurance Co. to have acted on basis thereof while settling the insurance claim of the petitioner. The real opposition to the writ petition is by the Insurance Co. which has filed a separate counter affidavit. It has opposed the writ petition primarily on the following grounds :-
(a) There is no justification for granting registration certificate to Anil Kumar Kesarwani on 18th September, 2010 which is two years and seven months from the date of the application and 15 months from the date of his death.
(b) Registration certificate has been issued without obtaining biometrics data of Anil Kumar Kesarwani and therefore, it cannot be treated to be a valid registration in the eyes of law.
(c) The order of the Insurance Co. dated 30th March, 2011 filed as Annexure CA-1, whereby the claim of the petitioner was declined by the insurance company having not been challenged, the petitioner is not entitled to any relief.
Apart from the said contentions, Sri Nagendra Kumar Srivastava, advocate appearing for the Insurance Co. also vehemently contended that the writ petition is essentially for enforcement of the insurance contract and, is therefore, not maintainable; the petitioner should approach the civil court. In support of his aforesaid contention, he placed reliance on the case of Life Insurance Corporation of India vs. Smt. Asha Goel reported in 2001 (1) ACJ 349 and Sechan Prasad vs. Regional Manager, LIC of India N.R. Zone Kanpur and others reported in 2003 ACJ 1504.
8. We have considered the rival submissions of the learned counsel for the parties and have examined the record.
9. Admittedly, Anil Kumar Kesarwani (deceased) was a registered dealer under U.P. Trade Tax Act, 1948 (erstwhile Act). Under the erstwhile Act, the registration of dealers was regulated by the provision of section 8-A(1-A). Relevant provision in this regard is reproduced below :-
Section 8-A(1-A) (a) (i) The assessing authority may, after such enquiry as it considers necessary and subject to the provisions of Section 8-C and such other conditions as may be prescribed in this behalf, allow the application and cause the dealer to be registered.
(ii) The registration shall subject to the provisions of this Act and the Rules made thereunder, take effect from the date on which the dealer becomes liable to registration in case he applies for registration within the period prescribed under sub-section (1), and, in any other case, from the date on which he applies for registration:
Provided that if the dealer makes an application for registration after the expiration of the period prescribed and deposits in addition to the fee specified in sub-section (1), a late fee of [fifty rupees] for every month of the delay or part thereof,[the assessing authority] may, on being satisfied that there were sufficient reasons for the delay in applying for registration and after recording reasons thereof in writing, direct that the certificate of registration, if issued shall take effect from the date on which the dealer became liable to registration under sub-section (1);
(b) The registration granted to a dealer shall remains in force so long as the dealer continues to be liable to registration under this Act and deposits a fee of [one hundred rupees] in the prescribed manner and before the commencement of the assessment year to which the fee relates, failing which the certificate of registration shall cease to remain in force:
Provided that if the dealer deposits such fee after the commencement of the assessment year to which the fee relates together with a late fee of [fifty rupees] for every month of delay or part thereof, [the assessing authority] may, on being satisfied that there were sufficient reasons for the delay in depositing the fee in time and after recording his reasons therefor in writing, direct the certificate of registration shall be deemed to have remained in force as if no delay had occurred in depositing the fee:
Provided further that the registration granted to a dealer shall remain in force so long as the dealer continues to be liable to registration under the Act, if the dealer deposits an amount of [one thousand rupees] in lump sum as renewal fee in the prescribed manner before the renewal of registration becomes due and the provisions of the preceding proviso shall apply mutatis mutandis, to such lump sum deposit as it applies to deposit for annual renewal.
Rule 54 and 55 of the Rules framed under the erstwhile Act provides for the formalities which are to be fulfilled while making application for registration and which were to the following effect :-
54. Application for registration.--(1) An application by a dealer for registration under sub-section (1) of Section 8-A shall be made to the Trade Tax Officer in Form XIV. The application shall be accompanied by a copies of passport size photographs of the proprietor, or of each adult male partner of the firm, or of each adult male co-partner of the Hindu undivided family, as the case may be, duly attested by a lawyer or a Gazetted Officer, and shall be under the signature of -
(a) the proprietor or a partner, in the case of a firm ; or
(b) the Karta, in the case of a Hindu Undivided Family: or
(c) the Managing Director or any person authorised by the Board of Directors, in the case of a Limited Company; or
(d) the President or the Secretary, in the case of a Society or Club or Association; or
(e) the Head of the Office or any other Officer duly authorised by him, in the case of a Department of a State Government or the Central Government; or
(f) in any case, by the dealer himself or by the Principal Officer or any other officer, duly authorised by him, of the authority or body, as the case may be.
(2) Each application shall be accompanied by satisfactory proof of deposit of fee and penalty specified in this Act, where payable.
(3) An application for registration shall be made within thirty days of the date on which a dealer becomes liable to registration.
(4) The information regarding change of business under Section 8-BB shall be furnished in the manner prescribed in sub-rule (1).
55. Grant of registration certificate - (1) If the Trade Tax Officer is satisfied that the application is in order, the information furnished is correct and complete and the fee and the penalty, where payable, under Section 8-A has been deposited, he may, unless he considers it necessary to demand security under Section 8-C, register the dealer and grant to him a certification of registration in Form XV.
10. A perusal of the aforesaid provisions will show that under the erstwhile Act, there was no requirement of obtaining biometric data of a registered dealer. The erstwhile Act was repealed by U.P. VAT Act, 2008. It provided for introducing value added system of taxation for levy and collection of tax on sale or purchase of goods in the State of U.P. and for matters connected therefor and incidental thereto. Section 3 of the said Act provides for the incidence and levy of tax and stipulates that every dealer shall be liable to pay tax under this Act for each assessment year on his taxable turnover of sale or purchase or both, as the case may be, of taxable goods, on such rates and on such point of sale or purchase provided under section 4 or section 5. Section 17 of the U.P. VAT Act, provides for the manner in which dealers are to be registered thereunder. Relevant portion of section 17 is reproduced below :-
Section 17. Registration of Dealers (1) Every dealer liable to pay tax under this Act shall obtain registration certificate issued by the prescribed registering authority in the prescribed form.
(2) Except as provided under sub-sections (3), (4) and (5), every dealer liable to pay tax shall, for issue of registration certificate, apply to the registering authority within a period of thirty days from the date on which such dealer has become so liable, in the prescribed form and manner along with proof of deposit of registration fee of one hundred rupees:
PROVIDED that a dealer who fails to apply for issue of registration certificate within the time prescribed, without prejudice to any other liability under this Act, may apply after depositing late fee at the rate of rupees one hundred for every month or part thereof for the period of delay.
(3) Subject to the provisions of sub-section (5), every dealer who has held immediately before the commencement of this Act, a registration certificate or a provisional registration certificate issued under the erstwhile Act and is liable to pay tax under this Act under this Act from January 1, 2008, shall be deemed a registered dealer with effect from January 1, 2008:
PROVIDED that where a dealer was required to pay any fee for renewal of the registration certificate under the provisions of the erstwhile Act, if the same has not been paid, the registration certificate shall not be deemed valid unless such dealer deposits renewal fee along with late fee of one hundred rupees within a period of thirty days from January 1, 2008.
(4) ----------------------
(5) (a) Every dealer who holds a valid registration certificate issued under the erstwhile Act and is liable to tax under this Act, shall submit to the registering authority or the assessing authority, as the case may be, an application in the prescribed form and in the prescribed manner, for issue of registration certificate by such authority relating to validity of such certificate, under this Act, within a period of fifteen months from January 1, 2008: ......................................
(b) If a dealer who holds the registration certificate issued under erstwhile Act, fails to submit the application to the assessing authority or registering authority for validation and issue of registration certificate under this Act, within the period referred to in clause (a) in prescribed form and manner, the registration certificate shall cease to have effect.
(6) -------------------------------
(7) Where the registering authority is satisfied that -
(a) the application for issue of registration certificate is in order;
(b) the information furnished is correct and complete; and
(c) any requisite fee has been deposited and security where needed is furnished, the registering authority may, after making such inquiry as it may deem necessary, cause the dealer to be registered and issue registration certificate in the prescribed form and prescribed time.
(8) ----------------------------
(9) Subject to the provisions of sub-section (5), the registration certificate issued under the erstwhile Act and validly held under this Act shall be valid with effect from the date of commencement of this Act.
(10) Subject to provisions of sub-section (5), every registration certificate shall remain in force till the date of discontinuance of business.
(Emphasis Supplied)
11. Rules framed under the Act provides that an application for registration of a new dealer shall be made in Form VII, while application referred to in sub-section (5) of section 17 shall be filed in Form VIII. Relevant portion of Rule 32 is reproduced below :-
Rule 32 Registration of Dealers-
(1) For the purpose of obtaining registration certificate under the Act, the dealer shall present application in Form VII-G in case of Government Department and in Form VII in other case, as the case may be, completed in all respects before the Registering Authority of the Circle in which principal place of his business is situated.
(2) Each registration application shall be accompanied by satisfactory proof of deposit of the fee along with late fee, if any, and penalty specified in the Act, where payable and certified copy of any one of the following:
(a) Electoral Identity Card issued by Election Commission of India;
(b) PAN Card issued by Income Tax Department, Government of India;
(c) Passport;
(d) Bank Passbook PROVIDED that the registering authority shall not accept incomplete application for registration.
(3) Application, for endorsement, referred to in sub-section (5) of section 17, on the certificate of registration issued under the Uttar Pradesh Trade Tax Act, 1948, shall be presented by the dealer before the registering authority within 60 days from the date of commencement of the Act in Form VIII along with annexures completed in all respects.
(4) ---------------------------------
(5) --------------------------------
PROVIDED that every dealer referred to in sub-rule(3), (4) and (5) of this rule shall also submit form VII or VII-G, as the case may be, completed in all respects, along with the application.
(6) --------------------------
(7) Every application for registration received under sub-rule (1) shall be disposed of in the manner provided in section 17 in following schedule of time:
(a) Biometric data and verification from original documents - one week;
(b) Site inspection and digital photograph of premises - one week;
(c) Processing of security, if required - 10 days;
(d) Issue of TIN -six days.
(8) If the registering authority after such enquiry as he may think fit, is satisfied that application is in order and information and documents submitted are correct and genuine, he shall cause the dealer to be registered with effect from the date of receipt of registration application...........
(9) ---------------------------------
(10) Certificate of registration shall be issued by the Registering Authority in Form XI.
Rule 32 was subsequently substituted by the Uttar Pradesh Value Added Tax (Second Amendment) Rules, 2010 w.e.f. 4th February, 2010. The amended rules is as follows :-
"(1) For the purpose of obtaining registration certificate under the Act, the dealer shall present application in Form VII-G in case of Government Department and in Form VII in other cases, as the case may be, completed in all respects before the Registering Authority of the Circle in which principal place of his business is situated.
(2) Each registration application shall be accompanied by satisfactory proof of deposit of the fee along with the late fee, if any, and penalty specified in the Act, where payable and certified copy of any two of the following :
(a) Electoral Identity Card issued by Election Commission of India;
(b) PAN Card issued by Income Tax Department, Government of India;
(c) Passport;
(d) Bank Passbook PROVIDED that the registering authority shall not accept incomplete application for registration.
(3) Application, referred to in sub-section (5) of section 17 shall be presented by the dealer before the registering authority in Form VIII along with annexure completed in all respect.
(4) ------------------------------ (5) ------------------------------ (6) ------------------------------
(7) Every application for registration received under sub-rule(1) shall be disposed of in the manner provided in section 17 in following schedule of time :
(a) Biometric data and verification from original documents - one week;
(b) Site inspection and digital photograph of premises - one week.
(c) Processing of security, if required - 10 days;
(d) Issue of TIN - six days.
(8) If the registering authority, after such enquiry as he may think fit, is satisfied that application is in order and information and documents submitted are correct and genuine, he shall cause the dealer to be registered with effect from the date of receipt of registration application:--------------------------
(9) ------------------
(10) Certificate of registration shall be issued by the Registering Authority in Form XI
12. Perusal of the scheme of U.P. VAT Act, shows that all the dealers who were registered under the erstwhile Act and are liable to pay tax under the new Act, were deemed to be registered dealers w.e.f. 1st January, 2008 subject to compliance of the provisions or sub-section (5) of section 17. Sub-section(5) requires the dealer holding a valid registration certificate under the erstwhile Act and liable to pay tax under the new Act to submit application in the prescribed form for an endorsement being made validating the registration. Rule 32 as it stood prior to its amendment by U.P. Value Added Tax (Second Amendment) Rules, 2010 requires application for endorsement on the certificate of registration to be filed before the Registering Authority within 60 days from the date of commencement of the Act in Form VIII alongwith annexures complete in all respect. In case such application is filed within the stipulated time alongwith requisite document then by virtue of sub-section (3) of section 17, a dealer under the erstwhile Act shall be deemed to be a registered dealer under the new Act.
13. In the instant case, admittedly, Anil Kumar Kesarwani was a registered dealer under the erstwhile Act. Perusal of the registration certificate granted to him in Form XV under the old Act will show that it became effective on 26th January, 2005 and was valid up-till 2nd July, 2008. It is also not disputed that Anil Kumar Kesarwani on enforcement of the new Act had duly filed application in Form VIII within the prescribed time and which is Annexure 1 to the writ petition. Thus, by virtue of section 17(3), he shall be deemed to be a registered dealer w.e.f. 1st January, 2008, under the new Act.
14. Anil Kumar Kesarwani, alongwith Form VIII also filed application in Form VII alongwith requisite fee of Rs.100/- for grant of registration for the subsequent period. It appears that though the aforesaid application was complete in all respect but it remained pending with the department and formal order for registration was not passed. It further appears that in the meantime, Anil Kumar Kesarwani died on 4th June, 2009 in a car accident and thereafter when his widow, petitioner herein, made insurance claim on 7th October, 2010, the respondent department woke up and issued a registration certificate on 18th September, 2010 in Form XI which was made valid w.e.f. 26th January, 2005 till 4th June, 2009. Evidently, the registration certificate in Form XI was made valid from 26th January, 2005 in view of registration of Anil Kumar Kesarwani, under the old Act .
15. The question which arises for consideration is whether the registration certificate granted by the Registering Authority on 18th September, 2009 stands vitiated or can be ignored by the Insurance Co. for declining the claim of the petitioner.
16. Once the registration certificate is granted by the Registering Authority, it relates back to the date of enforcement of U.P. VAT Act, 2008, in view of specific provision contained in section 17(9). Consequently, Anil Kumar Kesarwani, the deceased, was a registered dealer on the date of enforcement of the U.P. VAT Act, 2008, till his death on 4-6-2009. There is no provision under the Act or under the scheme of Insurance whereby the insurer can be permitted to challenge the registration certificate granted by the Registering Authority to a dealer. Question of grant of registration certificate and satisfaction regarding fulfilment of requirements under the Act is a matter between the dealer and the Registering Authority and the insurer has no right to question the wisdom of the Registering Authority. There is also no prohibition under the Act for grant of formal registration certificate to a dealer posthumously. Rather it was the necessity in law, as Anil Kumar Kesarwani who was a registered dealer under the erstwhile Act and was liable to pay tax under the new Act, was under statutory obligation to apply for being registered under the Act and reciprocal duty being cast upon the Registering Authority to grant such certificate to him. This is essential for realisation of tax from him under the new Act. Thus, even otherwise, there was no illegality in the action of the Registering Authority in registering Anil Kumar Kesarwani by granting registration certificate dated 18th September, 2010. As such, the first objection by the Insurance Co. that the registration certificate having been granted 15 month after the death of Anil Kumar Kesarwani is invalid, cannot be sustained.
17. The other limb of the argument of the counsel for the Insurance Co. is that registration is invalid for non-availability of the biometric data of Anil Kumar Kesarwani.
18. A bare perusal of provision of erstwhile Act and the new Act will show that the requirement of obtaining biometric data is not the prerequisite for registering a person under the Act. Rather section 17(3) read with section 17(5) states that every dealer holding registration certificate under the erstwhile Act, as a dealer, is deemed to be registered under the new Act only upon making an application in Form VIII accompanied by certain documents and requisite fee without getting biometric verification done. This goes to show that provisions in this regard are not mandatory nor a pre-requisite for registering a dealer under the Act. Section 17(1) read with rule 32(7) further indicates that the requirement of obtaining biometric data has been provided only in case of a new dealer. The aforesaid provision further shows that the pre-requisite for filing such application by a new dealer relates to deposit of registration fee and submission of one of the document relating to his identity specified in Rule 31(2). The application thereafter is treated to be complete in all respect. The proviso to sub rule (2) of Rule 32 prohibits the Registering Authority from receiving incomplete application for registration. Admittedly, application was duly accepted being complete in all respect. Thereafter processing of the application takes place at the end of the department. Rule 32 (7) provides for the various steps to be taken by the department which interalia provides for obtaining biometric data,carrying out inspection of the site and digital photograph of the premises etc. etc. These formalities are to be carried out by the department but none of them are essential for entertaining the application and for grant of registration. The purpose of obtaining biometric data is to establish identity of a dealer in case of any dispute. It is for the benefit of the department itself. The department can very well waive these requirement if it is satisfied that it is already possessed of sufficient data to establish the identity of a dealer or the place of his business. Thus, non-obtaining of biometrics data, as in the instant case, will not invalidate the registration certificate. Further, the aforesaid exercise was required to be carried out by the department and not being under the control of a dealer, cannot be made a ground to invalidate the registration certificate granted to him. Consequently, the objection made in this regard by the Insurance Co. for denying the insurance claim to the petitioner, is not sustainable in law.
19. The contention of the respondent's counsel that the petitioner is not entitled to any relief because he has not challenged the order of the Insurance Co. dated 30th March, 2011 declining his claim and as such the order had attained finality, is also not sustainable in law. Perusal of the said order will show that it contains the same grounds which were communicated to the petitioner by the Dy. Commissioner, Trade Tax, Division-13, Allahabad vide letter dated 23rd June, 2011. Admittedly, petitioner has already challenged the letter of respondent no. 3 which itself contains the reason given by the Insurance Co. for declining the claim of the petitioner. Thus, refusing relief to the petitioner on the said ground will amount to taking a hyper technical view, which is not called for, especially, in a case like the present one, where the petitioner if fighting for insurance claim on death of her husband. It cannot be denied that the scheme was floated by the State Government as a socio-economic measure and to fulfill its constitutional obligation.
20. There is another way of looking to the problem. Anil Kumar Kesarwani being a registered dealer was provided with insurance coverage by the department. There is no privily of contract between the petitioner and the Insurance Co. It is the department which has entered into contract with the respondent insurance company to redeem the claims made during the period in question. In such circumstances, the petitioner has rightly challenged the order issued by the department, containing reasons for declining her claim. Thus, opposition to the writ petition on this ground, also cannot be sustained.
21. The next submission of the learned counsel for the respondent that allowing the writ petition will amount to enforcing the contract of Insurance also does not appear to be correct. Firstly, there is no contract of insurance between the petitioner and the Insurance Co. The department has granted Group Insurance to all registered dealers. The contract for settling claim is between the department and the Insurance Co. The petitioner is putting the claim on account of her deceased husband being a registered dealer under the erstwhile and the present Act. Secondly, there are no factual disputes and only legal provisions are required to be interpreted. The Supreme Court in ABL International Ltd. & Anr vs Export Credit Guarantee Corporation Of India Limited & others reported in (2004) 3 SCC 110 has held that there is no straight jacket formula to relegate a person to alternative remedy. The Apex Court after examining its earlier decision in K.N. Guruswamy v. State of Mysore AIR 1954 SC 592 held that if the State or its instrumentalities acts in a arbitrary manner even in the matter of contract, an aggrieved party can approach the Court by of writ under Article 226 of the Constitution and the court depending on facts of the said case is empowered to grant the relief. It was further held after examining catena of the decisions that it is not an absolute rule that in all cases relating to the breach of contract, the parties are to be relegated to a civil suit. The Apex Court further observed that where government- owned company acts in irrational manner, writ court can intervene. In paragraph 27 of the said judgement the following legal principles were enunciated regarding maintainability of a writ petition :-
(a) In an appropriate case, a writ petition as against the State of an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arises for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
The aforesaid judgement of the Apex Court was in reference to a dispute relating to a contract of insurance and squarely applies to the facts of the instant case. Even the decision cited by the learned counsel for the respondents in the case of Smt. Asha Goel (supra) does not lay down that there is any bar to maintainability of the writ for enforcement of the contract of the insurance. On the contrary what was held therein that the High Court should, in such cases examine the facts and circumstances and in the appropriate case it may entertain the writ petition or reject as not maintainable.
The aforesaid observation of the Apex Court rather goes to support the proposition that in the appropriate case, the claim for insurance can be enforced through a writ petition. The Apex Court had infact observed that relegating a person to the civil court to indulge in long drawn litigation will be causing serious prejudice to the beneficiary of the policy.
The other decision in the case of Sechan Prasad (supra) also does not create any absolute bar for maintainability of the writ petition for enforcement of a claim under the contract of insurance. It was upon facts of that case that the writ court declined to interfere.
22. In the instant case, we find that since there are no disputed questions of fact and because the claim for Insurance on the death of the husband of the petitioner, will provide financial help to her and is a measure by way of social-economic justice and therefore, this Court will be failing in its duty in case the petitioner is relegated to the alternative remedy of filing a suit. We, therefore, over-rule the objection regarding maintainability of writ petition raised by the counsel for the respondents and hold that the instant writ petition is perfectly maintainable.
23. In the result, the writ petition succeeds and is allowed. The decision of the Insurance Co. as contained in the letter of the Dy. Commissioner, Trade Tax, Division-13, Allahabad dated 23rd June, 2011 is hereby quashed. The Insurance Co., respondent no. 2 is directed to forthwith settle the claim of the petitioner. In terms of clause (iv) of the Insurance scheme as contained in Annexure 2, the petitioner shall be also entitled to interest @ 14% per annum, after expiry of one month from the date claim was lodged till date of actual payment. The petitioner shall also be entitled to get Rs.10,000/- as the cost of the instant writ petition from the respondent no.2.
(Manoj Kumar Gupta, J.) ( Prakash Krishna, J.) Order Date :- 15.5.2013 skv