From the aforesaid fact, it is clear that the question as to
whether there has been a breach of condition of the Insurance policy
at the instance of the owner of the vehicle cannot be reopened in this
proceedings under section 166 of the M.V. Act once it is found that in
an earlier proceeding under section 140 of the Act arising out of the
selfsame accident, the liability of the Insurance Company to pay the
amount payable by the insured has been upheld. The question
whether there has been breach of condition of the existing policy is
basically a question of fact, and such plea was available to the
Insurance Company at the time of hearing of the application under
section 140 of the M.V. Act.
The Insurance Company not having
raised such question, and after suffering the order, and having made
payment of that amount, in my opinion, it is now precluded from
raising the above question regarding breach of condition of the policy
at the stage of the proceedings under Section 166 of the Act.
The aforesaid question is hit by the doctrine of constructive res
judicata.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 149 of 2005
THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
NEW INDIA ASS.CO.LTD. Vs MOHANBHAI GALABHAI MAKWANA DECD.THR'HEIRS & ORS
CORAM: THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
Date : 26/08/2014
Citation; 2015(3) ALLMR(JOURNAL) 28
This appeal under section 173 of the Motor Vehicles Act is at
the instance of the Insurance Company and is directed against the
award dated 19th July 2004 passed by the Motor Accident Claims
Tribunal [Main], Suirendranagar, in MACP No. 100 of 2000 thereby
awarding a sum of Rs.2,29,000/- to the claimants with interest at the
rate of 9% per annum from the date of filing the claim petition till
realization. The appellant-Insurance Company was held jointly and
severally liable to pay the amount.
2.
Being dissatisfied, the Insurance Company has come up with
the present appeal.
3.
Mr. Shah, the learned advocate appearing on behalf of the
appellant-Insurance Company has strenuously contended before this
Court that the Tribunal below committed substantial error of law in
holding
the
appellant
liable
to
pay
the
awarded
amount
notwithstanding the fact that the victim was a gratuitous passenger
on the Tractor.
According to Mr. Shah, although the Tractor was
covered by the Insurance of the appellant, it appears from the R.C.
book of the said tractor that the said vehicle had the seating capacity
of only one including the driver, and thus, the victim having travelled
as a gratuitous passenger, the Insurance Company was not liable to
pay the amount even though the third-party risk of the vehicle was
covered by the appellant-Insurance Company.
4.
It further appears from the record that in the past, the claimant
filed an application under section 140 of the M.V. Act, and in that
proceedings, on a contested hearing, the learned Tribunal below
awarded a sum of Rs.50,000/- after holding that the Insurance
Company was liable to pay the said amount, vide order dated 6th
February 2001 passed below Exh.5.
5.
From the aforesaid fact, it is clear that the question as to
whether there has been a breach of condition of the Insurance policy
at the instance of the owner of the vehicle cannot be reopened in this
proceedings under section 166 of the M.V. Act once it is found that in
an earlier proceeding under section 140 of the Act arising out of the
selfsame accident, the liability of the Insurance Company to pay the
amount payable by the insured has been upheld. The question
whether there has been breach of condition of the existing policy is
basically a question of fact, and such plea was available to the
Insurance Company at the time of hearing of the application under
section 140 of the M.V. Act.
The Insurance Company not having
raised such question, and after suffering the order, and having made
payment of that amount, in my opinion, it is now precluded from
raising the above question regarding breach of condition of the policy
at the stage of the proceedings under Section 166 of the Act.
6.
The aforesaid question is hit by the doctrine of constructive res
judicata.
7.
It is now settled by the Apex Court that an award under section
140 of the Act is an appealable one (See Yallwwa vs National
Insurance Company reported in AIR 2007 SC 2582) and therefore,
the parties, by not preferring any appeal, has accepted the position
that the vehicle was involved in the accident, that there was no
breach of any condition of insurance in respect of the vehicle involved
in the accident and that the same was insured by the concerned
Insurance Company. Those three facts cannot be reopened in the
proceedings under Section 166 of the Act either at the instance of the
owner of the vehicle or the Insurance Company. At this stage it will be
profitable to refer to the following observations of the Apex Court in
the case of SATYADHYAN GHOSAL AND OTHERS vs. SMT.
DEORJIN DEBI AND ANOTHER reported in AIR. 1960 SC 941
where a Bench consisting of three Judges specifically held that even if
Section 11 of the Code of Civil Procedure is not applicable in a judicial
proceeding, the principles of res judicata is nevertheless applicable:
“The principle of res judicata is based on the need of giving
finality to judicial decisions. What it says is that once a res is
judicata, it shall not be adjudged again. Primarily it applies as
between past litigation and future litigation, When a matter -
whether on a question of fact or a question of law - has been
decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a
higher court or because the appeal was dismissed, or no appeal
lies, neither party will be allowed in a future suit or proceeding
between the same parties to canvass the matter again. This
principle of res judicata is embodied in relation to suits in S. 11
of the Code of Civil Procedure; but even where S. 11 does
not apply, the principle of res judicata has been applied
by courts for the purpose of achieving finality in
litigation. The result of this is that the original court as well as
any higher court must in any future litigation proceed on the
basis that the previous decision was correct.”
(Emphasis supplied).
8.
I, thus, find that the only question raised by Mr.Shah, the
learned advocate appearing on behalf of the Insurance Company, is
devoid of any merit, and consequently, this appeal is dismissed. In
the facts and circumstances, there will be, however, no order as to
costs. The Tribunal is directed to forthwith disburse the amount to the
claimants, after proper verification, in the proportion indicated in its
impugned award, by accounts payee cheque.
Sd/-
(BHASKAR BHATTACHARYA, CJ.)
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