Mr. Thakkar, the learned advocate as a last resort also tried to impress upon me that having regard to the size of the two vehicles, the Tribunal ought to have held that the negligence on the part of the driver of the jeep cannot exceed 40%.
In my opinion the aforesaid contention is also devoid of any merit inasmuch as the negligence in the accident does not depend upon the size of the vehicle. In this case. the Tribunal below on materials on record has specifically arrived at a conclusion that it was the driver of the jeep concerned who was driving the vehicle negligently and as such was found to be 90% negligent. I do not propose to disturb such finding of fact based on evidence on record. Thus, the additional point advanced by Mr. Thakkar is of no avail to his client.IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1466 of 2008
HONOURABLE THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
NEW INDIA ASSURANCE CO LTD....Appellant(s)
Versus
KANKUBEN MAFABHAI ZINABHAI PATNI &
CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
Date : 02/09/2014
Citation; 2015(2) ALLMR(JOURNAL)91
Versus
KANKUBEN MAFABHAI ZINABHAI PATNI &
CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
Date : 02/09/2014
Citation; 2015(2) ALLMR(JOURNAL)91
This appeal under section 173 of the Motor Vehicle
Act is at the instance of the New India Assurance Company
Limited and is directed
against the award dated 20 th
July,
2007 passed by the Presiding Officer, Fast Track Court No.2,
Ahmedabad (Rural) in M.A.C.P. No.1436 of 2000 thereby
disposing of the said application by awarding a sum of
Rs.3,15,000/-
with interest at the rate of 7.5 % per annum
from the date of filing of the application till realization.
2.
Being dissatisfied, the appellant who is insurer of
one of the vehicles involved
has come up with the present
appeal.
3.
It appears that in collision between the two vehicles
viz. the jeep in question and the bus owned by the Gujarat
State Road Transport Corporation (G.S.R.T.C.), the victim died.
The claimants prayed for compensation by making the owner
of the jeep as well as the insurer of the jeep and the G.S.R.T.C.
as parties.
4.
The Tribunal below was of the view that in the
accident, there was 90% negligence on the part of the driver of
the jeep while the driver of the G.S.R.T.C. bus had negligence
to
the
extent
of
10%.
However,
while
awarding
the
compensation, all the parties were directed to pay jointly and
severally.
5.
Mr.Thakkar, the learned advocate appearing on
behalf of the insurance company has taken a pure question of
law in support of this appeal. According to Mr.Thakkar, the jeep
in question being a private vehicle and no separate premium
having been paid for the occupants of the vehicle, his client
Limited and is directed
against the award dated 20 th
July,
2007 passed by the Presiding Officer, Fast Track Court No.2,
Ahmedabad (Rural) in M.A.C.P. No.1436 of 2000 thereby
disposing of the said application by awarding a sum of
Rs.3,15,000/-
with interest at the rate of 7.5 % per annum
from the date of filing of the application till realization.
2.
Being dissatisfied, the appellant who is insurer of
one of the vehicles involved
has come up with the present
appeal.
3.
It appears that in collision between the two vehicles
viz. the jeep in question and the bus owned by the Gujarat
State Road Transport Corporation (G.S.R.T.C.), the victim died.
The claimants prayed for compensation by making the owner
of the jeep as well as the insurer of the jeep and the G.S.R.T.C.
as parties.
4.
The Tribunal below was of the view that in the
accident, there was 90% negligence on the part of the driver of
the jeep while the driver of the G.S.R.T.C. bus had negligence
to
the
extent
of
10%.
However,
while
awarding
the
compensation, all the parties were directed to pay jointly and
severally.
5.
Mr.Thakkar, the learned advocate appearing on
behalf of the insurance company has taken a pure question of
law in support of this appeal. According to Mr.Thakkar, the jeep
in question being a private vehicle and no separate premium
having been paid for the occupants of the vehicle, his client
had no liability to pay the amount of compensation for the
occupants of the vehicle.
6.
It however, appears that out of the selfsame
accident, in the past the claimants had filed an application
under section 140 of the Motor Vehicles Act and the Tribunal
below by order dated 04th July, 2003 disposed of the
application by allowing the same with the direction upon all the
opponents to pay a sum of Rs.50,000/- jointly and severally
with interest at the rate of 9% per annum.
7.
It
appears
that
the
insurance
company
has
accepted said award and has not challenged the same. Such
being the position, in my opinion, the aforesaid issue as to the
liability of the insurance company is hit by the doctrine of
constructive res judicata.
8.
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
occupants of the vehicle.
6.
It however, appears that out of the selfsame
accident, in the past the claimants had filed an application
under section 140 of the Motor Vehicles Act and the Tribunal
below by order dated 04th July, 2003 disposed of the
application by allowing the same with the direction upon all the
opponents to pay a sum of Rs.50,000/- jointly and severally
with interest at the rate of 9% per annum.
7.
It
appears
that
the
insurance
company
has
accepted said award and has not challenged the same. Such
being the position, in my opinion, the aforesaid issue as to the
liability of the insurance company is hit by the doctrine of
constructive res judicata.
8.
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)
9.
I, thus, find that the only question raised by
Mr.Thakkar, 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
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)
9.
I, thus, find that the only question raised by
Mr.Thakkar, 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.
10.
Mr.Thakkar, the learned advocate as a last resort
also tried to impress upon me that having regard to the size of
the two vehicles, the Tribunal ought to have held that the
negligence on the part of the driver of the jeep cannot exceed
40%.
11.
In my opinion the aforesaid contention is also
devoid of any merit inasmuch as the negligence in the accident
does not depend upon the size of the vehicle. In this case, the
Tribunal below on materials on record has specifically arrived
at a conclusion that it was the driver of the jeep concerned
who was driving the vehicle negligently and as such was found
to be 90% negligent. I do not propose to disturb such finding of
fact based on the evidence on record.
Thus, the additional
point advanced by Mr. Thakkar is of no avail to his client.
12.
It appears that after admission of this appeal, the
appellant deposited entire amount of awarded sum and part
thereof were permitted to be withdrawn by the claimants. Now
that this appeal is dismissed, the Tribunal is directed to release
the balance amount with interest accrued thereon, in favour of
the claimants.
(BHASKAR BHATTACHARYA, CJ.)
10.
Mr.Thakkar, the learned advocate as a last resort
also tried to impress upon me that having regard to the size of
the two vehicles, the Tribunal ought to have held that the
negligence on the part of the driver of the jeep cannot exceed
40%.
11.
In my opinion the aforesaid contention is also
devoid of any merit inasmuch as the negligence in the accident
does not depend upon the size of the vehicle. In this case, the
Tribunal below on materials on record has specifically arrived
at a conclusion that it was the driver of the jeep concerned
who was driving the vehicle negligently and as such was found
to be 90% negligent. I do not propose to disturb such finding of
fact based on the evidence on record.
Thus, the additional
point advanced by Mr. Thakkar is of no avail to his client.
12.
It appears that after admission of this appeal, the
appellant deposited entire amount of awarded sum and part
thereof were permitted to be withdrawn by the claimants. Now
that this appeal is dismissed, the Tribunal is directed to release
the balance amount with interest accrued thereon, in favour of
the claimants.
(BHASKAR BHATTACHARYA, CJ.)
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