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New India Assurance Co. Ltd. Thru. Manager v/s Dr. Vikas Sethi & Others


Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = L66000MH1919GOI000526

Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = L99999MH1919GOI000526

Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = U99999MH1919GOI000526

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- VIKAS PVT LTD [Strike Off] CIN = U99999MH1949PTC007334

Company & Directors' Information:- SETHI AND COMPANY LIMITED [Strike Off] CIN = U74999RJ1948PLC000620

Company & Directors' Information:- THE VIKAS LIMITED [Strike Off] CIN = U24231UP1934PLC000592

    First Appeal From Order No. 581 of 2016

    Decided On, 31 July 2020

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE ATTAU RAHMAN MASOODI

    For the Appellant: Bhanu Prakash Dubey, Kartikey Dubey, Advocates. For the Respondent: Brijesh Kumar Singh, Miss Alka Saxena, Pratul Srivastava, Uma Kant Gupta, Advocates.



Judgment Text


Heard Sri Kartikey Dubey, learned counsel for the appellant, Sri Uma Kant Gupta for respondent no. 1, Sri Pratul Srivastava for respondent no. 3/1 and Km. Alka Saxena for respondent no. 4. None for respondent no. 2.

This appeal filed under Section 173 of Motor Vehicle Act, 1988 has arisen out of the judgement and award dated 16.2.2016 rendered by Motor Accident Claims Tribunal, Lucknow in Claim Petition No. 275 of 2007 whereby a compensation of Rs. 21,02,221/- alongwith an interest @7% p.a. has been awarded in favour of the claimant who sustained a serious eye injury. The accident involves two vehicles i.e. Truck bearing No. UP63 F 9612 and a Wagon-R No. UP43 D 7120. The truck was insured by the appellant i.e. New India Assurance Co. Ltd. whereas Wagon-R was insured by Oriental Insurance Co. Ltd. i.e. respondent no. 4.

The correctness of the judgement/award rendered by Motor Accident Claims Tribunal, Lucknow is essentially questioned on the ground of fixation of entire liability arising out of the award upon the appellant although the case before the Tribunal was that of a composite negligence and according to the appellant, the liability ought to have been apportioned appropriately between the two companies having insured the vehicles.

The appellant has not questioned the quantum of compensation except for the application of wrong multiplier.

In view of the submissions put forth, the points that arise for consideration are thus confined to the correctness of fixation of liability exclusively upon the appellant and application of wrong multiplier.

Coming to the point of fixation of liability exclusively upon the appellant, it is argued that the accident in question which took place on 20.2.2007 gave rise to two claims and that too before the two different Tribunals. The claim arising out of the death of the driver of Wagon-R bearing no. UP43 D 7120 i.e. Claim Petition No. 23/2007 was decided by Motor Accident Claims Tribunal, Gonda vide judgement and award dated 15.1.2009 whereas the subsequent proceeding arising out of an injury sustained by one of the occupants in the above mentioned Wagon-R i.e. Claim Petition No. 275/2007 was decided by Motor Accident Claims Tribunal at Lucknow. The insurance companies of both the vehicles involved in the accident were impleaded as respondents. The judgement and award in the former proceedings instituted before the Motor Accident Claims Tribunal, Gonda was rendered earlier whereby a compensation of Rs. 2,70,000/- was awarded to the dependents of the deceased driver of Wagon-R.

Since the accident involved two vehicles, therefore, a plea of contributory/composite negligence was taken by the insurance companies against each other in the respective cases so that the liability may be fixed proportionately looking to the evidence on record. On the issue of negligence the Tribunal at Gonda in the former proceedings initiated by the dependants of the deceased driver of Wagon-R, has recorded that the accident was caused due to negligence on the part of both the vehicles involved in the accident. It is on account of the composite negligence that proportionate liability for payment of compensation was fixed upon both the insurance companies equally.

The judgement rendered by Motor Accident Claims Tribunal, Gonda has been complied with by both the insurance companies and has undisputedly attained finality.

Since the judgement rendered by Motor Accident Claims Tribunal, Gonda had attained finality, therefore, a plea of finallity on the aspect of proportionate liability was taken by the present appellant in the subsequent proceedings instituted before the Motor Accident Claims Tribunal at Lucknow. The copy of the judgement/award rendered by the Tribunal at Gonda was also placed on record alongwith the written statement filed by the appellant.

It was further submitted that the judgement and award rendered in the earlier proceedings arising out of the same accident was acted upon by both the insurance companies, therefore, such an issue was liable to be decided in the manner in which it had already stood settled between the parties.

Learned counsel for respondent no. 4 has submitted that the issue of composite negligence was framed by the Tribunal in the subsequent proceeding as well and the same was open to be decided on the basis of evidence available on record. It is further submitted that a Tribunal having exclusive jurisdiction and not bound by the provisions of Section 11 CPC, has thus not committed any error of law by not attaching a finality to the issue decided by another Motor Accident Claims Tribunal between the same parties which is based on different evidence led by the claimants and the parties therein.

It is also argued that once the jurisdiction of Motor Accident Claims Tribunal which cannot be understood to be ''the court', is mutually exclusive, the principle of res judicata on the question of fact will not bind the forum trying an identical issue.

It is in view of the aforesaid submissions that an important question viz. as to whether the principle of res judicata in a subsequent claim would apply on an issue of fact which in the former proceedings was decided by a forum of competent jurisdiction between the same parties.

Before delving into such a question, it would be fruitful to refer to some of the provisions under the relevant statute as well as the rules framed thereunder.

Section 169 of Motor Vehicle Act, 1988 postulates as under:

"169. Procedure and powers of Claims Tribunals.--

(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry."

The State Government has also framed the statutory rules known as U.P. Motor Vehicle Rules, 1998. Rule 221 of the statutory rules limits the application of the provisions of CPC to the claim petitions instituted before the Motor Accident Claims Tribunal. It is true that Section-11 CPC does not apply to the proceedings before the Tribunal, yet the principle embodied therein would apply on the decided issues between the same parties arising out of the same subject matter. The procedure applicable to the framing of issue and decision thereof is gathered from the following provisions..

Rule 209 of the aforesaid rules provides as under:

"209. Framing of issues.- After considering the application and the written statements and oral statements of the parties, the Claims Tribunal shall proceed to frame the issues on which the right decision of the claim appears to it to depend."

Rule 215 and 220 also being relevant, may thus be extracted hereunder:

"215. Power of examination.- The Claims Tribunal may if it thinks necessary, examine any person likely to be able to give information relating to the injury, irrespective of the fact whether such person has been or is to be called as a witness or not."

"220. Judgment and award of compensation.- (1) The Claims Tribunal, in passing orders, shall record concisely in judgment the findings on each of the issues framed and the reasons for such finding and make an award, specifying the amount of compensation to be paid by the insurer or in the case of a vehicle exempted under sub-section (2) and (3) of Section 146 by the owner thereof and shall also specify the person and persons to whom compensation shall be payable.

(2) Where compensation is awarded to two or more persons under sub-rule (1) the Claims Tribunal shall also specify the amount payable to each of them.

(3) The Claims Tribunal may, while disposing of claims for compensation, make such order regarding costs and expenses incurred in the proceeding as it thinks fit."

From a bare reading of the aforesaid rules, it is clear that the Motor Accident Claims Tribunal is under an obligation to frame the issues on which the right decision of the claim appears to depend.

The Tribunals are created under Section 165 of Motor Vehicles Act, 1988. The nature of jurisdiction exercised by each Tribunal over a specified territory is exclusive. The principle as to the finality of an issue decided by a forum of exclusive jurisdiction for the purpose of binding the parties and disabling them to reagitate the same in the subsequent proceedings is well settled.

To substantiate such an argument, learned counsel for the appellant has placed reliance upon a judgement reported in AIR 1965 SC 1153 (Gulabchand Chhotalal Parikh v. State of Gujrat) and referring to paragraph 33 of the said judgement, it was argued that the issue decided by a forum of exclusive jurisdiction would bind the parties in the subsequent proceedings in the same manner in which a forum of concurrent jurisdiction stands bound by an earlier judgement rendered on the same issue and between the same parties. Para 33 of the judgement (supra) is reproduced hereunder:

33. Before discussing the law of res judicata as laid down in the Code of Civil Procedure, we may refer to the opinion of the Judges expressed in 1776 in the Duches of Kingston's Case(1) to which reference has been invariably made in most of the cases to be considered by us. It was said in that case :

"From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : first that judgment of a Court of concurrent jurisdiction, directly upon the point. is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, t between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment."

It is to be noticed that the opinion does not take into account whether the earlier judgment was in a suit or any other proceeding and whether it was used as res judicata in another suit or proceeding. The emphasis is that the judgment be of a Court and that it is relied upon as res judicata in another Court. Of course, the essential conditions that the judgment be directly upon the same point which is for determination in the subsequent suit and be between the same parties are also to be satisfied. It is obvious that the judgment of a Court of exclusive jurisdiction is to be treated as res judicata upon the same matter in another Court which will not be a Court having jurisdiction over the matter.

It is worthwhile to note that the Motor Accident Claims Tribunals are a substitute of civil courts for the redressal of motor accident claims.

It is no more res integra that such forums are the forum of exclusive jurisdiction, therefore, determination of an issue between the same parties must attain finality to subserve the policy of judicial economy, consistency and finality in adversial litigation. An issue once determined and acted upon by the same parties arising out of the same subject matter, therefore, cannot be left open for leading evidence before another forum of equal jurisdiction which otherwise may frustrate the purpose of finality of a judgement in the preceding case and the decre would thus loose the essence of sacredness.

In the present case when the principle of finality is tested on the parameters as spelt out in the judgement referred (supra), this Court has no hesitation to put on record that the aspect of composite negligence which was decided by the Motor Accident Claims Tribunal at Gonda in the earlier claim petition arising out of the same accident in the normal course ought to have bound the two insurance companies without any protest. The principle of res judicata binds the parties on the question of fact is also a well settled proposition of law for which reference can be made to para-34 of the judgement reported in (2018) 16 SCC 228 (Canara Bank v. N.G. Subbaraya Setty and another). That being the position of law, the objection taken by the present appellant before the Motor Accident Claims Tribunal at Lucknow ought to have been considered and adverted to in accordance with law. Since the plea taken was not adverted to at all by the Tribunal in the subsequent proceedings, therefore, to the extent of fixation of entire liability upon the appellant, the findings arrived at by the Motor Accident Claim Tribunal, Lucknow are not tenable in the eye of law. The principle of res judicata was thus applicable between the parties i.e. the two insurance companies on the aspect of proportional liability which ought to have been applied in terms of the earlier judgement/award.

The appellant has already deposited 75% of the decretal amount which may be released in favour of the claimants subject to the protection of right of recovery against the respondent no. 4. For the purpose of apportioning the liability, it would not be fruitful to remit the matter back to the Motor Accident Claims Tribunal, Lucknow once on principle the Court is satisfied that the principle of res judicata ought to have been applied while rendering the impugned judgement/award.

Looking to the fact that the previous judgement has duly been acted upon by both the parties, the claim awarde

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d by the Tribunal in the present case of which the liability has exclusively been fixed upon the appellant, deserves modification. Accordingly, the liability to pay the compensation awarded by the Tribunal in the impugned judgement/award is fixed upon the appellant as well as respondent no. 4 in equal proportion. The appellant shall deposit the remaining decretal amount before the Tribunal within a period of three months from today which may be released in favour of the claimants. The appellant shall have a recovery right against the respondent no. 4 to the extent of half of the claim allowed by means of the impugned judgement/award dated 16.2.2016 as contained in Annexure-1 to this appeal. With the modification as above, the quantum of compensation awarded by the Tribunal is affirmed granting protection of recovery rights as above to the appellant as against the respondent no. 4. It shall be open to the appellant to enforce the recovery rights by means of execution proceedings against the respondent no. 4. The execution proceedings taken up by the appellant, if any, may be concluded not later than a period of six months from the date of its filing. Insofar as the aspect of wrong multiplier is concerned, this Court is convinced that the Tribunal looking to the age of injured being 31-35 years ought to have applied the multiplier as 16. This is what follows in accordance with the judgement rendered in Sarla Verma case. Ordered accordingly. The impugned judgement/award to the aforesaid extent stands modified and the appeal is accordingly disposed of.
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