Gujarat High Court
Motiben Dudabhai vs Arjanbhai Munjabhai on 30 September, 2025
NEUTRAL CITATION
C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025
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Reserved On :-
Pronounced On : 30/09/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1763 of 2015
With
R/FIRST APPEAL NO. 1764 of 2015
With
R/FIRST APPEAL NO. 1765 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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MOTIBEN DUDABHAI
Versus
ARJANBHAI MUNJABHAI & ORS.
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Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 5
MR HG MAZMUDAR(1194) for the Defendant(s) No. 5
MR RAXIT J DHOLAKIA(3709) for the Defendant(s) No. 1,6
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
CAV JUDGMENT
1. The present Appeals arise from the impugned common judgment and award dated May 28, 2015 passed in MACP No.52/2005, MACP No.43/2005 and MACP No.45/2005, disposing the said petitions by the Learned Motor Accident Page 1 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined Claims Tribunal (Aux.), Porbandar.
2. By way of the impugned common judgment and award, and in each of the said claim petitions, the Tribunal was pleased to exonerate the opponent nos. 2 to 5, being the Geneal Manager, Western Railways (original opponent no.2, present respondent no.2), the Ministry of Railways (original opponent no.3, present respondent no.3), Union Government of India (original opponent no.4, present respondent no.4), United India Insurance Company Limited (original opponent no.5, present respondent no.5) and has held liable, the opponents nos.1 and 6 (present respondent nos.1 and 6), being the owner of the Goods Carriage Auto-Rickshaw and driver of the Goods Carriage Auto-Rickshaw bearing registration no. GJ-10-U-6301, to pay the compensation under the said common judgment and award.
3. The accident in question had occurred on 11.04.2001. It appears that the injured claimants were traveling in Goods Carriage Auto Rickshaw (hereinafter, 'the Rickshaw') bearing registration no. GJ-10-U-6301 from Village Dharampur towards the Village Adityana. An unmanned Page 2 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined railway crossing falls on the said way near Village Dharampur and when the said vehicle was passing through the said unmanned railway crossing, at 17:00 hrs., there was a collision between the said Rickshaw and a Railway Engine No.16789. Hence, the aforesaid claim petitions.
4. As such, the learned advocate for the appellant has made a categorical statement before this Court that he is not pressing any challenge to the quantum or the ascertainment of negligence in causing accident in the matter. The challenge is only limited to the exoneration of the respondent no.5 - United India Insurance Company Limited. He has further clarified that though the relief in the present appeal is also to make the respondent nos.2,3, 4 and 5 also liable, he is only pressing such prayer qua respondent no.5 alone, over and above the respondent nos.1 and 6, who have already held liable by the impugned common judgment and award.
5. Heard learned advocates for the respective parties.
6. Learned advocate Mr. Vishal Mehta, appearing for the Page 3 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined appellant, has submitted that from the very accident, there were other claim petitions and that they were decided at a point, prior to the impugned common judgment and award. It was submitted that the copies of the said judgments were adduced on record at Exhibit-53 in the proceedings concerning MACP No.52 of 2005. Albeit, he clarified that it was considered also in respect of the MACP No.42 of 2005 and MACP No. 43 of 2005, the judgment being a common judgment and award. The earlier judgments, it was submitted, were in respect of MACP Nos.417 of 2003 and 418 of 2003. In the earlier judgment, it was submitted that at Paragraph-7, the Tribunal had recorded a contention that at the time of the accident, the driver of the vehicle (Registration No. GJ-10-U-6801) did not possess the valid and effective driving license, and therefore, he has committed breach of policy conditions. It was submitted that notwithstanding such contention, the Tribunal was pleased to hold the Insurance Company liable, in terms of the reasoning attributed in the said judgment at Paragraph-16.
7. It was thus contended before this Court that indeed, once Page 4 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined the issue is contended before the Tribunal, it should have been decided by the Tribunal. But then, the said issue was not decided. However, as the final outcome in those proceedings was in favor of the claimants, the claimants did not have an occasion to challenge mere finding as in that case, the Insurance Company was held liable. It was further submitted by the learned advocate for the appellant that even the Insurance Company did not challenge the impugned common judgment and award, and therefore, the said judgments have attained finality.
8. It was next contended that even in terms of the principle of waiver, the said contention no longer is available to the respondent no.5 - Insurance Company. Explaining the applicability of the said principle, it was submitted that in the earlier proceedings, the Insurance Company has taken the contention as regards absence of driving license. And if, there was no finding rendered as regards its effect on holding the liability of the Insurance Company, and the Insurance Company is held liable in those circumstances, then, in absence of the challenge to such judgment, the Insurance Company deemed to have waived its rights in Page 5 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined pressing on the said contention and is thus estopped from contending or taking up such contention. It was also submitted that the same is binding to the subsequent Tribunals, in terms of the principle of Res judicata.
9. It was also submitted that the Insurance Company is now estopped from raising such contention as the said contention was not carried in Appeal, post the aforesaid decision, whereunder, the Insurance Company was not exonerated for the reason of lack of valid and effective driving license of the driver. It was, thus, submitted that the Tribunal, whilst rendering the present impugned common judgment and award and in not accepting the aforesaid legal position and giving a finding to the contrary in subsequent proceedings, is contrary to law, and therefore, the said finding qua the exoneration of the Insurance Company, for the lack of valid and effective driving license, may please be interfered with. It was further submitted that insofar as the finding of the Tribunal, namely that the driver was a 15 years old minor, is not borne out anywhere from the record. It was, thus, submitted that no evidence whatsoever has led in this Page 6 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined behalf and yet the Tribunal has given a perverse finding that the driver was a 15 year old minor. It was, thus, submitted that on this ground also, the said finding as regards the exoneration of the Insurance Company ought to be set aside.
10. On the other hand, the learned advocate Mr. Mazmudar, appearing for the Insurance Company, has vehemently opposed the present appeals. He has submitted that earlier, the issue as regards the driver was not finally adjudicated, and therefore, the Tribunal was right in considering the said issue. It was submitted that neither waiver nor the principle of Res judicata or that of the estoppel could have applied in the present proceedings, and therefore, the Tribunal was right in giving appropriate findings in the matter. It was submitted that merely because the contention was not carried in appeal, does not mean that the Insurance Company has waived the said contention. Arguing as aforesaid, he has urged this Court to reject the present Appeals.
11. No one has appeared for other respondents in the present matter. At the relevant point in time, the Notice was only Page 7 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined issued to the respondent nos. 1, 5 and 6 and it appears that it was so done, as apparently, the other original opponents were exonerated by the Tribunal.
12. Having heard the learned advocates for the respective sides, this Court proceeds to decide the present Appeals in terms appearing hereinafter.
13. The point of determination that arises for consideration by this Court in the present Appeals is, whether, the exoneration of the Insurance Company, as has been done by way of the impugned common judgment and award, is just and proper? If not, to what extent is the said finding liable to be interfered with?
14. This Court has perused the judgment and award in the case of MACP Nos. 417/2003 and 418/2003, which is a common judgment disposing both of the said MACPs. There, on perusal of the paragraph-7, it is apparent that the Insurance Company has taken a contention that the driver did not possess the valid and effective driving license and that the same resulted in breach of policy condition. In paragraph-16, deciding the issue pertaining to the liability Page 8 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined of the Insurance Company, the Tribunal in the said cases, had simply held that it was the duty of the driver that when an unmanned crossing is to be crossed, he must park the vehicle at a distance and only after verifying that no railway or engine is incoming on the said tracks, should the driver with his vehicle cross such unmanned railway crossing. The Tribunal, taking into account the said rules, together with the ratio in the judgment reported at AIR 1982 Gujarat 27 and 1968 ACJ 312 MP, held the driver of the Auto-Rickshaw to be solely responsible (100% negligent) for causing the accident, but it clarified that the claimants were traveling in the said vehicle with their goods, and therefore, they are not gratuitous passengers. It further held that the vehicle Auto-Rickshaw was insured and that the concerned policy was spanning from 07.11.2000 upto 06.11.2001, and as the date of accident i.e., 11.04.2001, is within the period of the existence of the policy and, therefore, the liability to compensate is on owner of the vehicle and the Insurance Company concerned, jointly and severally. The Western Railways was exonerated. Thus, irrespective of the respondent no.5 - Insurance Company taking a contention as regards the Page 9 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined lack of driving license, the Insurance Company was held responsible in terms of the contents of the said paragraph. This Court is apprised of the fact that the concerned judgments have not been carried in appeal and that thus, the same could be said to have been accepted by the Insurance Company. In short, the judgment has attained finality. In that context, what was contended was that by not carrying the said judgment in appeal, the contentions as regards the driver not holding the valid and effective driving license and the consequent lack of its effect on the breach of the policy condition has been adjudicated and it has attained finality. Therefore, the Tribunal whilst deciding the present impugned common judgment and award being MACP No.52 of 2005 and allied matters, could not have gone into the said issue nor could it exonerate the Insurance Company - the respondent no.5, herein.
15. At this juncture, Section-11 of the Code of Civil Procedure, 1908 (hereinafter, "the CPC") pertaining to Res judicata be examined. For the ease of reference, the said provision is quoted herinbelow:
"Section 11:Page 10 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025
NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.-- .....
Explanation II.-- .....
Explanation III.--.....
Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI.-- .....
1[Explanation VII.-- ....
Explanation VIII.-- ....."
16. As is apparent, for the purposes of the Section, it has been clarified at Explanation 5, that any relief claimed in the plaint, which was not expressly granted by the decree, shall for the purpose of this Section be deemed to have been refused. Thus, the relief as regards holding the Insurance Company liable, rather claiming the substantial Page 11 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined amount of compensation from the respondent no.5 - Insurance Company, has not been refused in the common judgment in the case of MACP No.417 of 2001 and 418 of 2001. In the circumstances, it can be stated that the Tribunal has refused the contentions as regards the license agitated by the Insurance Company in the earlier proceedings. That being the case, even in the present proceedings (i.e., in MACP No.52 of 2005, MACP No.42 of 2005, MACP No.43 of 2005), the Tribunal's finding namely that in the previous judgment, facts regarding 15 year old minor - Rickshaw driver had no license, were not at all issues, cannot be sustained. The fact remains that the accident is same accident. And there driver not possessing valid and effective driving license is also the same in both of the said proceedings. And as such, the principle of "Res Judicata" is applicable to subsequent Motor Accident Claim Proceedings, even when parties (claimants) are different, provided the the accident is the same. And as such the Explanation IV to Section 11 of the CPC provides that any matter which might or ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in Page 12 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined issue in such suit. Now, it is not the case of the Respondent Company that despite it seeking further and better particulars from the owner of the auto rickshaw, with whom the Insurance Company had privity of contract, no particulars of the driver were made available, or, that such application though made, had been refused. And it would be preposterous to hold that merely because in one batch of matters the driver was not impleaded, the Insurance Company would be held liable; and where, the driver (qua the same accident) was made a party in other batch of petition, the Insurance Company would be exonerated. In short, such cannot be a ground for deviation from the principle of Res Judicata, as the possession of valid and effective license is a core issue arising in both matters. In the present matter, the accident remains the same and that the said issue pertaining to the driver of the Auto-Rickshaw, not having requisite license, i.e., not having valid and effective license also remains same. Again, the Tribunal has held that in the earlier judgment, that the minor Rickshaw driver was not a party opponent. However, it is clear that in MACP proceedings, the victim is entitled to implead any of the tort feasors from whom it is desirous Page 13 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined of availing the compensation. However, the fact remains that the Insurance Company was at liberty to seek impleadment of the said alleged minor Rickshaw driver. Secondly the contention before this Court was that there was nothing on record to indicate that the Rickshaw driver was a minor. But then this Court finds that the chargesheet Exhibit-54 in MACP No.52 of 2005, clearly specifies the age of the accused (driver) to be of 15 years. So be it. On perusal of the Record & Proceedings, it appears that by way of Exhibit-33, the driver of the Auto- Rickshaw Mer Rajubhai Arjanbhai Godhania was impleaded as opponent no.6 in MACP No.52 of 2005, vide Order dated 08.03.2010 below the application Exhibit-33. In the Written Statement of the Insurance Company at Exhibit-23 at Paragraph-4(b) of the proceedings pertaining to MACP No.741/2001 renumbered as 52/2005, it has been stated that the driver was not holding valid and effective driving license at the time of the accident, and therefore, the Insurance Company is not liable to pay any compensation. Thus, it is plain that the issue pertaining to the lack of valid and effective driving license was taken expressly in the instant proceedings whereupon the Page 14 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined impugned common judgment and award arises. However, as discussed above hereinabove, the principle of Res Judicata, in its applicability to the Tribunal, barred the Tribunal from going into said contentions, specially as earlier judgment has attained finality as no appeal had been preferred against the said judgment. At this juncture, this Court rejects the contention as regards the estoppel, namely, that once the judgment in the previous proceedings is not challenged and that the finding in the judgment have attained finality, in subsequent proceedings, the Insurance Company is estopped from contending otherwise. This is so as, for the principle of estoppel to apply, it is necessary that the other party, i.e., the party claiming such estoppel, should have acted on such belief. This is so made clear in the definition of estoppel at Section 115 of the Indian Evidence Act, 1872. And it would be the Evidence Act which is applicable in the present Appeal, as the Appeal is before the repeal of the said Evidence Act. And in any case, merely because the Insurance Company, subsequent to the pronouncement of a judgment, does not challenge the impugned common judgment and award, does not mean that the Insurance Page 15 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined Company is making a representation and based on such belief, the claimants or the appellants have acted or altered their position. In short, the contention regarding estoppel is rejected.
17. Notwithstanding the repealing of the contention on the ground of estoppel, this Court is of the view that the findings in the previous judgment are conclusive and have attained finality, and therefore, they are also applicable to the impugned common judgment and award as per the principle of Res Judicata. Accordingly, the observations at Paragraph-13.3 of the impugned common judgment and award are not sustainable. Hence, the position as is stated in MACP Nos.417/2001 and 418/2001 ought to be affirmed, and therefore, the exoneration of the Insurance Company in the impugned common judgment and award is liable to be set aside. Indeed, under ordinary circumstances, for breach of condition of policy, the order of pay and recover could have been passed. However, in the present case, it would be the previous judgment which will have to be followed, as is indicated in the discussion in the foregoing portion of this judgment. Accordingly, the appeal Page 16 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025 NEUTRAL CITATION C/FA/1763/2015 CAV JUDGMENT DATED: 30/09/2025 undefined is liable to be allowed to the aforesaid extent.
18. Thus, the respondent nos.1,5 and 6 herein are held as jointly and severally liable to pay the compensation under impugned common judgment and award. Needless to say, the Insurance Company shall deposit the compensation amounts within a period of eight weeks of the receipt of signed copy of this judgment. The Appeals are hereby allowed to the aforesaid extent and are being disposed of, accordingly.
19. The R&P be sent back to the Tribunal, forthwith.
(J. L. ODEDRA, J) JIGAR J RABARI Page 17 of 17 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 23:34:00 IST 2025