Bombay High Court
United India Insurance Co. A'Bad vs Khudbuddin Sumsherali Inamdar ... on 2 May, 2016
Bench: P.R. Bora
1 FA Nos.49/2001 & Ors.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.49 OF 2001
United India Insurance Co.
Branch office at Latur
Through its Divisional Manager,
& authorized representative and
Signatory, Aurangabad Division,
Aurangabad. = APPELLANT
(orig.Resp.No.3)
VERSUS
1)
Khudbuddin s/o Sumsherali
Inamdar, Age: 57 Yrs.,
occu. Advocate.
R/o 3-46, Osmanpura, Latur.
2) Bhagwan s/o Shankar Salve,
Age: Major, occu. Driver
R/o Kingaon, Tq. Chikli,
District Buldhana.
3) Pradeep s/o Bhanukumar Kothari,
(owner of luxury bus, died
His L.rs.)
3/1) Balukumar alias Bhanukumar
Kothari
age: 60 Yrs.,
3/2) Sarojabai w/o Balukumar Kothari,
Age: 55 Yrs.,
Both R/o Cidco, N-3, Block No.32,
Aurangabad.
4) Anil s/o Narayanrao Pudale,
Age: 35 Yrs., occu. Business.
R/o Hanuman Mandir, Udgir.
5) New India Insurance Co. Ltrd.
Through its Branch Manager,
Chandranagar, Latur. = RESPONDENTS
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2 FA Nos.49/2001 & Ors.
(Nos. 1 to 4 orig.
claimants; Nos. 5 to 8
orig. opponents Nos.1,2
5 and 6)
WITH
FIRST APPEAL NO.50 OF 2001
United India Insurance Co.
Branch office at Latur
Through its Divisional Manager,
& authorized representative and
Signatory, Aurangabad Division,
Aurangabad. = APPELLANT
(orig.Resp.No.3)
VERSUS
1) Sajedabegum w/o Khudbuddin
Inamdar, Age: 45 Yrs.,
occu. Household.
R/o 3-46, Osmanpura, Latur.
2) Bhagwan s/o Shankar Salve,
Age: Major, occu. Driver
R/o Kingaon, Tq. Chikli,
District Buldhana.
3) Pradeep s/o Bhanukumar Kothari,
(owner of luxury bus, died
His L.rs.)
3/1) Balukumar alias Bhanukumar
Kothari
age: 60 Yrs.,
3/2) Sarojabai w/o Balukumar Kothari,
Age: 55 Yrs.,
Both R/o Cidco, N-3, Block No.32,
Aurangabad.
4) Anil s/o Narayanrao Pudale,
Age: 35 Yrs., occu. Business.
R/o Hanuman Mandir, Udgir.
5) New India Insurance Co. Ltd.
Through its Branch Manager,
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3 FA Nos.49/2001 & Ors.
Chandranagar, Latur. = RESPONDENTS
(Nos. 1 to 4 orig.
claimants; No.5 to 8
orig.opponents Nos.1,2
5 and 6)
WITH
FIRST APPEAL NO.51 OF 2001
United India Insurance Co.
Branch office at Latur
Through its Divisional Manager,
& authorized representative and
Signatory, Aurangabad Division,
Aurangabad. = APPELLANT
ig (orig.Resp.No.3)
VERSUS
1) Sunny Mathew s/o Abdul Kadar
Age: 23 Yrs., occu. Service.
R/o Latur.
2) Bhagwan s/o Shankar Salve,
Age: Major, occu. Driver
R/o Kingaon, Tq. Chikli,
District Buldhana.
3) Pradeep s/o Bhanukumar Kothari,
(owner of luxury bus, died
His L.rs.)
3/1) Balukumar alias Bhanukumar
Kothari
age: 60 Yrs.,
3/2) Sarojabai w/o Balukumar Kothari,
Age: 55 Yrs.,
Both R/o Cidco, N-3, Block No.32,
Aurangabad.
4) Anil s/o Narayanrao Pudale,
Age: 35 Yrs., occu. Business.
R/o Hanuman Mandir, Udgir.
5) New India Insurance Co. Ltd.
Through its Branch Manager,
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4 FA Nos.49/2001 & Ors.
Chandranagar, Latur. = RESPONDENTS
(Nos. 1 to 4 orig.
claimants; Nos. 5 to 8
orig.opponents Nos.1,2
5 and 6)
WITH
FIRST APPEAL NO.52 OF 2001
United India Insurance Co.
Branch office at Latur
Through its Divisional Manager,
& authorized representative and
Signatory, Aurangabad Division,
Aurangabad. = APPELLANT
ig (orig.Resp.No.3)
VERSUS
1) Aminabee w/o Md. Riyazoddin Siddiqui,
Age: 50 yrs., occu. Household
2) Kumari Raisabanu d/o Md. Riyazoddin
Siddiqui, Age: 26 Yrs., occu.education
3) Kumari Ahmadabanu d/o Md.Riyazoddin
Siddiqui, Age: 24 Yrs., occu. Education
4) Kumari Kausarbanu d/o Md. Riyazoddin
Siddiqui, Age; 22 Yr., occu. Education
All R/o Mohalla Bagesham, Near
Railway Station, Udgir,
District Latur.
5) Bhagwan s/o Shankar Salve,
Age: Major, occu. Driver
R/o Kingaon, Tq. Chikli,
District Buldhana.
6) Pradeep s/o Bhanukumar Kothari,
(owner of luxury bus, died
His L.rs.)
6/1) Balukumar alias Bhanukumar
Kothari
age: 60 Yrs.,
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5 FA Nos.49/2001 & Ors.
6/2) Sarojabai w/o Balukumar Kothari,
Age: 55 Yrs.,
Both R/o Cidco, N-3, Block No.32,
Aurangabad.
7) Anil s/o Narayanrao Pudale,
Age: 35 Yrs., occu. Business.
R/o Hanuman Mandir, Udgir.
5) New India Insurance Co. Ltd.
Through its Branch Manager,
Chandranagar, Latur. = RESPONDENTS
(Nos. 1 to 4 orig.
claimants; Nos. 5 to 8
ig orig. opponents Nos.1,2
5 and 6)
-----
Mr.AB Gatne, Advocate for Appellant;
Mr.SS Manale, Advocate for Respondent No.1;
Mr.Pratap G. Rodge, Advocate for Resp.No.4 (in FA
Nos. 49/2001; 50/2001 & 51/2001 and for Resp. No.7 in
FA No.52/2001)
Mr. MM Ambhore, Advocate for Respondent No.5 (in FA
Nos.49/2001; 50/2001 & 51/2001) and for Resp. No.8
(in FA No.52/2001)
-----
CORAM : P.R.BORA, J.
th
DATE OF RESERVING JUDGMENT: 5
April,2016
nd
DATE OF PRONOUNCING JUDGMENT: 2 May,2016
JUDGMENT:
1) Heard. Since the issue involved in all
these appeals is common, all these appeals are
being decided by this common reasoning.
2) An accident had happened on 17.4.1995
having involvement of luxury bus bearing
registration No.MH-20-F-9991 and a truck bearing
registration No.MWE-1561. The persons, who were
injured in the said accident and the legal heirs
of deceased persons, who suffered death in the
said accident, filed Motor Accident Claim
Petitions before the Motor Accident Claims
Tribunal, at Latur (for short, the Tribunal). Two
Claim Petitions bearing MACP No.362/1995 and
220/1995 were filed in the year 1995; whereas
three claim petitions were filed in the year
1996. MACP No.362/1995 wad decided on 21.2.1998;
whereas the other four claim petitions came to be
decided on 22.6.2000. MACP No.362/1995 was
decided by the then Ex-officio Member of the
Tribunal viz. Shri V.R.Kingaonkar; whereas MACP
Nos.60/1996; 79/1996; 220/1995 and 187/1996 were
decided on one and the same day, i.e. 22.6.2000
by the then Ex-officio Member of the Tribunal
viz. Shri S.K.Raut. In MACP Nos.220/1995 and
187/1996, the learned Member of the Tribunal has
written separate judgment whereas MACP
Nos.60/1996 and 79/1996, common judgment and
award is passed.
3) In the aforesaid four Claim Petitions,
the learned Tribunal, which has decided the said
claim petitions had held the owner, driver and
insurer of the luxury bus liable to pay the total
amount of compensation to the respective
claimants in the said claim petitions and has not
saddled any liability upon the owner and insurer
of the truck involved in the accident. Whereas,
the learned Tribunal, who decided MACP No.
362/1995 has held the drivers of both the
vehicles, i.e. luxury bus and the truck
responsible for occurrence of the alleged
accident and has held the negligence on the part
of the drivers of the said respective vehicles in
the proportion of 60:40 i.e. 60% of the driver of
the luxury bus; whereas 40% of the driver of the
truck.
4) Shri Gatne, the learned Counsel
appearing for the appellant/insurance company
would submit that before passing of the judgment
in the aforesaid claim petitions, the
appellant/insurance company had placed on record
the certified copy of the judgment delivered in
MACP No.362/1995 and had brought to the notice of
the learned Member of the Tribunal that in the
said petition, the driver of the luxury bus and
the truck both have been held responsible for
causing the alleged accident in the proportion of
60:40. Shri Gatne further submitted that in view
of the aforesaid finding recorded in the judgment
delivered in MACP No.362/1995, the learned Member
of the Tribunal, who decided the subsequent four
claim petitions, must have followed the said
finding in so far as negligence part was
concerned. The learned counsel submitted that
the Tribunal, however, completely ignored the
said finding recorded in the earlier decision in
the claim petition arising out of the same
accident and held the only the driver, owner and
insurer of the luxury bus fully responsible for
paying the compensation to the claimants in the
respective claim petitions. Shri Gatne further
submitted that the respondent No.5 - New India
Insurance Co. Ltd. has not challenged the
Judgment and Award passed in MACP No.362/1995.
The learned counsel further submitted that on the
contrary, the said insurance company has
satisfied the award passed in the aforesaid claim
petition. In the background facts, as aforesaid,
the learned Counsel for the appellant/insurance
company prayed for modification in the impugned
Awards and to allow the appeals to that extent
filed by the appellant/insurance company.
5) Shri Ambhore, learned counsel appearing
for Respondent No.5/insurance company has fairly
submitted that Respondent No.5/insurance company
has not challenged the Judgment and Award passed
in MACP No.362/1995. The learned Counsel further
conceded that the Award passed in the aforesaid
claim petition has been satisfied by Respondent
No.5-insurance company.
6) The learned counsel, however, further
submitted that the appellant insurance company
had not raised any specific plea in their written
statement filed before the Tribunal in the
respective claim petitions that on the part of
negligence, the same finding may be recorded, as
was recorded in the judgment delivered in MACP
No.362/1995. The learned Counsel further
submitted that in such circumstances, the learned
Tribunal, on its own assessment of the evidence
on record, has independently recorded a finding
thereby holding the driver of the luxury bus
solely negligent and consequently responsible
for the occurrence of the alleged accident.
According to the learned counsel, since the
evidence in MACP No.362/1995 and the subsequent
claim petitions was not similar, the finding
recorded in MACP No.362/1995, was not binding
while deciding the subsequent claim petitions.
The learned counsel, therefore, prayed for
dismissal of the appeals.
7) After having considered the submissions
advanced by the learned counsel appearing for the
respective parties and on perusal of the record
in the respective claim petitions, the following
point has arisen for my consideration, -
" Whether the finding on the issue
of negligence recorded in the
judgment delivered in MACP No.
362/1995, would operate as res
judicata against Respondent New
India Insurance Company, in the
four claim petitions subsequently
decided arising out of the same
accident?"
8) As mentioned earlier, total five claim
petitions were filed, arising out of one and the
same accident. Admittedly, out of the said five
claim petitions, MACP No.362/1995 came to be
decided first, i.e. on 21.02.1998. In the
aforesaid claim petition, the Tribunal, which has
decided the said petition, has held the drivers
of both the offending vehicles negligent in
causing the alleged accident and proportion of
their negligence is fixed by the said Tribunal in
the ratio of 60:40. New India Insurance Company
has admittedly not challenged the judgment
delivered in MACP No.362/1995; on the contrary,
has satisfied its part in the award passed in the
said petition.
9) At the outset, it has to be noted that
when the copy of the judgment and award passed in
MACP No.362/1995 was placed on record by the
present appellant, the learned Tribunal was not
justified in taking a different view on the issue
of negligence.
10) In MACP No.362/1995, a specific issue
(No.4) was framed by the Tribunal, 'whether it
was a case of composite or contributory
negligence?' and the said Tribunal has recorded a
finding that it was a case of composite
negligence. Issue No.2 in the said petition
was , - "Whether the luxury bus and truck were
being rashly and negligently driven by Respondent
No.1 and Raju Biradar, and as such, the accident
occurred?" and the said issue has also been
answered by the Tribunal in affirmative holding
thereby that the driver of the luxury bus and
truck both were negligent and alleged accident
was the result of their composite negligence. In
para 12 of the judgment, the Tribunal has
observed thus,
"12. I have no hesitation in
holding that both the drivers were
rash, negligent and careless in
driving their respective vehicles.
Negligence of Respondent No.1 was
little more as compared to that of
the deceased driver of the goods
truck vehicle. Hence, I deem it
proper to hold that the Respondent
No.1 and the deceased driver of the
goods truck vehicle have
contributed to the accident due to
their negligence and rashness and
their respective contribution is
60:40."
11) I reiterate that in view of the
discussion made and the finding recorded on the
point of negligence in the judgment delivered in
MACP No.362/1995 by the Tribunal, there was no
reason for the tribunal, which subsequently
decided the matters arising out of the same
accident, to take a different view and to record
a contrary finding.
12) As held by the Hon'ble Apex Court in the
case of Ferro Alloys Corp. Vs. Union of India -
AIR 1999 SC 1236, "where there is a conflict of
interest between co-defendants and it is
necessary to decide that conflict in order to
grant relief to the plaintiff, such adjudication
will operate as res judicata between the co-
defendants."
. In the present case, it was the
contention of the claimants in all the claim
petitions filed by the respective claimants
arising out of the one and the same accident,
that the alleged accident had happened because of
the rash and negligent driving of the driver of
the luxury bus as well as the deceased driver of
the offending truck. The luxury bus was insured
with United India Insurance Co. whereas the truck
was insured with the New India Insurance Co. In
their respective written statements, both the
insurance companies have taken a defence that the
alleged accident had not happened because of the
negligence on the part of the driver of the
vehicle insured with them. Since the claim
petitions were filed under Section 166 of the
Motor Vehicles Act, it was obligatory on the part
of the respective claimants to establish as to
because of whose negligence the alleged accident
had occurred. It was thus necessary for the
Tribunal to decide as to because of whose
negligence, the alleged accident had happened so
as to grant relief to the claimants in the
respective claim petitions. Whereas there was a
conflict of interest in between the United India
Insurance Co. and New India Insurance Co.; both
were defendants/respondents in the respective
claim petitions. As stated earlier, both were
alleging negligence on the part of driver of the
other vehicle. In the circumstances, the
Tribunal adjudicated the said issue and recorded
a finding that in occurrence of the alleged
accident, drivers of both the vehicles were
negligent and proportion of their negligence was
60:40. In view of the law laid down by the
Hon'ble Apex court in the aforesaid judgment,
such adjudication and finding recorded will
operate as res judicata between the co-
defendants, i.e. United India Insurance Co. and
New India Insurance Co. in the subsequent
suits/claim petitions.
13) The doctrine of res judicata applies
between the co-defendants if the following
conditions are fulfilled, -
i) The conflict of interest between the
co-defendants;
ii) The necessity to decide that
conflict in order to give the plaintiff
appropriate relief; and
iii) The decision on the question
between the co-defendants.
If the aforesaid three conditions are present,
the doctrine of res judicata would apply.
14)
In the instant matter, all the aforesaid
three conditions are fulfilled and as such, the
finding as about the negligence recorded by the
Tribunal in MACP No.362/1995 was binding on both
the Insurance Companies. in all the subsequent
claim petitions arising out of the same accident.
The New India Insurance Co. is now estopped from
raising a plea that in subsequent matters, it was
open for the Tribunal to take a contrary view.
15) In the case of Himachal Road Transport
Corporation and Ors. Vs. Krishna Devi and Ors. -
2006 ACJ 1248, a bus of Himachal Road Transport
Corporation and the truck were involved in an
accident, which gave rise for filing of 18 claim
petitions. Out of the said 18 claim petitions,
12 petitions were compromised before the Lok
Adalat and the Himachal Road Transport
Corporation and the insurance company, with which
the truck was insured, agreed to bear the
compensation in the ratio of 50:50. In the
remaining matters, Awards which were passed were
challenged by the Himachal Road Transport
Corporation before the High Court on the point of
negligence and also on quantum. While deciding
the said appeals, the High Court of Himachal
Pradesh held that it was not permissible for the
Himachal Road Transport Corporation to challenge
the finding on the point of negligence in view of
the fact that out of the 18 claim petitions, 12
petitions which were compromised before the Lok
Adalat, the appellant- Himachal Road Transport
Corporation, had agreed to bear the compensation
in the ratio of 50:50.
16) In the case of Managing Director,
Tamilnadu State Corporation Ltd. Vs. A.T.
Narendiran and others - 2010 ACJ 77, before the
Madras High Court, similar facts were involved.
In the said matter also, in collision between a
Car and a bus belonging to Tamilnadu Road
Transport corporation, several persons were
injured and claim petitions were filed by the
said injured persons claiming compensation before
the Tribunal. Some of such matters were settled
before the Lok Adalat and liability to pay
compensation was accepted by the Tamilnadu Road
Transport Corporation also. In some other claim
petitions, which were not settled in Lok Adalat,
the awards came to be passed by the Tribunal and
in one of such appeals filed against the said
Award, the Tamilnadu State Road Transport
Corporation challenged the finding recorded by
the Tribunal against its driver. The Madras High
Court rejected the contention of the Tamilnadu
State Road Transport Corporation, observing that
the said Transport Corporation which has accepted
the liability on account of negligent driving of
its driver and settled the claims in respect of
the claimants in CMA Nos.767 to 769 of 2001, was
estopped from taking up the plea of `no
negligence' in the appeals before it. The High
Court has further observed that, as the Award
passed by the Lok Adalat has the effect of a
decree of a civil court, it was final and binding
on all the parties to the dispute and it was not
open to the appellant Transport corporation to
raise it as a ground in the said appeal.
17) In United India Insurance Co. Ltd., v. Smt.
Muthumma 2000 ACJ 289, (Karnataka) High Court
considered a case whether the Transport Corporation
having accepted the liability on account of negligent
driving of his driver can take up other contentions
in the claim petitions. The facts of the reported
case are that the claimants filed petitions for
compensation stating that the driver of the Transport
Corporation was responsible for the accident. The
matter was referred to the Lok Adalat and settled.
The Transport Corporation made the payments and a
compromise was arrived at. Considering the objections
raised by another claimant, that once the K.S.R.T.C.
has entered into comprise before the Lok Adalat in
respect of two other petitions which also arise out
of the same accident, the Court held that the
Transport Corporation is estopped from taking up the
contention that the driver of the jeep in which the
claimant was travelling, was responsible for the
accident. The Court at Para 5 held as follows:
"5. At the very outset, it has to be
stated that in this case the law of
estoppel operates. It is an admitted fact
that the K.S.R.T.C. in M.V.C. Nos.596 and
586 of 1987 have settled the matter
before the Lok Adalat and it has made
full payment also. This goes to show that
by this settlement accepting the
liability on account of the negligent
driving, it is now estopped from taking
up any other contention. This is a fit
case where the law of estoppel comes into
play very effectively. The learned Member
of the Tribunal ought to have taken this
aspect into consideration. He has failed
to consider this aspect and unnecessarily
has ventured to make some futile exercise
which were uncalled for looking to the
facts and circumstances of the case."
18) In view of the law laid down as above,
the New India Insurance Company is now estopped
from taking up a plea that, in occurrence of the
alleged accident, there was no negligence on the
part of deceased driver of the Truck insured with
the said Insurance Company, or can dispute the
proportion of the negligence on the part of said
driver when it had accepted the Judgment and
Award passed in M.A.C.P.No.362/1995 arising out
of the same accident decided on 21.02.1998 and
has also satisfied the liability cast on its part
in the said Judgment and Award, wherein the
learned Tribunal, which has decided the said
claim petition, has held the negligence to the
extent of 40% on the part of deceased driver of
the Truck in occurrence of the alleged accident.
Similarly, when in a petition arising of the said
accident, decided earlier, the Tribunal which has
decided the said petition, has recorded a finding
on the point of negligence, it was not open for
the learned Tribunal which decided the remaining
matters arising out of the same accident
subsequently, to take a contrary view and to
record a contrary finding.
19) In the above circumstances, the finding
recorded by the learned Tribunal in the Judgments
impugned in the present appeals on the point of
negligence, is liable to be quashed and set aside
and it is accordingly set aside. The finding
recorded on the point of negligence in the
Judgment delivered in M.A.C.P. No.362/1995 would
as it is apply in the present matters also. It
is accordingly held that, the alleged accident
was the result of composite negligence of driver
of the Luxury Bus and the deceased driver of the
Truck involved in the accident and the proportion
of their negligence is held 60:40, meaning
thereby that, the owner and insurer of the Luxury
Bus are responsible to shell the liability to the
extent of 60% and that of the truck to the extent
of 40%..
20) The United India Insurance Company has
admittedly deposited the entire amount of
compensation under the Awards in the present
appeals, together with interest accrued thereon
till the date of deposit of the said amount and
the respective claimants have withdrawn the
entire said amount under the orders of this
court. In view of the fact that now the New
India Insurance Company is held liable to pay the
amount of compensation to the extent of 40%, the
appellant United India Insurance company has
become entitled to recover from The New India
Insurance Company the said amount of 40%. In the
result, the following order, -
ig ORDER
i) The finding recorded on the
point of negligence in the judgments
impugned in the present appeals is
quashed and set aside;
ii) It is held that the alleged
accident happened as a result of
composite negligence on the part of
driver of the luxury bus and the
deceased driver of the truck involved in
the said accident and the proportion of
such negligence and consequent liability
to pay the amount of compensation to the
respective claimants, is held in the
ratio of 60:40, as has been held in the
judgment in MACP No.362/1995;
iii) Consequently, The New India
Insurance company shall pay to the
United India Insurance Company 40% of
the total amount of compensation, which
has been paid by the United Insurance
Company to the claimants in the
respective claim petitions along with
the interest @ 6% p.a. from the date of
deposit of the said amount by the United
India Insurance Company in this Court
till its actual realization.
iv) The First Appeals are thus
allowed in the aforesaid terms without
any order as to costs.
sd/-
(P.R.BORA)
JUDGE
bdv/
fldr 22.4.16
