Gujarat High Court
Motiben Dudabhai vs Arjanbhai Munjabhai on 30 September, 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
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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
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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
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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
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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
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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
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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
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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
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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
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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:
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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
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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
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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
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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
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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
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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
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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
