Allahabad High Court
Oriental Insurance Co Ltd vs Bhag Singh And Others on 8 July, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. - 164 of 2005 Appellant :- Oriental Insurance Co Ltd Respondent :- Bhag Singh And Others Counsel for Appellant :- Arun Kumar Shukla Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by Insurance Company, being aggrieved by judgment and award dated 15.10.2004 passed by Motor Accident Claims Tribunal / Additional District & Sessions Judge, Court No.4, Bulandshahar in MACP No.224 of 1994.
2. This appeal at the behest of Insurance Company is covered by a Division Bench judgment of this Court reiterated and followed in First Appeal From Order No.896 of 2005 ( United India Insurance Company Limited Versus Smt. Anarwati & Others) decided on 20.10.2016 wherein it has been held that as far as issue of negligence is concerned, the judgment in one matter has to be followed by the subsequent Tribunal. Paragraph 19 of the Division Bench Judgment passed in First Appeal From Order No.896 of 2008 and Paragraph 14 of the judgment passed in First Appeal From Order No. 3096 of 2004 reads as follows :
"19. The driver of motorcycle cannot be said to have contributed to the accident having taken place. We have decided the matter of contributory negligence as learned Advocate for appellant did not disclose that in the case of Baladeen and others Vs. Tofan Singh and another, M.A.C.P. No.501 of 2002, involving same vehicles being Tractor No.UP 75-A/1732, the driver of Tractor was held responsible for alleged accident. Had this been brought to our notice in the beginning and had it been conveyed whether said decision was challenged or not, we would not have re-decided said issue as decision on issue of negligence has already been decided by Tribunal and in the said decision, driver of Tractor has been held solely negligent. In light of decision of High Court of Gujarat in United India Insurance Company Ltd. Vs. Hamirbhai and others, GLH 2007 (1) 633, we do not say anything about supression of said material by learned Counsel while contending that vehicle was not involved in accident and it was a case of contributory negligence. We decided the same as it was not pointed out that Insurance company has challenged said decision or not. The decision in other matter arising out of same accident will act as res judicata and, therefore, this ground is no longer available to Insurance company as they had not challenged earlier judgment which found that driver of Tractor was responsible. Thus, we hold that driver of Tractor was negligent"
"14. It is rightly submitted by the counsel for insurance company that the finding of the earlier Bench was binding on the Tribunal as far as issue of negligence is considered. He has heavily relied on Division Bench judgment of this High Court in First Appeal From Order No.896 of 2005 (United India Insurance Company Limited Versus Smt. Anarwati & others) decided on 20.10.2016 and has submitted that the finding given to the contrary requires to be up turned . The said submission has to be accepted. Till it is up turned by Higher Court in appeal. In the earlier matter, the Tribunal held both the drivers negligent. In the subsequent matter the said finding has to operate as res judicata."
3. Thus, it is clear that the Tribunal committed an error in giving its fresh finding on negligence for the accident which took place in the year 19994 and did not follow the earlier judgment. The deceased driver Gurudas Singh was not considered to be negligent earlier also holding that the bigger vehicle contributed 66% is also bad. The earlier judgment as far as negligence is concerned would be binding on the subsequent Tribunal deciding between the same parties.
4. The Claim Petition No.148 of 1994 was decided much before this decision. Thus, the said judgment is upturn.
5. All other grounds fail. The Insurance Company would would be entitled to recover the said amount from the tortfeasors.
6. As far as the question of compensation is concerned, it cannot be said that the Tribunal has awarded excessive amount it has granted Rs.3,62,000/- with 6% rate of interest. No amount has been granted under the head of future loss of income.
7. The facts are not narrated as the only question which arises is whether a subsequent judgment should be followed as far as its finding on negligence is concerned.
8. In that view of the matter this appeal is partly allowed. The record and proceedings of the Tribunal be sent back forthwith.The amount be re-paid to the insurance company and consequences to follow.
9. No other grounds are pressed into services.
Order Date :- 8.7.2019/Mukesh