Karnataka High Court
New India Assurance Co.Ltd., vs Shanthi Mascarenhas on 12 July, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO.4427 OF 2010 (MV)
BETWEEN:
NEW INDIA ASSURANCE CO.LTD.,
SHRIRAM ARCADE, II FLOOR
OPP HEAD POST OFFICE, UDUPI TALUK,
NOW REPRESENTED BY ITS
REGIONAL MANAGER,
NEW INDIA ASSURANCE CO LTD,
REGIONAL OFFICE
2-B, UNITY BUILDING ANNEXE,
P KALINGA RAO ROAD,
BENGALURU - 560 027. ... APPELLANT
(BY SRI.A N KRISHNA SWAMY, ADVOCATE)
AND
1. SHANTHI MASCARENHAS
D/O LATE JOSEPH MASCARENHAS,
AGED ABOUT 31 YEARS,
KANNIKATTA KOPPALA HOUSE
NEERUDE POST, MANGALORE
2. H MAHESH SHENOY
NOW AGED ABOUT 41 YEARS
R/A SIDDI VINAYAKA
BEDEDINA GUDDE, UDUPI
UDUPI TALUK ... RESPONDENTS
(BY SRI. KUMARA.B, ADVOCATE FOR
SRI. KRISHNA MOORTHY D, ADVOCATE FOR R1
R2- SERVED)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 23.02.2010 PASSED IN
MVC NO.1399/2006 ON THE FILE OF MEMBER, MACT-II
& I ADDITIONAL DITRICT JUDGE, DAKSHINA KANNADA,
MANGALORE. AWARDING A COMPENSATION OF
RS.3,88,500/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL PAYMENT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal by the insurer is directed against the judgment and award dated 23.02.2010 made by the M.A.C.T. D.K. Mangalore allowing the claimant's M.V.C.No.1399/2006, whereby a compensation of Rs.3,88,500/- has been awarded with interest at the rate of 6% p.a.
2. The brief facts of the case are that:
a) In a vehicular accident that happened on 08.07.2006, one Joseph Mascarenhas, aged 34 years sustained fatal injuries and succumbed to the same. The legal heir of the deceased had claimed compensation by presenting M.V.C.No.1399/2006 u/s. 163A of Motor 3 Vehicles Act, 1988 which was resisted by the appellant-
Insurance Company by filing the Written Statement.
b) To prove the claim, the claimant examined herself as PW-1 and in her evidence 7 documents came to be marked as Ex.P-1 to P-7 which included the police papers as well. From the side of the appellant, none was examined, although a copy of the ration card and a copy of the insurance policy were marked as Ex. R-1 and R-2. The M.A.C.T. after considering the pleadings of the parties and after weighing the evidentiary material, has entered the impugned judgment and award.
3. The learned counsel for the appellant Shri Krishna Swamy, firstly, contends that the 'Doctrine of Res Judicata' applies to various stages of very same litigation and therefore the order dated 03.09.2009 mentioned above, whether we call it interlocutory or otherwise, would attract the doctrine more particularly when it has attained finality, there being no further challenge thereto. In support of his contention he banks upon the decision of the Apex Court in 4 the case of Y.B.PATIL vs. Y.L.PATIL reported in 1976 (4) SCC 66.
4. The learned counsel for the appellant-Insurance Company next contends and presses into service a legal maxim: "nullus commodum capere potest de injuria sua propria" ie., 'No man shall take advantage of his own wrong'. This maxim, which is based on elementary principles, is fully recognized in Courts of law and equity, and, indeed, admits of illustration from every branch of legal procedure. It is contrary to justice, submits the learned counsel, that a party to a contract of insurance should be permitted to derive benefit from his own wrong. He points out that the claimant had dragged on the proceedings in the claim petition, regardless of bad faith or not, and therefore, he should not be permitted to derive mileage from it. He brings to my notice a copy of the order dated 03.09.2009 made by the M.A.C.T. to the effect that the claim petition was dragged on from 2006 till 08.08.2007 and for this idle period, no interest should accrue to the claimant. This order having not been adverted to by the 5 M.A.C.T., has resulted into granting of interest for this idle period and this is a grave error of law, states, the learned counsel.
5. The learned counsel for the respondent-claimant, per contra, submits that it was only an interlocutory order which cannot be given much importance, inasmuch as there is a presumption in law that the Court will be in the know of all the stages of proceedings and the orders made therein and therefore it cannot be said that the M.A.C.T. has awarded interest for this idle period without adverting to the said order. He says that rightly or wrongly, the M.A.C.T. in the totality of the circumstances has made the impugned judgment and award granting a just compensation with specific stipulations as to rate of interest and therefore the same may not be interfered with.
6. I have heard the learned counsel for the appellant-Insurance Company and the learned counsel for the claimant. I have also perused the records.
7. The 'Doctrine of Res Judicata' ordinarily applies at the successive stages of the very same proceedings, is well 6 established. The Apex Court in Y.B. Patil's case at para 4, page 68 observed: "It is now well settled that principles of res judicata apply in different stages of the same proceedings ....". That being so, the Tribunal fell in a gross error of law in awarding interest for the delayed period of protraction of proceedings that was already treated by its own order dated 03.02.2009 stating that, no interest would be payable for the said period.
8. The order of the Tribunal dated 03.09.2009 is founded on the principle that no person can take the benefit of his own wrong to the disadvantage of the other side, although the said principle is not explicitly stated by the M.A.C.T. The impugned judgment and award do not reflect as to the M.A.C.T. having adverted to its own order which presumably got camouflaged in the bulk of case papers. Therefore to the extent that the impugned award grants interest for this idle period, the interference of this Court is warranted, to set the injustice at naught. 7
9. This Court after noticing several matters takes judicial notice of mounting number of accident claims cases ie., M.V.C./W.C. in which the Motor Accident Claims Tribunals/ Commissioners for Workmen's Compensation have been awarding interest even for the periods of adjournments granted at the instance of the claimants. The claims cases have been adjourned and adjourned, for years and years, resulting into delayed justice to the deserving claimants. The cases wherein no interest is awarded for the periods covered by such adjournments are only marked by their rarity. Allowing interest even for the periods covered by the adjournments granted at the instance of the claimants, virtually amounts to unjust enrichment of the claimants at the cost of other stake holders, namely owners of the offending vehicles or the insurance companies. This would not augur well to the system and therefore, the same is required to be addressed at once.
10. The Motor Accident Claims Tribunals/ Commissioners for Workmens' Compensation shall 8 specifically mention the number of adjournments sought by the claimants, employers, owners of the offending vehicles and the insurers as the case may be; the accumulated periods of adjournments attributable to the above three stake holders shall be computed, and stated separately for the ease of observation and further that the same shall necessarily be a part of the judgment and award. Similarly, the accumulated period of adjournments wherein the matter was adjourned by the Tribunal/Courts/Workmens' Compensation Commissioner, suo moto ie., not at the instance of any of the stake holders, shall also be specifically mentioned in the said paragraph. No interest shall accrue or be awarded for the periods covered by the adjournments granted at the instance of the claimants or their witnesses in the claim petitions, unless there are very special reasons to be recorded in writing for such adjournments, and also that the other stake holders too have contributed to the cause of the adjournments in question.
9
11. Except the above two grounds nothing more is urged in this appeal. In the circumstances, I make the following:
ORDER The appeal is favoured in part; the impugned judgment and award are modified to the effect that no interest shall be payable to the claimant for the period between 8.8.2007 and 11.9.2009. In all other respects, the impugned judgment and award stand unaltered.
The amount in deposit in the Registry be transmitted to the Tribunal at D.K. Mangalore forthwith for disbursal to the awardees and for the refund of residue to the appellant- insurer.
Sd/-
JUDGE Snb/