High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK MACA Nos. 524, 525, 526, 527, 528, 529, 530, 531, 533, 534 and 535 of 2006. From an award dated 4.2.2006 passed by Sri K.C. Swain, III M.A.C.T. , Balasore in MAC Case Nos. 116/179 of 2002/1995, 4/171 of 1997/1995, 142/170 of 1997/1995, 157/177 of 2000/1995, 164/169 of 1997/1995, 29/174 of 1997/1995, 17/182 of 2001/1995, 27/164 of 2001/1995, 18/183 of 2001/1995, 67/180 of 1999/1995 and 57/181 of 2000/1995. ------------ The Oriental Insurance Company Ltd. Appellant (In all the appeals) ... Sri Umakanta Sethi & ors … -Versus- Smt. Minati Sethi & ors. Smt. Menaka Sethi & ors. Smt. Sukamani Sethi & ors. Bharat Sethi & ors. Upendra Jena Upendra Prasad Sethi & ors. [In MACA 524/2006] [In MACA 533/2006] [In MACA 525/2006] [In MACA 528/2006] [In MACA 526/2006] [In MACA 531/2006] [In MACA 535/2006] [In MACA 527/2006] [In MACA 529/2006] [In MACA 530/2006] [In MACA 534/2006] ... ... ... ... ... ... ... Respondents For Appellant - M/s. P. Ray, S. Ray & A. Ghose. [in all the appeals] For Respondents - [In MACA Nos. 524 & 533 of 2006]
Legal Reasoning
Mr.S.K.Padhi, Sr. Advocate M/s. M.Padhi, G.Misra & A.Das (For R-5) M/s M.Basu & M.Kanungo (For R-2) [In MACA Nos. 525 & 528 of 2006] 2 Mr.S.K.Padhi, Sr. Advocate M/s. M.Padhi, G.Misra & A.Das (For R- 6 & 4) M/s B.B.Singh, J.N.Barik, P.B.Sinha, T.K.Dash (For R-1 to 3 & 1) [In MACA Nos. 526, 527,529, 530, 531, Mr.S.K.Padhi, Sr. Advocate 534 & 535 of 2006] M/s. M.Padhi, G.Misra & A.Das (For R-4, 5 & 10) M/s M.Basu & M.Kanungo (For R-1 in all cases except MACA No.530 of 2006) M/s M/s B.B.Singh, K.C.Dehury & P.B.Sinha (For R-2 MACA No.530 of 2006) --------------- P R E S E N T: THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 29. 8. 2013 B.N.Mahapatra,J. This batch of appeals has been filed under Section 173 of the Motor Vehicles Act, 1988 (in short, ‘the Act’) challenging a common award dated 4.2.2006 passed in MAC Case Nos. 116/179 of 2002/1995, 4/171 of 1997/1995, 142/170 of 1997/1995, 157/177 of 2000/1995, 164/169 of 1997/1995, 29/174 of 1997/1995, 17/182 of 2001/1995, 27/164 of 2001/1995, 18/183 of 2001/1995, 67/180 of 1999/1995 and 57/181 of 2000/1995. Since, the above M.A.C. cases were filed out of the same accident by different claimants under Section 166 of the Act
Decision
and they were disposed of by a common award dated 4.2.2006 and the 3 grounds taken in all the appeals are similar, they are disposed of by this common judgment. 2. The claimants’ case in a nutshell is that on 12.6.1995 the deceased persons and the injured were returning to their respective homes in a trekker bearing Registration No.OR-01-9505 along with the groom after attending a marriage. While they were coming from village Jalada to village Bari on N.H.B. at about 5.50 A.M. in front of Matiapada Dhaba hotel an Truck bearing registration No.AP-16T-6845 coming from the opposite direction hit the Trekker resulting in death of some of the occupants of the Trekker and injuries to several others. According to the claimants, the Truck driver was rash and negligent and he was responsible for the accident. Thereafter Simulia P.S. Case No.44 of 1995 was registered in connection with the above accident. With these averments, the claim petitions were filed before the learned Tribunal. 3. Opposite party No.2-Oriental Insurance Company Ltd.( in MAC No.116/179 of 2002/1995) filed written statement before the learned Tribunal challenging the maintainability of the cases. It was pleaded that there was no such accident and the Truck in question had not caused any accident. It was also pleaded that the driver of the offending Truck had no valid and effective driving licence at the time of accident. Their specific case is that the driver of the offending Trekker lost his control over the vehicle as a result of which the Trekker capsized 4 and the deceased persons died and several persons became injured in that accident. 4. Opp. party No.3–National Insurance Com. Ltd., (in MAC No.116/179 of 2002/1995), which is the insurer of the offending Trekker filed a separate written statement. According to opp. party no.3, the Trekker driver was not responsible for the accident and as such opp. party no.3 is not liable to pay the compensation. It had also taken the plea that the driver of the trekker had no valid driving licence at the time of accident. Opp. party Nos. 1 and 4, who are the owners of the Truck and Trekker respectively had neither appeared nor filed any written statement before the court below and as such the claim petitions were heard ex parte against opp. party nos. 1 and 4. 5. On the rival pleadings of the parties, the learned Tribunal framed four issues. Taking into consideration the oral and documentary evidence, learned Tribunal held that it was the offending Truck which caused accident resulting the death of the deceased persons in question and injuries to Ramamani Sethi-P.W.1 in MAC Case No. 57/181 of 2000/1995 and there was valid driving licence of the driver of the offending Trekker. Thus learned Tribunal held that the offending truck had caused the accident and the driver of the Truck is responsible for it and the Trekker driver was not at fault. Opp. party No.3-National Insurance Company who is the insurer of the trekker is not liable to pay the compensation. Opp. party No.2-Oriental Insurance Company being 5 the insurer of the offending truck is liable to pay the compensation separately to all the claimants as per the calculation made in the order of the learned Tribunal. 6. Mr. P. Ray, learned counsel appearing on behalf of the claimants submitted that although the specific plea was canvassed before the Tribunal that the driver of the truck insured with the appellant did not produce valid and effective driving licence on the date of accident, the finding of the Tribunal that Driver of the Truck had valid driving licence is not tenable in law. Mr. Ray further submitted that the Driver of the Trekker insured with the National Insurance Company was responsible for the accident as the MVI report conclusively proved that the trekker was responsible for the accident. The accident took place due to overloading of the trekker and rash and negligent driving of its driver. Mr. Ray further submitted that assuming for the sake of argument, but not admitting that one of the co-passengers has stated that the accident had taken place in the middle of the road and there was head on collision between two vehicles, the learned Tribunal should have apportioned the amount of compensation between the insurers of both the vehicles. The learned Tribunal has committed wrong in holding that the driver of the truck is responsible for the accident which is contrary to the evidence and pleadings. It was submitted that vide order dated 4.9.2003 passed in MAC Case No. 272/229 (C) of 1997-1995, learned tribunal held that insurers of both the offending truck and trekker are equally liable to pay 6 compensation to the claimants. The said order was challenged before this Court by the National Insurance Company in MACA No. 819 of 2003 and this Court vide judgment dated 25.4.2008 disposed of the said appeal holding that the Oriental Insurance Company is liable to pay the amount of compensation to the claimants. Mr. Ray further submitted that the learned Tribunal passed the impugned award on the basis of report of the M.V.I., Ext.A without objection. Though both the Insurance Companies filed MACAs, but the appellant-National Insurance Company got the matter heard without bringing the fact of pendency of the MACAs filed by the Oriental Insurance Company to the notice of the Court. Without valid and cogent reasons, the Tribunal rejected the Ext.A and no petition under Order 41 Rule 2, CPC has been filed. Mr. Ray submitted that M.V.I. report, the only evidence is to be believed. The Motor Vehicle Inspector is appointed by virtue of Section 213 of the Act and the State Rules regulate the manner of discharge of functions and duties of the MVI including examinations and inquires as he thinks fit in order to ascertain whether the provisions of the Act and the Rules are being observed which include to certify the fitness of vehicles. The M.V.I. is an appointed authority under Section 213 of the Act competent to give an opinion and in this case the MVI report was filed, which was marked as Ext. A, without any objection by the National Insurance Company. This Court has not gone into the real issue. Ordinarily, an objection to the admissibility of a document should be taken when it is tendered and not 7 subsequently. Placing reliance on the judgment of the Privy Council in the case of Padman and others v. Hanwanta and others, AIR 1915 PC 111 it was submitted that the Court did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. In support of the above contention, Mr. Ray also relied upon the decisions of the Hon’ble Supreme Court in the cases of P.C. Putushothama Reddiar v. S. Perumal, 1972 (2) SCR 646; and Shalimar Chemical Works v. Simendra Oil, 2010 (8) SCC 2123 and on the judgment of Ballava Devi alias Gajendra and others v. Babaji Charan Gajendra and another, 2007 (Sup.II) OLR 646. 7. Mrs. M.Padhi, learned counsel appearing for Respondent No.5-National Insurance Company Ltd. submitted that vide award dated 4.9.2003 passed in MAC Case No. 272/229 (C) of 1997-1995 learned Tribunal held that both the insurers are equally liable to pay the compensation to the claimants. Challenging the said order the National Insurance Company preferred an appeal bearing MACA No. 819 of 2003 and this Court vide judgment dated 25.4.2008 directed that the Oriental Insurance Company, the insurer of the truck is liable to pay the amount of compensation. This order has not been challenged in the apex Court. Therefore, now the Oriental Insurance Company cannot raise question on the validity of the said order in the High Court. Placing reliance on the decisions of the Hon’ble Supreme Court in Shyam Babu vs. District 8 Judge, Moradabad, AIR 1984 SC 1399; State of West Bengal vs. Hemant Kumar Bhattacharjee, AIR 1966 SC 1061; P.V. Jose vs. Kanickammal, (2000) 9 SCC 350, Ramchandra Dagdu Sonavane (Dead) by L.Rs. and Ors. v. Vithu Hira Mahar (Dead) by L.Rs. and Ors, AIR 2010 SC 818 and K.B. Roy vs. B.L. Roy, 2005 AIR SCW 3578, it was submitted that since this Court has already held that the Oriental Insurance Company is liable to pay the amount of compensation now in the present appeals the Insurance Company cannot challenge the said finding. 8. Mr. M. Basu, learned counsel appearing for the claimant- respondent No.1 submitted that the amount of compensation awarded is low. Further placing reliance on the judgments of this Court in New India Assurance Co. Ltd. v. Manjulata Jena and others, 2011 (2) OLR -63 and United India Insurance Co. Ltd. and another v. Sankranti Swain and others, 1991 (1) TAC 425, it was submitted that where several appeals were filed by Insurance Company in connected cases in respect of same accident, if one appeal is dismissed as not maintainable, the other appeals are barred by principle of res judicata. 9. On the rival contentions of the parties, the only question that arises for consideration is as to whether the relief claimed in the above appeals can be allowed in view of the judgment of this Court dated 25.4.2008 passed in MACA No. 819 of 2003 holding that the appellant- Oriental Insurance Company Ltd. is liable to pay the amount of 9 compensation to the claimants and that the said judgment has not been challenged by the Oriental Insurance Company in any higher forum. 10. Admittedly, all the above appeals and the MACA No. 819 of 2003 filed before this Court arise out of same accident took place on 12.06.1995. MACA No.819 of 2003 was filed challenging the award dated 4.9.2003 passed in MAC No. 272/229 (c) of 1997-1995. All other appeals were filed challenging the common award dated 04.02.2006 passed in various claim cases stated above. Out of all the above appeals, one appeal bearing MACA No. 819 of 2003 was disposed of by this Court on 25.04.2008. The said appeal was filed at the instance of the National Insurance Company. Ltd., the insurer of the Trekker involved in the vehicular accident. In the said appeal, the Divisional Manager, Oriental Insurance Company Ltd. was impleaded as Respondent No.10. After hearing learned counsel appearing for the appellant, National Insurance Company, claimant-Respondents and Respondent No.10-Oriental Insurance Company, judgment dated 25.4.2008 was delivered holding that the Oriental Insurance Company-Insurer of the offending Truck is liable to pay the claimant-respondents the amount of compensation as has been awarded by the Tribunal rectifying the arithmetical error committed by learned Tribunal. 11. It would be appropriate to reproduce here the relevant portions of the said judgment dated 25.04.2008, which are as follows: 10 “The crux of dispute in this case is whether the accident took place due to the composite negligence on the part of drivers of both the vehicles, i.e., the truck and the trekker or any one of them. Learned Tribunal held both the insurers liable for payment of the awarded amount equally. The findings of the learned Tr5ibunal in this regard are at paragraphs 9 and 10 of the impugned award. The learned Tribunal, after considering the statements of P.W.s 1 and 2 and FI.R. lodged in G.R. Case No.185/95 arising out of Simulia P.S. Case No.44 of 1995, came to the conclusion in paragraph 9 that the accident took place due to rash and negligent driving of the driver of the offending truck. But in paragraph 10 of the said award, learned Tribunal observed that from the seizure list marked Ext.4 it is clear that the accident took place due to rash and negligent driving of the drivers of both the vehicles, and accordingly it answered the issue. Now the question that falls for consideration by this Court is whether reliance can be placed on the report of the M.V.I. which shows that both the truck and the trekker are responsible for causing the accident. But the fact remains that author of the report, i.e., M.V.I. has neither been examined nor cross-examined. P.W.2, who is an eyewitness to the occurrence, was examined and cross-examined. P.W.2 in his evidence has stated that he was coming in a trekker following the trekker in which the deceased was travelling. He saw the accident to have taken place on the middle of the road. During cross-examination, he has stated that the offending truck came in a high speed and dashed against the trekker. He further stated that the said accident could have been avoided had the truck would not have proceeded to its right. The accident was caused due to rash and negligent driving of the driver of the truck. Learned counsel appearing for the National Insurance Company submitted that it is well settled position of law that the statement of any eyewitness should prevail over any documentary evidence given by an expert. He cited the following decisions 11 of the Hon’ble Supreme Court as well as the Andhra Pradesh High Court as stated above. In paragraph-12 of the judgment in Solanki Chimanbhai Ukabhai (supra) case, the Hon’ble Supreme Court has held as under: “12. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” In paragraph-4 of the judgment in Petlad Turkey Red Dye Works Co. Ltd. (supra), the Hon’ble Supreme Court held as under: “4. ….Thus, if a person is to prove that he was ill on a particular date, the mere filing of a certificate of a medical man that the he was ill on that date is not accepted as evidence to show that he was ill. The correctness of the statement made in certificate has to be proved by an affidavit or oral testimony in court by the Doctor concerned or by some other evidence.” In paragraph-26 of the judgment in Bommidala Poornaish (supra) case, the High Court of Andhra Pradesh held as under: “26. …..It is quite obvious that the opinion of an expert must be given orally and that a mere report or certificate by him cannot possibly be evidence. Unless the expert goes into the witness box and gives oral evidence, there can be no cross- examination of the expert at all.” 12 Admittedly in this case, the authority of the documentary evidence, i.e., M.V.I. has not been examined. In paragraph-9 of the award, learned Tribunal came to the conclusion that because of rash and negligent driving of the driver of the truck, the accident took place. While coming to such finding in paragraph-10 of the award the Tribunal has given a contrary finding that the accident took place due to rash and negligent driving of the drivers of both the vehicles basing on the report of the MVI. Such contrary views given by the Tribunal are not acceptable. This Court is of the view that the there is no sufficient reason to disbelieve the evidence of eyewitness (P.W.2) and to accept report of MVI which has not been testified in any manner. The insurer of the offending truck is liable to pay the compensation, as has been awarded by the learned Tribunal and recalculated by this Court rectifying the arithmetical errors. On recalculation, the amount comes to Rs.1,99,000/- (rupees one lakh ninety nine thousand) instead of Rs.1,57,000/- (rupees one lakh fifty seven thousand). Accordingly, the Oriental Insurance Company is liable to pay the aforesaid amount…..” 12. The above judgment of this Court has not been challenged by the Oriental Insurance Company before the Hon’ble Supreme Court. Thus, this order attained finality. Therefore, the Oriental Insurance Company is not entitled to challenge the correctness of the judgment dated 25.04.2008 passed in MACA No.819 of 2003. Since all the above appeals including MACA No.819 of 2003 filed before this Court arose from the same accident which took place on 12.06.1995 and issues involved in all the appeals are same, the appellant-Oriental Insurance Company cannot challenge the correctness of the order dated 25.04.2008 13 in the present appeal. At this juncture, it would be beneficial to refer to some of the judicial pronouncements. 13. The Hon’ble Supreme Court in the case of Shyam Babu vs. District Judge, Moradabad and others, AIR 1984 SC 1399; State of West Bengal vs. Hemanta Kumar Bhattacharjee, AIR 1966 SC 1061 held that the principles of res judicata can be found on general principles of law. All that is necessary is that the Court which heard and decided the former case was a Court of competent jurisdiction. The principle is applicable even if the findings were wrong. Erroneous decision will be as much res judicata as a correct decision. 14. Similar appeals were filed with identical issue. One of the appeals was heard and dismissed on the ground of limitation. Principles of res judicata is applicable to other appeals. [See 45 (1978) CLT 219 :