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2000 Supreme(Cal) 657
High Court Of Calcutta
SAMARESH BANERJEE, Ashim Kumar Banerjee
NEW INDIA ASSURANCE CO.LTD. - Appellant
Versus
BIDYUT KUMAR MUKHERJEE - Respondent
F. M. A. 1594 Of 2000
Decided On : 12/21/2000
KAMAL KRISHNA DAS, KRISHANA BANIK, PURABI SAHA
The insurance company is not entitled to challenge the award on the ground of quantum of compensation and interest, without obtaining leave to appeal under Section 170 of the Motor Vehicles Act, 1988.
Headnote:
MOTOR VEHICLES ACT, 1988 - SECTIONS 140, 163A, 166, 170 - RES JUDICATA - COMPENSATION - INSURANCE COMPANY'S RIGHT TO CHALLENGE AWARD - LEAVE TO APPEAL - QUANTUM OF COMPENSATION - INTEREST.
Fact of the Case:
The claimant filed an application under Section 140 of the Motor Vehicles Act, 1988, seeking compensation for the death of his son in an accident. The application was dismissed on the ground that it was hit by the principle of res judicata, as the claimant had already filed an application under Section 163A, which was also dismissed. The claimant then filed an application under Section 166, which was allowed. The insurance company appealed against the order, contending that the application under Section 166 was barred by res judicata and that the compensation awarded was excessive.
Finding of the Court:
The court held that the application under Section 166 was not barred by res judicata, as the dismissal of the application under Section 163A was not on merits. The court also held that the insurance company was not entitled to challenge the award on the ground of quantum of compensation and interest, as it had not obtained leave to appeal under Section 170 of the Motor Vehicles Act, 1988.
Issues: 1. Whether the application under Section 166 was barred by res judicata? 2. Whether the insurance company was entitled to challenge the award on the ground of quantum of compensation and interest, without obtaining leave to appeal under Section 170 of the Motor Vehicles Act, 1988?
Ratio Decidendi: 1. The principle of res judicata does not apply where the dismissal of the previous application was not on merits. 2. The insurance company is not entitled to challenge the award on the ground of quantum of compensation and interest, without obtaining leave to appeal under Section 170 of the Motor Vehicles Act, 1988.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS appeal has been preferred by the New India Assurance Co. Limited mainly on the two grounds which are as follows :- (I)since the application under section 140 of the Motor Vehicles Act, 1988 has been dismissed, the application under section 166 of the Motor Vehicles Act, 1988 should have been dismissed on the grounds that it is barred by the principle of res judicata. (II)the compensation awarded to the claimant was on the higher side and the Insurance Company is entitled to challenge the same in this appeal although there was no application made before the Court below for permission under section 170 of the said Act of 1988.
( 2 ) FOR disposal of the present appeal the relevant section of the said Act of 1988 which would come up for consideration are set out for ready reference. Section 140. Liability to pay compensation in certain cases on the principle of no fault :- (1) Where death of permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of (fifty thousand rupees) and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of (twenty-five thousand rupees ). (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was to due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1), shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made or shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force. PROVIDED that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163a. SECTION 163a. Special provisions as to the payment of compensation on structured formula basis.-Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death of permanent disablement in respect of which the claim has been made was due to wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. SECTION 166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made- (a)by the person who has sustained the injury; or (b)b
