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2009 Supreme(Cal) 708
HIGH COURT OF CALCUTTA
PRANAB KUMAR CHATTOPADHYAY AND KISHORE KUMAR PRASAD, JJ.
PRAKASH CHANDRA BISWAS
VS.
NEW INDIA ASSURANCE CO. LTD.
F. M. A No. 2962 of 2002
Decided On: SEPTEMBER 04, 2009
The principle of res judicata applies to proceedings under Section 166 of the M.V. Act, and a previous finding of vehicle involvement and insurance liability under Section 140 is binding on the parties and cannot be reopened.
Headnote:
MOTOR VEHICLE ACCIDENT - INVOLVEMENT OF VEHICLE AND INSURANCE LIABILITY - RES JUDICATA - PRINCIPLE OF ESTOPPEL AND ACQUIESCENCE - CALCULATION OF COMPENSATION - M. V. ACT, 1988, SECTIONS 140, 166, 171 AND SECOND SCHEDULE.
Fact of the Case:
The appellant, a passenger in a minibus, sustained multiple injuries, including fractures on both arms, in an accident. He filed a claim for compensation under Section 166 of the Motor Vehicles Act, 1988 (M.V. Act). The Tribunal dismissed his claim, holding that he failed to prove his injuries and the involvement of the offending vehicle.
Finding of the Court:
The court held that the principle of res judicata applied, as the issue of the vehicle's involvement and the insurance company's liability had already been established in a previous proceeding under Section 140 of the M.V. Act. The court also found that the claimant had proved his injuries and the negligence of the driver on a preponderance of probabilities.
Issues: 1. Whether the principle of res judicata applied to the proceedings under Section 166 of the M.V. Act, given the earlier finding of vehicle involvement and insurance liability under Section 140. 2. Whether the claimant had sufficiently established his injuries and the driver's negligence.
Ratio Decidendi: 1. The court held that the principle of res judicata applied, as the previous finding under Section 140 was binding on the parties and could not be reopened in the Section 166 proceedings. 2. The court found that the claimant had established his injuries through medical evidence, including a medical certificate and prescriptions, and that the driver's negligence was evident from the circumstances of the accident.
Final Decision: The court allowed the appeal, set aside the Tribunal's order, and awarded the claimant compensation of Rs. 4,04,400, including Rs. 3,74,400 for loss of earning capacity, Rs. 25,000 for medical expenses, and Rs. 5,000 for pain and suffering. The court also directed the insurance company to pay interest at 6% per annum from the date of filing the claim application until the date of deposit.
( 1 ) THIS appeal is at the instance of the claimant/appellant in a proceeding under Section 166 of the M. V. Act, 1988 and is directed against the judgment and award dated 8th may, 2002 passed by the learned Judge. Motor Accident Claims Tribunal-cum-2nd additional District Judge, Alipore in M. A. C. C. No. 59/1999 thereby dismissing the claim application on the ground that the claimant could not prove that he had sustained multiple injuries coupled with fracture on both the arms on account of road accident which occurred on 7-1-1998 at about 19. 30 hours near Narendrapur Petrol Pump within the limits of Sonarpur P. S. while he was travelling in the offending Mini Bus bearing No. W. B.-19/6220 from B. B. D. Bag to Jagaddal.
( 2 ) BEING dissatisfied, the claimant has come with the present appeal.
( 3 ) ACCORDING to the claimant/appellant, he was involved in the said accident by which he was seriously injured and was ultimately admitted to Shri Aurobindo Seva Kendra, jadavpur Park where he underwent an operation. After a prolonged treatment, he was discharged from the said Seva Kendra on 20-1-1998 and in the process, he lost his initial power and function of both the arms.
( 4 ) ACCORDING to testimony of Dr. P. K. Mondal (P. W. 2) and medical certificate produced on his behalf (Exhibit 7), his permanent disablement was to the extent of 30%. The claimant also produced the document showing his income to the extent of Rs. 8,293/- per month at the relevant time by production of the salary certificate by his employer Bharat Fritz Werner Limited (Exhibit 9 ). The claimant further produced the discharge certificate issued by Shri aurovindo Seva Kendra (Exhibit 3), medical bills, prescriptions, money receipts (Exhibit 6 collectively) and the School Final examination Certificate issued by the West bengal Board of Secondary Education (Exhibit 5 ). The aforesaid documents also support the claims of the appellant/claimant that he was aged 49 years at the fateful time of accident; that he was admitted into Shri aurovindo Seva Kendra for the period from 11-1-1998 to 20-1-1998 for undergoing his operation as a result of fracture and he spent more than Rs. 25,000/- towards medical treatment.
( 5 ) THE genuineness of the aforesaid documents were not challenged by the Insurance company before the Court of learned Tribunal and the said documents were marked as exhibits before the learned Tribunal without objection. The proceedings before Tribunal are summary in nature and based on records and documents. Strict rules of evidence cannot be made applicable to proceedings before the Tribunal and while appreciating the claims, the Tribunal has the power to look into the documents and satisfy itself about the bona fides of the claim.
( 6 ) LEARNED counsel appearing on behalf of the appellant strenuously contended before us that the Insurance Company and the owner of the vehicle, both having suffered an order under Section 140 of the M. V. Act and not having challenged such award and the Insurance Company having paid that amount to the appellant by issuing a cheque bearing No. 099844 dated 8-10-2001, the question of involvement of the claimant resulting fracture injury on his person arising out of the offending vehicle in question is no longer open to attack and such question cannot be answered against his client in this proceedings under Section 166 of the M. V. Act. In other words, the learned counsel contended that the said question has already been established in the earlier proceedings under section 140 of the M. V. Act. and such decision is res judicata in the present proceeding under Section 166 of the M. V. Act.
( 7 ) ACCORDING to learned counsel, once the involvement of the vehicle in the accident resulting fracture injury upon the appellant is established, the Insurance Company and the owner of the vehicle cannot escape their liability of making payment of compensation as the negligence of the driver of the offending ve
