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2003 DIGILAW 657 (ORI)

Oriental Insurance Company Ltd. v. Md. Alisi

2003-11-12

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — This Letters Patent Appeal under Chap¬ter VII, Rule 2(a) of the Rules of the Orissa High Court has been filed by the Oriental Insurance Company impugning the judg¬ment of a Single Judge of this Court in Miscellaneous Appeal No.97 of 1994 passed on November 25, 1999. 2. Bereft of unnecessary details, the short facts neces¬sary for an effectual adjudication of the inter se disputes in this case are as follows :- Respondent No.1, a minor, filed Misc. (A) Case No.263 of 1988 (K) on being represented through his father guardian claiming compensation on account of bodily injuries sustained by him in an accident caused by a dumper bearing registration number ORU 3491 belonging to respondent No.2. The appellant-Insurance Company, on receiving notice, filed its written statement eva¬sively denying the allegations made in the claim application and calling upon the claimant to prove the allegations. Respondent No.2, the owner of the offending vehicle, also contested the claim case denying the allegations relating to the accident and the injuries alleged to have been sustained by the claimant. It was specifically averred that the compensation awarded if any should be paid by the Insurance Company as the dumber had been insured with the appellant-Insurance Company. 3. The 2nd Motor Accident Claims Tribunal, Northern Divi¬sion, Sambalpur on the basis of the evidence adduced in the case, both oral and documentary, came to the conclusion that the inju¬ries sustained by the minor claimant were serious in nature. The Tribunal observed as follows :- “The injury report Ext.1 reveals that the applicant had crush injury on dorsal of right foot. Discharge ticket Ext.3 also speaks of crush injury. Ext.5 shows that he had post-treatment right ankle and foot. Ext.6 reveals that he was also treated by private doctors. Thus I find that in that accident the applicant sustained crush injury over his right ankle for which he was treat¬ed by doctors at a number of places but his right foot has been disfigured and twisted making it permanently invalid. Receiving this injury the future of the applicant becomes doomed. There will be difficulty regarding his marriage, regarding his getting a job, etc. He will never be able to walk on the road, forcing him to hire a rickshaw.” On the basis of the aforesaid conclusion, the Tribunal awarded a compensation of Rs. 50,000.00. Receiving this injury the future of the applicant becomes doomed. There will be difficulty regarding his marriage, regarding his getting a job, etc. He will never be able to walk on the road, forcing him to hire a rickshaw.” On the basis of the aforesaid conclusion, the Tribunal awarded a compensation of Rs. 50,000.00. Being aggrieved by the quantum of compensation, the claimant filed Misc.Appeal No.35 of 1994 before this Court claiming higher compensation. On notice being issued in the appeal, the Insurance Company as well as the owner of the offending vehicle entered appearance by engaging counsel and the appeal was finally heard on 16th of May, 1995. This Court appreciating the seriousness of the injury sustained by the claimant, a young person who had lost use of his right foot, practically rendering him physically handicap and disabled for the rest of his life, while confirmed the findings and con¬clusions arrived at by the Tribunal, enhanced the quantum of compensation to Rs. 80,000.00 4. The appellant Insurance Company thereafter filed an A.H.O. against the said judgment in Misc.Appeal No.35 of 1994 passed by a learned Single Judge which was registered as A.H.O. No.6 of 1996. A Division Bench of this Court by order dated 20.3.1997 dismissed the said A.H.O. arriving at the conclusion that there was absolutely no merit in the contentions advanced. Thus, for all acts and purposes the findings arrived at and the liability of the Insurance Company to pay the compensation has become final and binding. 5. Misc.Appeal No.97 of 1994 which was preferred by the Insurance Company came for hearing thereafter. In the said Misc.Appeal the sole contention of the Insurance was that in the absence of any evidence to the effect that the offending vehicle had been insured with it, the direction of the Tribunal regarding payment of the compensation amount by it was uncalled for. Such contention was strongly repudiated by the learned counsel appear¬ing for the injured claimant who forcefully submitted that the finding of the Tribunal that the Insurance Company was liable to pay the compensation amount had been affirmed by a Single Judge of this Court in aforesaid Misc.Appeal No.35 of 1994. The judg¬ment of the learned Single Judge was thereafter confirmed in A.H.O. No.6 of 1996 and as such the contentions raised by the Insurance Company were hit by the principles of res judicata. The judg¬ment of the learned Single Judge was thereafter confirmed in A.H.O. No.6 of 1996 and as such the contentions raised by the Insurance Company were hit by the principles of res judicata. To countenance the said submission, learned counsel for the Insurance Company submitted that the order of summary dismissal of the appeal cannot operate as res judicata, but the said sub¬mission did not find favour by the learned Single Judge. 6. It was held by this Court that the finding that the Insurance Company was liable to pay the compensation had attained finality and as such could not be reagitated and this Court was pleased to dismiss the Misc.Appeal. 7. This A.H.O. is against the order of dismissal of the aforesaid Misc.Appeal No.97 of 1994. In course of hearing, Mr. Sinha, learned counsel appearing for the Insurance Company, once again reiterated his stand and submitted that the finding arrived at by the Tribunal that the Insurance Company is liable to pay the compensation amount to the injured claimant cannot be sus¬tained. According to him, there was no valid policy covering the insurance of the offending vehicle and the aforesaid finding of the Tribunal was contrary to the materials available. Further, as the aforesaid A.H.O. No.6 of 1996 had been dismissed summarily, the said order cannot be construed to be a res judicata and it is open to the Insurance Company to reagitate the matter. 8. It is true that during the course of hearing of Misc.Appeal No.35 of 1994 filed by the claimant, the fact of pendency of Misc.Appeal No.97 of 1994 at the instance of the Insurance Company was not brought to the notice of the learned Single Judge. But then, the fact remains that the Insurance Company was also a party to the said Misc.Appeal No.35 of 1994 and was therefore legally bound by the conclusions arrived at and the findings reached in the said Misc.Appeal after hearing the parties. The Letters Patent Appeal against the said decision in Misc.Appeal No.35 of 1994, being A.H.O. No.6 of 1996, was dis¬missed by a Division Bench of this Court with the observation :- “We do not find any merit in the matter which is dismissed summarily.” 9. To appreciate the contentions raised by the Insurance Company, we perused the inter se pleadings of the parties. To appreciate the contentions raised by the Insurance Company, we perused the inter se pleadings of the parties. Apart from making a bald allegation in the written statement that the offending vehicle had not been insured with the Insurance Compa¬ny, there was no other specific averment, nor did the Insurance Company adduce any evidence, either oral or documentary, to countenance the averment made in the claim petition that the offending vehicle had been insured with the appellant Insurance Company. 10. Before the Tribunal, one of the issues for considera¬tion was regarding the liability of the Insurance Company. The Tribunal arrived at a specific conclusion that the Insurance Company was liable to pay the compensation amount to the injured claimant. Such finding of the Tribunal had been confirmed by the learned Single Judge and was affirmed by a Division Bench and it is no longer available to be reagitated before another coordinate Bench, inasmuch as the decision of this Court in A.H.O. No.6 of 1996 has become final and binding on all parties. The argument advanced that a summary dismissal will not act as res judicata cannot be accepted, inasmuch as the order passed in A.H.O. No.6 of 1996 reveals that this Court after going through the materials available and hearing the learned counsel for the parties, ar¬rived at a positive finding that there was no merit in the matter and dismissed the A.H.O. Thus the finding regarding the liability of the Insurance Company arrived at by the Tribunal, confirmed by a learned Single Judge, was affirmed by a Division Bench. The Decision thus cannot be nomenclatured as summary dismissal. 11. In view of the discussions made above, we find no merit in the A.H.O. and dismiss the same. Liberty is however given to the Insurance Company to realise the compensation amount paid to the injured claimant from the owner of the offending vehicle, if it is otherwise legally permissible. Parties to bear their own costs. SUJIT BARMAN ROY, C.J. I agree. A.H.O. dismissed.