DEVI.T. Vs. JAMSHEER.P

JUDGEMENT

(1.) Both these appeals are filed by the parties in O.P. (M.V.)No.617/2010 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. M.A.C.A.No. 1168/2013 is filed by the second respondent whereas M.A.C.A.No.1008/13 is filed by the claimant, therein. The grievance of the appellant in MACA 1168/2013 is that the Tribunal had ordered "pay and recovery". The grievance of the appellant in MACA 1008/2013 is that the quantum of compensation awarded is inadequate and is on a lower side.

(2.) A motor vehicle accident occurred on 21.2.2009. The vehicle involved is an autorickshaw bearing registration No.KL -11 -K -8646. There were two passengers. In the said accident, both the passengers sustained injuries. They moved claim petitions before the Tribunal. The Tribunal awarded compensation. The appellant in MACA 1008/2013 was the claimant in O.P.(M.V.)No.617/2010. The said compensation claim was allowed by the Tribunal and awarded a total compensation of Rs.1,03,996/ -. In the said claim petition, the respondents were the driver, owner and insurer respectively and the Tribunal directed for payment of the amount by the third respondent, the insurer of the vehicle with the right to recover the amount from the second respondent/owner.

(3.) When the appeal came up for hearing, the counsel appearing for the appellant in M.A.C.A. No.1168/2013 submitted before us that already this court interfered with the right of recovery granted to the third respondent Insurance Company as per judgment in O.P.(M.V.) No.617/2010 and further held that the insurer is liable to pay the compensation awarded by the Tribunal in and vide the judgment in M.A.C.A.No.1171/2013, to the appellant - claimant therein. The appellant therein was the co -passenger of the appellant in M.A.C.A.No.1008/2013. Thus, the factual position would reveal that the two passengers who sustained injuries in the accident and moved claim petitions before the Tribunal and on being aggrieved by the order of pay and recovery the insured - owner who is the appellant in the latter appeal preferred appeals before this court. One of the appeals viz. M.A.C.A.No.1171/2013 was already heard and disposed of holding that the Insurance Company is not entitled to recover the awarded amount so paid, from the insured owner, the appellant therein, as permitted in the award of the Tribunal. The said finding has already become final. It is the submission that the said judgment is reported in Shafeeque v. Jamsheer [2014 (2) KLT SN 77 (C.No.99)]. It is the further and foremost submission that parties involved, cause of action and contentions are the same in both the appeals viz., in M.A.C.A.No.1171/2013 and the latter appeal viz., M.A.C.A.No.1168/2013. The argument advanced is that the Insurance Company is therefore, estopped from re -agitating the same issue i.e. by operation of the principle of issue estoppel. In other words, the said issue cannot therefore, be reopened and reconsidered and this court can now adopt the finding in the earlier proceeding in between the same parties, it is submitted. To draw support to the contention it is brought to our notice the decision of this court in Benny Paul @ Benny v. State of Kerala [2015 KHC 7074], in fact rendered by us, referring to the decision of Hon'ble Apex Court in Ravinder Singh v. State of Haryana [AIR 1975 SC 856]. The learned counsel relied on paragraph No.18 of the said decision in Ravinder Singh's case, which is also quoted by us in Benny Paul's case (supra). The said paragraph is as follows: "there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner". It is submitted that the said principle will apply squarely in this case. The principle is applicable in both civil and criminal matters.