ORIENTAL INSURANCE CO LTD Vs. GOPALAKRISHNAN NAIR

JUDGEMENT

(1.) As a result of collision between a van (omnibus) with registration No. KLF 3447 and an autorickshaw bearing registration No. KRQ 9042 about midnight on 5.1.1986 one of the passengers of the autorickshaw died and three others including the driver of the autorickshaw sustained injuries which gave rise to four petitions before the Motor Accidents Claims Tribunal, viz. O. P. (MV) Nos. 371, 372, 399 and 403 of 1986. O. P. (MV) No. 371 of 1986 was filed at the instance of the L.Rs. of the deceased passenger claiming a compensation of Rs. 2 lakhs. O. P.(MV) No. 372 of 1986 was filed by one of the injured claiming a compensation of Rs. 1 lakh. In O. P. (MV) No. 399 of 1986 a sum of Rs. 25,000/- was claimed as compensation by the driver of the autorickshaw which was involved in the accident. In O. P. (MV) No. 403 of 1986 a sum of Rs. 75,000/- was claimed as compensation by one of the injured involved in the accident. In all the petitions separate written statements were filed denying the negligence of the van driver and specifically contending that it was the autorickshaw that was at fault resulting in the accident. The appellant/insurance company in these appeals also set up an alternate plea that in the event of they being made available to pay the compensation, their liability is restricted to Rs. 50,000/- only as per the policy of insurance. In all the petitions the owner of the van (omni bus) figured as the common 1st respondent. All the four O. Ps. (MV) were tried and decided jointly. The issues raised in all the O. Ps. were also one and the same. The Tribunal on appreciation of the evidence brought on record awarded a sum of Rs. 1,32,600/- with 12% interest till realisation in O. P. (MV) 371/1986, a sum of Rs. 60,000/- with 12% interest till realisation in O. P. (MV) No. 372 of 1986, a sum of Rs. 13,100/- with interest till the date of realisation in O. P.(MV) No. 399 of 1986 and a sum of Rs. 35,850/- with 12% interest till the date of realisation in O. P. (MV) No. 403 of 1986. In the common award the Tribunal negativing the plea of the appellant/insurance company that the policy is a limited one entered a specific and categoric finding to the effect that the liability of the insurance company is unlimited. That finding is a common finding in all the petitions. However, no appeals have been preferred against the aforesaid findings in O. P. (MV) Nos. 399 and 403 of 1986 and the appeals are preferred against the award in O. P. (MV) 371 of 1986 and O. P. (MV) 372 of 1986, being M.F.A. Nos. 738 and 737 of 1991 respectively.

(2.) The main contention advanced by the insurance company in these two appeals is that having regard to the fact that the premium collected in order to cover the "third party risk" is only Rs. 240/-, their liability with respect to "third party risk" is limited to Rs. 50,000/- only. A true copy of the insurance policy was produced by the appellant/insurance company before the Tribunal as Ext. B2 in order to substantiate the aforesaid contention. The Asst. Divisional Manager of the Insurance company was also examined as CPW 4 who gave evidence on behalf of the appellant in support of the aforesaid contention that the liability of the insurance company with respect to the "third party risk" is limited to Rs. 50,000/- only, since the premium collected with respect to "third party risk" is Rs. 240/- only. Whether such a contention can be raised in these appeals is the moot question that falls for consideration in view of the finding already entered by the Tribunal to the effect that the liability of the insurance company is unlimited as per the common judgment rendered in all the four O. Ps. (MV) against which finding no appeal has been preferred in O. P. (MV) Nos. 399 and 403 of 1986 and in that view the finding on the question of liability has become final and cannot be agitated afresh in these two appeals. As already noted all the four O. Ps. (MV) were tried and decided jointly. The issues raised in all the petitions were common, and in all the petitions the nature of the insurance policy issued by the appellant/insurance company in respect of the van bearing registration No. KLF 8447 was specifically raised, evidence adduced and arguments heard and decision rendered finding that the insurance policy issued by the appellant herein in respect of the van KLF 8447 is a private policy with unlimited third party risk coverage. The question as to the nature of the policy was a fact in issue in all the petitions and has been decided by the Tribunal. However, the present appeals are confined only against the findings with regard to the nature of the insurance policy in O. P. (MV) Nos. 371 and 372 of 1986. As against the findings in O. P. (MV) Nos. 399 and 403 of 1986 no appeals have been preferred by the insurance company and therefore the finding of fact as to the nature of the insurance policy being one of unlimited "third party risk" coverage has become final in those two petitions. For the aforesaid reason of finality we hold that it is not liable to be agitated in the present appeals at the instance of the insurance company. In our opinion, if the appellant/insurance company is permitted to agitate the question of limitation of liability over again and if the contention of the insurance company is accepted it would result in conflicting finding with regard to a fact which has become final and conclusive between the same parties, viz., the appellant/insurance company and the respondent/owner of the van. Such an anomalous situation cannot be countenanced and impermissible in law. As a proposition of law we would hold that a person who has failed to challenge a finding entered against him in a prior proceeding in which the question was heard and finally decided and thus allowed the finding to become final and binding between the parties shall be deemed to have accepted the finding and such a person cannot in another proceeding to heard to challenge that finding once conclusively decided. There cannot be a conflicting finding on the same fact, viz., the extent of liability under the policy. The view we are taking is fortified by no loss an authority than the Full Bench decision of this Court in Janardhanan Pillai v. Kochunarayani Amma ( 1976 KLT 279 ). In the Full Bench decision noted supra this Court after posing the following questions, viz., when there are two suits in which substantially the same question arises for decision and they are decided by a common judgment or by judgment in the main case that being incorporated in the second case and when only one of the judgments is subjected to appeal what would be the effect of the failure to appeal against the other judgment Could it be said that these two judgments having been rendered at the same time one cannot be said to be the decision in a former suit and if the right of appeal is exercised (party has right of appeal against the decision in both the suits) in regard to only one of the decisions, does the other decision become final so as to debar an independent consideration of the appeal so taken , answered the same by holding that the decision from which no appeal is filed is final and operates as res judicata in the appeal filed against one only of the connected claim petitions. After adverting to various authorities governing the matter, the Full Bench went on to observe as follows:

(3.) Of course, learned counsel for the appellant/insurance company would contend that since they were not aggrieved by the finding in O. P. (MV) Nos. 399 and 403 of 1986 in the sense, the quantum of compensation payable was less than the limit prescribed under the policy which the appellant/insurance company is bound to satisfy under S.95(5) of the Motor Vehicles Act, 1939 there was absolutely no necessity to file an appeal against the aforesaid awards passed in those two claim petitions and in consequence the failure to file the appeals would not impinge upon their right to challenge the correctness of the awards impugned in these appeals where the amounts directed to be paid under the awards are beyond the limits prescribed by the policy. We fail to appreciate the aforesaid contention advanced by the appellant. In view of the settled legal position that a party against whom an adverse finding is recorded has got a right of appeal and since we are not taken through any authority worthy of acceptance holding that the appellant/insurance company is precluded from instituting an appeal against the adverse findings recorded in the award, the specious arguments advanced by the appellant that they were not aggrieved by the finding in the awards because of the quantum payable was less than the liability limits under the policy and therefore they did not prefer any appeal do not at all appeal to us. The appellant/insurance company having paid the amounts to the claimants in O. P. (MV) Nos. 399 and 403 of 1986 under the insurance policy declared by court to be one of unlimited third party risk coverage must be deemed to have accepted the nature of the policy as declared by the Tribunal and they cannot now turn round and blow hot and cold. Therefore, the issue agitated in these appeals is clearly barred by res judicata. In the nature of the view we are taking it must be held that the appellant/insurance company is not entitled to agitate the extent of their liability under insurance policy in these appeals, as it has attained finality. The appeals are accordingly dismissed.