P. Krishnan vs United India Insurance Co. Ltd.

S. Marumuthu, J.—This appeal is filed questioning the judgment of the Subordinate Judge, Thalassery, passed in O. S. No. 63 of 1989. The plaintiff is the appellant and the defendant is the respondent herein.

The above suit was filed for recovery of a sum of Rs. 58,271 from the respondent/defendant, for carrying out repairs to the appellant''s vehicle (bus), KRZ 2124 on March 10, 1988. The above bus, which has been insured with the respondent, met with an accident near Chittariparamba, while it was proceeding from Thalassery to Peravoor, as a result of which the passengers travelling in the bus sustained injuries and the bus also was heavily damaged. As per the terms of the insurance policy, the appellant has to be indemnified by the respondent.

The defendant/respondent controverted the above averments of the appellants on the ground that as per the terms and conditions of the insurance policy, the insured, namely, the appellant must first refer the dispute to an arbitrator, before approaching the court. In this case, it was not done by the appellant. Hence, the suit is not maintainable. The suit is barred by limitation, since it is not filed within a period of twelve months. The vehicle, covered by a stage carriage permit had to ply in a particular route and, however, it was taken through a diverted route on the date of accident and the accident occurred in the diverted route and, therefore, there is a violation of the route permit. The bus ought to have reached Peravoor at 7.35 p.m. as per the permit, but, as a matter of fact, it met with an accident in the mid-night of that day on the way to Peravoor. Therefore, there is also a violation of the route-permit. One another condition of the insurance policy is that the vehicle can carry only 51 passengers exclusive of the driver and conductor. But, at the time of the accident, there were more than 90 passengers travelling in the bus. On account of the above irregularities, the appellant is not entitled to compensation.

The point that was urged before me is whether the appellant/plaintiff is entitled to the compensation claimed in the plaint.

Learned counsel appearing for the respondent, insurance company, contended that, on account of Clause 8 of the insurance policy, since the dispute has not been referred to an arbitrator, the suit is liable to be dismissed and indeed the appellant is estopped to institute the suit. The insurance certificate is marked as exhibit B-2, as per which, the date of accident is covered by the policy. Clause 8 of the exhibit B-2 reads as follows :

"If any difference shall arise as to the quantum to be paid under this policy (liability being otherwise admitted) such difference shall independently of all other questions be referred to the decision of an arbitrator to be appointed in writing by the parties in difference."

Learned counsel for the respondent placed reliance on the proposition ruled by this court in Rosamma Joseph Vs. United India Insurance Co. Ltd., wherein it has been held that since the contract between the parties stipulated arbitration and award as a condition precedent for instituting a suit and since the suit was not preceded by arbitration and award, it must follow that the suit is not maintainable. No doubt, as per the above principle, laid down by this court, when there is a contract between parties, before instituting the suit, the dispute has to be referred to arbitration and in case, referring the matter to an arbitrator, if any suit is filed, it is not maintainable. In this context, the submission of learned counsel for the appellant would be that a mere reading of Clause 8 of exhibit B-2 would disclose that any dispute as between the appellant and respondent with reference to the difference in the quantum of money arises, that alone has to be referred to an arbitrator and in the present suit, practically there is no dispute with regard to the quantum for carrying out repairs in his bus, namely, Rs. 58,271. For, the amount has been fixed by the surveyor of the respondent, while he inspected the vehicle. Thus, in the instant case, the liability is admitted and there is also no difference in the amount claimed by the appellant and the amount assessed by the surveyor of the respondent and so Clause 8 of exhibit B-2 policy is not attracted. I examined the above submissions of both learned counsel in the light of the principle laid down by this court in the above citation and also in accordance with Clause 8 of exhibit B-2 insurance policy and on my examination I am fully satisfied to hold that Clause 8 of exhibit B-2 is not attracted in this dispute, since there is no conflict between the appellant and the respondent with regard to the quantum of the amount for carrying out the repair.

Learned counsel for the appellants submitted that the injured persons in the accident filed claim petitions before the Motor Accidents Claims Tribunal, in which the respondent raised the same plea and that was rejected by the Tribunal and award was passed and the award passed by the Tribunal will operate as res judicata as against the pleadings set forth by the respondent in this case. In support of this submission, he relies upon the decision in Muhammed Haji v. Kunhunni Nair [1993] 1 KLT 227 , wherein, it has been ruled that the order passed by the land Tribunal will operate as res judicata in the subsequent proceedings in between the same parties and in respect of the same subject-matter. Yet another decision referred to by learned counsel for the appellant would be one of the Orissa High Court in Ramachandra Sahu Vs. Smt. Pramila Sahu (Dead) and Others, There, it is ruled that the order passed under the Rent Control Act will operate as res judicata in the subsequent civil proceedings in between the same parties. As against the above submission, learned counsel for the respondent submitted that the Motor Accidents Claims Tribunal is not a court subordinate to the High Court. Therefore, the verdict of the Motor Accidents Claims Tribunal will not operate as res judicata u/s 11 of the CPC as against the subsequent civil proceedings in between the same parties. In support of this submission, he relies upon the decision of this court in New India ASSURance Co. Ltd. v. Koyammu [1991] 1 KLT 320. In this decision, it is ruled that the Tribunal is not a civil court subject to the superintendence of the High Court. On the above principle, the submission of learned counsel for the respondent would be that the words employed in Section 11 are crystal clear, that the earlier judgment must have been rendered by the civil court and that judgment alone can be used for the purpose of raising the plea of res judicata in the subsequent civil proceedings. Section 11 of the CPC reads as follows :

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court".

Section 11 reflects that the issue of the plea of res judicata can be raised in a civil proceeding on the footing of an earlier judgment of a court. In the instant case, as per the decision of this court referred to above, the Tribunal is not a court subordinate to the High Court. Therefore, the award passed by the Motor Accidents Claims Tribunal will not operate as res judicata in this suit. However, in the above two decisions, one by this court and the other by the Orissa High Court, the decision of the res judicata has been taken on the provisions of two self-contained Acts, wherein the liabilities, rights and obligations of the parties have been ensured. On the other hand, the Motor Vehicles Act is not a self-contained enactment where the parties cannot seek all their remedies under it. Learned counsel for the appellant in this context, referred to Explanation 8 to Section 11 of the Code of Civil Procedure, which reads as follows :

"An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."

In the above Explanation also, the word referred to is court. "Court", as per the decision of this court stated above, does not include the Motor Accidents Claims Tribunal as it is not subordinate to the High Court. Therefore, Explanation 8 will not help the case of the appellant. On account of the position of law, both settled and statutory, the award passed by the Motor Accidents Claims Tribunal will not operate as res judicata. Yet another point raised by the respondent would be that the suit is barred by limitation, since it has not been filed within 12 months from the date of the accident. As per Article 44 of the Indian Limitation Act, 1963, the suit can be filed within a period of three years from the date of the accident or from the date, on which the claim of the insured was denied by the insurance company and in this case the date of occurrence as well as the date of the denial of the claim of the appellant come within the period of limitation. This matter has also been enlightened by the Karnataka High Court in Taluka Agricultural Produce Co-operative Marketing Society Ltd. v. New India Assurance Co. Ltd. AIR 1988 Kar 185 ; [1989] 65 Comp Cas 109(Kar).

It is also the submission of learned counsel for the respondent that the conditions and terms of the policy have been violated by not taking the bus from Tellicherry in the scheduled time and by taking the same through a diverted route, not covered by the permit and by permitting more than 90 passengers to travel in the bus, against the permitted passengers of 51. As a reply, counsel for the appellant would submit that taking the bus in a diverted route cannot be taken as a violation of the condition of the permit and that will not disqualify the appellant to claim the compensation. In support of this contention, he drew my attention to the judgment of the Mysore High Court in Hanuman Transport Co. v. Ruby General Insurance Co. Ltd. AIR 1973 Mys 335. There it is held that the insurer is liable to pay the compensation even if the accident occurs when the bus is plying on the route, not covered by the route mentioned in the permit. The above view is perfectly correct, in the sense that in case of a breach in the road or some other obstructions like bandh and strike, the bus cannot be taken through the road, prescribed in the permit. So, in such situation, when an accident occurs in the diverted route, the insured is not responsible and he has to be rightly indemnified. Therefore, that objection of the respondent cannot be sustained and even regarding the time, it is not possible to stick on to it as stipulated in the route permit. In this case, the bus had to reach Peravoor at 7.15 p.m. Sometimes, it might not be possible because of some road block or some mechanical defect in the bus. These contingencies are beyond the control of the driver. Therefore, any irregularity in following the timings will not affect the right of the insured in claiming compensation. In that view, I am fully satisfied that the timing cannot be taken as a violation for denying the claim of compensation. It is also the submission of the respondent that as per the policy, only 51 passengers have to be taken in the bus, but on the date of accident as borne out in evidence, more than 90 passengers have travelled and it is a clear violation and on that score, the plaintiff is not entitled to claim the compensation. Exhibit B-3 is the certified copy of the first information report as per which, in respect of the occurrence, a criminal case was registered. The body of exhibit B-3 would uphold that more than 90 passengers were travelling in the bus, at the time of accident. To controvert this, the appellant has not produced the counterfoils of the bus tickets, or the trip sheets to show that at the time of the accident, there were only 51 passengers or less than that. When that be the position, it is evident that more than 90 passengers had travelled in the bus at the time of the accident. Now, whether this amounts to a violation of the condition of the policy and if it is a violation, whether the appellant can claim the compensation, is a question to be decided. This court in an earlier decision in Kesava Nair v. State Insurance Officer [1971] ACJ 219 held that over-loading or over-speeding does not constitute a violation of the purpose of the user of the vehicle. The same view has been taken by the Karnataka High Court in yet another decision in Madras Motor and General Insurance Co. Ltd. v. Nanjappa [1977] ACJ 241. I fully agree with the principle laid down by the Bench of the Karnataka High Court and by the learned single judge of this High Court. So, consequently, the above objection with regard to over-loading set forth by learned counsel for the respondent has also to be rejected. On account of the foregoing reasons and discussions, the point is answered in favour of the appellant/plaintiff.

In the result, the judgment and decree of the court below are set aside by allowing this appeal. And the suit stands decreed as prayed for.