Yeshvant Rama Shanbag vs United India Fire and General Insurance Co. Ltd.

G.F. Couto, J.—The short question that this First Appeal gives rise to is whether a suit for recovery of money by the Insurance Company on the grounds that it was not liable as in term of the Insurance policy, the liability was not arising when vehicle involved in the accident was driven by a person who was not holding a licence, is maintainable after the same issue had been dealt with and decided against the Insurance Company in a petition filed u/s 110 of the old Motor Vehicles Act

The relevant facts may be stated: An accident took place on 21st January, 1976, and one Smt. Maria Ermelinda vaz alias Betty Vaz sustained injuries in the said accident. The vehicle involved was a truck bearing the No. MEL 6319 which was driven, at the relevant time, by the present respondent No. 3, who happened to be the cleaner of the vehicle. The present respondent No. 2 was the driver and the vehicle belonged to the present appellant. While resisting the said application, the Insurance Company/the first respondent herein raised the question that it was not liable to pay any compensation under the terms of the Insurance policy, as under it, the liability was arising only when the vehicle was driven by a person holding a driving licence and it was the case of the petitioner herself that the vehicle was, at the relevant time of the accident, being driven by the present respondent No. 3 who was not holding a driving licence.

The said Claim Petition was finally disposed of by Judgment dated 4th Feb., 1980, by the learned Presiding Officer of the Motor Accident Claims Tribunal, Margao. One of the issues framed in that Claim Petition was whether or not the Insurance Co. was liable to pay any compensation, as the vehicle was being driven at the time of the accident by a person who was not holding a driving licence. The learned Presiding Officer of the Claim Tribunal answered this Issue in the affirmative as he held that the Insurance Company was liable to pay the compensation in the said case. No appeal was filed against this decision by the Insurance Company, and therefore, the aforesaid finding of the Claim Tribunal became final.

Inspite of this fact, the first respondent filed a suit for recovery of money against the appellant, and the present respondents Nos.2 and 3, on the grounds that pursuant to the decision of the Claim Tribunal, the Insurance Company had to pay to the claimant Betty Vaz an amount of Rs. 44,613.42. The Company further raised the point under the Insurance Policy it was not liable to make such payment

This suit was resisted, but it appears that the point of res judicata was not at all raised, and ultimately, the learned Civil Judge, Senior Division, Margao, by his Judgment dated 17th June, 1986, decree the suit and ordered the appellant and the respondents Nos. 2 and 3 to pay, jointly the severally, to the Insurance Co. the aforesaid amount of Rs. 44,613-42 with interest at the rate of 6% per annum from the date of the suit till payment.

Now, the said point is being raised in this Appeal and Mr. Kantak, the learned Counsel appearing for the appellant, after drawing my attention to the above facts and to the decision of the Presiding Officer of the Claims Tribunal contended that the suit filed by the Insurance Company and which was decreed by the impugned Judgment was not maintainable on account of res judicata. That apart, the learned Counsel placing reliance in the decision of the Supreme Court in Skandia Insurance Co. Ltd v. Kokilaben Chandravadan and Ors., urged that the ground that an Insurance Company is not liable to pay compensation because under the terms of the policy, its liability arises only in cases the vehicle involved in the accident and insured with it was being driven by a licensed person, is not correct. Therefore, according to the learned Counsel, in the light of the law laid down by the Supreme Court in the said case, the suit was liable to be dismissed on merits also.

Though duly served, none of the respondents put an appearance at the hearing of this Appeal.

There is great force in the above submission of Mr. Kantak. The records clearly show that an application for compensation was filed by one Mrs. Maria Ermelinda Vaz alias Betty Vas u/s 110-A of the Motor Vehicles Act, 1939, on account of interest at the rate of 6% per annum from the date of the suit till payment. Now, the said point is being raised in this Appeal and Mr. grievous injuries sustained by her in an accident which took place on 21st January, 1976. She was knocked down by the truck bearing the No. MEL-6319 which belongs to the appellant and was driven at the relevant time of the accident, by the respondent No. 3, who was the cleaner. The respondents No. 2, the driver of the vehicle, was not at the wheel at that time. The Insurance Company, i.e. the first respondent herein, raised the question that it was not liable to pay any compensation, because under the Insurance policy, the liability was not arising in case the vehicle was driven by a person who was holding a driving licence. An issue was, therefore, specifically framed and dealt with by the learned Presiding Officer of the Claims Tribunal. He observed in that respect as under:

In this connection, although from the evidence on record and also from the admission of the respondent No. 2 himself it is shown that he was driving the vehicle, at the time of the accident, without a valid driving licence, it appears that in the present case the respondent. No. 3 cannot escape from their responsibility to pay compensation to the applicant in respect of the accident as the said respondent may only avail and raise in this claim petition just those defences covered within the grounds specified in Section 96(2) of the Motor Vehicles Act, 1939, since, admittedly, the said respondent is resisting the claim in his own right As such it is not open to the Insurance Company to contend now that only a person holding driving licence was entitled to drive an insured vehicle in view of the fact that the respondent No. 3 is able to raise only those defences which are enumerated in Section 96(2) of the The Motor and General Insurance Co. Ltd., Calcutta Vs. Hota Ram and Others, .

It may be mentioned here that the respondent No. 3 mentioned in the above observations is the Insurance Company, the present first respondent. Though the reasoning given by the learned Presiding Officer of the Claims Tribunal is entirely erroneous, since the only defence permissible to the Insurance Company was actually the one raised by the first respondent, the facts remains that the learned judge decided the issue against the Insurance Company and held that it was liable to pay the compensation. The Insurance Company did not prefer an appeal, and therefore, the answer to that issue became final between the Insurance Company on one side and the appellant and the respondent No. 2 and 3, on the other. The said decision became res judicata, and therefore, it was not open at all to the Insurance Company to re-agitate the same issue by way of filing a suit. For this reason alone, the suit ought to have been dismissed. But, as rightly pointed out by Mr. Kantak, even on merits thesuit was liable to be dismissed in view of the law laid down by the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravaden and Ors. (Above)

This being the case, the impugned judgment and decree are liable to be quashed and set aside. Accordingly, this Appeal is allowed and the Judgment and decree dated 17th June, 1986, are quashed and set aside. Costs by the First respondent