Yeshvant Rama Shanbag Vs. United India Fire and Genl. Ins. Co. Ltd. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - the records clearly show that an application for compensation was filed by one maria ermelinda vaz alias betty vaz under section 110-a of the motor vehicles act, 1939, on account of grievous injuries sustained by her in an accident which took place on 21st january, 1976. she was knocked down by the truck bearing no.g.f. couto, j.1. the short question that this first appeal gives rise to is whether a suit for recovery of money by the insurance company on the ground that it was not liable as in terms 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 under section 110-a of the old motor vehicles act.2. the relevant facts may be stated: an accident took place on 21 st january, 1976 and one maria ermelinda vaz alias betty vaz sustained injuries in the said accident. the vehicle involved was a truck bearing 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.3. the said claim petition was finally disposed of by judgment dated 4th february, 1980, by the learned presiding officer of the motor accidents claims tribunal, margao. one of the issues framed in that claim petition was whether or not the insurance company 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 claims 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 claims tribunal became final.4. in spite of this fact, the first respondent filed a suit for recovery of money against the appellant and the present respondent nos. 2 and 3, on the grounds that pursuant to the decision of the claims 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 that under the insurance policy, it was not liable to make such payment.5. 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, decreed the suit and ordered the appellant and the respondent nos. 2 and 3 to pay, jointly and severally, to the insurance company the aforesaid amount of rs. 44,6.13.42 with interest at the rate of 6 per cent per annum from the date of the suit till payment.6. 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 on the decision of the supreme court in skandia insurance co. ltd. v. kokilaben chandravadan 1987 acj 411 (sc), 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 where 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.7. though duly served, none of the respondents put an appearance at the hearing of this appeal.8. there is great force in the above submission of mr. kantak. the records clearly show that an application for compensation was filed by one maria ermelinda vaz alias betty vaz under section 110-a of the motor vehicles act, 1939, on account of grievous injuries sustained by her in an accident which took place on 21st january, 1976. she was knocked down by the truck bearing no. mel 6319 which belonged to the appellant and was driven, at the relevant time of the accident, by the respondent no. 3, who was the cleaner. the respondent 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 (sic. not) 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 its responsibility to pay compensation to the applicant in respect of the accident as the said respondent may only avail and raise in this claim 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 its 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 motor vehicles act, 1939 [hindustan general insurance society ltd. v. satish chandra paul 1972 acj 453 (j.c., tripura) and motor and general ins. co. ltd. v. hota ram 1958 acj 72 (pun).9. 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 fact 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 nos. 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 reagitate 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 the suit was liable to be dismissed in view of the law laid down by the supreme court in skandia insurance co. ltd. v. kokilaben chandravadan 1987 acj 411 (sc).10. 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.