Oriental Insurance Company Ltd. Vs. Md. Alisi, Represented by Court Guardian and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/533542
SubjectCivil
CourtOrissa High Court
Decided OnNov-25-1999
Case NumberMiscellaneous Appeal No. 97 of 1994
JudgeP.K. Misra, J.
Reported in2000(I)OLR114
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11
AppellantOriental Insurance Company Ltd.
RespondentMd. Alisi, Represented by Court Guardian and anr.
Appellant AdvocateM. Sinha, B. Singh and S. Sen
Respondent AdvocateP. Nayak, S.K. Mohanty and S. Mohanty (R-1)
DispositionAppeal dismissed
Cases Referred(Ramesh Chandra v. Shiv Charan Dass and Ors.). In
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 35/94 notice was issued to the present appellant as well as to the owner and both had entered appearance through counsels. (c) for that law is well settled that the claimant is to prove the insurance coverage of the vehicle and further the owner of the vehicle has to take specific plea in its written statement that the vehicle was insured with the appellant and has to disclose the policy particulars and also has to file the original policy and in the instant case the claimant in column 16 of the claim application has only stated the name of the insurance company and the owner also stated the same fact in its written statement as such the learned tribunal ought to have accepted the plea of the appellant that the vehicle was never insured with the appellant, therefore, the order of the hon'ble single judge may be interfered with the appeal. 14. the counsel for the appellant had placed strong reliance upon the decision reported in air 1973 supreme court, 1269 (ram prakash v.p.k. misra, j.1. the insurance company has filed this appeal challenging the award of the claims tribunal.2. claimant-respondent no. 1 is a minor. misc. (a) case no. 263/88 was filed on his behalf claiming compensation on account of bodily injury sustained by the minor in an accident caused by a dumper bearing number oru-3491 belonging to respondent no. 2.3. the owner contested the claim case denying that allegations relating to accident and injuries sustained by the claimant. it was also claimed that compensation amount, if any, should be paid by the insurance company as the dumper had been insured with the insurance company.the insurer also filed written statement generally denying the allegations made in the claim application and calling upon the claimant to prove all the allegations.4. the claims tribunal found that the accident occurred due to negligent driving of the driver of the dumper. it was found that injuries were sustained by the claimant on account of the accident, the tribunal directed for payment of rs. 50,000/- by the insurance company to the claimant on the finding that the vehicle had been insured with the appellant.5. against the aforesaid award, misc. appeal no. 35/94 was filed by the claiming higher compensation. the insurer filed the present appeal mainly on the ground that it had no liability as according to the appellant, the vehicle had not been insured with the present appellant.6. in misc. appeal no. 35/94 notice was issued to the present appellant as well as to the owner and both had entered appearance through counsels. ultimately, the appeal was heard on 16.5.1995. after hearing the parties, hon'ble a. pasayat, j, directed for payment of rs. 80,000/- as compensation. it was further observed :'.....other conclusions/conditions arrived at/imposed by the tribunal shall remain unaltered.'from the aforesaid quoted portion of the order, it is apparent that the insurance company was made liable to pay the compensation amount, as enhanced by the high court.7. against the aforesaid decision of this court dated 16.5.1995, the insurer filed a.h.o. no. 6 of 1996. the said a.h.o. was listed on 20.3.1997 for admission on which day the following order was passed by the division bench :'we do not find any merit in the matter which is dismissed summarily.'8. in the present appeal, the learned counsel appearing for the insurance company submitted that in the absence of any evidence to the effect that the vehicle in question had been insured with the present appellant, the direction of the tribunal regarding payment of compensation by the present appellant is uncalled for. the learned counsel appearing on behalf of the claimant submitted that in view of the direction contained in misc. appeal no. 35/94 which has been confirmed in a.h.o. no. 6/96, the present contention raised by the counsel for the appellant is hit by principle of res judicata. the learned counsel appearing for the appellant to combat such submission on behalf of the respondents has submitted that the order of summary dismissal of the appeal cannot operate as res judicata.in many decisions, it has been held that summary dismissal of writ application may not operate as res judicata. however, such decisions relating to summary dismissal of writ application which is considered to be an original proceeding would not be applicable to cases where there is summary dismissal of an appeal. when an appeal is dismissed whether summarily or by reasoned order, the decision of the court below against which the appeal had been filed is confirmed and such decision becomes final and binding on the parties. the position may be different in case of summary dismissal of writ application because then it cannot be predicated what was the contention raised and decided.9. the learned counsel for the appellant has submitted that the question as to whether the insurance company would be liable or not was specifically raised in the present appeal and was not a question raised in misc. appeal no. 35/94. he has, therefore, submitted that any casual observation in the said appeal relating to so-called liability of the insurance company cannot be taken to be final or conclusive. it is of course, true that while considering misc. appeal no. 35/94, the pendency of present misc. appeal no. 97/94 at the instance of the insurance company had not been brought to the notice of the learned judge presumably because the counsel appearing in misc. appeal no. 35/94 for the insurance company was different from the counsel appearing in the present appeal. be that as it may, while enhancing the compensation payable to the claimant, the court had decided (may be impliedly) that the amount shall be paid by the insurance company.10. if the matter would have rested there, the contention now raised by the counsel for the appellant possibly would have required much deeper consideration. however, the subsequent order in a.h.o. no. 6/96 by the division bench in the context of challenge made in the memorandum of appeal in the said a.h.o. leaves no room for doubt that the main question which was raised before the division bench in a.h.o. no. 6/96 related to liability of the insurance company. to elucidate this point, it would be necessary to extract some relevant paragraphs in the memorandum of appeal in a.h.o. no. 6/96. it was stated in paragraphs-4,5, 6 and 7 of the memorandum of appeal ;'4. that the respondent no. 2, the owner of the vehicle denied the accident but only made a bald statement in the written statement that the vehicle was insured with the appellant without furnishing the policy particulars.5. that the appellant who was opp. party no. 2 before the tribunal denied the fact of insurance on the ground that since no policy particulars is given in the claim application and written statement filed by the owner, the appellant is not the insurer of the vehicle.6. that the learned tribunal without considering this material aspect awarded rs. 50,000/- as compensation on the vague ground that since no suggestion has been made to the witnesses about the fact that the appellant is not the insurer of the vehicle, the appellant is liable to pay the amount.7. that after the judgment was passed by the tribunal, the present appellant filed appeal against the award through sri m. sinha, advocate which is registered as m. a. no. 97/94 and is pending decision before this hon'ble court.'apart from the aforesaid averments, all the specific grounds as contained in ground nos. b to e which are quoted below related to the question of liability of the insurance company :'(b) for that when the specific case of the appellant is that since the vehicle was never insured by this appellant, in fact which could not be taken in the appeal, the order passed by the hon'ble single judge may be interfered with.(c) for that law is well settled that the claimant is to prove the insurance coverage of the vehicle and further the owner of the vehicle has to take specific plea in its written statement that the vehicle was insured with the appellant and has to disclose the policy particulars and also has to file the original policy and in the instant case the claimant in column 16 of the claim application has only stated the name of the insurance company and the owner also stated the same fact in its written statement as such the learned tribunal ought to have accepted the plea of the appellant that the vehicle was never insured with the appellant, therefore, the order of the hon'ble single judge may be interfered with the appeal.(d) for that it is respectfully submitted that the owner of the vehicle was very much contested the case before the tribunal as such his duty was to file policy particulars before the court and the same having not been done, the order of the hon'ble single judge may be interfered with in the present appeal.(e) for that in absence of policy particulars and any proof regarding the policy with the appellant the tribunal ought not to have saddled the liability against the appellant.'ground nos. a and f were general grounds. it is thus apparent that the sole thrust in the memorandum of appeal was relating to the liability of the insurance company on the ground that there was no insurance policy. it is, of course, true that from the order of summary dismissal passed in the a.h.o., it is not possible to know as to which particular question was raised before the division bench, but the specific grounds, already extracted, leave no room for doubt that the only question which was raised in the memorandum of appeal related to question of liability of the insurance company. since the aforesaid contentions did not find favour with the division bench, ii should be taken that the contentions raised by the appellant are concluded and it is not possible for me to go behind the orders passed in misc. appeal no. 35/94 and particularly that of the division bench in a.h.o. 6/96 to come to any different conclusion.11. the learned counsel for the appellant has relied upon the decision reported in (1999) 4 supreme court cases, 243 (pawan kumar gupta v. rochiram nagdeo) and contended that only decision on issue and not a mere finding on any incidental question to reach such decision operates as res judicata. he also placed reliance upon the decision reported in air 1999 supreme court, 1236 (ferro alloys corpn. ltd. and anr. v. union of india and ors.) to contend that where the question raised was not necessary to be decided, decision on such unnecessary question cannot operate as res judicata in the subsequent proceeding.12. in the present case, the question of liability of the insurance company must be taken to be one of the issues involved in the claim case. the tribunal had held that the insurance company was liable. in view of the observation of the learned single judge, it must be taken that such finding of the tribunal has been confirmed and such decision of the single judge was affirmed in the division bench, if the question of liability of the insurance company would have been left open by the learned single judge or the division bench, as the case may be, there would not have been any difficulty in accepting the submission of the counsel for the appellant.13. the counsel for the appellant also placed reliance upon the decision reported in air 1993 supreme court, 307 (p.m.c. kunhiraman nair v. c.r. naganatha iyer and other). however, after going through the said decision, i do not find anything in support of the contention of the present appellant. in the aforesaid decision, it was observed by the supreme court that where the plea could not have been raised in the earlier suit being an inconsistent plea, non-raising of such plea would not operate as res judicata.14. the counsel for the appellant had placed strong reliance upon the decision reported in air 1973 supreme court, 1269 (ram prakash v. mohammad ali khan (dead) through his legal representatives). in the said case, two second appeals had been filed in the high court arising out of two cross-suits by the same party. one of the appeals was dismissed and the other appeal was allowed. it was contended that the decision in the former appeal dismissing the appeal would operate as res judicata. such contention was negatived by the supreme court on the ground that the question raised in the subsequent appeal 'could not be and was, in fact, not considered in that appeal.' as already indicated, in the present case, the question of liability was decided by the single judge though without any discussion and the division bench confirmed the decision of the single judge. the question of liability of the insurance company was subsequently raised before the division bench, but obviously the division bench did not accept such contention. the principle laid down in the aforesaid supreme court decision is therefore, inapplicable.15. the counsel for the appellant has also placed reliance upon the decision reported in air 1991 supreme court 264 (ramesh chandra v. shiv charan dass and ors.). in the aforesaid matter, the court while dismissing the appeal made certain observations. the supreme court observed that such observations being unnecessary could not operate as res judicata. the aforesaid decision can have no application to the facts of the present case where the question of liability of the insurance company had been specifically raised before the division bench and as such dismissal of the appeal by the division bench must be taken to be a negation of the contention relating to non-liability of the insurance company.16. for the aforesaid reasons, the appeal has to be dismissed on the ground that the direction contained in misc. appeal no. 35/94 and the order of dismissal of a.h.o. no. 6/96 operate as a bar. the misc. appeal is accordingly dismissed. there will be no order as to costs.
Judgment:

P.K. Misra, J.

1. The Insurance Company has filed this appeal challenging the award of the Claims Tribunal.

2. Claimant-respondent No. 1 is a minor. Misc. (A) Case No. 263/88 was filed on his behalf claiming compensation on account of bodily injury sustained by the minor in an accident caused by a Dumper bearing number ORU-3491 belonging to respondent No. 2.

3. The owner contested the claim case denying that allegations relating to accident and injuries sustained by the claimant. It was also claimed that compensation amount, if any, should be paid by the Insurance Company as the Dumper had been insured with the Insurance Company.

The Insurer also filed written statement generally denying the allegations made in the claim application and calling upon the claimant to prove all the allegations.

4. The Claims Tribunal found that the accident occurred due to negligent driving of the driver of the Dumper. It was found that injuries were sustained by the claimant on account of the accident, The Tribunal directed for payment of Rs. 50,000/- by the Insurance Company to the claimant on the finding that the vehicle had been insured with the appellant.

5. Against the aforesaid Award, Misc. Appeal No. 35/94 was filed by the claiming higher compensation. The Insurer filed the present appeal mainly on the ground that it had no liability as according to the appellant, the vehicle had not been insured with the present appellant.

6. In Misc. Appeal No. 35/94 notice was issued to the present appellant as well as to the owner and both had entered appearance through counsels. Ultimately, the appeal was heard on 16.5.1995. After hearing the parties, Hon'ble A. Pasayat, J, directed for payment of Rs. 80,000/- as compensation. It was further observed :

'.....Other conclusions/conditions arrived at/imposed by the Tribunal shall remain unaltered.'

From the aforesaid quoted portion of the order, it is apparent that the Insurance Company was made liable to pay the compensation amount, as enhanced by the High Court.

7. Against the aforesaid decision of this Court dated 16.5.1995, the Insurer filed A.H.O. No. 6 of 1996. the said A.H.O. was listed on 20.3.1997 for admission on which day the following order was passed by the Division Bench :

'We do not find any merit in the matter which is dismissed summarily.'

8. In the present appeal, the learned counsel appearing for the Insurance Company submitted that in the absence of any evidence to the effect that the vehicle in question had been insured with the present appellant, the direction of the Tribunal regarding payment of compensation by the present appellant is uncalled for. The learned counsel appearing on behalf of the claimant submitted that in view of the direction contained in Misc. Appeal No. 35/94 which has been confirmed in A.H.O. No. 6/96, the present contention raised by the counsel for the appellant is hit by principle of res judicata. The learned counsel appearing for the appellant to combat such submission on behalf of the respondents has submitted that the order of summary dismissal of the appeal cannot operate as res judicata.

In many decisions, it has been held that summary dismissal of writ application may not operate as res judicata. However, such decisions relating to summary dismissal of writ application which is considered to be an original proceeding would not be applicable to cases where there is summary dismissal of an appeal. When an appeal is dismissed whether summarily or by reasoned order, the decision of the Court below against which the appeal had been filed is confirmed and such decision becomes final and binding on the parties. The position may be different in case of summary dismissal of writ application because then it cannot be predicated what was the contention raised and decided.

9. The learned counsel for the appellant has submitted that the question as to whether the Insurance Company would be liable or not was specifically raised in the present appeal and was not a question raised in Misc. Appeal No. 35/94. He has, therefore, submitted that any casual observation in the said appeal relating to so-called liability of the Insurance Company cannot be taken to be final or conclusive. It is of course, true that while considering Misc. Appeal No. 35/94, the pendency of present Misc. Appeal No. 97/94 at the instance of the Insurance Company had not been brought to the notice of the learned Judge presumably because the counsel appearing in Misc. Appeal No. 35/94 for the Insurance Company was different from the counsel appearing in the present appeal. Be that as it may, while enhancing the compensation payable to the claimant, the Court had decided (may be impliedly) that the amount shall be paid by the Insurance Company.

10. If the matter would have rested there, the contention now raised by the counsel for the appellant possibly would have required much deeper consideration. However, the subsequent order in A.H.O. No. 6/96 by the Division Bench in the context of challenge made in the memorandum of appeal in the said A.H.O. leaves no room for doubt that the main question which was raised before the Division Bench in A.H.O. No. 6/96 related to liability of the Insurance Company. To elucidate this point, it would be necessary to extract some relevant paragraphs in the memorandum of appeal in A.H.O. No. 6/96. It was stated in paragraphs-4,5, 6 and 7 of the memorandum of appeal ;

'4. That the respondent No. 2, the owner of the vehicle denied the accident but only made a bald statement in the written statement that the vehicle was insured with the appellant without furnishing the policy particulars.

5. That the appellant who was opp. party No. 2 before the Tribunal denied the fact of insurance on the ground that since no policy particulars is given in the claim application and written statement filed by the owner, the appellant is not the insurer of the vehicle.

6. That the learned Tribunal without considering this material aspect awarded Rs. 50,000/- as compensation on the vague ground that since no suggestion has been made to the witnesses about the fact that the appellant is not the insurer of the vehicle, the appellant is liable to pay the amount.

7. That after the judgment was passed by the Tribunal, the present appellant filed appeal against the award through Sri M. Sinha, Advocate which is registered as M. A. No. 97/94 and is pending decision before this Hon'ble Court.'

Apart from the aforesaid averments, all the specific grounds as contained in Ground Nos. B to E which are quoted below related to the question of liability of the Insurance Company :

'(B) For that when the specific case of the appellant is that since the vehicle was never insured by this appellant, in fact which could not be taken in the appeal, the order passed by the Hon'ble Single Judge may be interfered with.

(C) For that law is well settled that the claimant is to prove the insurance coverage of the vehicle and further the owner of the vehicle has to take specific plea in its written statement that the vehicle was insured with the appellant and has to disclose the policy particulars and also has to file the original policy and in the instant case the claimant in column 16 of the claim application has only stated the name of the Insurance Company and the owner also stated the same fact in its written statement as such the learned Tribunal ought to have accepted the plea of the appellant that the vehicle was never insured with the appellant, therefore, the order of the Hon'ble Single Judge may be interfered with the appeal.

(D) For that it is respectfully submitted that the owner of the vehicle was very much contested the case before the Tribunal as such his duty was to file policy particulars before the Court and the same having not been done, the order of the Hon'ble Single Judge may be interfered with in the present appeal.

(E) For that in absence of policy particulars and any proof regarding the policy with the appellant the Tribunal ought not to have saddled the liability against the appellant.'

Ground Nos. A and F were general grounds. It is thus apparent that the sole thrust in the memorandum of appeal was relating to the liability of the Insurance Company on the ground that there was no insurance policy. It is, of course, true that from the order of summary dismissal passed in the A.H.O., it is not possible to know as to which particular question was raised before the Division Bench, but the specific grounds, already extracted, leave no room for doubt that the only question which was raised in the memorandum of appeal related to question of liability of the Insurance Company. Since the aforesaid contentions did not find favour with the Division Bench, ii should be taken that the contentions raised by the appellant are concluded and it is not possible for me to go behind the orders passed in Misc. Appeal No. 35/94 and particularly that of the Division Bench in A.H.O. 6/96 to come to any different conclusion.

11. The learned counsel for the appellant has relied upon the decision reported in (1999) 4 Supreme Court Cases, 243 (Pawan Kumar Gupta v. Rochiram Nagdeo) and contended that only decision on issue and not a mere finding on any incidental question to reach such decision operates as res judicata. He also placed reliance upon the decision reported in AIR 1999 Supreme Court, 1236 (Ferro Alloys Corpn. Ltd. and Anr. v. Union of India and Ors.) to contend that where the question raised was not necessary to be decided, decision on such unnecessary question cannot operate as res judicata in the subsequent proceeding.

12. In the present case, the question of liability of the Insurance Company must be taken to be one of the issues involved in the claim case. The Tribunal had held that the Insurance Company was liable. In view of the observation of the learned Single Judge, it must be taken that such finding of the Tribunal has been confirmed and such decision of the Single Judge was affirmed in the Division Bench, If the question of liability of the Insurance Company would have been left open by the learned Single Judge or the Division Bench, as the case may be, there would not have been any difficulty in accepting the submission of the counsel for the appellant.

13. The counsel for the appellant also placed reliance upon the decision reported in AIR 1993 Supreme Court, 307 (P.M.C. Kunhiraman Nair v. C.R. Naganatha Iyer and other). However, after going through the said decision, I do not find anything in support of the contention of the present appellant. In the aforesaid decision, it was observed by the Supreme Court that where the plea could not have been raised in the earlier suit being an inconsistent plea, non-raising of such plea would not operate as res judicata.

14. The counsel for the appellant had placed strong reliance upon the decision reported in AIR 1973 Supreme Court, 1269 (Ram Prakash v. Mohammad Ali Khan (dead) through his Legal Representatives). In the said case, two Second Appeals had been filed in the High Court arising out of two cross-suits by the same party. One of the appeals was dismissed and the other appeal was allowed. It was contended that the decision in the former appeal dismissing the appeal would operate as res judicata. Such contention was negatived by the Supreme Court on the ground that the question raised in the subsequent appeal 'could not be and was, in fact, not considered in that appeal.' As already indicated, in the present case, the question of liability was decided by the Single Judge though without any discussion and the Division Bench confirmed the decision of the Single Judge. The question of liability of the Insurance Company was subsequently raised before the Division Bench, but obviously the Division Bench did not accept such contention. The principle laid down in the aforesaid Supreme Court decision is therefore, inapplicable.

15. The counsel for the appellant has also placed reliance upon the decision reported in AIR 1991 Supreme Court 264 (Ramesh Chandra v. Shiv Charan Dass and Ors.). In the aforesaid matter, the Court while dismissing the appeal made certain observations. The Supreme Court observed that such observations being unnecessary could not operate as res judicata. The aforesaid decision can have no application to the facts of the present case where the question of liability of the Insurance Company had been specifically raised before the Division Bench and as such dismissal of the appeal by the Division Bench must be taken to be a negation of the contention relating to non-liability of the Insurance Company.

16. For the aforesaid reasons, the appeal has to be dismissed on the ground that the direction contained in Misc. Appeal No. 35/94 and the order of dismissal of A.H.O. No. 6/96 operate as a bar. The Misc. Appeal is accordingly dismissed. There will be no order as to costs.