# New India Insur.Co. Ltd v. Dr. Vikas Sethi & Ors

- **Citation:** (2020) 8 ILRA 278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-31
- **Case number:** FAFO No. 581 of 2016
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-insur-co-ltd-v-dr-vikas-sethi-ors-46037
- **Pages:** 7

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section 169 - Motor Vehicle Rules, 1998
- Rule 215 and 220 - Motor Accident
Claim Tribunal - Nature of Jurisdiction -
Exclusive Jurisdiction - Motor Accident
Claims Tribunals are a substitute of civil
courts
for
the redressal of
motor
accident
claims
-
The
nature
of
jurisdiction exercised by each Tribunal
over a specified territory is exclusive -
Held, the principle as to the finality of
an issue decided by a forum of exclusive
jurisdiction for the purpose of binding
the parties and disabling them to
reagitate the same in the subsequent
proceedings is well settled. (Para 20 and
22)
B. Civil Law - Civil Procedure Code -
Motor Accident Claim -- Section 11 -
Res Judicata - Applicability - It is no
more res integra that such forums are
the forum of exclusive jurisdiction,
therefore, determination of an issue
between the same parties must attain
finality to subserve the policy of judicial
economy, consistency and finality in
adversial litigation - An issue once
determined and acted upon by the same
parties arising out of the same subject
matter, therefore, cannot be left open
for leading evidence before another
forum of equal jurisdiction - Held, The
principle of res judicata ought to have
been
applied
while
rendering
the
impugned judgement/award. (Para 23
and 24)
Appeal disposed of. (E-1)
Cases relied on :-

## Text

278 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants. The contempt application has
been filed by the applicants with oblique
motive, so as to impede development
work being carried by the Board under
the Act 2018 in larger public interest, for
pious cause and for protection of
environment and cleanliness of the river
Ganga.

XII. Contempt application is
dismissed with costs of Rs.5,000/- on
each of the applicants, which shall be
deposited by them separately within one
month from today, with "Shri Kashi
Vishwanath Special Area Development
Board".

35. For all the reasons stated above,
this contempt application is dismissed
with costs as above.
----------
(2020)08ILR A278
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.07.2020

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

FAFO No. 581 of 2016

New India Insur.Co. Ltd. ...Appellant
Versus
Dr. Vikas Sethi & Ors. ...Respondents

Counsel for the Appellant:
Bhanu Prakash Dubey, Kartikey Dubey

Counsel for the Respondents:
Brijesh Kumar Singh, Miss Alka Saxena,
Pratul Srivastava, Uma Kant Gupta

A. Civil Law - Motor Vehicle Act, 1988 -
Section 169 - Motor Vehicle Rules, 1998
- Rule 215 and 220 - Motor Accident
Claim Tribunal - Nature of Jurisdiction -
Exclusive Jurisdiction - Motor Accident
Claims Tribunals are a substitute of civil
courts
for
the redressal of
motor
accident
claims
-
The
nature
of
jurisdiction exercised by each Tribunal
over a specified territory is exclusive -
Held, the principle as to the finality of
an issue decided by a forum of exclusive
jurisdiction for the purpose of binding
the parties and disabling them to
reagitate the same in the subsequent
proceedings is well settled. (Para 20 and
22)
B. Civil Law - Civil Procedure Code -
Motor Accident Claim -- Section 11 -
Res Judicata - Applicability - It is no
more res integra that such forums are
the forum of exclusive jurisdiction,
therefore, determination of an issue
between the same parties must attain
finality to subserve the policy of judicial
economy, consistency and finality in
adversial litigation - An issue once
determined and acted upon by the same
parties arising out of the same subject
matter, therefore, cannot be left open
for leading evidence before another
forum of equal jurisdiction - Held, The
principle of res judicata ought to have
been
applied
while
rendering
the
impugned judgement/award. (Para 23
and 24)
Appeal disposed of. (E-1)
Cases relied on :-
1. Gulabchand Chhotalal Parikh Vs St. of
Gujr., AIR 1965 SC 1153
2. Canara Bank V. N.G. Subbaraya Setty &
anr., (2018) 16 SCC 228

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard Sri Kartikey Dubey,
learned counsel for the appellant, Sri
Uma Kant Gupta for respondent no. 1,
Sri Pratul Srivastava for respondent no.
3/1 and Km. Alka Saxena for respondent
no. 4. None for respondent no. 2.
8 All. New India Insur. Co. Ltd. Vs. Dr. Vikas Sethi & Ors.
279

2. This appeal filed under Section
173 of Motor Vehicle Act, 1988 has
arisen out of the judgement and award
dated 16.2.2016 rendered by Motor
Accident Claims Tribunal, Lucknow in
Claim Petition No. 275 of 2007 whereby
a compensation of Rs. 21,02,221/-
alongwith an interest @7% p.a. has been
awarded in favour of the claimant who
sustained a serious eye injury. The
accident involves two vehicles i.e. Truck
bearing No. UP63 F 9612 and a WagonR No. UP43 D 7120. The truck was
insured by the appellant i.e. New India
Assurance Co. Ltd. whereas Wagon-R
was insured by Oriental Insurance Co.
Ltd. i.e. respondent no. 4.

3.

The
correctness
of
the
judgement/award rendered by Motor
Accident Claims Tribunal, Lucknow is
essentially questioned on the ground of
fixation of entire liability arising out of
the award upon the appellant although
the case before the Tribunal was that of a
composite negligence and according to
the appellant, the liability ought to have
been apportioned appropriately between
the two companies having insured the
vehicles.

4. The appellant has not questioned
the quantum of compensation except for
the application of wrong multiplier.

5. In view of the submissions put
forth,
the
points
that
arise
for
consideration are thus confined to the
correctness
of
fixation
of
liability
exclusively upon the appellant and
application of wrong multiplier.

6. Coming to the point of fixation
of
liability
exclusively
upon
the
appellant, it is argued that the accident in
question which took place on 20.2.2007
gave rise to two claims and that too
before the two different Tribunals. The
claim arising out of the death of the
driver of Wagon-R bearing no. UP43 D
7120 i.e. Claim Petition No. 23/2007 was
decided by Motor Accident Claims
Tribunal, Gonda vide judgement and
award dated 15.1.2009 whereas the
subsequent proceeding arising out of an
injury sustained by one of the occupants
in the above mentioned Wagon-R i.e.
Claim Petition No. 275/2007 was decided
by Motor Accident Claims Tribunal at
Lucknow. The insurance companies of
both the vehicles involved in the accident
were impleaded as respondents. The
judgement and award in the former
proceedings instituted before the Motor
Accident Claims Tribunal, Gonda was
rendered earlier whereby a compensation
of Rs. 2,70,000/- was awarded to the
dependents of the deceased driver of
Wagon-R.

7. Since the accident involved two
vehicles,
therefore,
a
plea
of
contributory/composite
negligence
was
taken by the insurance companies against
each other in the respective cases so that
the liability may be fixed proportionately
looking to the evidence on record. On the
issue of negligence the Tribunal at Gonda
in the former proceedings initiated by the
dependants of the deceased driver of
Wagon-R, has recorded that the accident
was caused due to negligence on the part of
both the vehicles involved in the accident.
It is on account of the composite
negligence that proportionate liability for
payment of compensation was fixed upon
both the insurance companies equally.

8. The judgement rendered by
Motor Accident Claims Tribunal, Gonda
280 INDIAN LAW REPORTS ALLAHABAD SERIES
has been complied with by both the
insurance
companies
and
has
undisputedly attained finality.

9. Since the judgement rendered by
Motor Accident Claims Tribunal, Gonda
had attained finality, therefore, a plea of
finallity on the aspect of proportionate
liability was taken by the present
appellant in the subsequent proceedings
instituted before the Motor Accident
Claims Tribunal at Lucknow. The copy
of the judgement/award rendered by the
Tribunal at Gonda was also placed on
record alongwith the written statement
filed by the appellant.

10. It was further submitted that the
judgement and award rendered in the
earlier proceedings arising out of the
same accident was acted upon by both
the insurance companies, therefore, such
an issue was liable to be decided in the
manner in which it had already stood
settled between the parties.

11. Learned counsel for respondent
no. 4 has submitted that the issue of
composite negligence was framed by the
Tribunal in the subsequent proceeding as
well and the same was open to be decided
on the basis of evidence available on
record. It is further submitted that a
Tribunal having exclusive jurisdiction and
not bound by the provisions of Section 11
CPC, has thus not committed any error of
law by not attaching a finality to the issue
decided by another Motor Accident Claims
Tribunal between the same parties which is
based on different evidence led by the
claimants and the parties therein.

12. It is also argued that once the
jurisdiction of Motor Accident Claims
Tribunal which cannot be understood to
be ''the court', is mutually exclusive, the
principle of res judicata on the question
of fact will not bind the forum trying an
identical issue.

13. It is in view of the aforesaid
submissions that an important question
viz. as to whether the principle of res
judicata in a subsequent claim would
apply on an issue of fact which in the
former proceedings was decided by a
forum of competent jurisdiction between
the same parties.

14. Before delving into such a
question, it would be fruitful to refer to
some of the provisions under the relevant
statute as well as the rules framed
thereunder.

15. Section 169 of Motor Vehicle
Act, 1988 postulates as under:

"169. Procedure and powers
of Claims Tribunals.--

(1) In holding any inquiry
under section 168, the Claims Tribunal
may, subject to any rules that may be
made in this behalf, follow such summary
procedure as it thinks fit.

(2) The Claims Tribunal shall
have all the powers of a Civil Court for
the purpose of taking evidence on oath
and of enforcing the attendance of
witnesses
and
of
compelling
the
discovery and production of documents
and material objects and for such other
purposes as may be prescribed; and the
Claims Tribunal shall be deemed to be a
Civil Court for all the purposes of section
195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974).

(3) Subject to any rules that
may be made in this behalf, the Claims
Tribunal may, for the purpose of
8 All. New India Insur. Co. Ltd. Vs. Dr. Vikas Sethi & Ors.
281
adjudicating
upon
any
claim
for
compensation, choose one or more
persons possessing special knowledge of
and matter relevant to the inquiry to
assist it in holding the inquiry."

16. The State Government has also
framed the statutory rules known as U.P.
Motor Vehicle Rules, 1998. Rule 221 of
the statutory rules limits the application
of the provisions of CPC to the claim
petitions instituted before the Motor
Accident Claims Tribunal. It is true that
Section-11 CPC does not apply to the
proceedings before the Tribunal, yet the
principle embodied therein would apply
on the decided issues between the same
parties arising out of the same subject
matter. The procedure applicable to the
framing of issue and decision thereof is
gathered from the following provisions..

17. Rule 209 of the aforesaid rules
provides as under:

"209. Framing of issues.- After
considering the application and the written
statements and oral statements of the parties,
the Claims Tribunal shall proceed to frame
the issues on which the right decision of the
claim appears to it to depend."

18. Rule 215 and 220 also being
relevant,
may
thus
be
extracted
hereunder:

"215. Power of examination.-
The Claims Tribunal may if it thinks
necessary, examine any person likely to
be able to give information relating to
the injury, irrespective of the fact
whether such person has been or is to be
called as a witness or not."

"220. Judgment and award of
compensation.- (1) The Claims Tribunal,
in passing orders, shall record concisely
in judgment the findings on each of the
issues framed and the reasons for such
finding and make an award, specifying
the amount of compensation to be paid
by the insurer or in the case of a vehicle
exempted under sub-section (2) and (3)
of Section 146 by the owner thereof and
shall also specify the person and persons
to whom compensation shall be payable.

(2) Where compensation is
awarded to two or more persons under
sub-rule (1) the Claims Tribunal shall
also specify the amount payable to each
of them.

(3) The Claims Tribunal may,
while
disposing
of
claims
for
compensation,
make
such
order
regarding costs and expenses incurred in
the proceeding as it thinks fit."

19. From a bare reading of the
aforesaid rules, it is clear that the Motor
Accident Claims Tribunal is under an
obligation to frame the issues on which
the right decision of the claim appears to
depend.

20. The Tribunals are created under
Section 165 of Motor Vehicles Act,
1988. The nature of jurisdiction exercised
by each Tribunal over a specified
territory is exclusive. The principle as to
the finality of an issue decided by a
forum of exclusive jurisdiction for the
purpose of binding the parties and
disabling them to reagitate the same in
the subsequent proceedings is well
settled.

21. To substantiate such an
argument,
learned
counsel
for
the
appellant has placed reliance upon a
judgement reported in AIR 1965 SC
1153 (Gulabchand Chhotalal Parikh v.
282 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Gujrat) and referring to
paragraph 33 of the said judgement, it
was argued that the issue decided by a
forum of exclusive jurisdiction would
bind the parties in the subsequent
proceedings in the same manner in which
a forum of concurrent jurisdiction stands
bound by an earlier judgement rendered
on the same issue and between the same
parties. Para 33 of the judgement (supra)
is reproduced hereunder:

33. Before discussing the law
of res judicata as laid down in the Code
of Civil Procedure, we may refer to the
opinion of the Judges expressed in 1776
in the Duches of Kingston's Case(1) to
which reference has been invariably
made in most of the cases to be
considered by us. It was said in that case
:

"From the variety of cases
relative to judgments being given in
evidence in civil suits, these two deductions
seem to follow as generally true : first that
judgment of a Court of concurrent
jurisdiction, directly upon the point. is as a
plea, a bar, or as evidence conclusive,
between the same parties, upon the same
matter, directly in question in another Court;
secondly that the judgment of a Court of
exclusive jurisdiction, directly upon the
point, is, in like manner, conclusive upon
the same matter, t between the same parties,
coming incidentally in question in another
Court, for a different purpose. But neither
the judgment of a concurrent or exclusive
jurisdiction is evidence of any matter which
came collaterally in question, though within
their jurisdiction, nor of any matter
incidentally cognizable, nor of any matter to
be
inferred
by
argument
from
the
judgment."

It is to be noticed that the
opinion does not take into account
whether the earlier judgment was in a
suit or any other proceeding and whether
it was used as res judicata in another suit
or proceeding. The emphasis is that the
judgment be of a Court and that it is
relied upon as res judicata in another
Court. Of course, the essential conditions
that the judgment be directly upon the
same point which is for determination in
the subsequent suit and be between the
same parties are also to be satisfied. It is
obvious that the judgment of a Court of
exclusive jurisdiction is to be treated as
res judicata upon the same matter in
another Court which will not be a Court
having jurisdiction over the matter.

22. It is worthwhile to note that the
Motor Accident Claims Tribunals are a
substitute of civil courts for the redressal
of motor accident claims.

23. It is no more res integra that
such forums are the forum of exclusive
jurisdiction, therefore, determination of
an issue between the same parties must
attain finality to subserve the policy of
judicial
economy,
consistency
and
finality in adversial litigation. An issue
once determined and acted upon by the
same parties arising out of the same
subject matter, therefore, cannot be left
open for leading evidence before another
forum
of
equal
jurisdiction
which
otherwise may frustrate the purpose of
finality of a judgement in the preceding
case and the decre would thus loose the
essence of sacredness.

24. In the present case when the
principle of finality is tested on the
parameters as spelt out in the judgement
referred (supra), this Court has no
hesitation to put on record that the aspect
of composite negligence which was
8 All. New India Insur. Co. Ltd. Vs. Dr. Vikas Sethi & Ors.
283
decided by the Motor Accident Claims
Tribunal at Gonda in the earlier claim petition
arising out of the same accident in the normal
course ought to have bound the two
insurance companies without any protest.
The principle of res judicata binds the parties
on the question of fact is also a well settled
proposition of law for which reference can be
made to para-34 of the judgement reported in
(2018) 16 SCC 228 (Canara Bank v. N.G.
Subbaraya Setty and another). That being
the position of law, the objection taken by the
present appellant before the Motor Accident
Claims Tribunal at Lucknow ought to have
been considered and adverted to in
accordance with law. Since the plea taken
was not adverted to at all by the Tribunal in
the subsequent proceedings, therefore, to the
extent of fixation of entire liability upon the
appellant, the findings arrived at by the Motor
Accident Claim Tribunal, Lucknow are not
tenable in the eye of law. The principle of res
judicata was thus applicable between the
parties i.e. the two insurance companies on
the aspect of proportional liability which
ought to have been applied in terms of the
earlier judgement/award.

25. The appellant has already
deposited 75% of the decretal amount
which may be released in favour of the
claimants subject to the protection of
right of recovery against the respondent
no. 4. For the purpose of apportioning the
liability, it would not be fruitful to remit
the matter back to the Motor Accident
Claims Tribunal, Lucknow once on
principle the Court is satisfied that the
principle of res judicata ought to have
been
applied
while
rendering
the
impugned judgement/award.

26. Looking to the fact that the
previous judgement has duly been acted
upon by both the parties, the claim
awarded by the Tribunal in the present
case of which the liability has exclusively
been fixed upon the appellant, deserves
modification. Accordingly, the liability to
pay the compensation awarded by the
Tribunal
in
the
impugned
judgement/award is fixed upon the
appellant as well as respondent no. 4 in
equal proportion. The appellant shall
deposit the remaining decretal amount
before the Tribunal within a period of
three months from today which may be
released in favour of the claimants. The
appellant shall have a recovery right
against the respondent no. 4 to the extent
of half of the claim allowed by means of
the impugned judgement/award dated
16.2.2016 as contained in Annexure-1 to
this appeal.

27. With the modification as above,
the quantum of compensation awarded by
the Tribunal is affirmed granting protection
of recovery rights as above to the appellant
as against the respondent no. 4.

28. It shall be open to the appellant to
enforce the recovery rights by means of
execution proceedings against the respondent
no. 4. The execution proceedings taken up by
the appellant, if any, may be concluded not
later than a period of six months from the
date of its filing.

29. Insofar as the aspect of wrong
multiplier is concerned, this Court is
convinced that the Tribunal looking to
the age of injured being 31-35 years
ought to have applied the multiplier as
16. This is what follows in accordance
with the judgement rendered in Sarla
Verma case. Ordered accordingly.

30. The impugned judgement/award
to the aforesaid extent stands modified
284 INDIAN LAW REPORTS ALLAHABAD SERIES
and the appeal is accordingly disposed
of.
----------
(2020)08ILR A284
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2020

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Misc. Bail Application No. 13331 of 2020

Ram Ladaite @ Shaukeen ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri R.P.S. Chauhan

Counsel for the Opposite Parties:
A.G.A.

Criminal
Law-
Code
of
Criminal
Procedure, 1973- Section 53-A Cr.P.C-
Examination of person accused of rape
by medical practitioner- Is of worth only
when the accused is apprehended and
medically examined immediately- The
question of examination of an accused
of rape by a medical practitioner as per
the said Section is necessary only if
there
are
reasonable
grounds
for
believing that an examination of his
person will afford evidence as to the
commission
of
an
offence.
The
immediate corroboration of the offence
through medical evidence that too by
examination of the accused is only of
any
worth
if
the
same
is
done
immediately
after
the
accused
is
apprehended and subjected to medical
examination for corroborating the same.

Medical examination of the person accused of
rape u/s 53-A of the Cr.Pc can give any resilts
only if the accused is apprehended shortly
after the commission of the offence and the
medical examination is done immediately.

Criminal Law- Indian Penal Code, 1860-
Section 375/ 376- Rape of minor -
Statement of victim corroborated by
medical/ injury report- The victim was
also assaulted by the accused persons
and had received injuries on her head
and leg which was bleeding, the same is
mentioned in the complaint. The victim
was given medical treatment for her
injuries. She has specifically stated that
she was subjected to rape by the
applicant
and
co-accused.
The
prosecution in the present case has
been consistent so far as the allegation
of rape is concerned.

Where the statement of the victim is
consistent with regard to the factum of rape
and the same is corroborated by the injuries
sustained by her in course of the commission
of the offence, then there is no ground to
doubt the version of the prosecution.

Bail Application rejected. (E-3)

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri R.P.S. Chauhan, learned
counsel for the applicant and Sri Manu Raj
Singh, learned A.G.A. for the State.

2. This bail application under
Section 439 of Code of Criminal
Procedure
has
been
filed
by
the
applicant, Ram Ladaite @ Shaukeen,
seeking enlargement on bail in S.S.T. No.
1765 of 2019, arising out of Complaint
Case No. 102 of 2019, under Section
376-D Indian Penal Code, 1860, Section
6 of The Protection of Children from
Sexual Offences Act, 2012 and Section
3(2)(V) of the Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989, registered at Police
Station Ujhani, District Budaun.

3. Notice was issued to the opposite
party no. 2 vide order dated 12.06.2020.