Issue Estoppel; Devi T. Vs. Jamsheer P. [Kerala High Court, 19-07-2016]

Issue Estoppel – Principle of – estopped from re-agitating the same issue – When an issue has become final a reopening of the same issue between the same parties is not allowed – when the principle of issue-estoppel is applicable, the party is barred from raising the same point decided by application of law on given facts. i.e. when the party is barred from raising the said issue, court need not reopen and re-hear on the issue to find out the extent of liability of the insurer. The principle is that when issue-estoppel operates as a bar for raising contentions, then decided issue cannot be reopened.

# Principle of Issue Estoppel


IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.

M.A.C.A.Nos.1008 & 1168 of 2013

Dated this the 19 th day of July, 2016

AGAINST THE AWARD IN OPMV 617/2010 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE DATED 22-06-2012

APPELLANT/PETITIONER

DEVI. T., AGED 40 YEARS, W/O.BHASKARAN, KARIMBANGOTTU MEETHAL HOUSE, VELLIPARAMBA P.O., KOZHIKODE – 673 008.

BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH

RESPONDENT(S)/RESPONDENTS

1. JAMSHEER.P, S/O.VEERANMOIDEEN, VELUTHEDATHU MEETHAL HOUSE, KUTTIKKATTOOR P.O., KOZHIKODE – 673 008.

2. SHAFEEQUE C., S/O.ABOOBACKER, H.NO.13/689, CHALYARAKKAL, KUTTIKKATTOOR P.O., KOZHIKODE – 673 008.

3. NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, NO.II, NOOR COMPLEX, I.G.ROAD, KOZHIKODE – 673 001.

R2 BY ADV. SRI.AVM.SALAHUDIN R3 BY ADV. SRI.P.JAYASANKAR R BY SRI.M.A.GEORGE

J U D G M E N T

K.P. Jyothindranath, J.

Both these appeals are filed by the parties in O.P. (M.V.)No.617/2010 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. M.A.C.A.No. 1168/2013 is filed by the second respondent whereas M.A.C.A.No.1008/13 is filed by the claimant, therein. The grievance of the appellant in MACA 1168/2013 is that the Tribunal had ordered “pay and recovery”. The grievance of the appellant in MACA 1008/2013 is that the quantum of compensation awarded is inadequate and is on a lower side.

2. A motor vehicle accident occurred on 21.2.2009. The vehicle involved is an autorickshaw bearing registration No.KL-11-K-8646. There were two passengers. In the said accident, both the passengers sustained injuries. They moved claim petitions before the Tribunal. The Tribunal awarded compensation. The appellant in MACA 1008/2013 was the claimant in O.P.(M.V.)No.617/2010. The said compensation claim was allowed by the Tribunal and awarded a total compensation of Rs.1,03,996/-. In the said claim petition, the respondents were the driver, owner and insurer respectively and the Tribunal directed for payment of the amount by the third respondent, the insurer of the vehicle with the right to recover the amount from the second respondent/owner.

3. When the appeal came up for hearing, the counsel appearing for the appellant in M.A.C.A. No.1168/2013 submitted before us that already this court interfered with the right of recovery granted to the third respondent Insurance Company as per judgment in O.P.(M.V.) No.617/2010 and further held that the insurer is liable to pay the compensation awarded by the Tribunal in and vide the judgment in M.A.C.A.No.1171/2013, to the appellantclaimant therein. The appellant therein was the co-passenger of the appellant in M.A.C.A.No.1008/2013. Thus, the factual position would reveal that the two passengers who sustained injuries in the accident and moved claim petitions before the Tribunal and on being aggrieved by the order of pay and recovery the insuredowner who is the appellant in the latter appeal preferred appeals before this court. One of the appeals viz. M.A.C.A.No.1171/2013 was already heard and disposed of holding that the Insurance Company is not entitled to recover the awarded amount so paid, from the insured owner, the appellant therein, as permitted in the award of the Tribunal. The said finding has already become final. It is the submission that the said judgment is reported in

# Shafeeque v. Jamsheer [2014 (2) KLT SN 77 (C.No.99)]

It is the further and foremost submission that parties involved, cause of action and contentions are the same in both the appeals viz., in M.A.C.A.No.1171/2013 and the latter appeal viz., M.A.C.A.No.1168/2013. The argument advanced is that the Insurance Company is therefore, estopped from re-agitating the same issue i.e. by operation of the principle of issue estoppel. In other words, the said issue cannot therefore, be reopened and reconsidered and this court can now adopt the finding in the earlier proceeding in between the same parties, it is submitted. To draw support to the contention it is brought to our notice the decision of this court in

# Benny Paul @ Benny v. State of Kerala [2015 KHC 7074]

in fact rendered by us, referring to the decision of Hon’ble Apex Court in

# Ravinder Singh v. State of Haryana [AIR 1975 SC 856].

The learned counsel relied on paragraph No.18 of the said decision in Ravinder Singh‘s case, which is also quoted by us in Benny Paul’s case (supra). The said paragraph is as follows:

“there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner”.

It is submitted that the said principle will apply squarely in this case. The principle is applicable in both civil and criminal matters.

4. The appellant in MACA 1008/2013 is the claimant, who travelled along with the appellant in M.A.C.A.No.1171/2013 in the same autorickshaw. The counsel appearing for the appellant submitted before us that here is a case where a woman aged 37 years sustained severe injuries. She sustained injuries on the scalp area, fracture of lumbar vertebra (L1), fracture patella right and there was also fracture of ribs 2, 3 and 5 left side. She was treated in the Medical College Hospital, Kozhikode. Even though there were very severe and grievous injuries, the Tribunal awarded only a compensation of Rs.1,03,996/-. It is the submission that even though she was having a disability of 17%, the compensation awarded towards loss of amenities is only Rs.5,000/- and further it is submitted before us that the monthly income considered is only Rs.2,000/- per month. The accident occurred in the year 2009. The compensation awarded on all heads are meagre.

5. The learned counsel appearing for the Insurance Company submitted before us that the principle of issue estoppel will not be applicable in this case. It is the submission made before us that the question of law on the background of already decided facts has to be considered by this court. The counsel also brought to our attention a decision of Apex Court in

# Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355

The learned counsel invited our attention to paragraph No.10 of the said decision. It is further submitted that issue-estoppel will not be applicable in case where the issue is purely a question of law.

6. The counsel also pointed out to us that the total claim by the claimant is only for Rs.1,50,000/- and the Tribunal has already awarded a compensation of Rs.1,03,996/-. It is a just compensation and an interference by this court is not warranted.

7. Firstly, we will consider the point raised by the counsel for the appellant regarding issue-estoppel. In this case, the arguments of the appellant/owner and respondent/insurer can be summarized as follows:

1) The contesting parties are one and the same.

2) Both the claim petitions arose from the very same accident.

3) The legal and factual issue decided was whether the Insurance Company is liable to indemnify the insured-owner and whether the insurer is entitled to recover the awarded amount from the insured-owner after satisfying the award.

4) This court/a competent court has already decided the issue.

5) It became final. There is no appeal.

The argument of the counsel for the respondent is that Rule of res judicata is a rule of procedure and cannot supercede the law of the land.

8. When an issue has become final a reopening of the same issue between the same parties is not allowed. That is the principle of issue-estoppel. In the decision of the Hon’ble Apex Court in Ravinder Singh‘s case (supra) the principle of issue-estoppel is seen considered. The principle of issue-estoppel is elaborately dealt with by our Apex Court in

# Mohan Rai Bharath Rai v. State of Bihar [AIR 1968 SC 1281]

The main argument of the learned counsel for the Insurance Company is that there is a finding by this Court in the decision rendered in the connected appeal to the effect that the driver was not holding a driving licence and badge. Thus, the conclusion will not be sustainable and this court has to decide this appeal in accordance with law. Paragraph No.10 of the decision in Mathura Prasad Sarjoo Jaiswal’s case (supra) is as follows:

“10. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier, proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in S. 11, Code of Civil Procedure, means the right litigated between the parties, i. e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land”.

9. We perused the earlier decision rendered by this court in the connected appeal based on which issue estoppel is raised. It can be seen that following the dictum laid down by the Apex Court in

# National Insurance Co.Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)]

and Full Bench decision of this Court

# Kuruvila v. Jijo Joseph [2013 (4) KLT 700]

it was held that Insurance Company is liable and found that they are not entitled to recover the amount from the appellant. The said finding was rendered on a mixed issue of facts and law. Further, to buttress the contention of the Insurance Company that a different interpretation of Swaran Singh‘s case (supra) is warranted, the learned counsel also brought to our notice the decision of the Apex Court in

# Ram Babu Tiwari v. United India Insurance Company Limited and Ors. [(2008) 8 SCC 165]

It can be seen that position is clearly held by the Apex Court in Mathura Prasad Sarjoo Jaiswal‘s case (supra). It is held that when the decision is on a question of mixed fact and law, issue-estoppel will be applicable. As far back as in 1953 Supreme Court held in

# Mohanlal Goenka v. Benoy Kishna Mukherjee [AIR 1953 SC 65]

“there is ample authority for the proposition that even an erroneous decision on a question of law operates as ‘res judicata’ between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as ‘res judicata’.” Practically the counsel for the respondent is arguing for a review of the earlier decision of this court on the same set of facts. Explanation to Rule 1 of Order 47 of C.P.C., 1908 is also relevant to quote:

“Explanation.- The fact that the decision on a question of law on which the judgment of the Court is barred has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.”

Insurance Company cannot be heard to contend that they are liable to indemnify the owner only in the claim of the copassenger in the accident but not in this case. That is, the Insurance Company is liable to indemnify the insurer/appellant owner as per the insurance policy which was already considered by this court as an issue between the third respondent-insurer and the insured-owner who is the appellant in the latter case. They are not entitled to recover the amount paid to the claimant, from the appellant in the latter appeal who is the insured-owner as permitted in the award of the Tribunal.

10. Thus, it can be seen that, in this case, the principle of issue-estoppel will be applicable. When the principle of issue-estoppel is applicable, the party is barred from raising the same point decided by application of law on given facts. i.e. when the party is barred from raising the said issue, this court need not reopen and re-hear on the issue to find out the extent of liability of the insurer.

11. The principle is that when issue-estoppel operates as a bar for raising contentions, then decided issue cannot be reopened.

12. For the reasons stated above, we are holding that in this case the principle of issue-estoppel is in operation, we are not going to reopen the same issue again but only adopt the finding of this court in the decision in Shafeeque‘s case (cited supra).

13. The next aspect to be looked into is regarding the claim of the appellant in MACA 1008/2013. Here is a case where the claim of the appellant is that she was working as a sales girl in Kalyan Sarees, Kozhikode. As rightly pointed out by the Tribunal, no evidence to substantiate the said claim is seen produced before the Tribunal. But it is a fact that she is a house wife aged 37 years. Even if there is no evidence regarding her income, adopting the principle laid down by our Apex Court in

# Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]

considering the claimant as a house wife and equating her service in terms of money, it will be only just and proper to consider at least Rs.3,000/- as her monthly income. Her injures are severe in nature. There is fracture of patella right as well as fracture of ribs.

14. Thus, considering all aspects, it will be just and proper to award a sum of Rs.15,000/- towards pain and suffering. Rs.10,000/- is seen already awarded in this head. Then she will be entitled to get an additional sum of Rs.5,000/- on this head. Towards loss of earnings, only a sum of Rs.8,000/- is seen granted. Taking Rs.3,000/- as the monthly income, she is entitled to get an additional sum of Rs.4,000/- on this head. When Rs.3,000/- is considered as her monthly income, on the head of permanent disability she will be entitled to an additional sum of Rs.30,600/- [3000X12x15x17/100 – 61200]. Towards loss of amenities, only a sum of Rs.5,000/- is seen awarded. An additional sum of Rs.5,000/- is awarded on this head also. Thus, she will be entitled to an additional sum of Rs.44,600/- (Rupees forty four thousand six hundred only).

15. Thus, for the reasons stated above, MACA 1168/2013 is allowed. The finding of the Tribunal to the effect that the Insurance Company is entitled to effect recovery of the amount paid to the claimant from respondent No.2, the appellant/owner of the vehicle is hereby set aside in tune with the finding of this court in MACA 1171/2013 which also arose from the very same accident and the parties, viz., the insurer and the insuredowner, are one and the same. MACA 1008/2013 is also allowed and the appellant therein is entitled to an additional compensation of Rs.44,600/- which shall be paid by the Insurance Company i.e. the third respondent in the appeal. The said amount will carry interest at the rate of 8% per annum from the date of petition till realization. The Insurance Company is directed to deposit the enhanced amount within a period of two months from the date of receipt of a copy of this judgment, failing which, the amount remaining to be paid will carry interest at the rate of 9%.

No order as to costs.

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