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