In this appeal, learned counsel for the appellant-Insurance Company has placed reliance on the common oral judgment dated 8.5.2012 passed by this Court [Coram: Bhaskar Bhattacharya, Acting C.J.] in First Appeal No.19 of 2005 with First Appeal No.20 of 2005 and submitted that the award passed by the Tribunal under section 140 of the Motor Vehicles Act, 1988 [for short, 'the Act] remains unchallenged by the Insurance Company and, subsequently, the findings of the Tribunal in the said award under Section 140 of the Act do operate as 'constructive res-judicata' for the proceeding under Section 166 of the Act. Paragraph 12 of the said judgment reads as under:
"12. I do not find any substance in the contention of Mr Nanavati that in view of the provisions contained in Section 144 of the Act, the finding recorded in the proceedings under Section 140 of the Act cannot be binding upon the Tribunal in the proceedings under Section 166 of the Act. Section 144 of the Act merely suggests that notwithstanding the provisions contained in Chapter XI of the Act, the provisions contained in Chapter X will have overriding effect, meaning thereby, that even without proving negligence on the part of the driver of the vehicle, the victim can claim compensation which is not permissible in the proceedings under Section 166 of the Act. But once the Tribunal passes an award against the Insurance Company in a proceeding under Section 140 of the Act, the pleas of non-involvement of the vehicle or non-coverage of insurance or violations of the terms of insurance must be agitated by filing an appeal against the award otherwise those points cannot be urged in the proceedings under Section 166 of the Act if the previous award under Section 140 is not challenged by preferring an appeal."
In the above decision, the learned Acting Chief Justice has also taken into consideration decision of the learned Single Judge of this Court in the case of New India Assurance Co. Ltd vs. Mithakhan Dinakhan Notiyar and others, reported in 1995 (2) GLR 1111.
The above issue was also addressed by the Apex Court in Yallwwa (Smt) and others vs. National Insurance Co. Ltd, (2007) 6 SCC 657, and in Eshwarappa v. C.S. Gurushanthappa, AIR 2010 SC 2907.
Issue notice returnable on 10th July 2012.
In addition to the notice through court process, the learned counsel for the appellant is also permitted to serve the respondents by Registered Post A.D. Civil Application No.5080 of 2012 Issue notice returnable on 10th July 2012.
Ad-interim relief in terms of paragraph 6(A) on the condition that decretal amount of the judgment and award impugned in this appeal be deposited before the Tribunal within four weeks from today.
In addition to notice through court process, the learned counsel for the appellant is also permitted to serve the respondents by Registered Post A.D. (ANANT S. DAVE, J.) (swamy) Top