Skip to content


Dr. Omprakash Mishra Vs. National Fire and General Insurance Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. First Appeal No. 60 of 1961
Judge
Reported inAIR1964MP136
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Motor Vehicles Act, 1939 - Sections 110, 110A and 110F
AppellantDr. Omprakash Mishra
RespondentNational Fire and General Insurance Co. Ltd. and ors.
Appellant AdvocateR.S. Dabir and ;J.P. Sanghi, Advs.
Respondent AdvocateT.C. Naik, Adv. for Respondents (1 and 2)
DispositionAppeal allowed
Cases ReferredIn M. L. Das and Sons v. Sampatmull
Excerpt:
- - as this was not done by the respondents, they failed to raise a defence which they might and ought to have raised......court even though erroneous is binding on the parties.' the contention that there was lack of inherent jurisdiction in the execution court to proceed with the execution was not considered a sufficient answer to the contention that the previous decision operated as res judicata. in subba lakshmamma v. venkatarayadu, ilr 32 mad 318 a decree was reversed on appeal and the case was remanded for retrial. against the decree passed at the remanded trial, an appeal was preferred and the judge of the appellate court, who was the successor of the judge who originally remanded the case, held that the previous order of remand was wrong, and allowed the appeal. it was held that the original order of remand could not be reviewed and could not be questioned an the second appeal. in m. l. das and sons.....
Judgment:

Shrivastava, J.

1. The appellant had filed an application before the Motor Accidents Claims Tribunal, Jabalpur, claiming Rs. 6,000/- for damages to his car and Rs. 10,200/- for personal injuries. The Tribunal passed an order on 6-5-1961 holding that it had no jurisdiction to entertain the claim. This appeal is filed against that order.

2. The Tribunal was constituted by a Notification, dated 7-8-1959, which was published in the Madhya Pradesh Gazette on 18-9-1959. The accident in question took place on 13-9-1959, that is, between these two dates. in Kumari Sushma Mehta v. C. P. T. Services, Misc. First Appeal No. 58 of 1961. (AIR 1964 Madh-Pra 133) we have held that the Tribunal should be deemed to have been constituted on the date on which the notification was published in the Gazette. Accordingly, the accident took place before the constitution of the Tribunal. We have further, held in that case that in those cases where the cause of action for compensation arose prior to the constitution of the Tribunal, the party injured has the remedy of filing a suit and there is no jurisdiction in the Tribunal to entertain an application for granting compensation in accordance with Section 110-F of the Motor Vehicles Act.

3. However, in the instant case an additional ground has been raised by the appellant to support his contention that the Tribunal should have decided the petition. The Tribunal held on 2-9-1960 that the petition was not tenable with respect to the damages to the car, as Section 110-A related only to personal injuries. Against this order, the appellant went up in appeal and a Division Bench of this Court decided on 15-3-1961 in Misc. (First) Appeal No. 159 of 1960, (Dr. Om Prakash v. National Fire and General Insurance Co. Ltd., AIR 1962 Madh-Pra 19), that the Claims Tribunal had jurisdiction to entertain the claim regarding damages to the car also and directed the Tribunal to proceed to adjudicate upon the whole claim on merits. It was contended on behalf of the appellant that this decision operated as res judicata and the Tribunal had no jurisdiction after this decision to dismiss the petition on the ground that the claim could not be tried for want of jurisdiction.

4. We find that there is substance in this contention. In Mohanlal v. Benoy Kishna, AIR 1953 SC 65 their Lordships, after referring to the decisions of the Privy Council in Ram Kirpal v. Mt. Rup Kuari, 11 Ind App 37 (PC), Raja of Ramnad v. Velusami Tewari, 48 Ind App45 : (AIR 1921 PC 23) and Shivraj Gopalji v. Ayissa Bi, AIR 1949 PC 302, concluded that:

'A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties.'

The contention that there was lack of inherent jurisdiction in the execution Court to proceed with the execution was not considered a sufficient answer to the contention that the previous decision operated as res judicata. In Subba Lakshmamma v. Venkatarayadu, ILR 32 Mad 318 a decree was reversed on appeal and the case was remanded for retrial. Against the decree passed at the remanded trial, an appeal was preferred and the Judge of the Appellate Court, who was the successor of the Judge who originally remanded the case, held that the previous order of remand was wrong, and allowed the appeal. It was held that the original order of remand could not be reviewed and could not be questioned an the second appeal.

In M. L. Das and Sons v. Sampatmull, AIR 1954 Cal 103, the High Court had sent back the case to the Rent Controller with a direction that the rent was to be standardised under certain provisions of the W. B. Premises Rent Control Act. The Rent Controller directed the party to obtain an appropriate direction from the High Court on the ground that the High Court had subsequently taken a different view. It was held that the order of remand by the High Court, which was made earlier, was binding on the party and whether the decision was right or wrong the finality and effectiveness of the High Court's decision remained wholly unaffected. Holding that the Rent Controller had no jurisdiction to go behind that direction, the High Court set aside the order of the Rent Controller. In this view, it appears to us that the decision of the High Court in Miscellaneous Appeal No. 159 of 1961 is binding on the parties. It is true that the question regarding the maintainability of the claim relating to personal injuries was not before that Bench; but the order of the Tribunal could a have been supported in that case on the ground that the Tribunal had no jurisdiction at all to entertain either of the claims. As this was not done by the respondents, they failed to raise a defence which they might and ought to have raised. Accordingly, they were precluded by the rule of constructive res judicata from raising the question of jurisdiction before the Tribunal again. The Tribunal could not, therefore, reject the, petition.

5. Accordingly, the appeal is allowed and the order of the Tribunal is set aside. The Tribunal shall now proceed to dispose of the case in accordance with law. The costs of this appeal shall abide the result. Hearing fee Rs. 50/- only.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //