IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H. P. SANDESH M.F.A. NO. 5280 OF 2012 (MV) BETWEEN:
BASHA KHAN SON OF MEHTAB KHAN AGED ABOUT 51 YEARS RESIDENT OF GULAM MOHIDDIN ROAD SAGAR TOWN ... APPELLANT (BY SRI NATARAJ C.D. ADVOCATE FOR SRI PRUTHIVI WODEYAR, ADVOCATE ) AND 1. ASHFAQ S/O. MOHAMMED YAKUB AGED ABOUT 35 YEARS R/O. KELADI ROAD SAGAR DRIVER OF THE VEHICLE BEARING NO.KA-14/0427.
2. V.N.KHISHORE S/O NAGAPPA GOWDA, LAXMI VENKATESHWARA NILAYA, 1ST CROSS, GANDI NAGAR, SHIMOGA.
OWNER OF MANJUNATHA BUS BEARING NO.K.A.14/0427.
3. THE DIVISIONAL MANAGER, THE BAJAJ ALLIANZ INSURANCE CO., MANGALORE, POLICY No.0G09-995-1812 00002839, VALIDITY 14.6.2008 TO 13.06.2009.
... RESPONDENTS (BY SRI P.S. JAGADISH, ADVOCATE FOR R-3, V/O DATED:1/7/15, NOTICE TO R-1 & 2 DISPENSED WITH) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.02.2012 PASSED IN MVC NO.46/2011 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, SAGAR, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL IS COMING ON FOR HEARING THIS DAY THE COURT DELIVERED THE FOLLWING:
J U D G M E N T This miscellaneous first appeal is filed by the appellant challenging the judgment and award dated 22.02.2012, passed in MVC No.46/2011 on the file of Additional Senior Civil Judge and Member Addl. M.A.C.T. at Sagar, questioning the dismissal of the claim petition.
2. Brief facts of the case are:
Petitioner is the owner of Either Mini Lorry bearing registration No.KA-15/4888. On 25.06.2008, driver of the petitioner parked the said Lorry on the left side of the road, near tank bund at Kaspadi Village, Sagara Taluk. At about 2.00 p.m., Manjunatha bus bearing registration No.KA- 14/0427 driven by respondent No.1 in rash and negligent manner and dashed against the lorry. As a result, lorry sustained major damages and vehicle got repaired and estimation was prepared for a sum of Rs.1,45,000/-. As per the estimate of New India Assurance Co., the damages was upto Rs. 1,35,924/-. The petitioner paid the said amount to the Vijaya Motors Sales and Service and thereby applied for re-imbursement from insurer. The insurer after verification issued a cheque for a sum of Rs.1,07,000/- on 11.08.2008 as full and final settlement. The petitioner suffered loss of Rs.33,000/- due to the accident caused by respondent No.1. The petitioner has spent sum of Rs.5,000/- for transportation of vehicle. The vehicle was in garage for more than 3 months. On account of the same, the petitioner has suffered loss of Rs.45,000/-.
Hence he claimed compensation of Rs.88,000/- along with interest.
3. The respondent No.3 appeared through the counsel and filed written statement denying the averments made by the claimant in the claim petition.
4. The claimant in order to substantiate his claim examined himself as P.W.1 and got marked 17 documents, Ex.P.1 to 17 and examined P.W.2. On behalf of respondent No.3, R.W.1 is examined and got marked Exs.R.1 and R.2.
5. The Tribunal after considering both oral and documentary evidence dismissed the claim petition on the ground that he has already got re-imbursement from the insurer which amounts to double the claim. Hence the claimant is not entitled for any compensation.
6. Being aggrieved by the dismissal of the claim petition, the present appeal is filed challenging that Tribunal ought not to have dismissed the claim petition and it would have considered the estimated cost of repair of Rs.1,45,000/- and as the insurer only paid Rs.1,07,000/-. The petitioner has also spent Rs.5,000/- towards transportation of the vehicle and the vehicle was in garage for a period of 3 months. These aspects have not been considered by the Tribunal and has committed an error in holding that, getting settled the matter as full and final settlement with his insurer, the petitioner is not entitled for any compensation of difference amount and other amount as per the claim made in the claim petition. The very approach of the Tribunal is erroneous and it requires inference of this Court.
7. The learned counsel for the appellant in support of his contention relied upon the judgment of this Court reported in ILR 2015 KAR 4533, R.P. Zuber vs. Basavarajappa and Another, wherein the Court held that the claimant is entitled for difference amount and other amount when he has incurred expenses and hence the claim petition is liable to be allowed and impugned judgment of dismissal of claim petition has to be set aside.
8. Per contra, the counsel for the respondent would contend that, petitioner has already exhausted his remedy by claiming amount from his insurer and claim petition filed before the Tribunal amounts the double claim. He contended that the Tribunal has assigned the reasons while dismissing the claim petition. The Counsel relied upon the judgment of this Court ILR 2000 KAR 5055, United India Insurance Company Limited vs H.R. Bhargav and Another, wherein the Court held as follows:
“-Unless the claimant proves the actual amount spent for repairs he cannot be permitted to prosecute his case because if the repair charges are less than what his Insurance Company has paid then he may have to refund the balance and if the repair charges are more then he may be entitled for the balance of the amount spent for repairs and as there was no evidence on these particular aspects, the matter was remanded.”
9. Having heard the arguments on both the learned counsel for the parties and in keeping the rival contentions of both the respective counsel the point that arise for consideration of this Court are:
“1. Whether the Court below has committed error in dismissing the claim petition ?
2. Whether it requires interference of this Court and if it requires interference of this Court how much compensation he is entitled for?
3. What order?
Regarding points Nos.1 & 2:
10. The claimant in the claim petition itself stated that the vehicle met with an accident and damage was occurred to the vehicle and cost of repair was estimated as Rs. 1,45,000/-. It is also the contention of the claimant that the insurer New India Assurance Company Limited, also prepared estimation for the damages upto Rs. 1,35,924/-. It is further contention of the claimant that he has paid the amount and claimed re-imbursement from the insurer of the vehicle. The insurer made payment of Rs. 1,07,000/- only. Hence he contends that he is entitled for the difference amount and also he has spent Rs.5,000/- for transportation of the vehicle and the also contended that the vehicle was in garage for a period of more than three months because of which he has suffered loss of Rs. 45,000/-. In order to substantiate his claim, he relied upon Ex.P.11, 8 bills amounting to Rs.1,27,061/-.
11. On perusal of the discussion of the Tribunal, it has observed that after deducting the compensation value the said amount was paid and the same cannot be recovered from respondent No.3 as the difference amount. The Tribunal also held that the payment of Rs.1,07,000/- is for full and final settlement as per Ex.P.7 dated 11.08.2008. The claimant kept quite for a period of 2 years and 6 months and filed the present petition on 02.02.2011 and hence the petitioner is not entitled for any compensation. The claimant has made the payment of Rs. 1,27,061/- is not in dispute. When such being the case, the Tribunal ought not to have dismissed the claim petition.
12. In view of the law laid down in the judgment referred to supra by this Court it is clear that the claimant is entitled for a difference amount and also it is held in addition to that for a loss of non-use of vehicle, mental agony, trauma and on other various counts, he is entitled for compensation. Having considered the principle laid down in the judgment of R.P.Zuber’s case referred to supra, it is clear that difference amount of Rs. 20,067/- is not paid. Since Rs.1,07,000/- is paid out of Rs.1,27,067/- and it is also the contention of the claimant that vehicle was in garage for a period of 3 months. Hence Rs.20,000/- is awarded as difference amount. It is also contended by the learned counsel for the claimant that vehicle was given to repair on 25.06.2008 and paid advance of Rs.75,000/- on 01.07.2008.
13. On perusal of other bill dated 18.07.2008, remaining amount of 52,061/- . It is clear that vehicle was in garage for a period of 24 days. Thus, taking note of it and also it is the claim of the claimant that he has spent amount of Rs.5,000/- towards transportation. On perusal of the lower Court records goes to show that there is a bill to the tune of Rs. 2,500/- towards towing charges and apart from that claimant is entitled for non use of vehicle for a period of 24 days. Hence it is appropriate to award Rs. 10,000/- for non use of vehicle during the period when the vehicle was in garage. In all claimant is entitled for additional compensation of Rs. 32,500/-
14. In view of the discussions made above, I proceed to pass the following:
ORDER (i) The appeal is partly allowed. The judgment and award of the tribunal is modified and a additional sum of Rs.32,500/- with interest @ 6% per annum is awarded to the appellant.
(ii) Respondent is directed to pay the amount within eight weeks from today.
(iii) Send the lower court records forthwith.
Sd/- JUDGE HR