IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE S.G. PANDIT M.F.A. No.2814/2013 (MV) BETWEEN:
SMT. NASEEMA, AGED 41 YEARS, S/O LATE N. IBRAHIM, R/O MOODE HOUSE, NARINGANA VILLAGE, BANTWAL TALUK, D.K. – 574 211.
REPTD. BY GPA HOLDER, SRI MOIDEEN KUNHI, AGED 42 YEARS, S/O A.M. MOHAMMED, R/O KOMARANGALA HOUSE, KOTEKAR POST, MANGALORE TALUK, D.K. – 575 022. … APPELLANT (BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE) AND:
1. SRI K. NARAYAN, MAJOR, S/O LATE D. DOMANA, R/O SARASWATHI SADANA, NEAR PATEL HOUSE, MAROLI POST, KULSHEKAR, MANGALORE TALUK, D.K. – 575 005.
2. THE NEW INDIA ASSURANCE CO. LTD., BRANCH: III, ESSEL CHAMBERS, III FLOOR, KARANGALPADY, MANGALORE TALUK, D.K. – 575 001. …RESPONDENTS (BY SRI. A.M. VENKATESH, ADV. FOR R-2; NOTICE TO R-1 IS DISPENSED WITH V/O DATED 28.02.2014) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.07.2012 PASSED IN MVC NO.1807/2006 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, MACT, MANGALORE, DAKSHINA KANNADA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:-
JUDGMENT The appellant – claimant is before this Court seeking enhancement of compensation awarded under judgment and award dated 18.07.2012 in M.V.C.No.1807/2006.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act claiming total compensation of Rs.1,12,000/- for the damage caused to the Santro Car bearing registration No.KA-19/N- 7620 in a road traffic accident occurred on 27.01.2006. It is stated that on 27.01.2016, when the driver was driving the Santo Car bearing No.KA-19/N-7620, a Tempo bearing registration No.LA-21/2371, came in a rash and negligent manner and dashed against the Santo car. As a result, the car was completely damaged. The damaged car was shifted to M/s. Auto World for effecting repairs. One Sri. Praveenchandra Shetty - Surveyor inspected the said Santro car and assessed the damage caused to the car. Therefore, the claimant – appellant had claimed Rs.1,12,500/- spent for repairing the car.
3. On issuance of summons, the 2nd respondent appeared and filed its objections contending that the Tribunal has no jurisdiction to entertain the petition for granting compensation for the damages caused to the car. Further, it also denied the damages caused to the car in a road traffic accident.
4. The GPA holder of the claimant was examined as P.W.1. The Works Manager of M/s. Auto World was examined as P.W.2. Sri. Praveenchandra Shetty – Surveyor and Loss Assessor was examined as P.W. 3 and one Ashraff who was the eye witness to the accident was examined as P.W.4. The documents at Exs. P1 to P13 were marked in support of the claimant’s case. The 2nd respondent marked Ex.R1 – Insurance Policy.
5. The Tribunal on assessing and analyzing the materials on record awarded total compensation of Rs.50,500/- with interest at 6% per annum accepting Ex.P.10 – Bill. The claimant not being satisfied with the quantum of compensation, is before this Court in this appeal.
6. Heard the learned counsel for the appellant and the learned counsel for the respondent – Insurance Company. Perused the lower court records.
7. Learned counsel for the appellant would submit that the Tribunal committed an error in not allowing the claim petition in its entirety. He submits that the claimant had spent Rs.1,22,139/-, but he had restricted his claim to Rs.1,12,000/-. It is submitted that the claimant had examined the Surveyor who assessed the damaged vehicle and also the works manager of M/s Auto World, where the damaged vehicle was got repaired. The Tribunal could not have rejected the bills produced under Ex.P.11 series on the ground that no person is examined in support of these bills. It is his submission that the Survey Report would indicate the damage caused to the vehicle and the surveyor has assessed the cost of repair at Rs.1,19,000/-. Therefore, he prays for enhancement of compensation.
8. Learned counsel for the respondent – Insurance Company would submit that the compensation awarded by the Tribunal is just which needs no interference by this Court.
9. Having heard the learned counsel for the parties and on perusal of the lower court records, the only question which arises for consideration by this Court is, whether the claimant would be entitled for enhancement of compensation?
10. The accident involving Santro Car bearing No.KA-19/N-7620 and a Tempo bearing No.LA-21/2371 and the damage caused to the Santro Car in the said accident, are not in dispute. The claimant’s appeal is for enhancement of compensation.
11. The GPA holder of the claimant – P.W.1 states that the vehicle was got repaired at M/s. Auto World Garage and Sri. Praveenchandra Shetty – P.W.2 assessed the damage caused to the car. It is also stated that the claimant has spent Rs.1,25,000/- for repairing the damaged car. In the cross-examination, nothing is elicited disputing the amount spent for the repair of the damaged car. P.W.2 – Suraj is the Works Manager at M/s. Auto World Garage. In his evidence, he has stated the damage caused to the car and the nature of damage. He was cross-examined in detail by the Insurance Company, but nothing is elicited to say that claimant has not spent the amount stated in his claim petition. Ex.P.13 is the Survey Report. As per Ex.P.13 – Survey Report, the Surveyor has assessed the total loss to the damaged vehicle. The survey report indicates the repair needed item wise. The Surveyor – P.W.3 stated that he has assessed the damages at Rs.1,19,762/- which includes spare parts, labour charges and other expenses. The Insurer cross-examined P.W.3, but nothing is elicited to disbelieve Ex.P.13.
12. Ex.P11 consists of 5 bills, totally amounting to Rs.77,764/-. The Tribunal has not taken into consideration Ex.P11 bills. Even though the insurer has disputed those bills, nothing is elicited with regard to those bills in the cross-examination of P.Ws.2 to 4. There is no material to disbelieve Ex.P.11 which consists of 5 bills. On perusal of the Survey Report – Ex.P.13 and deposition of P.Ws. 2 and 3, I am of the view that the claimant has spent the amount claimed by him for the repairs to his damaged car. If Exs. P.10 and P.11 are considered, the total amount would be Rs.1,22,139/-. As the claimant has restricted his claim to Rs.1,12,000/-, claim petition as prayed is allowed. The claimant would be entitled to another sum of Rs.61,500/- in addition to Rs.50,500/- awarded by the Tribunal, with interest as awarded by the Tribunal. The appeal is allowed.
Sd/- JUDGE VP