IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.953/2010 C/W M.F.A.No.5785/2009 (MV) IN MFA No.953/2010 BETWEEN:
NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, 4132, EAST MAIN STREET, PUDUKKOTTAI TAMIL NADU.
APPELLANT IS REP. HEREIN BY THE ADMINISTRATIVE OFFICER NATIONAL INSURANCE CO. LTD., BANGALORE REGIONAL OFFICE SUBHARAM COMPLEX 144, MAHATMA GANDHI ROAD BANGALORE- 560 001.
…APPELLANT (BY SRI PRINCE JOSE, FOR SRI C M POONACHA, ADVOCATE) AND:
1. THE MANAGING DIRECTOR KSRTC, CENTRAL OFFICES BANGALORE, REPRESENTED BY ITS DIVISIONAL CONTROLLER KSRTC, MANGALORE DIVISION MANGALORE.
2. SRI KRISHNAMURTHY R AGE, MAJOR, No.13/4 NEW EXTENSION STREET METTUPALYAM, KOIMBATORE.
...RESPONDENTS (BY SMT.SUMANGALA A SWAMY, ADVOCATE FOR R1 NOTICE TO R2 IS HELD SUFFICIENT, V/O DATED: 24.04.2013) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.09.2009 PASSED IN MVC No.1287/2003 ON THE FILE OF PRINCIPAL DISTRICT JUDGE & MEMBER, MACT, DAKSHINA KANNADA, MANGALORE, AWARDING A COMPENSATION OF Rs.4,65,371/- WITH INTEREST AT 6% P.A.FROM THE DATE OF PETITION TILL REALISATION.
IN MFA No.5785/2009 BETWEEN:
THE NEW INDIA ASSURANCE CO LTD. BRANCH OFFICE, KUNDAPURA THROUGH REGIONAL OFFICE P KALINGA RAO ROAD BANGALORE -27.
BY DULY CONSTITUTED ATTORNEY. REPRESENTED BY ITS MANAGER.
...APPELLANT (BY SRI C R RAVISHANKAR, FOR SRI K SURYANARAYANA RAO, ADVOCATE) AND:
1. THE MANAGING DIRECTOR K.S.R.T.C, CENTRAL OFFICE BANGALORE, REPRESENTED BY ITS DIVISIONAL CONTROLLER K.S.R.T.C MANGALORE DIVISION MANGALORE.
2. THE MANAGING PARTNER M/S DURGAMBA MOTORS HANGALUR N.H.17 KUNDAPURA.
...RESPONDENTS (BY SMT.SUMANGALA A SWAMY, ADVOCATE FOR R1 SERVICE OF NOTICE TO R2 IS D/W, V/O DATED 11.11.2011) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.05.2009 PASSED IN MVC No.383/2004 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE AND MACT -111, D.K., MANGALORE, AWARDING A COMPENSATION OF Rs.4,05,132/-.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These are two appeals reflected as connected to each other as M.F.A.No.953/2010 and M.F.A.No.5785/2009 both are preferred by the Insurance Companies. They are directed against the judgment and award passed in respect of claim petitions filed before the Tribunal.
2. The below tabular representation would reflect the serial number, MVC number, date of disposal and connected MFA number and filed by which insurance company.
Sl.No. MVC No.
and Date of disposal Connected MFA No.
Name of the Insurance Company 1. 1287/2003 953/2010 National Insurance
3. Both claim petitions in MVC No.1287/2003 and MVC No.383/2004 were preferred by the Managing Director, KSRTC, Central Offices, Bangalore, represented by Divisional Controller, KSRTC, Mangalore Division.
Though the matters are ordered to be clubbed and disposed of together since they are filed for recovery of damages because of the damage sustained by KSRTC Bus.
4. They are filed under Section 166 of MV Act, but they pertain to different accident. Hence, reasoning are separately ascribed to each of the appeal.
5. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
6. Insofar as M.V.C.No.1287/2003 whose judgment and award is appealed in M.F.A.No.953/2010 is concerned, the claim petition came to be preferred by the petitioner-Managing Director, KSRTC, Mangalore, because of the accident dated 25.2.1997 wherein KSRTC bus bearing Registration No.KA.09.F.1792 was plying on its scheduled route from Hubli to Mangalore. When it reached a place on Honnali-Shimoga road, it was damaged due to the rash and negligent driving of a lorry bearing Registration No.TN.55.9767. The claimants states the vehicle was driven by experienced driver. The inmates of the bus have also preferred separate claim petitions. The bus was towed from the accident spot to Mangalore workshop of the KSRTC for carrying out repairs. The repairs were effected at the cost of Rs.18,805/- including the labour claim, material and other overhead charges. The bus could not be put on the road from the date of accident till 11.4.1997 because of which, KSRTC suffered loss of revenue at the rate of Rs.9,708/-. Thus, bus was stationed workless for 46 days. In the process, petitioner suffered loss of revenue at the rate of Rs.9,708/- per day for 46 days amounting to Rs.4,46,568/- and in all seeks for a compensation of Rs.4,65,371/-. Here, KSRTC relied on Ex.P4-Job card and Ex.P2-IMV report.
7. The learned member examined the matter considering the accident, involvement of the vehicle, damage and the damages finally came to a conclusion that the petitioner/claimant in the capacity of the owner of the bus suffered a loss of Rs.4,65,371/- and it is entitled for recovering the same together with interest at 6% p.a. from the date of petition till the date of realization.
The said judgment and award is challenged before this Court by the Insurance Company of the lorry bearing Registration No.TN.55.9767.
8. Insofar as M.F.A.No.5785/2009 is concerned, the accident is dated 7.8.2003 when KSRTC bus bearing Registration No.KA.19.F.1574 was plying from Kundapura to Bangalore and when the bus reached a place Pangala bridge on NH17, another bus bearing registration No.KA.20.AA.9999 came in a rash and negligent manner and dashed against the KSRTC bus, due to which, the bus was damaged and the petitioner sustained loss. It is stated that a criminal case came to be registered against the driver of the bus bearing Registration No.KA.20.AA.9999. KSRTC claim that for repairs of the bus, it has incurred an amount of Rs.1,00,000/- including labour and material charges and it lost revenue for 92 days at the rate of Rs.4,961/- per day and Rs.4,56,412/- for 92 days as the bus could not be run from the date of accident till its repair and claimed compensation of Rs.5,41,544/-. Here also, KSRTC relied on Ex.P9-Job card and Ex.P5-IMV report.
9. The learned member examined the matter considering the accident, involvement of the vehicle, damage and the damages and finally came to a conclusion that the petitioner/claimant in the capacity of the owner of the bus suffered a loss of Rs.3,20,000/- due to non user of the bus and incurred expenses for repairs at Rs.85,132/- and in all awarded Rs.4,05,132/- as compensation and holding that respondents are jointly and severally liable to pay compensation and directed the Insurance Company to deposit the same.
The said judgment and award is challenged before this Court by the Insurance Company of the lorry bearing Registration No.KA.20.AA.9999.
10. In the overall circumstances, submissions of the learned counsel for the appellants were made together for both the appeals as the grounds are common.
11. Learned counsel for the appellant Sri.
Poonacha in MFA No.953/2010 and learned counsel Sri.C.R.Ravishankar for appellant in M.F.A.No.5785/2009 would submit that the appreciation of the evidence by the learned member in both the petitions is not proper and the compensation is quantified by exercising discretion but not on facts. Further, he would submit that the KSRTC which has beach of buses, maintains reserve bus being ready to be operated as alternative for every bus and maintaining reserve bus is also contemplated under Sub Clause 17 of Clause 2 of Section 72 of Motor Vehicles Act, 1988. Learned counsel would further submit that there must be a rationale for arriving at a compensation. But no reasons are mentioned by the learned Member for arriving at that figure.
12. Learned counsel for petitioner Smt.
Sumangala A. Swamy would submit that the petitioner in both the petitions is absolutely entitled to recover compensation and the fact that the reserve bus maintained by KSRTC can not absolve liability of the Insurance companies. In support of her contention, she relied on Ex.P4 and Ex.P9 which are the job cards and Ex.P2 and Ex.P5 IMV report respectively.
13. I have gone through the judgment challenged in these appeals. The learned Member has considered the oral testimony of the petitioner and further relied on FIR, IMV report and spot mahazar, Job card in MVC No.1287/2003 and FIR, IMV Report, rough sketch and job card in MVC No.383/2004.
14. The contention between the parties is with reference to incurring of expenditure and loss of revenue due to non use of the buses. According to KSRTC, in the accident its two vehicles got damaged and it is entitled to recover the cost of repair of damages and loss of revenue for non use of buses.
15. It is necessary to mention that entire right to claim compensation or damages is based on damage and legal injury on the background of the principles ‘Damnum sine injuria and ‘injuria sine damnum. Before making claim to recover the compensation, the actual loss has to be established relying on the total number of days the vehicles were made to be idle because of accident.
16. I have perused Ex.P2 and P5, IMV reports in MFA No.953/2010 and MFA No.5785/2009 respectively.
The damages mentioned in Ex.P2 in MFA No.953/2010 (MVC No.1287/2003) are as under:
(1) Both wind screen glasses broken;
(ii) Right side indicator broken (front) (iii) Right side headlight broken (iv) Front right side shape damaged (v) cabin right side door damaged.
The damages mentioned in Ex.P5 in MFA No.5785/2009 (MVC No.383/2004) are as under:
(1) Wind screen glass broken;
(ii) Radiator damaged;
(iii) bumper damaged;
(iv) steering system damaged;
(v) front right side hind light broken;
(vi) wiper assy. damaged;
(vii) l/s body damaged;
(viii) r/s body damaged;
(ix) cabin damaged;
(x) chassis twisted.
17. When the compensation is assessed by KSRTC there must be certainty and precision in a claim as pleadings must be specific and precise to put forth a case to which claimant is entitled. It cannot be uncertain. In the over all circumstances of the case, there is no evidence regarding whether estimate is prepared by a competent person for competent authority regarding the value or the amount. There is no mention of the parts of the body that were replaced or and repaired. If replaced what was the age of the earlier part that was replaced considering the depreciation. Because depreciation to a vehicle means depreciation to every part. There are no details as to when the repair started and when it ended in both the cases. In the first appeal, it is mentioned as ‘46 days’ and in the second appeal it is mentioned as ‘92 days’. There is no evidence whether repairs went on for such a long time and if so with how many labourers and labour hours are required. More particularly, when a person claims damage stating that his property is damaged in a road traffic accident, no doubt absolutely there is a right available for recovering the compensation. But the claim cannot be vague hapzard and arbitrary. On the other hand, there must be a meticulous estimation regarding repairs which speaks itself about the state of damage and repair. Thus, the details of repair is not mentioned. On the other hand, the number of days on which the vehicle was stagnated or idle is considered.
18. It is necessary to mention that, job card either Ex.P9 and Ex.P4 in the appeals are the documents issued by Accounts Officer of KSRTC and those documents are not subjected to cross examination or test of reasonability.
19. On the other hand, the Division Bench of this Court in the case of Karnataka State Road Transport Corporation Vs. Abdul Majeed (ILR 1990 Karnatka 1493) has observed as under:
“MOTOR VEHICLES ACT; 1939 (Central Act No.4 of 1939) AS AMENDED BY ACT No.56 OF 1967 – Security 110- Legislation a social security measure with object to provide full compensation to accident victims – Concept of damages to property includes compensation for loss of use or loss of income directly resulting from damage; such concept not excluded by Amendment, applies to ‘damages to property’ – Compensation in case of personal injury includes loss of income; hence, incongruous to confine in case of injury to property, only to actual damage to property and deny loss of income arising out of damage to property.”
20. It is a legal injury that is significant when compared to damage.
21. PW2-Dinesh and PW3-R. Venugopal (in MFA No.953/2010) and PW2-Venugopal and PW3 M.N.Srinivas (in MFA No.5785/2009) have been examined. This cannot be a mode in which the damage could be established.
22. Moreover, the learned Member has assessed the compensation towards loss in MFA No.953/2010 on the basis of the pleadings and claim. The total revenue shown for the month of February 1997 was Rs.2,71,829/-, kilometer run was 26650, loss of the revenue per day in that route was Rs.2,71,829/- divided by 28 days multiple the number of days which the vehicle was kept idle for repairs in the workshop comes to Rs.4,46,568/-. The average running of a bus per day is 722 kilometers and the target fixed for the route is Rs.11,000/- the total revenue for the month of February 1997 was Rs.2,71,829/-. With this calculation the learned Member holds that amount of loss is Rs.4,46,568/- and the daily earnings/revenue was calculated by dividing the February revenue by 28 days at Rs.9,708/- and i.e. calculated for 46 days at Rs.4,46,568/-.
23. Insofar as MFA No.5785/2009 is concerned, it is stated by PWs 2 and 3 that daily revenue of the bus excluding all other expenses would be Rs.4,961/- per day. The learned member considered that the bus was kept idle in the garage for repair for 80 days and not 92 days and considers the net revenue of the bus at Rs.4,000/- per day and for 80 days it would be Rs.3,20,000/- and awarded the same towards loss of revenue.
24. This is nothing but digital calculation completely on the basis of pleadings in the absence of corroborative documents or circumstances.
Even as a Corporation owned by the Government it is necessary to establish the incurring of loss through independent evidence in the facts and circumstance of the case. But the documents produced by the petitioner in both the petitions do not reflect the data required for arriving at a calculation of damages because of the damage sustained by the buses in road traffic accident. In the circumstances no doubt the vehicles made to stayed in a place and the vehicles are prevented from running.
25. Learned counsel for the respondents claimants relied on the decision as stated supra. This court cannot sit as a mute spectator to approve the statement of the claimants regarding the quantum of money what is claimed to have spent in the absence of corroboration from independent corner.
26. No reliable documents or materials are forthcoming to justify the claim not only from the point of Section 72(2)(xvii) of M.V. Act. Thus, I have no hesitation in holding that the learned member erred completely in allowing the claim petitions in part.
27. In the result, considering the claims, materials on record, oral and documentary evidence and the submissions made by the learned counsel for the appellants in both the appeals and learned counsel for petitioners, I find, the learned Member erred completely in allowing the claim petitions partly and granting Rs.4,65,371/-(in MFA No.953/2010) and Rs.4,05,132/-
(in MFA No.5785/2009) respectively. Hence, the said judgments are liable to be set aside and accordingly it is done.
28. The appellants in both the appeals have succeeded in establishing that they have no liability to make good the compensation to the claimant-KSRTC. Hence, both the appeals are allowed.
The judgment and award dated 2/9/2009 in MVC No. 1287/2003 (MFA No. 953/2010) and dated 29/5/2009 in MVC No.383/2004 (MFA No.5785/2009) are set aside. Consequently, the petitions filed by the KSRTC stand dismissed.
The amount in deposit in both the appeals shall be refunded to the Insurance Company on proper identification.
30. Learned counsel for respondent-claimants Smt. Sumangala A. Swamy would submit what is challenged is only granting idle charges i.e. the amount of revenue lost because of the stagnation of the vehicles and not the expenses incurred.
31. Insofar as damage to the vehicles are concerned, basically the claims are vague. Further even if they are incurred expenditure, there are no independent materials to believe and there is no yardstick to assess the same.
32. Thus, there are no specific or reliable grounds corroborated with reliable materials to come to a conclusion for allowing the claim petitions to the extent of damages.
33. In this connection, it is necessary to mention order XLI rule 33 of the Code of Civil procedure which is as under:
“Power of Court of Appeal.- The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, 1.[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees] 2.[Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]”
34. It is the contention of the claimants that recovery of loss due to the bus being kept without use and damage caused to parts and consequential repair and replacements. It is necessary to make a mention that there is no specific and precise document to show the amount of repairing charges and the value of the part if any replaced. In the circumstances, there is no clarity even regarding bifurcation.
35. Further, it is necessary to observe that when there are no reliable documents to show the incurring of expenditure towards repairs of the vehicles with precision and certainty from independent sources, the quantum cannot be accepted either individually for damages or for idling charges. Even there is no endorsement or statement regarding which parts are purchased, quantity of the same or if the parts are available in the stores.
36. Insofar as Ex.P4, 4(a), P5, are concerned they are said to be the statement of expenditure for parts replaced and the labour charges. Here the matter in context not be adjudicated on the basis of presumptions regarding fairness and genuineness. In the absence of estimate, quotation, bills, certificates they cannot be accepted on its face value. Thus, the submission of the learned counsel for the petitioners/respondents in this regard is rejected.
tsn* Sd/- JUDGE