IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.2101/2012 (MV) BETWEEN:
SRI. RAJENDRA CHOWTA S/O. M.MAHABALA SHETTY AGED ABOUT 50 YEARS R/O. PUTHRAN HOUSE YERMAL BADA UDUPI TALUK AND DISTRICT … APPELLANT (BY SRI NAGARAJ HEGDE, ADVOCATE) AND:
1. SRI. PREMANATH SHETTY S/O. LATE MAHABALA SHETTY AGED ABOUT 41 YEARS R/O. PREMALAYA SHIVANAGARA, HEJMADY UDUPI TALUK AND DISTRICT.
2. ORIENTAL INSURANCE CO., LTD., CBO 1 MANGALORE KRISHNAPRASAD BUILDING 3RD FLOOR, M.G.ROAD LALBHAG, MANGALORE DAKSHINAKANNADA DISTRICT REPRESENTED BY ITS BRANCH MANAGER ... RESPONDENTS (BY SRI C.SHANKARA REDDY, ADVOCATE R1- SERVED BUT UNREPRESENTED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.11.2011 PASSED IN MVC.NO.1307/2009 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the claimant questioning the quantum of compensation awarded by the Tribunal in respect of damages caused to the car bearing registration No.KA-20-N-8344 in MVC No.1307/2009 dated 17.11.2011 on the file of the Principal Senior Civil Judge and Additional MACT, Udupi.
2. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
3. The brief facts of the case:
On 31.05.2009 at 15.45 hours, when the claimant was proceeding in his car near Adamar Bhajana Mandir in Tenka Village of Udupi Taluk, one Tipper bearing registration No.KA-20-B-3155 came from apposite direction in a rash and negligent manner and dashed against the car belongs to the claimant. As a result, the car was damaged and he spent an amount of Rs.2,50,096/- for the repair of his Car. The Insurance Company appeared through its counsel and filed written statement denying the extent of damages caused to the vehicle and further contended that the liability is subject to the terms and conditions of the policy. The claimant, in order to substantiate his claim examined himself as PW.1 and also examined two more witnesses i.e., PWs2 and 3 and got marked documents Exs.P1 to P12. The Insurance Company did not choose to examine any witness but produced the Insurance Policy at Ex.R1. The Tribunal, considering both oral and documentary evidence, assessed the damages and awarded an amount of Rs.75,000/-. Hence, the present appeal is filed by the claimant questioning the quantum of compensation.
4. The main contention of the appellant in this appeal is that as against the repair, he has paid Rs.2,50,096/- and also examined the witness before the Court in support of the same. The invoice and the bill issued by the showroom are also produced before the Court and the very surveyor of the Insurance Company assessed the value of the damaged spare parts of the car to the tune of Rs.2,34,000/-, but the same has not been considered by the Tribunal. The Tribunal also did not consider the cheque for having paid Rs.2,50,096/- and hence, it requires interference of this Court.
5. Learned counsel appearing for the appellant also in his arguments reiterated the grounds urged in the appeal and further contended that the Tribunal did not consider the Invoice, which is marked at Ex.P5 and also did not consider the vehicle repair bills marked at Ex.P8, so also the receipt marked at Ex.P9. The photos, which are marked at Ex.P10 shows the substantial damage caused to the vehicle and photos at Ex.P11 also shows the damages. Hence, it requires interference of this Court.
6. On the other hand, learned counsel appearing for the Insurance Company would contend that though the claimant has produced Ex.P5-Invoice, he has not produced any bills having issued by the garage to the tune of Rs.2,50,096/- to substantiate the claim that he has made the payment. Mere filing of the cheque is not enough and in the absence of the bill, the compensation awarded by the Tribunal is based on the materials on record. Hence, there are no grounds to interfere with the award of the Tribunal. The other contention of the counsel appearing for the Insurance Company is that the salvage value is also not taken into consideration while awarding damages in respect of the vehicle. Hence, it does not require the interference of this Court.
7. Having heard the arguments of learned counsel appearing for the appellant and also learned counsel appearing for the respondent-Insurance Company with regard to their contentions, the points that arise for consideration of this Court are:
1. Whether the Tribunal has committed an error in not awarding the just and reasonable compensation on the head of damages and it requires interference of this Court?
2. What order?
8. Point Nos.1 and 2:- Having considered the material available on record, there is no dispute with regard to the accident and also with regard to the liability. The Insurance Company also did not dispute its liability to pay the compensation. The issue involved between the parties is only with regard to the quantum of compensation. No doubt the claimant has produced Ex.P5-Invoice before the Court and also produced Ex.P8-bills for having paid the amount of Rs.2,50,096/-. The Tribunal, considering the claim of the claimant, has awarded an amount of Rs.75,000/-. The Tribunal, while considering the contentions made an observation in para No.11 of the judgment that P.W.2 has stated that the car involved in the accident is of 2005 model and he has clearly stated that he cannot say the value of the said car at the time of the accident. Further, he has admitted that he has not shown the salvage value of the car in his report and he has not mentioned the amount, which is shown in Ex.P5. He has also not put his seal on the receipt at Ex.P9. Further, he states that he has not seen the Motor Vehicle Inspectors Report. The claimant also examined PW.3, he states that the vehicle was damaged as mentioned in Ex.P6-the Motor Vehicle Accident Report and further, he has stated that at the time of making repair of the Car, the spare parts which have been replaced are mentioned in the bill. Further, he has stated that the damaged spare parts of the car have not been sold by him and these spare parts are in the show room. He denied that the damaged spare parts are sold. The evidence of three witnesses makes it clear that the damaged spare parts of the car were kept in Peninsular Honda Show room and its value has not been mentioned and it is also clear that the said car was of 2005 year model. The value of the car at the time of the accident has not been shown and the salvage value of the said car is also not mentioned by PW.2 in his report. Hence, the very claim of the claimant to the tune of Rs.2,50,096/- cannot be accepted.
9. While quantifying the damages, the Tribunal opined that the report submitted by PW.2 is not correct and PW.2 has not assessed the value of the spare parts replaced which are damaged in the accident and having considered the same, guess work was made and awarded an amount of Rs.75,000/- as compensation.
10. On perusal of judgment and award of the Tribunal, the Tribunal also has not assigned any reasons so as to why it has come to the conclusion that the damage caused is only to the tune of Rs.75,000/-. The fact that PW.2-the recognized surveyor assessed the damages caused to the vehicle is not in dispute. It was only elicited in his cross-examination that the salvage value has not been shown in the report and also the value of the damaged spare parts was not assessed. The Tribunal has also not taken note of IMV Report.
11. Having considered the respective contentions and the materials on record, no doubt the claimant has paid Rs.2,50,096/- by way of cheque and the same is not supported by any final bill assessed by the garage. While considering and quantifying the damages, the Tribunal has to take note of IMV Report and also the photos. On perusal of IMV report, there are major damages caused to the front portion of the car and in support of the same, Ex.P6 was marked and so also the photos which are marked as Exs.P10 and P11 also disclose the substantial damages caused to the car and the same has not been taken by the Tribunal while considering and quantifying the damages. The Tribunal has assessed the damages only on the guess work. Having considered the photos which are marked at Exs.P10 and 11 and also the IMV report, which is marked at Ex.P6 with regard to the substantial damages, the Tribunal has committed an error in making guess work to the tune of Rs.75,000/- and it requires to be interfered by this Court.
12. No doubt PWs.2 and 3 in their evidence categorically deposed that they have not assessed the salvage value and also not assessed the spare parts of the vehicle which were replaced. When such being the case though the appellant is not entitled to the tune of Rs.2,50,096/-, the Tribunal ought to have taken the value of the damages that too which has been assessed by the recognized surveyor to the tune of Rs.2,34,000/- in terms of Ex.P5 which also does not disclose any salvage charges. Taking note of the IMV Report-Ex.P6 as well as the damages as seen in photos Exs.P.10 and 11, it is appropriate to enhance the compensation amount to the tune of Rs.1,50,000/- as against Rs.75,000/- since Ex.P.5 doesn’t discloses the salvage charges.
In view of discussions made, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The judgment and award of the Tribunal is modified by granting a compensation of Rs.1,50,000/- as against Rs.75,000/- with interest as allowed by the Tribunal. Respondent No.2 is directed to pay the amount with interest within a period of 8 weeks from today.
PYR Sd/- JUDGE