IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.200/2012 (MV) BETWEEN:
M/S. UNITED INDIA INSURANCE COMPANY LIMITED, NO.40, LAKSHMI COMPLEX, K.R. ROAD, BENGALURU.
NOW REP. BY ITS REGIONAL OFFICE, 5TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BENGALURU-560 001.
REP. BY AUTHORIZED SIGNATORY. … APPELLANT (BY SRI A.M. VENKATESH, ADVOCATE) AND:
1. SRI RAJASHEKAR H.P., S/O PUTTARAJU K, AGED ABOUT 33 YEARS, R/AT NO.55-C, UAS LAYOUT, 7TH CROSS, SANJAYNAGAR, BENGALURU-560 094.
2. THE MANAGING DIRECTOR, B.M.T.C. SHANTHINAGAR, K.H. ROAD, BENGALURU-560 027. ... RESPONDENTS (BY SRI K. NAGARAJA, ADVOCATE FOR R-2, R-1 NOTICE THROUGH PAPER PUBLICATION ACCEPTED VIDE ORDER DATED 17.11.2015) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.7.2011 PASSED IN MVC.NO.6051/2010 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU CITY (SCCH-10), AWARDING A COMPENSATION OF RS.25,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATED OF DEPOSIT.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the Insurance Company challenging the judgment and award dated 14.7.2011 passed in M.V.C.No.6051/2010, on the file of XIV Additional Judge, MACT, Court of Small Causes, Bengaluru City (SCCH-10).
The brief facts of the case are:
2. The claimant had filed a claim petition before the Tribunal stating that his vehicle Skoda Octavia car bearing Reg.No.KA-51-N-7373 was damaged on account of the accident on 17.6.2010 involving the BMTC bus bearing Reg.No.KA-01-F- 2568. It is his claim that he has spent an amount of Rs.2,90,000/- for the repair of the vehicle. The Insurance Company in the written statement contended that the policy issued is only a liability policy and the liability is only Rs.6,000/- and no additional premium is paid for taking unlimited risk towards third party property damage. Hence, the liability is only Rs.6,000/- and not more than that amount. The BMTC remained absent and was placed exparte.
3. The claimant in support of his claim examined himself as P.W.1 and got marked the documents at Exs.P.1 to 12. On the other hand, the Insurance Company examined one witness as R.W.1 and produced the copy of the insurance policy as Ex.R.1. The Court below considering both oral and documentary evidence, allowed the petition in part granting the compensation of Rs.25,000/- with 6% interest and fastened the liability on the Insurance Company to pay the said amount. Being aggrieved by the judgment and award, the present appeal is filed by the Insurance Company.
4. The main contention of the Insurance Company is that awarding of Rs.25,000/- in favour of the claimant is against the material on record and there is no basis for awarding Rs.25,000/-. The other ground is that the policy is liability policy and the liability is only for Rs.6,000/- and the Tribunal ought not to have directed the Insurance Company to pay the entire amount. The learned counsel for the Insurance Company also in his arguments reiterated the grounds urged in the appeal and submits that the policy discloses that the liability is only to an extent of Rs.6,000/-.
5. The learned counsel also would contend that while awarding an amount of Rs.25,000/-, the Tribunal has not considered any documentary proof since the claimant has not produced any vehicle repair bill. The Tribunal only considered the estimation given by the claimant. Hence, the same is also exorbitant. Inspite of the notice, the claimant did not choose to appear and contest the matter.
6. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent No.2, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in awarding an amount of Rs.25,000/- with 6% interest in favour of the claimant?
(ii) Whether the Court below has committed an error in fastening the liability on the Insurance Company to pay the entire amount inspite of Ex.R.1 is produced which stipulates the liability only to an extent of Rs.6,000/-.
(iii) What order?
Point (i):
7. The claimant examined himself as P.W.1 and he relied upon the documents at Exs.P.1 to 12, namely FIR, panchanama, spot sketch, MVA report, charge sheet, copy of RC Card, copy of PAN Card, copy of the I.D. Card, copy of the letter addressed to the Proprietor of Auto Garage, estimation bill, copy of the D.L and authorization letter. In the cross-examination, he admits that he has not produced any bill for having paid the amount for repair. He also admits that at the time of submitting the claim petition, the vehicle was in the garage. The name of the garage is not shown in the claim petition. Ex.P.10 is only an estimate. He has not produced the repair bill. It was suggested that Exs.P.9 and 10 were got created in collusion with known persons even though the damaged car was not repaired with them and the same was denied. He claims that he will examine the author of Exs.P.9 and 10.
8. The claimant also examined another witness P.W.2 – Supervisor of the R.J. Auto Garage. P.W.2 in his evidence says that the vehicle was repaired and the claimant has paid an amount of Rs.2,90,000/- to their garage towards repair, labour, service, etc. In the cross-examination, he admits that serial number does not bear in Exs.P.10 and 12 and he has not seen the accident. The spare parts requires to be brought from outside. There were bills for the purchase of spare parts and the same can be produced. Ex.P.10 was issued after repairing the vehicle. He further admits that Ex.P.10 is an estimation bill and it was issued before commencing the repair. After repairing the vehicle, some amount was paid by the owner in favour of the Proprietor of the garage, but he does not know the figure of the payment.
9. R.W.1 in his evidence in the form of affidavit stated that the liability is only to an extent of Rs.6,000/-, since the policy is only a liability policy. Ex.R.1 is marked. In the cross- examination by the claimant’s counsel, it is suggested that he is liable to pay more than Rs.6,000/- and the same was denied. But it is elicited that the Company has issued the notice to the BMTC depot and he has not produced any acknowledgment for having issued the notice. He admits that the liability and Act Policy are one and the same. In Act Policy only liability is covered, whereas in Package Policy everything is covered.
10. Having considered both oral and documentary evidence, it is clear the except the estimation, which was issued prior to repair of the vehicle which is marked as Ex.P.10, no other documents are placed to show that the vehicle was repaired. The vehicle repair bill is also not produced before the Court. However, the claimant has produced the photographs. The said photographs are not marked. On perusal of MVA report, which is marked as Ex.P.4, it is clear that right side rear view mirror was broken, rear right side door was damaged, rear right side body portion was scratched and dented and front right side door was damaged. The vehicle was subjected to inspection on 18.6.2010 i.e., on the very next day of the accident.
11. The Tribunal while awarding an amount of Rs.25,000/- assigned the reasons in paragraph No.15. It reveals that atleast for some period the vehicle was not available for the use of the petitioner and the petitioner must have incurred expenses towards incidental charges and the petitioner has spent considerable amount towards idling charges and hence awarded an amount of Rs.25,000/- in coming to the conclusion that the same is just and proper. Admittedly, no repair bill is produced before the Court and the evidence of P.W.2 is that an amount of Rs.2,90,000/- is paid and again in the cross-examination, he says that the owner might have paid the amount to the Proprietor and he is not sure about what amount the claimant had paid for the repair of vehicle.
12. Having considered the damages found in the MVA report it discloses that vehicle had sustained some damages and in order to substantiate the claim, though IMV report is produced, no repair bill is produced. The Tribunal only made a guess work while awarding the compensation of Rs.25,000/- for the damages without any basis. However, considering the damages found in the IMV report and in the absence of the bill for repair of the vehicle, the amount awarded by the Tribunal is on the higher side. It is rightly pointed out by the Court below that the claimant was not able to use the vehicle for some time after the accident. Though photographs are produced, they are not marked. Hence, it is appropriate to reduce the amount from Rs.25,000/- to Rs.15,000/- considering the IMV report, even in the absence of the repair bill. Hence, the same is reduced to Rs.15,000/- as against Rs.25,000/-.
Point No(ii):
13. The contention of the Insurance Company is that the policy – Ex.R.1 is only a liability policy and the liability is only for an amount of Rs.6,000/-. Ex.R.1 is specific that the liability is only for Rs.6,000/-. When such being the case, the Tribunal ought not to have fastened the liability to pay the entire amount of Rs.25,000/- with 6% interest against the Insurance Company. When the contract between the parties is express and the terms and conditions of the liability is only to an extent of Rs.6,000/-, the Tribunal has committed an error in not considering the policy, which is an Act Policy and the liability is to an extent of Rs.6,000/-. Hence, the liability to the extent of Rs.25,000/- against the Insurance Company requires to be modified and the same has to be restricted to Rs.6,000/- with interest. The remaining amount has to be paid by the BMTC – respondent No.2.
14. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is partly allowed.
(ii) The judgment and award dated 14.7.2011 passed in M.V.C.No.6051/2010, on the file of XIV Additional Judge, MACT, Court of Small Causes, Bengaluru City (SCCH-10), is modified granting compensation of Rs.15,000/- as against Rs.25,000/-.
(iii) The Insurance Company is directed to pay Rs.6,000/- with interest at 6% per annum from the date of petition till realization.
(iv) The BMTC is directed to pay the remaining amount of Rs.9,000/- with interest at 6% per annum from the date of petition till payment within eight weeks from today.
(v) The excess amount deposited before this Court by the Insurance Company is to be refunded to the Insurance Company within eight weeks from today.
Sd/- JUDGE MD