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C.H. Jagdeshwar Vs. S. Rajaiah and anr. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in[1987]62CompCas32(AP)
ActsMotor Vehicles Act, 1939 - Sections 95(2) and 110
AppellantC.H. Jagdeshwar
RespondentS. Rajaiah and anr.
Appellant AdvocateM. Shankar Ram, Adv.
Respondent AdvocateB. Prakash Rao and ;M. Shankar Narayana, Advs.
Excerpt:
.....50000 - after repairs its value increased to rs. 100000 - accident taken advantage of to improve value of vehicle by putting in all new parts so reasonable amount be deducted in computing compensation. (ii) maintainability of petition - whether compensation petition was maintainable before tribunal - under proviso to section 110 (1) option given to claimant either to refer claim to civil court or tribunal - no civil claim made so by operation of section 110 (1) tribunal empowered to adjudicate on damage caused to vehicle - under section 95 (2) (d) tribunal not competent to award compensation in excess of rs. 2000. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer -..........maintainable. the state government is empowered by a notification to constitute a motor accidents claims tribunal in the areas specified to adjudicate upon claims for compensation in respect of accidents involving death of , or bodily injury to, persons arising out of the use of motor vehicles or damage to any property of third parties or both. admittedly, the tribunal below is one constituted under section 110 of the act. under the proviso the sub-section (1) thereof when a claim for compensation in respect of damages to property exceeding rs. 2,000 is made, an option has been given to the claimant either to refer the claim to a civil court for adjudication or to make such claim to the same tribunal. once a claim is made in a civil court, the tribunal ceases to have any jurisdiction......
Judgment:

1. The first appellant is the owner of the lorry APJ 3619 and the second appellant is the insurance company. On June 22, 1979, when the lorry APT 9569 was stationed at Bhiknoor, the driver of the lorry of the first appellant hit the lorry APT 9569 as a result of which extensive damage was done to it. Therefore, the first respondent laid claim in two parts. The first part consists of the loss suffered during the period of repairs, viz., from June 22, 1979, to August 27, 1979, at the rate of Rs. 250 per day and a total sum of Rs. 16,500 was claimed. On the second count, he claimed a sum of Rs. 34,350 for effecting repairs to the lorry APT 9569. The Tribunal below that the first respondent is entitled to damages for non-user of the vehicle during the said period at the rate of Rs. 50 per day and awarded Rs. 3,300 towards the loss caused and with regard to the second count, the Tribunal below allowed the entire claim of Rs. 34,350. As against this award, the present appeal has been filed.

2. In this appeal, Sri Shankar Ram, learned counsel for the appellants, raised a tow-fold contention. Firstly, that the Tribunal below has no jurisdiction to assess the damages caused to the vehicle and, therefore, the decree is a nullity ; secondly, that the entire amount cannot be awarded as damages. Admittedly, APT 9569 is of 1965 model and at the time the accident had occurred, its value was Rs. 50,000 and after repairs its value had increased to Rs. 1,00,000. Therefore, the circumstances clearly show that the entire vehicle was replaced with new parts. Therefore 50% of the value should be deduced in awarding damages. Even in that regard, only to the extent of Rs. 2,000, the insurance company is liable under section 95(2) of the Motor Vehicles Act, 1939 (in short 'the Act'), and the amount awarded against the insurance company to the entire extent is illegal.

3. Shri Bb. Prakash Rao, learned counsel for the first respondent, on the other hand, contended that the first respondent has adduced unimpeachable evidence, viz., that the parts he purchased on various items were required for replacement. The damage done has been shown by the Motor Vehicles Inspector in exhibit A-17. The mechanic, P.W. 2, is a disinterested witness and a resident of Hyderabad. He spoke of the extent of the damage and the expenses incurred by the first respondent. The Tribunal below has awarded the actual amount incurred. Therefore, it does not warrant interference. He contends that if at all any rebate is to be given, 10% rebate is proper.

4. In view of the diverse contentions, the first question that arises for consideration is whether the petition is maintainable. The State Government is empowered by a notification to constitute a Motor Accidents claims Tribunal in the areas specified to adjudicate upon claims for compensation in respect of accidents involving death of , or bodily injury to, persons arising out of the use of motor vehicles or damage to any property of third parties or both. Admittedly, the Tribunal below is one constituted under section 110 of the Act. Under the proviso the sub-section (1) thereof when a claim for compensation in respect of damages to property exceeding Rs. 2,000 is made, an option has been given to the claimant either to refer the claim to a civil court for adjudication or to make such claim to the same Tribunal. Once a claim is made in a civil court, the Tribunal ceases to have any jurisdiction. In this case, no such civil claim in a civil court has been laid. Therefore, by operation of sub-section (I) of section 110 of the Act, the Tribunal is empowered to adjudicating on the damage caused to the vehicle of the first respondent arising out of the accident and, therefore, the Tribunal has jurisdiction to decide the question of damages. It is now fairly conceded by Sri Prakash Rao, learned counsel for the first respondent , that under section 95(2)(d) of the Act, the maximum compensation that can be awarded by the Tribunal is only Rs. 2,000. Therefore, the insurance company is liable only to that extent and the Tribunal also, under section 110 of the Act, is given power to adjudicate on the claim as against the insurance companies only to the extent of Rs. 2,000. Therefore, to that extent, the award of the Tribunal below is modified.

5. With regard to the claim for damages for effecting repairs to the vehicle, APT 9569, is concerned, we have the evidence of P.W. 2, the mechanic, and P.W.1, the owner, and the documentary evidence of exhibits A-1 to A-16. On rebuttal, we have the evidence of the assessor, R.W. 2, and of the first respondent, R.W. 1. The Tribunal below rejected the evidence of R.W. 2 on the ground that R.W. 2 has not placed any documentary evidence regarding his qualifications as Motor Vehicles Assessor for assessing damages and he also did not place the original report alleged to have been submitted. Learned counsel for the appellants also did not press his evidence for consideration before me. The only argument advanced by learned counsel for the appellants is that the value of the vehicle admittedly was Rs. 50,000 at the time of the accident and as a result of effecting repairs, its value had increased to Rs. 1,00,000. The accident was taken advantage of by improving the value of the vehicle by putting in all new parts and, therefore, a responable amount has to be deducted and, on the fact and circumstances of the case, an amount of 50% has to be deducted and,as stated earlier, Sri Prakash Rao, learned counsel for the first respondent , stated that 10% would be a reasonable amount. The question , therefore, is what is the actual amount spent by the first respondent. I have persuade all the original documents filed before the court. Exhibits A-1, 2,4 to 11 and 16 are the receipts issued by the respective companies or repairing shops in printed memos whereas exhibits A-3 and 12 to 15 are on plain papers. They shows that various parts were purchased or repairs effected. In exhibit A-17, it is mentioned in item 1 that the cabin was completely damaged, I have seen in exhibit A-14 that Srinivasa Carpentry Works, Agapura, has given a bill dated August 10, 1979, for a sum of Rs. 15,125 wherein several items have been mentioned, viz., wood, iron, leather, etc. When the cabin is damaged, it is highly unthinkable that a sum of Rs. 15,125 was spent towards effecting the repairs for the same. Therefore, this item appears to be highly excessive even though those items might have been purchased and used since the vehicle is an old one. Obviously, it was rebuilt and the value has been increased to Rs. 1,00,000. Considering the damage caused to t;he cabin and the expenditure alleged to have been spent, I consider that a sum of Rs. 5,000 would be required for effecting repairs to the cabin. An expenditure of Rs. 125 for changing the number plate is required.

6. Therefore, a sum of Rs. 10,000 has to be deducted out of the amount awarded and with regard to the other items, I do not doubt their correctness or value or replacement made or repairs effected. With regard to the principle on which it is to be assessed. I have considered the entire case-law as held in a recent judgment of this court in United India Fire and General Insurance Co. Ltd. v. Mowli Bai [1986] 60 Comp Cas 372 (AP) thus (headnote) :

' In a measuring damages, there is no distinct between tort and contract. The general principle is restitution in integrum. In determining the sum of money as reparation for breach of contract as damages, as nearly as possible, get at that sum of money which will place the party injured in the same position as he would have been in as if the contract had been performed or in the case of tort as if he had not sustained the wrong for which the compensation is being paid for. Appreciation of value to the motor vehicle or greater benefit or advantage due to repair or replacement of part or parts or accessories is only incidental to restitution and an inevitable and inseparable consequence. It is for the claimant to establish the factotum of actual loss or damages suffered or the amount required or spent for replacement of part or parts or accessories and reasonable repairing and fitting charges. The liability to indemnify the insured is limited to the contract. In no case it can exceed the actual loss or damages or charges incurred subject to the maximum liability under the contract, which ever is less. One-third is to be deducted from the value of the replaced new parts or accessories. No abstract principle can, however, be laid down. On facts and circumstances in given cases, it is open to a party to establish by adducing evidence as to what is the actual loss suffered due to the accident or the value of the parts involved in the accident and to what extent the insurance company is liable to indemnify the loss so suffered.'

7. I hold that 1/3rd of the amount spent for purchase of new parts has to be deducted. In this case, a sum of Rs. 10,601.75 has been spent towards purchase of new parts and another sum or Rs. 8,634 has been spent towards effecting repairs. The first respondent is entitled to the entire amount spent towards repairs and out of the amount spent for purchase of new parts after deducting 1/3rd of the same, i.e., Rs. 3,533.58 a sum of Rs. 7,068.17 would be the amount which the first respondent is entitled to, apart from a sum of Rs. 5,125.

8. With regard to the claim for damages at the rate of Rs. 50 per day as awarded by lower tribunal, it has not been contested before me. It is, therefore, accordingly confirmed.

9. The appeal is partly allowed; but in the circumstances, each party is directed to bear its own costs.


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