K. Ramaswamy, J.
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 firit 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 be claimed a sum of Rs. 34,350/- for effecting repairs to the lorry APT 9569. The tribunal below held 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 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, the learned Counsel for the appellants raised two-fold contentions. 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 9559 is of 1965 model and at the time the accident had occurred its value was Rs. 50,000/- and after repairs its value was 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 deducted in awardipg damages. Even in that regard only to the extent of Rs. 2000/- the Insurance Company is liable under Section 95(2) of the Motor Vehicles Act, 1938 (in short 'the Act'), and the amount awarded against the Insurance Company to the entire extent is illegal.
3. Sri B. Prakasa Rao, the 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 required for replacement. The damage done has been shown by the Motor Vehicles Inspector in Ex. A-17. The mechanic P.W. 2 is a disinterested witness and resident of Hyderabad. He spoke to the extent of the damages and the expenses spent 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 Motor Vehicles Accident Claims Tribunal in the areas specified to adjudicate upon claims for compensation in respect of accidents involving death of or bodily injuries to persons arising out of the use of Motor Vehicles or damages to any property of third parties or both. Admittedly the Tribunal below is one constituted under Section 110 of the Act. Under the proviso thereto when the claim for compensation in respect of damages to property exceeding to 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 he may make such claim to the same Tribunal. Once a claim was 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 Subsection (1) of Section 110 of the Actj the tribunal is empowered to adjudicate the damages 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 Prakasa Rao, the learned Counsel for the first respondent that under Section 95(1) (d) of the Act the maximum compensation that can be awarded by the Tribunal is only Rs. 2000/-. 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 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 Exs. A-1 to A-16. On rebuttal we have the evidence of the assessor R. W. 2 and the first respondent as 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. The learned Counsel for the appellants also did not press his evidence for consideration before me. The only argument advanced by the learned Counsel for the appellants is that the value of the vehicle admittedly was Rs. 10,000/- at the time of accident and as a result of effecting repairs its value has been increased to Rs. 1,00,000/-. The accident was taken advantage to improving the value of the vehicle by putting all new parts and therefore the reasonable amount has to be deducted and on the facts and circumstances of the case, an amount of 50% has to be deducted and as stated earlier Sri Prakasa Rao, the learned Counsel for the first respondent stated that 10% would be reasonable amount. The question therefore is what is the actual amount spent by the first respondent. I have persued all the original documents filed before the court. Exs. A-1, 2, 4 to 11 and 16 are the receipts issued by the respective companies or repairing shops in printed memos whereas Exs. A-2 and 12 to 15 are on plain papers. They show that various parts were purchased or repairs effected. In Ex. A-17 at is mantioned in item 1 that the cabin was completely damaged. I have seen in Ex. A 44 that Srinivasa Carpet 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 of 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 damages-caused to the 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. The 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 and held in a recent judgment of this Court in United India Fire ds General Insurance Co. Ltd. Guntur and Anr. v. Mowli Bhai 1985 (1) ALT 33 (NRC)
In measuring damages there is no distinction between tort and contract. The general principle is restitutio in integrum. It 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 as if the contract has 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 plaintiff to establish the factum of actual loss or damage 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 shall exceed the actual loss or damage or charges incurred subject to the maximum liability under the contract whichever is less. l/3rd is to be deducted from the value of the replaced new parts or accessories. No abstract principle could be laid. On facts and circumstances is given cases, it is open to a party to establish by adduction of evidence as to what is the actual loss suffered due to the accident or 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 Ps. has been spent towards purchase of new parts and Anr. sum of 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 part* after deducting l/3rd of the same i.e., Rs. 3,533-58; a sum of Rs. 7,068-17 Ps. 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 the 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.