P.R. Gokulakrishnan, J.
1. Second defendant, Madras Motor and General Insurance Company Limited, is the appellant. The suit is for damages claiming Rs. 6,176.54 and for costs. Out of this amount of Rs. 6,176.54 a sum of Rs. 3,956.54 was claimed towards the costs of repair as per the bills from T.V.S.& Sons (Private) Limited and Rs. 2,220 towards loss of income owing to the fact that the taxi was not put on road due to the accident for a period of 74 days.
2. This claim is due to the fact that the lorry MDJ 4632 belonging to the 1st defendant in the suit was driven rashly and negligently resulting in a collision with the taxi belonging to the plaintiffs and caused damages to the taxi.
3. The 1st defendant contended that the lorry was not driven rashly and negligently and that the driver of the lorry accepted the guilt because of inducement by the police. The 1st defendant further averred that the damages claimed are excessive and that the damages for non-user is not maintainable. The 2nd defendant Insurance Company has put forward that the suit claim is false and that the claim in any event is excessive. The Insurance Company also pleaded that the taxi was old and many parts were removed and the claim for non-user of the taxi is not maintainable.
4. The trial Court after elaborately discussing the oral and documentary evidence in this case found that the driver of the lorry MDJ 4632 was negligent and the accident was caused due to rash and negligent driving of the driver of the lorry. It also found that the claim for repairs of the taxi and also damages for non-user of the taxi are proved and on that basis decreed the suit in toto. Aggrieved by the decision of the trial Court the 2nd defendant preferred on appeal to the District Judge, Coimbatore (East). The lower appellate Court after elaborately discussing the evidence on record and adverting to the relevant facts of the case came to the conclusion that the driver of the lorry was rash and negligent and as a result the accident occurred.. The lower appellate Court also held that the sum of Rs. 3,956.54 spent for the purpose of repair by T.V.S. & Sons (Private) Limited is correct. But as regards the damages for non-user of the taxi due to the accident the lower Court instead of Rs. 2,220 claimed by the plaintiffs awarded only Rs. 1,005 at the rate of Rs. 15 per day for 67 days only. Aggrieved by the decision of the lower appellate Court the 2nd defendant has preferred the above second appeal. Aggrieved by the reduction of the damages as regards non-user of the taxi, the plaintiffs have preferred the cross-objections herein.
5. Thiru Srinivasan, the learned Counsel for the appellant submitted that the Insurance Company cannot be made liable for the damages caused to the taxi inasmuch as there is no privity of contract between the Insurance Company and the plaintiffs. This contention was not put forward by the appellant before the trial Court. On the other hand, the appellant as 2nd defendant participated in the proceedings and vehemently opposed the claim of the plaintiffs. Therefore, I do not think it is open to the appellant to put forward the contention as if he is not liable to pay damages as there is no privity of contract between him and the plaintiffs in the suit. I do not find any provision of law debarring the plaintiff's from claiming damages both against the owner and the driver of the lorry and also the Insurance Company with which the lorry has been insured.
6. Section 95 (1) (b) (i) of the Motion Vehicles Act states that in order to comply with the requirements of that Chapter a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him in respect of the death of or bodily injury to any persons or damages to any property of a third party caused by or arising out of the use of the vehicle in a public place. Thus it is clear that the Insurance Company is liable to answer the claims of the third party in respect of damages caused to a third party's property also. No doubt the provision referred to above is in relation to the claim that has to be settled by the Claims Tribunal constituted under the Motor Vehicles Act. But by this enactment the civil Court's right to go into the question of claim made by a third party as regards loss to his property is not barred. If that be the case, the Civil Court has jurisdiction to entertain such claims. Hence the Courts below are correct in awarding damages to the plaintiffs as regards the costs incurred in repairing the taxi.
7. The plaintiffs have preferred cross-objections as regards the sum of Rs. 1,215 disallowed by the lower appellate Court under the head loss incurred by the plaintiffs by non-user of the taxi. The trial Court after discussion accepted the loss at the rate of Rs. 30 per day for 74 days. The lower appellate Court fixed, the amount at Rs. 15 for 67 days only. The evidence on record clearly establishes that the net income of the taxi is Rs. 30 per day and the taxi was in the workshop for 74 days. P.W. 9 gives evidence to. this effect. On the other hand, D.Ws. 1 and 2 neither contradicted this evidence-nor adduced any evidence as regards the net income of the taxi per day. In the absence of such evidence by the defendants the trial Court correctly accepted the evidence of the plaintiffs and decreed the suit on this account as prayed for. But the lower appellate Court even though it had discussed the evidence on record on this head reduced the net income to Rs. 15 per day without any data or proper-discussion. This in my opinion is arbitrary and runs contra to the evidence on record. Hence in my view a sum of Rs. 30 per day as net income for a taxi cannot be considered to be excessive and the net income of Rs. 30 per day for a period of 74 days has to be granted to the plaintiffs as claimed.
8. In these circumstances, the second appeal is dismissed. No costs. The cross-objections are allowed. With the result, the judgment and decree of the trial Court are confirmed. No order as to costs. No leave.