Bombay High Court
M/S New India Assurance Co Ltd And ... vs Sanjay Dattatraya Gaikwad on 29 August, 2016
Bench: P.R. Bora
1
FIRST APPEAL 2549 OF 2009.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
FIRST APPEAL NO. 2549 OF 2009
1] M/S New India Assurance Co. Ltd.,
having its registered and Head Office at 87 M.G.
Road New India Assurance Building Fort Mumbai
400 001 Branch Office at Parbhani
and Division Office at Dr. Rajendra Prasad Road,
Ajay Engg. Compound, Aurangabad-431 005
through it;s Senior Divisional Manager
Mr. Vishwas Bansi Gaikwad 50 Years
2]
Mayur Ramlandra Nayak,
age 35 years, Occ. Business,
Armane Building, K.C.Road, ANKOLA,
Dist. Uttar Karnataka.
... APPELLANTS
(ORIGINAL 2 & 1 RESPONDENTS)
VERSUS
Sanjay S/o Dattatraya Gaikwad,
Age 25 Years, Occu. Business,
R/o. Mali Galli, Parbhani.
... RESPONDENT
(ORIGINAL PETITIONER)
...
Mr. Vinayak Narayan Upadhye, Advocate for the Appellants.
Mr. K. M. Nagarkar, Advocate for the Respondent.
...
CORAM : P. R. BORA, J.
Reserved on : 08th August, 2016.
Pronounced on : 29th August,2016.
::: Uploaded on - 30/08/2016 ::: Downloaded on - 31/08/2016 00:41:59 :::
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FIRST APPEAL 2549 OF 2009.odt
JUDGMENT:
. The Insurance Company has filed the present appeal
against the judgment and award passed on 30th April, 2009, in Motor
Accident Claim Petition No.334 of 2006, by the Motor Accident Claims
Tribunal, at Parbhani (hereinafter referred to as "the Tribunal").
2 The aforesaid claim petition was filed by the Respondent
seeking compensation under Section 166 of the Motor Vehicles Act
on account of the damages caused to the vehicle i.e. luxury bus
bearing registration No.MH-15-AK-0099, owned by him in a vehicular
accident happened on 1st February, 2006. It was the contention of the
Respondent before the Tribunal that on 1 st February, 2006, the luxury
bus owned by him when was required to be stopped because the tyre
of the said luxury bus was punctured, a truck bearing registration
No.KA-30-7134, insured with the Appellant - Insurance Company
coming from the opposite direction, gave a dash to the said bus and
caused heavy damages to the said bus. The Respondent, therefore,
claimed the compensation amounting to Rs.4,00,000/-.
3 The claim petition so filed by the Respondent was
resisted by the Appellant - Insurance Company on various grounds.
It was the contention of the Appellant that there was no negligence on
FIRST APPEAL 2549 OF 2009.odt
the part of the driver of the truck in causing the alleged accident, but
the same was caused because the luxury bus was stopped at the
middle of the road without adhering to the Motor Vehicle Rules. It was
the alternate submission of the Appellant - Insurance Company that
the entire blame cannot be attributed on the part of the truck driver
and the negligence on the part of the driver of the luxury bus was also
a contributory factor for occurrence of the alleged accident. The
survey report was also objected to by the Appellant - Insurance
Company. The learned Tribunal after having assessed the oral and
documentary evidence brought before it, awarded the compensation
to the tune of Rs.2,24,250/- along with interest thereon at the rate of
9% per annum from the date of petition till realization of the said
amount. Aggrieved by, the Insurance Company has preferred the
present appeal.
4 Shri Upadhye, learned counsel for the Appellant
submitted that the Tribunal has grossly erred in not considering the
objections raised by the Insurance Company as about the contributory
negligence on the part of the driver of the luxury bus in parking the
same at the middle of the road and that too without following the
Motor Vehicle Rules. The learned counsel taking me through the spot
Panchanama pertaining to the alleged accident, submitted that it
FIRST APPEAL 2549 OF 2009.odt
clearly reflects that the luxury bus was standing at the middle of the
road. The learned counsel further submitted that the accident had
happened at the night hours and since the driver of the luxury bus
had not taken precautions of keeping the parking lights on and the
same was stopped at the middle of the road, the Tribunal must have
held the driver of the luxury bus also responsible for occurrence of the
alleged accident. The learned counsel further submitted that though
the Surveyor in his testimony before the Tribunal has clearly stated
that except the glass and window glasses all other parts mentioned in
the assessment report were subject to 50% depreciation, the Tribunal
has awarded the compensation of the whole amount as was indicated
towards prices of the spare parts. The learned counsel, therefore,
prayed for setting aside the impugned award and/or to adequately
modify the said award by determining the amount of compensation
taking into account the factor of contributory negligence on the part of
the driver of the luxury bus and 50% depreciation in the value as per
the price of spare parts.
5 Shri Nagarkar, learned counsel for the Respondent
supported the impugned judgment and award. The learned counsel
submitted that the luxury bus was not stopped at the middle of the
road, but on the side of the road and all precautions were also taken
FIRST APPEAL 2549 OF 2009.odt
in observance of the Motor Vehicle Rules. The learned counsel
submitted that the offending truck was coming from the opposite
direction and it completely entered on the wrong side and gave a
dash to the luxury bus to its front side and caused heavy damages to
the luxury bus. The learned counsel further submitted that the
Respondent has fully established that for occurrence of the alleged
accident, negligence on the part of the truck driver was solely
responsible. The learned counsel further submitted that the Tribunal
had not committed any error in assessing the amount of
compensation. According to the learned counsel, the Tribunal has on
the contrary awarded less compensation than claimed by the
Respondent. The learned counsel, therefore, prayed for dismissal of
the appeal.
6 I have carefully considered the submissions advanced by
the learned counsel appearing for the respective parties. I have also
perused the impugned judgment as well as the evidence on record.
As noted earlier, the award is challenged by the Insurance Company
mainly on two grounds; first that the factor of contributory negligence
has not been taken into account by the Tribunal and other that the
value of the spare parts has been taken as it is by the Tribunal though
according to the report of the Surveyor, the same was subject to 50%
FIRST APPEAL 2549 OF 2009.odt
depreciation except two items i.e. front glass and window glasses.
7 In so far as first objection is concerned, the same is liable
to be rejected at the threshold in view of the fact that the spot
Panchanama drawn in the matter clearly indicates that the luxury bus
was not stopped or stationed at the middle of the road, but was at the
side of the road and was dashed by the truck from its front side. From
the situation on the spot, it is quite evident that the truck entered on
wrong side and gave a dash to the luxury bus. In the circumstances,
it does not appear to me that any error has been committed by the
Tribunal in holding the driver of the truck wholly responsible for
occurrence of the alleged accident.
8 In so far as other objection is concerned, the Insurance
Company has relied upon the evidence of Vilas Chandan, Surveyor,
who was examined by the Respondent / Claimant as his witness.
According to the Appellant, the Surveyor in his cross-examination has
unambiguously stated that the cost of the new spare parts, except the
spare parts at serial Nos.1 and 42 i.e. glass and window glasses,
other parts mentioned in the assessment report, was subject to 50%
depreciation. In the circumstances, according to the Appellant, except
the front glass and window glasses, the Tribunal must have awarded
half of the price of the new spare parts by way of damages.
FIRST APPEAL 2549 OF 2009.odt
9 I have carefully perused the evidence of the Surveyor. On
perusal of the evidence of the Surveyor and the survey report at
Exhibit - 27 submitted by him, there appears some substance in the
objection so raised by the Appellant - Insurance Company. As has
been stated by the Surveyor, he has mentioned the cost of new spare
parts in the report submitted by him. As further stated by him, except
items at serial No.1 glass and serial No.42 window glasses, the other
parts mentioned in his assessment report were subject to 50%
depreciation. The window glasses are at serial No.43 and not at
serial No.42. Deducting the costs of front glass and window glasses,
which comes to Rs.12,000/- (8000 + 4000 = 12000), the costs of other
spare parts comes to Rs.1,43,750/-.
10 Thus, according to the report of Surveyor and the
evidence given by the said Surveyor before the Tribunal, the Claimant
was entitled for half of the aforesaid amount of spare parts. It,
however, appears to me that the Insurance Company was supposed
to place on record some more evidence and some more explanation
was necessary as about the criteria to be applied for taking into
account the depreciated value of the spare parts. From the evidence,
it is difficult to gather as to on what basis the depreciation is to be held
at the rate of 50%. Further, it appears to me that in the report of
FIRST APPEAL 2549 OF 2009.odt
survey itself while determining the entitlement of the Claimant towards
the value of the spare parts, depreciated value, for which according to
the Surveyor the Claimant is entitled to, ought to have been
mentioned. However, it cannot be denied that the Tribunal has failed
in considering the aforesaid aspect and has thus erred in awarding
the value of the spare parts as it is mentioned in the survey report
ignoring the facts stated by the Surveyor that the costs of spare parts
was subject to 50% depreciation. In the circumstances, there needs
some modification in the impugned award. As I noted herein above,
in absence of any concrete evidence as about the manner of
calculating the depreciated value, I deem it appropriate to reduce the
amount of compensation by Rs.50,000/- holding the Claimant entitled
for the sum of Rs.1,05,750/- instead of Rs.1,55,750/- towards the
value of spare parts. The Respondent is entitled for the sum of Rs.
73,500/- towards the labour charges as awarded by the learned
Tribunal. Out of the aforesaid amount, the salvage value assessed to
the tune of Rs. 5,000/- by the Tribunal will have to be deducted. The
Respondent is thus held entitled for the total compensation amounting
to Rs. 1,74,250/-.
11 The record reveals that the Appellant - Insurance
Company has deposited the amount of Rs.2,85,456/- in this Court in
FIRST APPEAL 2549 OF 2009.odt
terms of the impugned award. It is further revealed that the
Respondent was permitted to withdraw Rs.1,40,000/- of the said
amount. In view of the fact that the Respondent is now held entitled
for the total compensation of Rs.1,74,250/- instead of Rs.2,24,250/-,
he will be entitled to withdraw that much of amount along with interest
accrued thereon from the deposited amount and the balance amount
will have to be refunded to the Appellant - Insurance Company.
Hence, the following order:ig ORDER
I. The Appeal is partly allowed.
II. The Respondent is held entitled for the total
compensation amount to Rs.1,74,250/- along
with interest thereon at the rate of 9% from the
date of petition till deposit of the said amount by
the Insurance Company in this Court.
III. Accordingly, from the deposited amount of
compensation, the amount payable to the
Respondent be paid to the Respondent and the
balance amount be refunded to the Appellant -
Insurance Company.
IV. Modified award be prepared accordingly.
sd/-
[ P. R. BORA, J. ]
ndm
