Bombay High Court
Ravindra Bansilal Modi vs The Divisional Manager Oriental ... on 1 September, 2016
Bench: P.R. Bora
1 FA 623/2010-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 623 OF 2010
Ravindra Bansilal Modi,
Age : 43 years, Occu. : Business,
R/o. Guruwar Peth,
Ambajogai, Dist. Beed .. Appellant
(Orig. Claimant)
Vs.
1] The Divisional Manager,
Oriental Insurance Co. Ltd.,
Office at Chati Galli, Solapur,
Through : Branch Manager,
Annabhau Sathe Chowk, Beed
2] K. Kishtiah,
Age : Major, Occu : Business,
R/o 2-40, Turkaymjal, Rangareddy
(A.P.)
3] National Insurance Co. Ltd.,
Through : The Divisional Manager,
Hazari Chambers, Station Road,
Aurangabad .. Respondents
(Orig. Respondents)
----
Mr. S.G. Chapalgaonkar, Advocate for the appellant
None present for respondent no.1 though served
Respondent no.2 served through paper publication - absent
Mr. A.D. Soman, Advocate h/f Mr. D.V. Soman, Advocate for the respondent no.3
----
CORAM : P. R. BORA, J.
DATE : 01/09/2016
ORAL JUDGMENT :
Heard.
2. Admit.
2 FA 623/2010-Judgment
3. With consent of learned counsel for the parties, the appeal is heard
finally.
4. The appellant has filed the present appeal against the judgment and
order passed by the Motor Accident Claims Tribunal at Ambajogai in M.A.C.P.
No.46 of 2010 (Old M.A.C.P. No.144 of 1996) decided on 10/10/2007.
5. The aforesaid Claim Petition was filed by the present appellant
seeking compensation on account of the damages caused to the ambassador car
bearing registration no. MH-23 / 8686 owned by him in a vehicular accident
happened on 12/08/1995 having involvement of a truck bearing registration no.
ATS 6235 insured with respondent no.3 - National Insurance Company Ltd. on the
date of the accident. The appellant had claimed damages to the tune of
Rs.4,00,000/-. The claim petition was resisted by respondent no.3 - National
Insurance Company Ltd. on various grounds. In order to substantiate the
contentions raised in the petition, the appellant had deposed before the Tribunal
and also examined the witness (PW2 - Rajesh Lahoti), so as to bring on record the
estimate of repairs. The witness, who was examined, was a garage owner and was
thoroughly cross-examined by both the insurance companies, which were parties to
the claim petition. The learned Tribunal, on its assessment of the oral as well as
documentary evidence brought on record, dismissed the petition vide the impugned
order. Aggrieved thereby, the appellant has filed the present appeal.
6. Shri Chapalgaonkar, learned counsel appearing for the appellant
submitted that despite there being sufficient evidence brought on record by the
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appellant, the Tribunal, on certain erroneous grounds, has rejected the petition so
filed by the appellant. Learned counsel submitted that there are two major grounds
on which the Tribunal has rejected the petition filed by the present appellant; first is
that the appellant/claimant has failed in proving the negligence on part of the
driver of the offending truck insured with the National Insurance Company Ltd. and
second that the appellant did not bring on record sufficient material so as to assess
the damages.
7. Learned counsel submitted that during the course of hearing of the
claim petition, a copy of the judgment delivered by the Motor Accident Claims
Tribunal at Beed in MACP No. 220 of 1995 was placed on record. Learned counsel
submitted that the same was the claim petition arising out of the same accident in
which the car of the appellant got damaged. Learned counsel submitted that in the
aforesaid claim petition, the learned Tribunal has recorded a clear finding that in
occurrence of the said accident, the driver of the offending truck bearing
registration no. ATS 6235 was solely responsible. Learned counsel further
submitted that the judgment delivered in M.A.C.P. No. 220 of 1995 has not been
challenged by the National Insurance Company. On the contrary, the said
insurance company has satisfied the award passed in the aforesaid claim petition.
Learned counsel submitted that in the judgment delivered in M.A.C.P. No.220 of
1995, all the policy papers pertaining to the alleged accident, which were in Tamil,
were got translated and the translated copies were placed on record of the said
matter and the same were considered by the Tribunal while delivering the judgment
in the aforesaid claim petition. Learned counsel submitted that once having
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accepted the responsibility of paying compensation to the claimant in the aforesaid
claim petition, it was not open for the respondent - Insurance Company to take a
different stand. Learned counsel further submitted that the Tribunal also would not
have discarded the aforesaid fact, which was specifically brought on record by the
appellant and no contrary finding could have been recorded by the Tribunal in so
far as negligence on part of the truck driver is concerned. Learned counsel
therefore prayed for setting aside the finding so recorded by the Tribunal in the
judgment and award, which is impugned in the present appeal.
8.
In so far as the aspect of damages is concerned, learned counsel took
me through the evidence of the appellant as well as PW2 - Shri Lahoti and also
brought to my notice the documents at Exhibit 46, 47 and 48. Learned counsel
submitted that the documents so placed on record were sufficient for drawing an
inference that the ambassador car was heavily damaged. Learned counsel
submitted that merely because the survey was conducted and the report was
forwarded to the Oriental Insurance Company, the same could not have been
discarded for the said reason. Learned counsel submitted that the Surveyor is an
independent person and cannot be treated as an employee of any Insurance
Company. Learned counsel invited my attention to the observations made by the
Tribunal in paragraph no.12 of the judgment and submitted that at one point of
time, the Tribunal appears to have convinced that the damage was certainly caused
to the Ambassador car, however, inspite of that, it refused to grant any relief on
that count for the reason that the appellant/claimant did not prove the negligence
on part of the driver of the truck. Learned counsel submitted that from the
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documents on record, an irresistible inference emerges that the total loss was
caused to the Ambassador car. Learned counsel further submitted that the
insurance policy of the said car placed on record evinces that at the time of last
purchase of insurance policy of the said car, the value of the said car has been
shown at Rs.1,87,000/-. Learned counsel submitted that considering the available
evidence on record, the damages as are specified and the estimate of which was
duly proved by the appellant/claimant, to that extent, the Tribunal must have
accepted the claim of the appellant/claimant and must have awarded the
compensation to that extent. Learned counsel therefore prayed for setting aside the
impugned judgment and order and to award adequate compensation considering
the evidence on record adduced by the appellant/claimant.
9. Shri Soman, learned counsel appearing for the respondent no.3 i.e.
National Insurance Company strongly opposed the submissions advanced on behalf
of the appellant/claimant. Learned counsel submitted that the claimant was
supposed to independently prove the negligence of the truck driver before the
Tribunal in the Claim Petition filed by him and since he has failed in establishing
the said fact, no fault can be found with the findings recorded by the Tribunal.
Learned counsel further submitted that from the material on record, it is clearly
revealed that the ambassador car was having a comprehensive insurance with the
Oriental Insurance Company and as such the appellant/claimant could have
conveniently preferred claim with the said insurance company and there was no
hurdle for him for getting compensation from his insurance company. Learned
counsel submitted that the material on record further reveal that atleast on three
6 FA 623/2010-Judgment
occasions, such attempt was made by the appellant/claimant, however, since he
failed in obtaining any favourable response from his own insurance company, has
ultimately, by amending the claim petition, added the National Insurance Company,
as respondent in the claim petition. Learned counsel submitted that mere
presentation of the estimate cannot be said to be a proof of the damages caused to
the vehicle. Learned counsel further submitted that cogent and sufficient evidence
ought to have been adduced by the appellant/claimant to prove the damages
caused to his vehicle. Learned counsel further submitted that whatever documents
are submitted by the appellant/claimant on record, are pertaining to the claim
made by the appellant/claimant with the Oriental Insurance Company and as such,
the Tribunal has rightly declined to accept the said documents and has rightly
rejected the claim of the appellant/claimant. Learned counsel, therefore, prayed for
dismissal of the appeal submitting that no interference is warranted in the
impugned judgment.
10. I have carefully considered the submissions made on behalf of the
parties. In so far as the first ground on which the Tribunal seems to have rejected
the petition of the present appellant, observing that the claimant has failed in
proving the negligence on part of the driver of the offending truck is concerned, it is
apparent that the Tribunal has grossly erred in recording such a finding. In premise
of the fact that the copy of the judgment in M.A.C.P. No.220 of 1995, arising out of
the same accident was placed on record and further it was brought to the notice of
the Court that no appeal has been preferred against the judgment and award passed
in the said petition, on the contrary, the Insurance Company has satisfied the award
7 FA 623/2010-Judgment
passed in the said matter, wherein finding was recorded that the accident in
question had occurred because of the sole negligence on part of the driver of the
truck, no contrary finding could have been recorded by the Tribunal in the
impugned award. The Tribunal has not recorded any reason for not accepting the
said finding recorded earlier on the said point which was not challenged by the
National Insurance Company. The finding so recorded would operate as res-
judicata. In absence of any contrary evidence on record, the Tribunal must have
held that the alleged accident had happened because of the sole negligence of the
truck driver. It is further the matter of record that the driver of the truck was only
prosecuted in connection with the alleged accident and that was the primary
evidence brought on record by the appellant/claimant. So also, no contrary finding
could have been recorded by the Tribunal. The finding so recorded, thus requires to
be quashed and set aside and it is to be held that the alleged accident was caused
due to the sole negligence on the part of the driver of the offending truck, thereby
making the owner and insurer of the said truck liable to pay the amount of
compensation to the appellant.
11. In so far as the other finding recorded by the Tribunal that no
sufficient evidence has been adduced by the appellant/claimant in order to prove
the damages caused to his vehicle, the evidence of the claimant and of the witness
examined by him, as well as the documents placed on record at exhibit 46, 47 and
48 would be material.
12. I see no reason to disagree with the submission made by Shri
Chapalgaonkar, learned counsel appearing for the appellant/claimant that the
8 FA 623/2010-Judgment
survey report so placed on record could not have been discarded by the Tribunal
stating that the same was for Oriental Insurance Company. The argument made by
learned counsel for respondent no.3 - Insurance Company on the similar lines also
cannot be accepted, since the Surveyor, who has submitted the report, is admittedly
not an employee of the Insurance Company but possesses his own identity.
13. As I noted earlier, the documents at exhibit 46, 47 and 48 are material
documents, on the basis of which, the amount of damages can be ascertained.
14. During the course of his arguments, it was submitted by Shri Soman,
learned counsel appearing for the National Insurance Company that the
endorsement which is there on the aforesaid documents, to the effect that
"documents admitted hence exhibited" is incorrect and the National Insurance
Company has never admitted the aforesaid documents. It was also brought to my
notice by Shri Soman that the aforesaid documents were admitted by the Oriental
Insurance Company with which the Ambassador car of the present appellant was
insured. The submission so made by Shri Soman is, however, difficult to be
accepted for the reason that no such objection was raised by the National Insurance
Company before the Tribunal that the aforesaid documents cannot be exhibited
since they are not admitted by the National Insurance Company.
15. Perusal of the aforesaid documents clearly establishes that the
Ambassador car had suffered a total loss. The joint survey report at exhibit 46
reveals that the Ambassador car had sustained heavy damages. It's entire body shell
was smashed, entire roof top was ripped off and folded, both side doors were
9 FA 623/2010-Judgment
smashed, flooring was torn, front suspension was smashed/twisted, radiator
assembly was badly pressed, wirings were cut, steering assembly was twisted, dash-
board with meter was smashed, front tyres and discs were cut, engine assembly was
found missing. Taking into consideration the observations recorded as about the
condition of the Ambassador car in the joint survey, there remains no doubt that the
car had suffered a total loss. For repair of the said car, the estimate was given for
Rs.3,00,145/-.
16. During the course of his arguments, Shri Chapalgaonkar, learned
counsel for the appellant, on instructions, has made a statement that after having
fought for more than 15-16 years, the appellant/claimant will be satisfied, if the
amount, as has been assessed by the surveyor, presuming the total loss of the
vehicle that is to the tune of Rs.69,000/- with interest thereon, is awarded, and the
appellant will accept the same towards the full and final settlement.
17. The document at Exhibit 47 discloses that the assessment on cash loss
basis was for Rs.69,000/-. It was made by Shri Sanjay Kurnurkar, Authorised
Surveyor and Assessor. The document at exhibit 48 reveals that the licensed
surveyor, namely Shri A.T. Kulkarni, has given an opinion to the Oriental Insurance
Company vide his letter dated 6/9/1996, that considering the nature and extent of
the loss, he was of the opinion that the loss should be settled for Rs.69,000/- as
calculated by the surveyor. Shri Kulkarni had also communicated to the Insurance
Company that he was of the opinion that the claim should be settled on cash loss
basis for Rs.69,000/- and it will be a most fair and reasonable settlement.
10 FA 623/2010-Judgment
18. After having gone through the documents as aforesaid, I have no
hesitation in recording a finding that the appellant/claimant has duly established
that his Ambassador car had suffered a total loss, which has been assessed to the
tune of Rs.69,000/- by the licensed Surveyor.
19. As has been submitted by learned counsel appearing for the appellant,
the appellant/claimant is now ready to accept the aforesaid amount with interest
thereon by way of full and final settlement. In the circumstances, it appears to me
that the claim to that extent needs to be awarded. In view of the fact that the
appellant/claimant has established that the accident in question had occurred
because of the sole negligence on part of the driver of the truck and has further
established that the Ambassador car owned by him suffered total damages in the
said accident, I hold the appellant/claimant entitled for the compensation of
Rs.69,000/- with interest thereon, jointly and severally from driver, owner and
insurer of the offending truck.
20. The Tribunal has grossly erred in dismissing the claim petition on
erroneous grounds. The order so passed by the Tribunal, therefore, needs to be
quashed and set aside. For the reasons stated hereinabove, the following order is
passed :-
ORDER
I) The Appeal is partly allowed with proportionate costs.
11 FA 623/2010-Judgment
II) The impugned judgment and order dated 10/10/2007 passed in
M.A.C.P. No. 46 of 2000 is quashed and set aside.
III) The appellant/claimant is held entitled to receive compensation by
way of damages, to the tune of Rs.69,000/- jointly and severally from respondent
nos.2 and 3 with interest thereon at the rate of 6% per annum from the date of
filing of the petition till the actual payment.
IV) The award be drawn accordingly.
[ P.R. BORA ]
JUDGE
arp/
