Bombay High Court
New India Assurance Co Ltd vs Bhagaji Ganpat Kapse And Ors on 3 February, 2022
Bench: R. G. Avachat
FA-334-2009.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 334 OF 2009
New India Assurance Company Ltd.,
Branch Aurangabad
Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
[Orig. Respondent No.3]
Versus
1. Bhagaji S/o Ganpat Kapse
Age: 50 years, Occ: Agriculturist
and Business, R/o. Viramgaon,
Taluka Sillod, District Aurangabad
2. Jijabai W/o Bhagaji Kapse
Age: 45 years, Occ: Agriculturist
and Household, R/o. As above
3. M/s Sai Service Station Ltd.,
Bombay - Ahmedabad Highway
NH.No.8, Balitha Vapi, Taluka Paroli,
District Valsad
4. Ganpatrao @ Balu S/o Bhagaji Patil } R-4 deleted as per
Age: 27 years, Occ: Driver } Order dt. 7/12/2010
R/o. Sultanpur, District Solapur }
... Respondents
[Respdt.No.1 & 2 Ori.Claimants
[Respdt No.3 & 4 Orig.
Respdt.Nos. 1 & 2]
....
Mr. S. G. Chapalgaonkar, Advocate for appellant
Mr. S. K. Barlota, Advocate for respondent Nos. 1 and 2
....
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CORAM : R. G. AVACHAT, J.
RESERVED ON : 29th NOVEMBER, 2021
PRONOUNCED ON : 03rd FEBRUARY, 2022
J U D G M E N T :-
. This is an Insurance Company's appeal, taking exception
to the judgment and award dated 30.04.2008 passed by the Member,
Motor Accident Claims Tribunal (Tribunal), Aurangabad in Motor
Accident Claim Petition No.26 of 2002. Under the impugned
judgment and award, the claimants therein, respondent Nos. 1 and 2
herein, have been granted compensation of Rs.1,50,000/- with
interest at the rate [email protected] per annum from the date of petition to the
date of realisation. It was a third party property damage claim.
2. Facts giving rise to the present appeal are as under:
It was an accident between a Matador bearing
registration No. MH-20-A-6409 and a Scooter carrying large truck
bearing registration No. GJ-15-X-148. The Matador belonged to
Jayaji (deceased). He (deceased) was at the wheel of the Matador
when accident took place. As a result of the injuries suffered in the
said accident, Jayaji passed away. On due investigation, the driver of
the truck was proceeded against. The parents of Jayaji (claimants)
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had filed claim for compensation on account of death of their son -
Jayaji. The said petition was allowed. The award passed therein has
attained finality. As such, there is no question as to whether the
accident took place due to rash and negligence on the part of the
deceased.
3. Both the vehicles involved in the accident, were insured
with the appellant - New India Assurance Company Limited. In the
accident, the Matador was extensively damaged. It became
unpliable. The claimants being successors in interest of the Matador
owner - Jayaji, had made an Own Damage (O.D.) claim to the
appellant - Insurance Company. It was allowed, granting
compensation of Rs.1,20,000/-. Thereafter, the petition came to be
filed against the driver, owner of the offending vehicle and its insurer
(appellant herein) for compensation on account of damage of the
Matador. It was the case of the claimants that the motor mechanic
gave an estimate of Rs.3,14,800/- towards cost of repairs of the
Matador so as to bring it on road. The compensation amount
received in O.D. claim, has all been directly received by the
Maharashtra State Finance Corporation (M.S.F.C.), which had
granted loan for purchase of Matador. The cost of new Matador at
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the relevant time was Rs.4,39,500/- . The insurer estimated the
value thereof at Rs.3,66,000/-.
4. On appreciation of evidence in the case, the Tribunal has
observed thus:
"9. ....... In fact, insurer's estimated value was shown as
Rs.3,66,000/- while cost of new vehicle was
Rs.4,29,500/-. It has to be considered that, vehicle is in
such a condition that it cannot be used on the road again.
Admittedly, Matador was purchased on 8.3.1995 while
accident took place on 1.8.1999. Thus, the matador was
used by claimants for about 4 years and 5 months.
Matador was taken on loan and it can easily be imagined
that, claimants would have been required to pay
considerable interest on loan amount. Besides matador
cannot be used now as it is damaged completely.
Considering all these circumstances, compensation of
Rs.1,50,000/- would meet ends of justice, in my opinion.
It is a third party property damage claim and in my
opinion, Tribunal may not go into minute details of exact
amount of repairs or exact amount of damage. .... "
The appellant - Insurance Company, is therefore in
appeal herein.
5. Heard.
Learned Advocate for the appellant - Insurance
Company would submit that the claimants have already received an
amount of Rs.1,20,000/- from the appellant towards O.D. claim. The
Surveyor had assessed the loss. The assessment of the Surveyor is
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not challenged. There is no evidence to contradict the Surveyor's
report. The claimants have received the compensation towards O.D.
claim as per the Surveyor's report. There is no further cause of action
to make good the loss under third party claim. The Matador was
purchased way back in 1995. The vehicle was more than four years
old. It had depreciated in value after use. The claimants have
retained the vehicle after the accident. The salvage value of the
vehicle was assessed at Rs.70,000/-. As such, the claimants have
received the entire amount as against damage/loss sustained by
them. Unless and until the claimants demonstrate that they have
suffered actual loss as claimed in the petition, the Tribunal ought not
to have granted damages. No bills of repair or spare parts have been
proved. There is no pleadings in the claim petition in this regard.
The assessment made by the Surveyor is binding on both the
contracting parties to the insurance contract. On all these counts
setting aside the impugned award was urged for.
6. The learned Advocate for the claimants would, on the
other hand, submit that the claimants had in fact suffered
damage/loss in excess of what has been granted in O.D. claim. The
vehicle was only source of income for the family. The entire amount
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received under the O.D. claim has been appropriated by M.S.F.C.
towards repayment of loan granted for purchase of the Matador. The
damaged Matador has been lying at the garage. To make that
Matador roadworthy, the claimants required a sum of over
Rs.3,00,000/- (Rupees Three Lakh). According to the learned
Advocate, no fault could be found with the impugned award. He,
therefore, urged for dismissal of the appeal.
7. Considered the submissions advanced. Perused the
pleadings and evidence as well. Gone through the impugned
judgment and award.
It appears that more has been argued and urged on
behalf of the appellant - Insurance Company beyond its pleadings.
Admittedly, the Matador owned by the deceased was extensively
damaged in the accident. The claimants had therefore preferred O.D.
claim. Both the vehicles involved in the accident were insured with
the appellant - Insurance Company herein. The claimants have been
granted a sum of Rs.1,20,000/- towards O.D. claim. The papers of
the O.D. claim have not been placed on record. It also appears that
the attention of the Tribunal was not adverted to the policies of
insurance of both the vehicles involved in the accident. Close reading
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of the written statement filed by the appellant - Insurance Company
before the Tribunal would indicate that it is its case that when the
claimants have accepted a sum of Rs.1,20,000/- towards O.D. claim,
no petition under Section 166 of the Motor Vehicles Act for the same
claim is maintainable.
8. It is reiterated that it is not known as to whether under
the policy of insurance of the damaged vehicle, the O.D. claim was
restricted to certain amount. No papers of O.D. claim have been
placed on record. The appellant - Insurance Company did not lead
any evidence in proof of its stand. The claim was subjected to a very
scanty cross examination. For better appreciation, the entire cross
examination of the claimant is reproduced below.
"It is not correct to say that accident has taken place due
to fault of the driver of the metador. After accident, I have
submitted O.D. (own damaged) claim with respondent
no.3 under the policy of insurance of vehicle Metador
bearing R.No.MH-20-A-6409 and I have received amount
of Rs.1,20,000/-. It is not correct to say that I have
received the complete amount as per the law assessed by
Surveyor. It is not correct to say that I am deposing falsely
that my son deceased Jayaji used to earn Rs.300/- per day
income by use of said metador. It is not correct to say that
I am deposing falsely that the proprietor has shown the
estimated costs of painting, welding and repairing works
to the tune of Rs.3,14,800/-. It is not correct to say that I
have not sustained any loss and I have claimed exorbitant
amount of compensation ....."
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9. It has been specifically averred in the evidence by the
claimants that the estimated cost of repairs of the damaged vehicle
to make it roadworthy condition is Rs.3,14,800/-. The entire amount
(Rs.1,20,000/-) received under the O.D. claim has been appropriated
towards repayment of the loan raised from M.S.F.C. The Tribunal,
after having considered all these facts, granted a lump sum amount
of Rs.1,50,000/- as compensation. It appears that the claimants have
withdrawn the entire amount, true as against bank guarantee. In
these peculiar facts and circumstances of the case, this Court is not
inclined to interfere with the impugned award.
10. In the result, the appeal fails. The same is therefore,
dismissed.
11. The amount in deposit with this Court, be paid to the
respondents - claimants with interest accrued thereon.
[ R. G. AVACHAT, J. ]
SMS
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