Oriental Insurance Co. vs K.P. Kapur And Ors.
1996 Latest Caselaw 989 Del

JUDGMENT

Usha Mehra, J.

1. The appellant Oriental Insurance Company Ltd. has assailed the order of Motor Accident Claims Tribunal (in short the Tribunal) on two counts - (i) that the respondent had received compensation from the New India Assurance Company for the loss of his car, therefore, he cannot be allowed to be doubly enriched by also claiming compensation for the damage of that car under the Motor Vehicles Act (in short the Act), Secondly, there was no evidence that the car was a total loss.

2. In order to appreciate the challenge on these counts, lets examine the relevant facts, those are that the respondent Mr. K.P. Kapur, an Advocate by profession parked his car on 2nd September, 1981 at about 7 or 8 a.m. at Abdul Aziz Road near his residence. A DTC bus driven by respondent No. 1 came in a fast speed driven rashly and negligently. The bus came from the side of Arya Samaj Road and struck against the stationary car of the respondent. The impact was so severe that the car of, the respondent was completely damaged. It was declared a total loss and un reliable by M/s. Mahajan Motors. According to respondent, this car was newly purchased by him in 1976. The market value of the car as on the date of the accident was not less than Rs. 60,000/-. He lodged a claim with the New India Assurance Company with which this car was insured. Since the car was a total loss hence he was paid Rs. 36,000/- i.e. the amount for which the car was assured.

3. That the Tribunal examined the evidence and documents placed on record and in particular the evidence of PW-1 wherein he testified that the bus was at a fast speed driven rashly and negligently. The driver of the bus could not bring the bus straight by moving the steering of the bus towards its right side. Asa result it suddenly dashed into his parked car and the car was totally smashed. The respondent did not lead any evidence, therefore, relying on the evidence available on record, the Tribunal concluded that the accident was caused due to rash and negligent driving by the driver of the bus bearing No. DLP-3556. In arriving at this conclusion the Tribunal drew the inference that as the car was totally damaged it shows that the offending bus was being driven at a very fast speed. There was nothing on record by which the testimony of PW-1 could be disbelieved. Hence, issue No. l was decided in favour of the claimant. There is no much challenge to this finding of the Tribunal in this appeal.

4. Having held mat the accident was caused due to the negligence of the offending bus being driven by its driver in a reckless manner, the question which arose for consideration was, whether the car was a total loss or not? On this point no issue was raised before the Tribunal. The facts were admitted that the car was completely smashed and it became un reliable . So much so the testimony of Mr. Kapur that the car was completely damaged and it was a complete loss and un reliable remained un assailed on record. His statement that the car was declared a total loss by M/s. Mahajan Motors was not challenged. Moreover the fact that because of the total loss the New India Assurance Company Ltd. with which this car was insured paid Rs. 36,000/- to Mr. Kapur fully proves that the car was a total loss due to this accident. Hence the finding of the Tribunal that the car was a total loss being based on cogent evidence cannot be interfered.

5. As regards the contention of Mr. Kishore Rawat that even if it was a total loss, the salvage value has to be deducted. I am afraid this argument is of no substance because this issue was not raised before the Tribunal nor the claimant had been given any opportunity to rebut the same. He cannot be taken by surprise with this new argument at appellate stage.

6. Regarding deduction of Rs. 36,000/- received by the respondent from his Insurance Company on the ground of double enrichment, this argument has no force. Mr. K.P. Kapur rightly contended that this amount could not be deducted on the basis of the settled law, as referred to in Chapter 10 of "The Quantum of Damages by Kemp & Kemp - 1986 Edition" which has referred to the judgments under the English Law that "completely collateral matters cannot be invoked by a tort feas or to reduce the damages payable to the victim of his tort". The following passage from Para 10-002 which refers to case law is reproduced as under:

In an action for injuries caused by defendants' negligence a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages". This is the headnote to Bradburn v. Great Western Ry. and in our view correctly summarises the effect of this case. Two passages from the judgments in this case contain the ratio decidendi. Bramwell B. said:

In Dalby v. India and London Life Assurance Company, it was decided that one who pays premiums for the purpose of insuring himself, pays on the footing that his right to be compensated when the event insured against happens is an equivalent for the premiums he has paid; it is a quid pro quo, larger if he gets it, on the chance that he will never get it at all. That decision is an authority bearing on the present case, for the principle laid down in it applies, and shows that the plaintiff is entitled to retain the benefit which he has paid for in addition to the damages which he recovers on account of the defendants' negligence.

And Pigott B. said:

The plaintiff is entitled to recover the damages caused to him by the negligence of the defendants and there is no reason or justice in setting off what the plaintiff has entitled himself to under a contract with third persons, by which he has bargained for the payment of a sum of money in the event of an accident happening to him. He does not receive that sum of money because of the accident, but because he has made a contract providing for the contingency; an accident must occur to entitle him to it, but it is not the accident, but his contract, which is the cause of his receiving it.

(Emphasis supplied)

Similar point came up before this Court in the case of Dr. A.C, Mehra v. Shri Behari Lal and Am. F.A.O. No. 138/80 decided on 1st November, 1996. This Court took the view that no deduction on account of having received any amount from the Insurance Company under a third party account can be allowed. There is no reason or justification in setting off what the appellant being entitled to receive under his contract with his Insurance Company i.e., a third party. He had bargained for the payment of a sum of money in the event of accident happening and his car being damaged. Appellant insured his car with the Insurance Company And bargained for the payment of a sum of money on the clear stipulation that in the event of accident happening to his car he would be reimbursed. He did not receive the amount of Rs. 36,000/- from his Insurance Company because of this accident but because of the contract entered into by him with his Insurance Company. The pre-condition was the happening of an accident. The said Insurance Company on the happening of the accident was to reimburse him for the damage of his car. Therefore, it cannot be said that by claiming damages under the Act because of the rash and negligent driving of the driver of the DTC bus and due to the damage of his car he would be debarred from claiming compensation under the Act, nor claiming such a compensation under the Act would amount to unjust enrichment. I find no merits in the appeal of the appellant on this count also.

In the circumstances explained above, the appeal of the appellant fails. The same is accordingly dismissed