Delhi High Court
Vinod Kumar vs Tata Aig General Insurance ... on 1 July, 2013
Author: Suresh Kait
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:1st July, 2013
+ MAC.APP. 486/2007
VINOD KUMAR ..... Appellant
Through: Mr.J.M.Kalia, Advocate.
Versus
TATA AIG GENERAL INSURANCE CO.LTD. & ANR.
..... Respondents
Through: Mr. Sanjeev Ranjan for Mrs.Shantha Devi
Raman, Advocate for Respondent
No.1/Insurance Company.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the instant appeal, the appellant is seeking enhancement of the
compensation awarded by the learned Tribunal vide impugned award dated
02.02.2007, whereby the learned Tribunal has granted compensation in
favour of the appellant as under:-
" Spare parts : Rs. 4,100/-
Labour Charges etc. : Rs. 8,745/-
Mental suffering : Rs.10,000/-
Total Compensation : Rs.22,845/-"
2. Case of the appellant before the learned Tribunal was that on
06.12.2004 at about 12.30 or so in the night one Santro Car bearing No. DL-
2CH-7770 parked in the parking lot caught fire accidentally. The local
police and Delhi Fire Services were informed. However, till fire was
extinguished by the fire officials, Maruti Car of the appellant also caught fire
as same was parked in the same parking adjacent to the Santro Car. As a
result of fire, the front and left side of the Maruti Car was completely burnt
damaging the left door, bonnet, engine, AC and front door along with
respective accessories.
3. Learned counsel appearing on behalf of the appellant submits that the
learned Tribunal in para 11 has recorded as under:-
"11. Petitioner has examined PW3 Shri Aftab who has proved
two bills bearing Serial No.1699 and 889 which are ExPW3/1
and ExPW3/2. These bills are in respect of repair carried out
in the vehicle of petitioner. Bill Ex.PW3/1 is for the sum of
Rs.4030/- for the spare parts used and bill ExPW3/2 is for
Rs.18,745/- but witness has not brought receipt of the bills
which could have shown whether the amount was paid by
petitioner or not or whether entire amount was paid by
petitioner or not. Petitioner has also appeared in evidence as
PW4 and has reiterated the allegations made in the petition.
Petitioner has been cross-examined at length by Ld counsel for
the insurance company. No evidence has been led by the
insurance company in order to rebut the claim of petitioner. In
the absence of any evidence in rebuttal by the insurance
company I am of the opinion that testimony of petitioner
witnesses being uncontroverted and unchallenged is to be
accepted. However considering the bill ExPW3/2 wherein the
labour charges of Rs15,000/- are mentioned, it appears to be
highly excessive and not appropriate. Because as per the case
of PW3 itself the spare parts was to the tune of Rs.4030/- and
for that spare parts it is not possible to imagine that labour
charges of Rs15,000/- would have been charged. Hence I allow
Rs.4030/- (rounded figure Rs4100/-) for the amount of spare
parts and cost of Rs5,000/- for labour charges. Therefore as
per ExPW3/2 petitioner is allowed Rs.8745/-instead of
Rs.18745/-. For general damages ie for mental suffering which
petitioner might have suffered due to non availability of vehicle
and for repairing of vehicle a sum of Rs.10,000/- is awarded to
petitioner."
4. Learned counsel submits that Ex.PW4/4 is the duplicate receipt dated
21.08.2006, wherein it is indicated that vide Cheque No.620039 dated
11.03.2005 a payment of Rs.22,500/- has been made in favour of Shalimar
Automobiles Pvt. Ltd., C-91/9, Ashok Vihar Crossing, Delhi-110052 by
Mr. Vinod Kumar Askaran Das/appellant. Photocopy of the pass book of
the appellant's bank account bearing No.9183 maintained with Union Bank
of India shows that the amount of Rs.22,500/- has been debited from his
account on 14.03.2005.
5. He submits that out of the total amount of Rs.18,745/-, the learned
Tribunal has granted only Rs.8,745/- which is less amount as claimed by the
appellant.
6. Learned counsel further submits that the battery of the vehicle was
also changed vide bill dated 28.03.2005 Ex.PW4/2, however, no amount has
been granted by the learned Tribunal for the same.
7. Learned counsel appearing on behalf of the respondent
No.1/Insurance Company has drawn the attention of this Court to para 12 of
the impugned award wherein the learned Tribunal has recorded as under:-
"12. Petitioner has also placed on record the bill ExPW4/2 for
the sum of Rs1650/- which is for the battery of the car. The bill
is dated 28.3.05. But the same is not allowed to petitioner as in
cross examination PW3 has stated that there was no effect on
the engine and its parts. Therefore the battery was not
damaged due to the fire. Hence this amount cannot be allowed
to petitioner."
8. The learned Tribunal has recorded in para 10 that in evidence the
appellant has stated that his Maruti car bearing No.DL-3CC-0972 caught fire
because of the fire of Santro Car bearing No.DL-2CH-7770 which was
parked near the vehicle of appellant. The appellant has examined PW1 who
has stated that fire could have been caught due to the short circuit. But short
circuit could not have been possible in the Santro Car as the same was
parked in its ignition off. No cause of fire has been explained or proved by
the parties. But it is admitted fact that the Santro Car was completely
damaged due to fire which was caught by the car of appellant which was
parked near Santro Car as noted above.
9. In view of the above, the learned Tribunal has opined that Maruti car
of appellant bearing No.DL-3CC-0972 got damaged in the fire due to fire
arising in the Santro Car.
10. The learned Tribunal has further recorded that the appellant had
examined PW3 Shri Aftab who has proved two bills bearing Serial Nos.1699
and 889 which are Exs.PW3/1 and PW3/2. These bills are in respect of
repair carried out in the vehicle of appellant. Bill Ex.PW3/1 is for
Rs.4,030/- for the spare parts used and bill Ex.PW3/2 is for Rs.18,745/- but
the witness has not brought receipt of the bills which could have shown
whether the amount was paid by the appellant or not or whether entire
amount was paid by the appellant or not. The counsel for the appellant has
referred receipt of payment made to the Automobile Company, as noted
above. Moreover, he has referred the photocopy of the pass book which
shows that an amount of Rs.22,500/- has been debited from his account.
11. In view of the above, I am of the opinion that the learned Tribunal has
granted a less amount, i.e., Rs.10,000/- from the total amount of Rs.18,745/-
paid by the appellant to the Automobile Company.
12. As the charges of battery are concerned, the appellant has only made a
bald statement but has not produced any proof qua the fact that battery was
damaged in the incident in question. When the engine of the car has not
been damaged then the battery, an adjoining part thereof cannot be affected.
Therefore, the learned Tribunal has rightly opined that it cannot be said that
the battery was also got damaged. So, in my view the learned Tribunal has
rightly not granted any compensation qua the replacement of the battery.
13. In view of the above discussion, I enhance the compensation amount
by Rs.10,000/-, which comes to Rs.22,845/- + Rs.10,000/- = Rs.32,845/-.
14. The appellant is also entitled to interest at the rate of Rs.6 per cent on
the enhanced amount of Rs.10,000/- from the date of filing of the petition,
i.e., 22.07.2005 till its realization. In addition, the respondent
No.1/Insurance Company shall pay Rs.5,000/- as litigation charges to the
appellant.
15. Accordingly, the Insurance Company is directed to pay the enhanced
amount as directed by this Court in above para within four weeks from
today, failing which the appellant shall be entitled to interest at the rate of
12% p.a. on the delayed payment.
16. The instant appeal is allowed on above terms.
SURESH KAIT, J.
JULY 01, 2013/sb
