Mr B M Sanjeeva Rao vs Mohammad
2022 Latest Caselaw 1885 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 7TH DAY OF FEBRUARY, 2022

                          BEFORE

       THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

 MISCELLANEOUS FIRST APPEAL NO.6082 OF 2010 (MV)

BETWEEN:

       MR. B. M. SANJEEVA RAO
       AGED 82 YEARS,
       S/O. LATE MARIYAPPAYYA,
       REPRESENTED BY HIS GPA HOLDER,
       VASANTH ANCHAN,
       S/O. LATE NARAYANA BANGERA,
       AGED ABOUT 41 YEARS,
       MANGALA, ARYA SAMAJ ROAD,
       BALMATTA,
       MANGALURU-575 001.
                                              ... APPELLANT
       (BY SRI K. RANJAN KUMAR, ADV.)

AND:

1.     MOHAMMAD
       S/O. PALLI BEARY,
       KUDDU PADAVU, KEPU VILLAGE,
       ADYANADKA PO,
       BANTWAL TALUK.

2.     THE NATIONAL INSURANCE COMPANY LTD.
       1ST FLOOR, SHANKAR BUILDING,
       MOSQUE ROAD, UDUPI,
       REPRESENTED BY ITS MANAGER.
                                         ... RESPONDENTS
       (BY SRI A.N. KRISHNASWAMY, ADV., FOR R-2;
           NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER
           DATED 12-11-2013)
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 22-1-2010 PASSED IN M.V.C.
NO.1486 OF 2003 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE & MACT, DAKSHINA KANNADA, MANGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:


                    JUDGMENT

This appeal is at the instance of the claimant

seeking enhancement of the compensation awarded for

the damages suffered to the vehicle of the claimant in a

motor vehicle accident which took place on 13-11-2002

by judgment and award dated 22-1-2010 in M.V.C.

No.1486 of 2003 passed by the Principal District Judge

and Motor Accident Claims Tribunal, Dakshina Kannada,

Mangaluru.

2. The allegation in the claim petition is that, on

13-11-2002, the claimant was traveling in Hyundai Accent

car bearing Registration No.KA-19 N-5279 and at about

3:30 p.m., near Kuddu Padavu of Kepu Village, a goods

vehicle bearing Registration No.KA-19-7828 came from

opposite direction in a rash and negligent manner and

also on the wrong side and dashed against the car

resulting in damages to the same.

3. Before the Tribunal, the owner of the offending

vehicle remained ex-parte. Insurance Company contested

the proceedings by filing written statement.

4. During trial, the claimant examined himself as

P.W.1 and he examined a Surveyor as P.W.2 and son of

the previous owner of the car and also partner of Standard

Automobiles as P.W.3 and marked Exs.P.1 to P.20. The

respondents did not examine any witness and insurance

policy was marked as Ex.R.1.

5. After hearing the learned counsel on both sides

and perusing the records, the Tribunal allowed the claim

petition in part and awarded compensation of Rs.35,950/-

with interest thereon at 6% per annum from the date of

petition till its realisation.

6. Learned counsel for the appellant-claimant

submits that as per Ex.P.9-insurance policy of the car

issued by the insurer of Hyundai Accent car, it was worth

Rs.4,75,000/- and when he made claim seeking damages

against the insurance policy, he was paid only

Rs.1.00 lakh and by selling the car, he could realise

Rs.2.00 lakh and therefore, he is entitled to receive

damages of Rs.1.75 lakh from the respondent-Insurance

Company. He further contended that the Tribunal has

awarded compensation at a very low sum of Rs.35,950/-

and he is entitled to award of balance amount and appeal

is required to be allowed.

7. Learned counsel for the respondent-Insurance

Company submits that the Tribunal on elaborate

consideration of facts and circumstances and evidence let-

in in the case has come to the correct conclusion and

damages awarded at Rs.35,950/- is just and reasonable

and therefore, there is no merit in the appeal and it is

liable to be dismissed.

8. I have given my anxious consideration to the

submissions made by the learned counsel on both sides

and perused the records.

9. It is no doubt true that in Ex.P.9, insured value

of Hyundai Accent car of the claimant shown is

Rs.4,75,000/-. It is not in dispute that after the accident,

a Surveyor, namely P.W.2, was commissioned and he has

assessed the expenses for repairing the car at

Rs.3,35,947.08/-. His report is at Ex.P.12. Insurance

Company of the car has paid Rs.1.00 lakh and the said

fact has been admitted by the claimant before the

Tribunal. He has also realised Rs.2.00 lakh by selling the

car in as is where is basis to a willing purchaser.

Therefore, he has suffered loss of only Rs.35,950/-

insofar as the cost of repairing the car is concerned. If the

claimant has sold the car at a lesser price than what it

would have actually fetched, he has done so at his own

peril and he cannot mulct the same as against the

respondent-Insurance Company. The Tribunal having

regard to the facts and circumstances, and in my opinion

correctly, has awarded Rs.35,950/- and therefore, the said

finding being based on application of the correct principles

of law is not liable to be interfered with. Therefore, there

is no merit in the appeal and it is liable to be dismissed.

10. Accordingly, the appeal is dismissed.

Transmit the records to the Tribunal, forthwith.

Sd/-

JUDGE

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