Karnataka High Court

Sri. Nataraju vs Krishnalal Kudaram Sharma on 16 June, 2023

Bench: C M Joshi

                                               -1-
                                                     NC: 2023:KHC:20823
                                                       MFA No.1422 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 16TH DAY OF JUNE, 2023

                                           BEFORE
                              THE HON'BLE MR JUSTICE C M JOSHI
                    MISCELLANEOUS FIRST APPEAL NO.1422 OF 2017 (MV-DM)
                   BETWEEN:

                   1.    SRI. NATARAJU
                         S/O GANGADHARAIAH
                         AGED ABOUT 43 YEARS
                         R/A 4TH CROSS
                         GOKULA EXTENSIO
                         KYATHASANDRA
                         TUMKUR-572103
                                                               ...APPELLANT
                   (BY SRI. SHANTHARAJ K., ADVOCATE)

                   AND:

                   1.    KRISHNALAL KUDARAM SHARMA
                         S/O NOT KNOWN
Digitally signed         AGE MAJOR
by T S
NAGARATHNA               R/A NO.6/3
Location: High           GROUND FLOOR
Court of
Karnataka                KANERI, NAYAN SAGA
                         KALHER
                         BHIWANDI TALUK
                         THANNE DISTRICT
                         MAHARASTHRA STATE

                   2.    HDFC ERGO GENERAL INSURANCE COMPANY LTD.
                         REPRESENTED BY ITS MANAGER
                         THANE AT DISTRICT
                         MAHARASHTRA STATE
                                 -2-
                                        NC: 2023:KHC:20823
                                            MFA No.1422 of 2017




    SERIVE ADDRESS:
    HDFC ERGO GENERAL INSURANCE COMPANY
    B H ROAD
    TUMKUR-572101
                                     ...RESPONDENTS
(BY SRI. H S LINGARAJ FOR R2., ADVOCATE)

     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED.18/03/2015 PASSED IN MVC
NO.264/2012 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE AND MACT, TUMKUR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                        JUDGMENT

Heard learned counsel for the appellant and the learned

counsel for the respondent.

2. The appellant being aggrieved by the judgment and

award dated 18th March, 2015 passed in MVC No. 204 of 2012

by the learned II Additional Senior Civil Judge and Motor

Accident Claims Tribunal, Tumakuru, (for short, hereinafter

referred to as "Tribunal"), is before this Court in this appeal.

3. The appellant contended that on 19th September,

2011 he was driving his Maruti Wagon-R car from Bangalore to

Tumakuru and at 9.00 pm when he reached near Hosanijagal

Gate, a Canter lorry bearing registration No.MH 04 DK 5126

NC: 2023:KHC:20823 MFA No.1422 of 2017

came from behind in a rash and negligent manner and dashed

against the vehicle of the appellant causing accident and the

vehicle of the appellant/petitioner had sustained damages as

below:

1. Bonnet damaged at left side;

2. Left Head light indicators damaged;

3. Left fender front door damaged;

4. Wind screen glass broken;

5. top roof damaged at front;

6. Dash board damaged.

4. After the police inspection, the vehicle was towed to

the service centre and the Engineer estimated the cost and

caused repairs; and it took about three months for repair of the

car and the repair charges was to an extent of Rs.1,00,005/-.

It is contended that the appellant/petitioner had to hire another

car for his day-to-day work and paid Rs.30,000/- as hiring

charges and therefore, claimed a sum of Rs.1,30,005/- from

the respondent as damages.

5. On issuance of notice, respondents appeared through

their counsel and respondent No.1 alone filed written

statement. In the written statement it was contended that the

NC: 2023:KHC:20823 MFA No.1422 of 2017

alleged damages to the vehicle are to be established by the

appellant and there was no such damage as claimed by the

petitioner. It was contended that the respondent No.2-

Insurance Company is liable only if there is no violation of

terms and conditions of policy and after ascertaining the same,

the liability may be considered. It was also contended that the

damages claimed by the appellant/petitioner was highly

exorbitant, imaginary and untenable.

6. On the basis of pleadings, necessary issues were

framed by the Tribunal and the appellant was examined as PW1

and documents were marked as Exhibits P1 to P7. The Official

of the respondent No.2-Insurance Company was examined as

RW1 and copy of the policy issued by respondent No.2-

Insurance Company was marked as Exhibit R1. After hearing

both sides, the Tribunal came to the conclusion that the

appellant/petitioner is entitled for a sum of Rs.25,000/- and

proceeded to pass the impugned judgment. Aggrieved by the

same, the appellant/petitioner is before this court in this

appeal.

NC: 2023:KHC:20823 MFA No.1422 of 2017

7. Records of Tribunal have been secured and arguments

of both sides are heard. The short point that emerge from the

contentions of both sides is, whether the Tribunal is justified in

reducing the claim of the appellant/petitioner even though the

bills indicated that the repairs to the extent of Rs.1,00,005/-

were carried out to the vehicle?

8. The learned counsel for the appellant contends that

though there are bills which are produced and the evidence of

the official of the service centre is placed before the Tribunal,

the Tribunal is not justified in reducing the compensation

amount to Rs.25,000/-. He further contends that the

respondent No.2-Insurance Company has not denied the

repairs and therefore, it is liable to pay the amount.

9. Per contra, learned counsel appearing for the

respondent No.2-Insurance Company submits that the

appellant/petitioner has got done repairs in respect of several

other damages which were not sustained in the accident. He

contends that respondent No.2 is liable only to the damages

which were caused in the accident in question and therefore,

the Tribunal is justified in referring to the Motor Vehicle

NC: 2023:KHC:20823 MFA No.1422 of 2017

Inspection report and to grant the repairs done only in respect

of such damages. Therefore, he contends that the

compensation awarded by the Tribunal is proper.

10. On careful perusal of the evidence available on

record, it is evident that the appellant has not produced

estimate of the repairs required for the damages sustained in

the accident. It is relevant to note that the cross-examination

of PW2 discloses that repairs were carried out extensively but

the expenses of the repairs in respect of damages sustained, as

mentioned in the Motor Vehicle Inspection report would come

to Rs.14,602/- This evidence shows that the Tribunal has

considered the damages which are mentioned in the motor

vehicle inspection report. No fault can be found with the said

procedure adopted by the Tribunal in the absence of any

estimate of the repairs by the Surveyor before the repairs were

effected to the vehicle. It is relevant to note that whenever

there is damage to the vehicle, the authorised Surveyor would

estimate the damages and then repairs would be carried out

and thereafter the actual repair charges would be considered

for payment. Obviously, there is no such assessment of

damages by the Surveyor. Therefore, the Tribunal was right in

NC: 2023:KHC:20823 MFA No.1422 of 2017

falling back on the motor vehicle inspection report. It is

pertinent to note that cross-examination of PW2 which

accounted for repairs of Rs.14,602/- did not include the labour

charges. It is also relevant to note that the petitioner had

claimed that for three months he could not use the vehicle and

therefore, he is entitled for hiring of another car. The appellant

has not produced any document in respect of hiring charges of

taxi. It is also to be noted that in view of the extensive repairs

which were carried out to the vehicle, the petitioner could not

use the vehicle for three months. Therefore, the Tribunal,

while assessing the damages, had to undertake a guess work

and then arrive at an appropriate compensation, but no such

effort was made. In the considered opinion of this Court, it

would be just and proper to hold that the damages which

occurred to the vehicle in the accident could have been

repaired within ten days. Considering all these aspects, it

would be proper to award sum of Rs.10,000/- in addition to

what has been awarded by the Tribunal. Therefore, the appeal

deserves to be allowed in part. Consequently, I pass the

following:

NC: 2023:KHC:20823 MFA No.1422 of 2017

ORDER

1. Appeal is allowed in part;

2. In addition to what has been awarded by the Tribunal, a sum of Rs.10,000/- is awarded to the appellant;

3. The respondent No.2-Insurance Company is directed to deposit the compensation within four weeks along with interest at the rate of 6% per annum from the date of claim petition till deposit, excluding the interest for the delayed period of 604 days in preferring the appeal.