Karnataka High Court
The New India Assurance Company ... vs Sri B.P Eshwarappa on 23 May, 2023
Bench: Hanchate Sanjeevkumar
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MFA No. 5330 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 5330 OF 2014 (MV-DM)
BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LTD.,
PREMA COMPLEX
B.H.ROAD,
BHADRAVATHI - 577 301
REPRESENTED BY
THE MANAGER-MOTOR TP HUB
THE NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
MAHALAKSHMI CHAMBERS
NO.9, M.G.ROAD,
BANGALORE - 560 001.
...APPELLANT
(BY SRI. C.R. RAVISHANKAR, ADVOCATE)
Digitally signed
AND:
by PAVITHRA B
Location: HIGH 1. SRI. B.P. ESHWARAPPA,
COURT OF
KARNATAKA S/O SRI. RUDRAPPA
AGED ABOUT 49 YEARS,
RESIDING AT:AMRUTHAPURA VILLAGE,
TARIKERE TALUK - 577 301.
BY
GPA HOLDER
SRI.SRINIVASA
S/O LATE RANGAPPA,
AGED ABOUT 27 YEARS,
RESIDING AT
KODIHALLI VILLAGE,
BHADRAVATHI TALUK - 577 301.
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MFA No. 5330 of 2014
2. SRI.K.SURESHA
S/O KEMPAIAH
AGED ABOUT 32 YEARS,
RESIDING AT
HOUSE NO.6/196
PAPER TOWN,
BHADRAVATHI - 577 302
3. SRI C.SHESHAPPA
S/O SHIVANNA
MAJOR
RESIDING AT
9TH CORSS, B.H.ROAD,
BHADRAVATHI - 577 302.
4. THE ORIENTAL INSURANCE
COMPANY LTD
BRANCH OFFICE
CHICKMAGALUR - 577 101
REPRESENTED BY
THE BRANCH MANAGER
...RESPONDENTS
(BY SRI. N. GOPALA KRISHNA ADVOCATE FOR R1; R2 NOTICE
D/W V/O DATED:04.03.2016; R3- NOTICE D/W V/O DATED
23.05.2023; SRI. H C VRUSHABHENDRAIAH, ADVOCATE FOR
R4)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED10.3.2014 PASSED IN MVC
NO.49/2012 ON THE FILE OF THE C/c.PRINCIPAL SENIOR CIVIL
JUDGE, JMFC, ADDITIONAL MACT-11, BHADRAVATHI,
AWARDING A COMPENSATION OF RS.1,86,950/- WITH
INTEREST @ 6% P.A FROM THE DATE OF THE PETITION TO
TILL ITS COMPLETE PAYMENT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 5330 of 2014
JUDGMENT
This appeal is filed under Section-173(1) of the Motor
Vehicles Act 1988 (hereinafter referred to as 'MV Act' for
brevity) by the appellant-insurance company, calling in
question the judgment and award dated 10.03.2014,
passed in M.V.C.No.49/2012, on the file of the Principal
Senior Civil Judge And JMFC And Additional MACT-11 at
Bhadravathi (hereinafter referred to as 'the Tribunal' for
brevity).
Brief facts:
2. On 29.12.2008, at about 10.00 p.m., when the
claimant was travelling in his Maruthi Omni driven by the
driver along with others, near Baranduru Village on
N.H.206, the driver of the lorry bearing No.CNT-7547
came in rash and negligent manner and hit the vehicle of
the claimant. As a result, the claimant sustained injuries
as well as the Maruthi Omni Car in which they were
travelling was damaged.
MFA No. 5330 of 2014
3. Hence, a claim petition was filed by the under
Section-166 of M.V. Act, claiming compensation for the
vehicle damage in the road traffic accident. The Tribunal
on appreciating the materials on record, allowed the claim
petition in part, and awarded a compensation of
Rs.1,86,950/-, along with interest at 6% per annum, from
the date of petition till the date of realisation. The Tribunal
held respondent Nos.1 to 3 therein, liable to pay the
compensation.
4. Heard arguments of the learned counsel for the
parties and perused the materials on record.
5. The learned counsel for insurance company
submitted that the Tribunal committed error in granting
compensation only on the basis of Exhibit-P9 estimation
bill. Exhibit-P9 is the only document relied on by the
claimant but it is not for having paid cost towards repair.
Therefore, only on the basis of the estimation of the
MFA No. 5330 of 2014
repair, the Tribunal has granted compensation which is not
correct.
6. Further, submitted that the claim petition was
filed by the General Power of Attorney Holder (hereinafter
referred to as GPA Holder for brevity) and not by the
claimant himself. Hence, submitted that the petition is not
maintainable. Therefore, prays to allow the appeal and
set-aside the impugned judgment and award passed by
the Tribunal.
7. On the other hand, the learned counsel for the
claimant submitted that the claim petition filed by the GPA
Holder is maintainable. Further, submitted that the
Tribunal has correctly passed the judgment and award.
Hence, justified the judgment and award passed by the
Tribunal and hence prays to dismiss the appeal filed by the
insurance company.
8. The claim petition is filed by GPA holder and
evidence can also be led on behalf of the claimant, on
MFA No. 5330 of 2014
behalf of the owner of the vehicle by the GPA holder.
Therefore, just because the claim is filed through GPA
holder and contested by the GPA is not a ground to say
that the claim petition is not maintainable. Therefore, the
claim petition filed is valid, in the absence of non-
competency of GPA holder. Therefore, the claim petition
filed by the GPA holder of the owner of the vehicle is very
much maintainable.
9. The Tribunal has granted damages of
Rs.1,86,950/- only on the basis of the Estimation Bill at
Exhibit-P9. The Tribunal has committed error in relying
Exhibit-P9 only. Exhibit-P9 is the estimation report that
such and such amount is required for repair, but is not the
receipt for having received charges for carrying out the
repair work and receiving the amount of labour costs.
Granting damages on the basis of the estimation report is
not correct approach by the Tribunal.
MFA No. 5330 of 2014
10. The claimant has not produced survey report,
photographs, repair cost and receipt for having paid repair
cost etc. Therefore, in the absence of these evidences on
record granting compensation only on the basis of the
estimation is not correct.
11. At this stage, the learned counsel for the
respondent-claimant submitted that if the case is
remanded to the Tribunal then the claimant would produce
necessary documentary evidence to prove that the repair
is made. Therefore prays to remand the case to the
Tribunal.
12. Considering the request made by the
respondent-claimant and in order to give one more chance
to the claimant to produce the evidence in this regard, the
matter is remanded to the Tribunal for fresh consideration.
Whatever observations are made above are only for the
purpose for what reason the remand is necessary and that
MFA No. 5330 of 2014
cannot be construed as discussion on merits involved in
the case. Therefore, the matter is remanded to the
Tribunal for fresh consideration and the parties are given
liberty to adduce any further evidence either oral or
documentary evidence, if the parties are so advised. All
the contentions are left open.
13. Since at the instance of the claimants only the
matter is required to be remanded, therefore, the claimant
is entitled for interest at 6% per annum, after three
months from filing the date of filing of the appeal till
today. Therefore the appeal is allowed in part.
ORDER
i. The appeal is Allowed and Remanded.
ii. The impugned judgment and award the
judgment and award dated 10.03.2014, passed
in M.V.C.No.49/2012, on the file of the Principal
Senior Civil Judge And JMFC And Additional
MACT-11 at Bhadravathi is set-aside.
MFA No. 5330 of 2014
iii. The matter is remanded to the Tribunal. The
parties shall appear before the Tribunal on
26.06.2023, without expecting any further
notice in this regard. The Tribunal shall consider
the matter afresh in accordance with law and
shall dispose off the matter within Four Months
thereafter.
iv. The parties are at liberty to adduce further
evidence and file additional material if so
advised.
v. The claimant is not entitled for interest after
three months from the date of filing of the
appeal till today.
vi. The amount in deposit by the Insurance
company shall be refunded to the Insurance
company forthwith.
vii. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
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MFA No. 5330 of 2014
copy of the order passed by this Court forthwith
without any delay.
viii. No order as to costs.
Sd/-
JUDGE
JJ
