Karnataka High Court
The General Manager vs Accord Software & Systems Pvt Ltd on 27 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
NC: 2023:KHC:43207
MFA No. 11054 of 2012
C/W MFA No. 7592 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO.11054 OF 2012(MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.7592 OF 2012(MV)
IN MFA NO.11054/2012
BETWEEN:
ACCORD SOFTWARE & SYSTEMS PVT.LTD.,
#37, K.R. COLONY, DOMLUR LAYOUT,
BANGALORE -560 071,
REPRESENTED BY MISS C. BEENA,
ASSOCIATE MANAGER - ADMINISTRATION.
...APPELLANT
(BY SRI. INDRAN M.B., ADVOCATE FOR
SRI. RAJESH VELLAKKAT, ADVOCATE)
Digitally AND:
signed by
SOWMYA D 1. M/S ICICI LOMBARD GIC LTD.,
Location: #89, II FLOOR, SVR COMPLEX,
High Court of
Karnataka HOSUR MAIN ROAD, MADIVALA,
KORAMANGALA,
BANGALORE - 68.
2. SRI. MOHAN G.P.,
S/O PUTTASWAMY,
NO.11/1, 2ND MAIN ROAD,
CHOLURPALYA, VIJAYANAGARA,
BANGALORE - 560 023.
3. M/S SRS TRAVELS,
-2-
NC: 2023:KHC:43207
MFA No. 11054 of 2012
C/W MFA No. 7592 of 2012
K.T. RAJASHEKHAR,
NO.321/3, TSP ROAD,
OPP:BANGALORE MEDICAL COLLEGE,
KALASIPALYAM,
BANGALORE - 560 002.
4. ANTHONY D. COSTA P.,
S/O PATRIC,
NO.83/3, M.M. ROAD,
FRAZER TOWN,
BANGALORE.
5. NATIONAL INSURANCE CO.LTD.,
DIVISIONAL OFFICE-V, NO.72,
P KALINGA RAO ROAD,
BANGALORE - 27.
...RESPONDENTS
(BY SRI. BHUSHANI KUMAR, ADVOCATE FOR R3;
SMT. NANDINI M.G., ADVOCATE FOR
SMT. GEETHA RAJ, ADVOCATE FOR R5;
R1 AND R4 ARE SERVED;
VIDE ORDER DATED 13.08.2015, SERVICE OF
NOTICE IN R/O R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.6.2012 PASSED IN MVC
NO.5919/2010 THE FILE OF THE II ADDITIONAL JUDE, COURT
OF SMALL CUSES, MACT, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
IN MFA NO.7592/2012
BETWEEN:
THE GENERAL MANAGER,
M/S ICICI LOMBARD GIC LTD.,
# 89, II FLOOR, SVR COMPLEX,
HOSUR MAIN ROAD, MADIVALA,
KORAMANGALA,
-3-
NC: 2023:KHC:43207
MFA No. 11054 of 2012
C/W MFA No. 7592 of 2012
BANGALORE - 68.
...APPELLANT
(BY SRI. B. PRADEEP, ADVOCATE)
AND:
1. ACCORD SOFTWARE & SYSTEMS PVT.LTD.,
# 37, K.R. COLONY, DOMLUR LAYOUT,
BANGALORE - 560 071.
2. SRI. MOHAN G.P.,
S/O PUTTASWAMY,
NO.11/1, 2ND MAIN ROAD,
CHOLURPALYA, VIJAYANAGARA,
BANGALORE - 560 023.
3. M/S. SRS TRAVELS,
K.T. RAJASHEKHAR,
NO.321/3, TSP ROAD,
OPP:BANGALORE MEDICAL COLLEGE,
KALASIPALYAM,
BANGALORE - 560 002.
4. ANTHONY D COSTA P.,
S/O PATRIC,
NO.83/3, M.M. ROAD,
FRAZER TOWN,
BANGALORE.
5. NATIONAL INSURANCE CO.LTD.,
DIVISIONAL OFFICE-V, NO.72,
P. KALINGA RAO ROAD,
BANGALORE - 27.
...RESPONDENTS
(BY SRI. INDRAN M.B., ADVOCATE FOR
SRI. M.R. RAJESH VELLAKKAT, ADVOCATE FOR R1;
SMT. NANDINI M.G., ADVOCATE FOR
SMT. GEETHA RAJ, ADVOCATE FOR R5;R3 SERVED;
VIDE ORDER DATED 27.02.2015,
NOTICE TO R2 AND R4 IS DISPENSED WITH)
-4-
NC: 2023:KHC:43207
MFA No. 11054 of 2012
C/W MFA No. 7592 of 2012
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.6.2012 PASSED IN MVC
NO.5919/2010 THE FILE OF THE II ADDITIONAL JUDE, COURT
OF SMALL CUSES, MACT, BANGALORE, AWARDING A
COMPENSATION OF RS.46,500/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL AND
ETC.,
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed under Section 173(1) of
the Motor Vehicles Act, 1988, (in short MV Act),
challenging the judgment and award passed by the II
Additional Judge, Court of Small Causes and MACT (SCCH-
13), Bengaluru, in MVC No.5919/2010, dated 11.06.2012.
2. MFA No.7592/2012 is filed by the Insurance
Company, challenging the quantum, while MFA
No.11054/2012 is filed by the claimant seeking
enhancement.
3. The brief factual matrix leading to the case are
that on 30.07.2010 at 8.30 a.m., the driver of the car
bearing registration No.KA-01-MA-9609, was driving the
vehicle on inner ring road near TVS showroom, Dommalur,
Bengaluru. At that time, the driver of Swaraj Mazda
NC: 2023:KHC:43207
bearing registration No.KA-01-C-1820, drove it at high
speed in a rash and negligent manner came from behind
and dashed against the petitioner's car. As a result, the
vehicle bearing registration No.KA-01-MA-9609 was
damaged considerably and the claimant got repaired the
vehicle and estimate was issued to the tune of Rs.71,812/-
and he has also spent more than Rs.25,000/- for
conveyance.
4. It is also alleged that there is lot of depreciation
and the petitioner has incurred total loss of Rs.1,46,812/-
and the case was registered in Crime No.72/2010 against
the driver of Swaraj Mazda vehicle bearing registration
No.KA-01-C-1820. Hence, the claimant has filed a claim
petition under Section 166 of the Motor Vehicles Act and
claiming compensation of Rs.1,46,812/-.
5. The claim petition came to be resisted by
respondent No.3 - ICICI Lombard GIC Ltd., the insurer of
the offending Swaraj Mazda vehicle.
NC: 2023:KHC:43207
6. The Tribunal after appreciating the oral and
documentary evidence, awarded total compensation of
Rs.46,500/- with interest at the rate of 6% p.a.
7. Being aggrieved by this award, the claimant has
filed MFA No.11054/2012 for enhancement, while
Insurance Company of respondent No.3- ICICI Lombard
GIC Ltd., has filed MFA No.7592/2012 on the ground that
the compensation awarded by the Tribunal is on higher
side.
8. Heard the arguments advanced by the learned
counsel for the appellant/claimant and the learned counsel
for respondent No.3- Insurance Company. Perused the
records.
9. The main contention of the Insurance Company
is that the claimant was reimbursed the repair charges by
his Insurance Company and hence, he is not entitled for
any compensation and he places reliance on a decision
reported by this Court in 2005 ACJ 1332 in the case of
Harkhu Bai and others V/s Jiyaram and others.
NC: 2023:KHC:43207
10. Per contra, the learned counsel for the
appellant-claimant would contend that from Exs.P.10 to
12, it is evident that he has spent more than Rs.96,133/-
and the compensation awarded was a meager one and
hence, he has sought for enhancement.
11. Having heard the arguments and perusing the
records, there is no serious dispute of the fact that the
vehicle belonging to the claimant bearing registration
No.KA-01-MA-9609 met with an accident on 30.07.2010 at
8.30 a.m., when it was hit by Swaraj Mazda vehicle
bearing registration No.KA-01-C-1820, resulting in
damage to the said vehicle. The accident is not at all
disputed and the damages to the vehicle of the claimant,
is also not under serious dispute.
12. Further, Ex.P.4 is the copy of complaint and FIR
and Ex.P.8 is the charge sheet clearly disclose that the
driver of the Swaraj Mazda vehicle bearing registration
No.KA-01-C-1820 was prosecuted.
NC: 2023:KHC:43207
13. The main contention of the Insurance Company
is that the claimant has already obtained the
compensation by way of reimbursement pertaining to
repairs from his Insurer - Respondent No.5 to the tune of
Rs.31,500/- Hence, by placing reliance on a decision of
Division Bench of this Court 2005 ACJ 1332, in the case of
Harkhu Bai and others V/s Jiyaram and others, he seeks
to allow his appeal by dismissing the claim petition.
14. It is asserted that, the claimant is not entitled
for compensation as the damages from the Insurer of the
other vehicle in view of reimbursement. However, the
Division Bench of this Court in the said decision has
considered the said aspect and para No.6 is relevant which
is reproduced herewith:
"6. That leaves us with the claim in MVC No.3 of
1990. The Tribunal has rejected the said claim
on two grounds. Firstly, because no negligence
on the part of the offending vehicle is proved
and secondly, because the claimant, owner of
the vehicle, has already received from the
insurance company with which the vehicle was
insured an amount representing the loss suffered
by him. While the finding on the first of the said
NC: 2023:KHC:43207
questions has been reversed by us, we see no
reason to interfere with the view taken by the
Tribunal on the second question. It is not in
dispute that the vehicle owned by the claimant in
MVC No.3 of 1990 had suffered extensive
damage on account of the collision but it is also
admitted that the vehicle being insured with one
of the other insurance companies, the damage
was assessed and paid. The order passed by the
Tribunal further shows that the payment was
received by the claimant in full and final
settlement of his claim without any reservation
or demur. In the absence of any material to
show that the claim paid by the other insurance
company represented a part only of the total
damage, the Tribunal was justified in rejecting
the claim for any further payment. We therefore,
see no merit in the appeal filed by the owner
which shall have to be dismissed".
15. In view of the observation of the Division Bench
of this Court, it is evident that in the absence of any
material to show that the claim paid by the other
Insurance Company represented, a part only of the total
damages, the Tribunal is not justified in rejecting the
claim and hence, it is required to be paid.
16. In the instance case from the Exs.P10 to 12, it
is evident that the claimant has spent Rs.96,133/-.
- 10 -
NC: 2023:KHC:43207
However, it is evident from Ex.P.11-estimate that
Rs.27,848.18/- is pertaining to replacement of wheels and
the balancing etc., There is no evidence to show that the
wheels were damaged. The claimants are entitled for cost
of damage to the vehicle but, if he got repaired the vehicle
and got replaced the wheels, the Insurer is not liable to
pay the compensation. Hence, from Exs.P.10 to 12, it is
evident that the total cost of Rs.96,133/- and if,
Rs.27.848.18/- is deducted, in view of the fact, that it is
pertaining to wheel, balancing, servicing and replacement
of tyres etc., then the total estimated cost works out as
Rs.68,185/-. Hence, the claimant would be entitle for total
compensation of Rs.68,185/- under the damages to the
vehicle.
17. Further, the records disclose that the vehicle
met with an accident on 30.07.2010 and it was shifted to
workshop on 01.08.2010 and entire repairs were done by
11.08.2010. Hence, for 13 days the vehicle was in
workshop. The claimant has placed reliance on Ex.P.14 to
claim Rs.2,000/- per day pertaining to use of alternative
- 11 -
NC: 2023:KHC:43207
vehicle. But, however he has not produced any documents
and he has not examined author of Ex.P.14. Even the
vehicle number is not mentioned in the Ex.P.14 to show
that the particular vehicle was utilized by the claimant for
13 days. Hence, Rs.26,000/- appears to be on higher side
and considering the facts and circumstances, and denial of
use of the vehicle for 13 days by the claimant, in my
considered opinion, Rs.1,000/- per day as conveyance
charges can be awarded and it will work out to
Rs.13,000/-. If, it is considered, the claimant would be
entitled for compensation of Rs.68,185/- + Rs.13,000/-
= Rs.81,185/-. Hence, he is entitled for Rs.81,185/-
towards vehicle damages.
18. However, admittedly the Insurance Company
i.e., respondent No.5 has already reimbursed Rs.31,500/-
to the claimant. The claimant cannot get that benefit and
again claim the same against respondent No.3. As such,
Rs.31,500/- is required to be deducted and if it is
deducted, the claimant would be entitle to Rs.49,815/-,
which can be rounded up to Rs.50,000/-. The Tribunal has
- 12 -
NC: 2023:KHC:43207
awarded Rs.46,500/- and considering these aspects, the
claimant would be entitle for Rs.50,000/- as against
Rs.46,500/- awarded by the Tribunal.
19. As such, the claim petition MFA No.11054/2012
filed by the claimant needs to be allowed-in-part, while
claim petition MFA No.7592/2012 filed by respondent No.3
- Insurance Company needs to be dismissed. Accordingly,
I proceed to pass the following:
ORDER
(i) MFA No.11054/2012 is allowed-in-part.
(ii) The claimant is held entitled for total
compensation of Rs.50,000/- as
against Rs.46,500/- awarded by the
Tribunal.
(iii) The enhanced compensation of
(Rs.50,000 - Rs.46,500) = Rs.3,500/-
shall carry interest at the rate of 6%
p.a.
(iv) The entire compensation is liable to be
paid by respondent No.3 - ICICI
Lombard GIC Ltd.,
- 13 -
NC: 2023:KHC:43207
(v) Respondent No.3 - ICICI Lombard GIC
Ltd., is directed to deposit the entire
enhanced compensation with occurred
interest thereon within a period of six
weeks from the date of receipt of
certified copy of this order.
(vi) The entire enhanced compensation shall
be released in favour of claimant.
(viii) The amount in deposit made by the
Insurance Company in MFA No.7592/2012
shall be transmitted to the Tribunal for
disbursement.
Sd/-
JUDGE
MS*
CT:SNN
