Karnataka High Court
Sri Kumarvel Janakiram vs The National Insurance Company Ltd on 22 April, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:15862
MFA No. 5788 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO.5788 OF 2013
(MV-DM)
BETWEEN:
SRI. KUMARVEL JANAKIRAM
S/O SRI. T.S.JANAKIRAM,
AGED ABOUT 38 YEARS,
RESIDING AT NO. 99/2,
II MAIN ROAD, SESHADRIPURAM,
BANGALORE-560 020.
...APPELLANT
(BY SRI. B.V.KRISHNA., ADVOCATE FOR
SRI. PRASHANTH CHANDRA.S.N., ADVOCATE)
AND:
1. THE NATIONAL INSURANCE COMPANY LTD.,
CHENNAI, D.O.IV, 2ND FLOOR,
169, ANNAI SALAI, CHENNAI-600 002(T.N.).
Digitally signed by 2. M/S GVR CONSTRUCTIONS PVT. LTD.,
PREMCHANDRA M R
Location: HIGH ANDAL KRUPA, NO. 416,
COURT OF
KARNATAKA
1ST FLOOR, 3RD MAIN,
12TH CROSS, SADASHIVANAGAR,
BANGALORE-560 080.
3. M/S ROYAL SUNDARAM ALLIANCE
INSURANCE COMPANY,
SUNDARAM TOWERS,
46, WHITES ROAD, ROYAPETTAH,
CHENNAI-600 014.
...RESPONDENTS
(BY SRI. A.N.KRISHNA SWAMY., ADVOCATE FOR R1;
R2-SERVED AND UNREPRESENTED;
SRI. RAVI.S.SAMPRATHI., ADVOCATE FOR R3)
-2-
NC: 2024:KHC:15862
MFA No. 5788 of 2013
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, ACT
AGAINST THE JUDGMENT AND AWARD DATED:01.02.2013
PASSED IN MVC NO.7260/2010 ON THE FILE OF THE XXI
ADDITIONAL SMALL CAUSES JUDGE, XIX ACMM, MEMBER,
MACT, BANGALORE.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
Sri.B.V.Krishna., learned counsel on behalf of
Sri.Prashanth Chandra.S.N., for the appellant has appeared
through video conferencing.
Sri.A.N.Krishnaswamy., learned counsel for respondent
No.1 and Sri.Ravi S.Samprathi., learned counsel for respondent
No.3 have appeared in person.
Notice to the respondents was ordered on 31.01.2014. A
perusal of the office note depicts that respondent No.2 is
served and unrepresented. It has neither engaged the services
of an advocate nor conducted the case as party in person.
2. For the sake of convenience, the parties are
referred to as per their status and rankings before the Tribunal.
NC: 2024:KHC:15862
3. The brief facts are these:
The claimant contended that on 12.05.2009 at about
9:30 am., his father was driving a Maruthi Omni Van bearing
Registration No.KA-53-N-5346 along with his relative P.Prakash
towards Narayana Hrudayalaya for medical check up. When
they reached near old Chandapura Circle on Hosur Road, he
slowed down the vehicle to take U-turn. At that time, a driver
of a Mahindra Maxi Pick-up vehicle bearing Registration No.KA-
04-B-9516 came in a rash and negligent manner and hit the
Maruthi Omni Van and caused the accident. Due to the impact,
the Maruthi Omni Van was damaged which could not be
repaired. It is contended that due to the damage of the Maruthi
Omni Van he was constrained to purchase a new Car.
Contending that he is entitled for compensation for damaged
property, the claimant filed a Claim Petition.
In response to the notice, the second respondent
remained absent before the Tribunal and hence, it was placed
ex-parte. The first and third respondents appeared through
their counsel and filed separate written statement denying the
petition averments. Among other grounds, they prayed for
dismissal of the Claim Petition.
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Based on the above pleadings, the Tribunal framed
issues, parties led evidence and marked the documents. The
Tribunal vide Judgment dated:01.02.2013 dismissed the Claim
Petition as not maintainable. The claimant has assailed the
Judgment of the Tribunal in this appeal on several grounds as
set-out in the Memorandum of appeal.
4. Learned counsel for the respective parties have
urged several contentions.
Sri.B.V.Krishna., learned counsel for the claimant submits
that the Judgment of the Tribunal is contrary to the evidence
on record and law.
Next, he submits that the Tribunal has erred in coming to
conclusion that the claim having already been settled with the
claimant's insurer, the present claim is duplicated.
A further submission is made that the due to the damage
of the Car, the claimant was put to inconvenience and he was
forced to use alternate vehicle.
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Learned counsel vehemently contended in view of
tortuous liability, the Insurance Company is liable to pay the
compensation.
Lastly, he submits that viewed from any angle, the
Judgment of the Tribunal is untenable. Counsel therefore,
submits that the appeal may be allowed.
To substantiate the contention, learned counsel for the
claimant placed reliance on the decision in R.P.ZUBER VS.
BASAVARAJAPPA AND ANOTHER reported in ILR 2015
KAR 4533.
Learned counsel Sri.A.N.Krishnaswamy., and Sri.Ravi
S.Samprathi., for the Insurance Companies justified the
Judgment of the Tribunal. They submits that the appeal is
devoid of merits and the same may be dismissed.
To substantiate their contention, they placed reliance on
HARKHU BAI's case.
Heard, the contentions urged on behalf of the respective
parties and perused the appeal papers and also the records
with utmost care.
NC: 2024:KHC:15862
5. The point that requires consideration is whether the
Tribunal is justified in dismissing the claim petition.
6. The facts are sufficiently stated and do not require
reiteration. Suffice it to note that the accident occurred on
12.05.2009. According to the claimant, his vehicle was
damaged on account of rash and negligent driving of Mahindra
Maxi Pick-up vehicle bearing Registration No.KA-04-B-9516 and
his car was damaged. It is not in dispute that the claimant
vehicle was insured with Royal Sundaram Alliance Insurance
Company and he received a sum of Rs.95,259/- (Rupees Ninety
Five Thousand Two Hundred and Fifty Nine only) from the Royal
Sundaram Alliance Insurance Company towards damage of the
vehicle.
It is relevant to note that the claimant claimed a sum of
Rs.1,41,516/- towards property damage from the Insurance
Company of the offending vehicle. The claimant was examined
as PW1. In the cross examination, he states that he has
received the entire amount towards the damage of the property
from his Insurance company. Admittedly, damaged vehicle was
insured with the Royal Sundaram Alliance Insurance Company
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and the claimant has received the 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 his Insurance
Company represented a part only of the total damage, the
Tribunal is justified in rejecting the claim for any further
payment. I, therefore, see no merit in the contention of the
claimant that the claimant is entitled to compensation for the
damaged property.
Furthermore, in HARKHU BAI's case, the Division Bench
has held that if the claimant has received the amount in full
and final settlement of his claim without any reservation or
demur, he cannot claim further payment from the Insurance
Company of the offending vehicle. As already noted above, in
the present case, the claimant has received the amount from
his Insurance Company as full and final settlement. Hence, he
cannot claim further payment from the Insurance Company of
the offending vehicle. Hence, the contention regarding tortuous
liability must necessarily fail.
Learned counsel for the claimant placed reliance on the
decision referred to supra, but I do not find that the law is in
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doubt. Each decision turns on its own facts. The present case is
also tested in the light of the aforesaid decision.
For the reasons stated above, the appeal is devoid of
merits and it is liable to be rejected.
7. Resultantly, the Miscellaneous First Appeal is
rejected.
Sd/-
JUDGE
TKN
