Karnataka High Court
Sri Manjunath Reddy vs Vishwanath Suvarna on 4 April, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:13961
MFA No. 4974 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO.4974 OF 2016
(MV-DM)
BETWEEN:
SRI. MANJUNATH REDDY
S/O SIDDANA GOWDA,
AGED ABOUT 34 YEARS,
R/AT BASAVESHWARA NILAYA,
K.S.RAO NAGAR POST,
KARNAD, MULKI,
MANGALORE-34.
...APPELLANT
(BY SRI. PRATHEEP.K.C., ADVOCATE)
AND:
1. VISHWANATH SUVARNA
S/O DEVARAJA SUVARNA,
AGED ABOUT 43 YEARS,
R/AT SUVARNA MAHAL,
Digitally signed by
THEJASKUMAR N SHIRVA POST, UDUPI TALUK,
Location: HIGH UDUPI DISTRICT-56.
COURT OF
KARNATAKA
2. THE RELIANCE GENERAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
DIVISIONAL MANAGER,
GROUND FLOOR, "SRI RAM ARCADE",
OPP. HEAD OFFICE, UDUPI-78.
...RESPONDENTS
(R1-SERVED AND UNREPRESENTED;
BY SRI. H.S.LINGARAJU., ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED:25.04.2016
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MFA No. 4974 of 2016
PASSED IN MVC NO.39/2010 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Pratheep.K.C., learned counsel for the appellant and
Sri.H.S.Lingaraju., learned counsel for respondent No.2 have
appeared in person.
2. Notice to the respondents was ordered on
26.09.2016. A perusal of daily order sheet depicts that notice
to respondent No.1 is served and unrepresented. He has
neither engaged the services of an advocate nor conducted the
case as party in person.
3. For the sake of convenience, the parties are
referred to as per their status and rankings before the Tribunal.
4. It is the case of the claimant he is the owner of the
Goods vehicle bearing Registration No.KA-19-B-6995 and on
the tenth day of January 2009, the same was plying from Udupi
side towards Mangalore side on NH-17. When the vehicle
reached near Kaup Vidyanikethana School, one express bus
came from Udupi side and overtook the claimant's vehicle in
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order to pick up passengers. It is said that the driver of the bus
stopped the bus without giving proper signal. Due to the
impact, the body of the lorry was heavily damaged. It is said
that because of the negligence of the driver of the bus, the
claimant's vehicle was damaged.
It is contended that the damaged vehicle was kept in
Aravind Motors Private Limited for estimating the damage cost.
The damage cost was estimated by Private Limited Company on
12.01.2009. According to the estimate, a sum of Rs.1,90,598/-
(Rupees One Lakhs Ninety Thousand Five Hundred and Ninety
Eight only) was estimated for effecting of repairing work. Apart
from that, the labor cost was also estimated at Rs.57,500/-
(Rupees Fifty Seven Thousand Five Hundred only). The total
estimated amount was Rs.2,56,098/- (Rupees Two Lakh Fifty
Six Thousand and Ninety Eight only). It is contended that the
claimant's vehicle was insured with the United India Insurance
Company and the surveyor of the Insurance company approved
the loss and it is specifically contended that the claimant paid a
sum of Rs.2,56,000/- (Rupees Two Lakhs Fifty Six Thousand
only) to Aravind Motors Private Limited through cheque. In the
claim petition the claimant has specifically contended that his
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Insurance Company assessed the loss and paid a sum of
Rs.1,85,000/- (Rupees One Lakhs Eighty Five Thousand only)
and the same was paid through cheque on 11.06.2009.
The claimant further contended that he had appointed a
driver on a wages of Rs.4,500/- (Rupees Four Thousand Five
Hundred only) per month, since the vehicle was kept in a
garage at Mangalore for three months, the driver sustained loss
of earning of Rs.13,500/- (Rupees Thirteen Thousand Five
Hundred only). It is further contended that he was earning
Rs.20,000/- (Rupees Twenty Thousand only) to Rs.30,000/-
(Rupees Thirty Thousand only) per month. On account of the
repair work, he sustained loss of Rs.60,000/- (Rupees Sixty
Thousand only). In total, he claimed compensation of
Rs.1,44,500/- (Rupees One Lakh Forty Four Thousand Five
Hundred only).
In response to the notice, the respondents appeared
through their counsel and filed the written statement and
denied the petition averments. Among other grounds, they
prayed for dismissal of the 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:25.04.2016 dismissed the Claim
Petition. The claimant has assailed the Judgment of the
Tribunal in this appeal on several grounds as set-out in the
Memorandum of appeal.
5. Learned counsel for the respective parties have
urged several contentions.
Learned counsel for the appellant relied upon judgment in
SRI.HEMANTH RAJU Vs. SRI.PUNITHA.H.J. AND
ANOTHER in MFA. NO.6841/2013 disposed of on 18.12.2023.
Learned counsel for the Insurance Company placed
reliance on the decision in HARKHU BAI AND OTHERS Vs.
JIYARAM AND OTHERS reported in 2005 ACJ 1332.
Heard, the contentions urged on behalf of the respective
parties and perused the appeal papers and also the records
with utmost care.
6. The point that requires consideration is whether the
Judgment of the Tribunal requires interference.
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7. The facts are sufficiently stated and do not require
reiteration. Suffice it to note that the accident occurred on the
tenth day of January 2009. According to the claimant, his
vehicle was damaged on account of rash and negligent driving
of the driver of the offending bus and on account of the vehicle
damage, his driver and himself sustained loss of earning. It is
not in dispute that claimant's vehicle was insured with the
United India Insurance Company and the Surveyor of the said
company assessed the loss and paid a sum of Rs.1,85,000/-
(Rupees One Lakh Eighty Five Thousand only) to the claimant
towards the damage of the vehicle.
The claimant examined himself as PW1. He states that he
paid a sum of Rs.2,56,000/- (Rupees Two Lakh Fifty Six
Thousand only) towards repair of the damaged vehicle. He also
states that he has given the bills to the Insurance Company.
However, the Insurance Company has paid only a sum of
Rs.1,85,000/- (Rupees One Lakh Eighty Five Thousand only). It
is relevant to note that the claimant claimed a sum of
Rs.71,000/- (Rupees Seventy One Thousand only) towards
property damage from the Insurance Company of the offending
vehicle, however, in the cross examination he states that he
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cannot tell for what purpose he spent Rs.71,000/- (Rupees
Seventy One Thousand only). There is nothing on record to
show that he spent Rs.71,000/- (Rupees Seventy One
Thousand only) towards property damage.
It is the specific contention of the claimant that the total
estimated amount was Rs.2,56,098/- (Rupees Two Lakh Fifty
Six Thousand and Ninety Eight only) and he paid a sum of
Rs.2,56,000/- (Rupees Two Lakh Fifty Six Thousand only) to
the Aravind Motors Private Limited through cheque. But, the
records depict otherwise. Ex.P.5 is the Tax Invoice of Aravind
Motors Private Limited. A perusal of the same would reveal that
the total estimated amount is Rs.2,23,321/- (Rupees Two Lakh
Twenty Three Thousand Three Hundred and Twenty One only).
Furthermore, in the claim petition claimant has stated that for
effecting repair work amount was estimated to Rs.1,90,598/-
(One Lakh Ninety Thousand Five Hundred and Ninety Eight
only) and for labor cost, it was estimated to Rs.57,500/-
(Rupees Fifty Seven Thousand Five Hundred only), if that be
so, the total amounts to Rs.2,48,098/- (Rupees Two Lakh Forty
Eight Thousand and Ninety Eight only) and not Rs.2,56,098/-
(Rupees Two Lakh Fifty Six Thousand and Ninety Eight only).
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There is no clarity. Hence, it raises a doubt regarding
genuineness of the claim.
Admittedly, the damaged vehicle was insured with the
United India Insurance Company and the claimant has received
a sum of Rs.1,85,000/- (Rupees One Lakh Eighty Five
Thousand only) 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 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 that he is entitled for
Rs.71,000/- (Rupees Seventy One Thousand only) for property
damage.
Next, let me consider the contention regarding loss of
salary paid to the driver and loss of income sustained by the
claimant. Except self-serving statement of the claimant, there
is nothing on record to prove that there is a loss of salary to
the driver and also loss of income sustained by him. The
Tribunal extenso referred to the material on record and justified
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in rejecting the said claims. I find no reasons to interfere with
the said finding.
The decision relied upon by the learned counsel for the
appellant is not applicable to the facts and circumstances of the
present case. The reason is simple. In the said case, the
Coordinate bench has awarded Rs.20,000/- (Rupees Twenty
Thousand only) towards loss of earnings and not towards the
property damage.
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.
For the reasons stated above, the appeal is devoid of
merits and it is liable to be dismissed.
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8. Resultantly, the Miscellaneous First Appeal is
dismissed.
Sd/-
JUDGE
MRP
