Karnataka High Court

M/S Icon Petroleum vs Sri Shankar Murthy D on 15 February, 2024

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                                                       NC: 2024:KHC:6751
                                                    MFA No. 8051 of 2015




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 15TH DAY OF FEBRUARY, 2024

                                       BEFORE
                       THE HON'BLE MR JUSTICE C.M. POONACHA
              MISCELLANEOUS FIRST APPEAL NO. 8051 OF 2015 (MV-DM)
             BETWEEN:

             1.   M/S ICON PETROLEUM
                  CORPORATION LTD.
                  REP BY ITS MANAGING DIRECTOR,
                  SRI.USMAN SHARIEFF
                  S/O ANWAR SHARIEFF
                  AGED ABOUT 29 YEARS
                  NO.12/3, CLARKE ROAD,
                  RICHARDS TOWN, OPP. RICHARDS PARK,
                  BANGALORE-05
                                                             ...APPELLANT
             (BY SRI. JAGADISH KUMBAR, ADVOCATE)

             AND:

             1.   SRI SHANKAR MURTHY D
                  S/O DODDERAPPA
                  MAJOR IN AGE,
Digitally         NO.50, 4TH D CROSS,
signed by
BHARATHI S        RAMAIAH EXTENSION,
Location:         NEAR R.V. SCHOOL
HIGH              PEENYA II STAGE, BANGALORE-59
COURT OF
KARNATAKA
             2.   THE ORIENTAL INSURANCE CO. LTD.
                  VP-IV, 1ST A CROSS,
                  POLICE STATION ROAD,
                  PEENYA INDUSTRIAL ESTATE,
                  BANGALORE-58
                  REP BY ITS MANAGER
                                                          ...RESPONDENTS
             (BY SRI. S V HEGDE MULKHAND.,ADVOCATE FOR R2
             SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT V/O DTD
             23.11.2017)
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                                                                  NC: 2024:KHC:6751
                                                            MFA No. 8051 of 2015




      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 16.04.2015        PASSED IN MVC
NO.6849/2013 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE
JUDGE & MACT (SCCH-17), BANGALORE, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.

     THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                                        JUDGMENT

The above appeal is filed by the claimant challenging the

judgment and award dated 16.4.2015 passed in MVC

No.6849/2013 by the XIX Additional Small Cause Judge and

MACT (SCCH-17) Bangalore1, wherein the claim petition has

been dismissed.

2. For the sake of convenience, the parties herein are

referred as per their rank before the Tribunal.

3. The claimant filed a claim petition seeking for

vehicle damages to Tata Sumo bearing No.KA-02/AB 5723

caused in the road traffic accident dated 15.8.2013. The

owner and insurer of the offending Fortuner Car bearing

No.KA-03/MP 2115 were arrayed as respondent Nos.1 and 2 in

the claim proceedings. The owner remained ex parte. The

insurer entered appearance and contested the claim

Hereinafter referred to as the 'Tribunal'

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proceedings. The Tribunal by its judgment and award dated

16.4.2015 dismissed the claim petition. Being aggrieved the

claimant has filed the above appeal.

4. Learned counsel for the appellant/claimant

contended that the total cost of repair of the vehicle of the

claimant was `8,43,027/- as is forthcoming from the bills

towards repair charges and the claimant has received a sum of

`3,03,027/- from its insurer and the claimant is entitled to the

difference in a sum of `5,40,000/-. Hence, he filed a claim

petition claiming the difference amount as also compensation

for a period of 2 ½ months when the car was being repaired

when the claimant had to hire a taxi for its use. That the

Tribunal erred in dismissing the claim petition by holding that

the claimant has not produced any documents to show the

actual damage caused to the vehicle and has not produced the

survey report. That the Tribunal erred in not noticing the fact

that the insurer had summoned the requisite documents from

the insurer of the vehicle of the claimant and hence, the said

documents being available on record, compensation ought to

have been awarded. That the Tribunal erroneously has

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dismissed the claim petition and the said judgment is liable to

be set aside and compensation ought to be awarded.

5. Per contra, learned counsel for the second

respondent - insurer justifies the dismissal of the claim

petition by the Tribunal.

6. The submissions of both the learned counsel have

been considered and the material on record including the

records of the Tribunal have been perused. The question that

arises for consideration is, Whether the dismissal of the claim

petition by the insurer is just and proper? If so, what order to

be passed?

7. The occurrence of the accident and the fact that the

vehicle of the claimant has been damaged in the said accident

is undisputed. The claimant in support of its claim towards

vehicle damage apart from the police documents has produced

the tax invoice issued by the Nandi Toyota (Ex.P8), which in

detail sets out the parts as well as the labour charges for the

repair of the vehicle of the claimant. The invoice issued as per

Ex.P8 is from the authorized dealer of the said vehicle. The

said authorized dealer has also issued a certificate dated

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23.11.2013 (Ex.P9) which discloses that the total cost of repair

was a sum of `8,43,027/- and a sum of `3,03,027/- has been

received from the ICICI Lombard General Insurance Company.

It is relevant to note that the second respondent - insurer has

examined its representative as RW.1 as also examined the

representative from ICICI Lombard General Insurance

Company who is the insurer of the vehicle of the claimant as

RW.2. The documents submitted by the claimant to its insurer

have been marked as Ex.R3.

8. It is forthcoming from Ex.R3 that the claim

submitted by the claimant as also the policy of insurance, tax

invoice disclosing the repair charges, estimate issued by the

workshop and the surveyor report issued by the surveyor

appointed by the ICICI Lombard General Insurance Company

have been produced.

9. It is clear from the aforementioned that due to the

accident of the vehicle of the claimant he has got the same

repaired at the authorized service centre and towards the cost

of repair charges has made a claim with its insurer. The said

claim has been adequately processed by its insurer and after a

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survey report from its authorized surveyor, the claim has been

considered and since the vehicle of the claimant was two years

old has paid a sum of `3,03,027/-. Hence, the claimant

having paid the difference amount of `5,40,000/- to the

workshop the claimant is entitled to said amount from the

owner and insurer of the offending vehicle.

10. In the present case, the occurrence of the accident,

the finding on negligence and the finding that the offending

vehicle is adequately insured are not under challenge. Hence,

the insurer of the offending vehicle is liable to pay the said

amount.

11. A coordinate Bench of this Court in the case of

R.P.Zuber v. Basavarajappa & Anr.,2 , considering a similar

fact situation has held as follows:

"7. "Therefore, the claimant would be having two options; one to approach the owner and insurer of the offending vehicle seeking recovery of total value of goods as compensation in addition to compensation to towards personal damages or approaching his insurer and receiving the same. Assuming for a moment, if he chooses to approach his insurer and takes whatever compensation is offered to him in terms of the policy as full and final settlement of his claim against his insurer, the same cannot be construed as full and final settlement

2016 ACJ 2307

NC: 2024:KHC:6751

of entire damages suffered by him. The full and final settlement is with reference to the right of claimant to secure compensation from his insurer. If the compensation so received falls short of the value of vehicle, then nothing prevents him from initiating proceedings against the owner of offending vehicle and its insurer for recovery of the balance amount and also for other damages like compensation for personal injuries, loss of income during the period when vehicle was not available for him for his use and if it is the vehicle that is used for hire, the loss of income which he would have suffered due to non- availability of said vehicle for running it on hire. Therefore, it is seen that claimant has several options. If he chooses to exhaust his remedy from his insurer to the extent he is entitled to realize under the policy issued in his favour and seeks balance amount from the owner of offending vehicle, the same cannot be construed as dual advantage of him unless the owner and insurer of offending vehicle can establish that in the guise of seeking difference in the loss the claimant is collecting compensation or damages in excess of the loss he has suffered or that he is taking benefit for the same damages from both the insurance companies independently twice for same compensation then he cannot be permitted to do so."

(emphasis supplied)

12. The Tribunal has recorded a finding that the

claimant has not produced the survey report as well as the

documents to show the actual damage caused to the vehicle in

the accident. The survey report as well as the other

documents having been produced by RW.2 and have been

marked as Ex.R3, the said documents were available on

record. Further, the finding of the Tribunal that when the

insurance company of the claimant has settled the claim made

for vehicle repair, the question of the claimant again claiming

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a further amount does not arise is ex facie erroneous and

liable to be interfered with having regard to the fact that it is

undisputed that the claimant has incurred the cost as claimed

for repairing the vehicle. The said repair has been made at an

authorized workshop and the insurer of the claimant had the

claim verified through its surveyor who has also furnished a

report. The insurer of the claimant has honoured the claim to

the extent permissible under the terms and conditions of the

policy of insurance. Since the claimant has incurred a higher

amount towards vehicle damage, he is entitled to the said

claim from the driver and owner of the offending vehicle who

are responsible for causing the accident in question. The

offending vehicle having been adequately insured, subject to

the terms and conditions of the said policy of insurance, the

insurer of the offending vehicle will be liable to indemnify the

owner of the said offending vehicle. Hence, the claim made by

the claimant towards vehicle damage being just and proper is

required to be granted.

13. The judgment relied on by the Tribunal are with

regard to a different fact situation and are wholly inapplicable

to the present case. Hence, respondent Nos.1 and 2 are

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jointly and severally liable to pay the vehicle damage amount

incurred by the claimant.

14. The claimant has made a further claim towards taxi

charges for the period during which the vehicle was being

repaired. PW.1 has stated regarding the same in his

examination in chief. However, no documents have been

produced to demonstrate that the said taxi charges have been

incurred. Hence, question of granting the said claim of the

claimant does not arise. The question framed for

consideration is answered accordingly.

15. In view of the aforementioned, the following order

is passed:

ORDER

i) The above appeal is allowed in part;

ii) The judgment and award dated 16.4.2015 passed

in MVC No.6849/2013 by the XIX Additional Small Cause

Judge and MACT (SCCH-17) Bangalore, is set aside;

iii) MVC No.6849/2013 filed by the claimant on the file

of the XIX Additional Small Cause Judge and MACT

(SCCH-17) Bangalore, is allowed and respondent Nos.1