B.G.Bhaskar vs Biju Varghese
2021 Latest Caselaw 8264 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

     FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

                        MACA.No.220 OF 2014

AGAINST THE AWARD IN OPMV NO.955/2012 DATED 05-07-2013 ON THE FILE
   OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE


APPELLANT/PETITIONER:

             B.G.BHASKAR
             AGED 70 YEARS
             S/O.B.M.GOPAL,18/564, BEMPLASSERI, THALI, KOZHIKODE-
             673 002.

             BY B.G.BHASKAR, PARTY-IN-PERSON

RESPONDENTS/RESPONDENTS:

      1      BIJU VARGHESE
             S/O.VARGHESE, CHANNAKKADAN HOUSE, KARAYAMPARAMBU,
             KARUKUTTY PO, ERNAKULAM - 683 576

      2      T.I. ANSHEER
             S/O.IBRAHIMKUTTY, 7/497 A, THOPPIL HOUSE,
             THAIKKATTUKARA PO, ALUVA WEST VILLAGE-683 106

      3      THE ORIENTAL INSURANCE CO. LTD.
             DIVISIONAL OFFICE, THODUPUZHA-685 584

             R1 & R2 BY ADV. SRI.N.MUHAMMAD SAJU &
             ADV. SRI.M.A.NOUSHAD
             R3 BY ADV. SRI.M.JACOB MURICKAN



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.No.220 of 2014                    2



                              JUDGMENT

Dated this the 12th day of March 2021

...

The appellant is the petitioner in OP(MV)No.955 of 2012 on the

file of the Principal Motor Accident Claims Tribunal, Kozhikode. The

said claim petition was filed by him seeking compensation for the

damage sustained to his Toyota Qualis car, in a motor accident

occurred on 14.11.2011. The accident occurred when the vehicle

belongs to the appellant/petitioner was hit on its back by a tipper

lorry and due to its impact, the petitioner's car moved forward and

hit against another lorry which was in front of the said vehicle. It is

contended by him that, the vehicle suffered extensive damages and

as compensation, he claimed an amount of Rs.1,40,000/-.

2. The owner and driver of the vehicle involved in the

accident had chosen not to appear before the Tribunal even though

notices were served upon them. Accordingly, they were set ex-parte.

The 3rd respondent-Insurance Company filed a written statement

admitting the existence of policy but disputed the liability. The 3 rd

respondent seriously disputed the negligence on the part of the 2 nd

respondent in causing the accident. The quantum of compensation

was also disputed by them.

3. The evidence in this case consists of the documentary

evidence of Exts.A1 to A11 and the oral evidence of the

appellant/petitioner, who got himself examined as PW1. No evidence

was adduced from the side of the respondents.

4. After trial, the Tribunal dismissed the said claim petition

by observing that, the petitioner failed to prove the quantum of

damages, as no bills evidencing the repairing of the vehicle were

produced. However, it was found that, the accident occurred due to

the negligence of the 1st respondent. Challenging the order of

dismissal of the petition, this appeal is filed.

5. Heard Sri.B.G.Bhaskar, the appellant/petitioner who

appeared in person and the learned counsel for the Insurance

Company.

6. It was contended by the appellant that, the reasoning

adopted by the Tribunal while dismissing the appeal is unsustainable.

According to him, merely because of the reason that, the vehicle was

not repaired so far, the compensation should not have been denied

by the Tribunal. In order to prove the quantum of compensation, he

has produced Ext.A2 which is a detailed estimate containing the split

up details of all the works to be carried out for making the vehicle

roadworthy. However, the Tribunal did not rely upon the said

document and the claim petition was rejected. According to him, the

said finding is liable to be interfered with.

7. In response to the said contentions, the learned counsel

appearing for the 3rd respondent contended that, the appellant

miserably failed in establishing the quantum of damages and,

therefore, the award impugned in this case is liable to be sustained.

8. It was contended by the appellant that the claim under

Section 166 of the Motor Vehicles Act is basically a claim arising

under the principles of Law of Torts. Therefore, once it is shown that

the party suffered a loss due to negligent act of another, he will be

entitled for compensation for such loss. Hence, while applying the

said principles in a claim arising under Motor Vehicles Act, the victim

of the accident will be entitled for compensation, once it is shown

that the vehicle sustained damage due to the negligent act of the

respondent. The question whether he actually repaired the vehicle or

not is immaterial. In support of his contentions, the appellant relied

upon the judgment of this Court reported in Motor and General

Finance (India) Ltd. v. Mary Mony [1990(2) KLT 971]. In the

said judgment, it has been clearly observed that, the scope of

adjudication in the matters relating to compensation under the

provisions of Motor Vehicles Act is based on the principles of law of

torts. It was observed therein that "the Act does not create a new right

or even a new remedy, but has simply changed the forum and the process

for adjudicating claims for compensation arising from accidents by the use

of motor vehicles". It was also observed that, the Motor Accidents

Claims Tribunal were constituted to substitute the civil courts in the

matter of adjudicating the question of compensation arising out of

accident due to use of motor vehicles. Thus, on the strength of the

above observations, it was contended that, the Tribunal has to

adjudicate the dispute in respect of a motor accident by relying upon

the principles of law of torts. In this case, it is evident from the

records such as Exts.A11 charge sheet submitted by the Police,

Ext.A9, report of the Motor Vehicles Inspector and also from Ext.A8

photographs that, the vehicle sustained extensive damage in the

motor accident occurred on 14.11.2011. In the light of the above,

the appellant is entitled for compensation for the damages,

particularly in view of the fact that, the Tribunal had already found

while answering the issue number 1 that, the accident had occurred

due to the negligent driving of the 1 st respondent. Therefore, it is

evident that, it is a case where principles of tortious liability is

attracted and hence under no circumstances, the appellant can be

denied compensation for such tortious act. Mere fact that, the

appellant has not so far repaired the said vehicle and produced the

bills evidencing the same, will not in any manner disentitle him to

claim the compensation. It is a fact that, if the vehicle is not repaired

and made roadworthy, it may not be possible for the appellant to use

the same for his purposes. In such an event, his loss will be higher

than what is actually claimed by him, as he will be prevented from

using the said vehicle at all. Therefore, under no circumstances, the

fact that the vehicle has not been repaired so far will not have any

impact upon the damages sustained to him but on the other hand

the non repairing of the vehicle would cause more difficulty and

inconvenience to him. Thus, even in cases where the vehicle is not

repaired, the appellant will be entitled to compensation to the extent

of damages suffered to the vehicle. Therefore, the finding of the

Tribunal is to be set aside.

9. The next question is relating to the quantum of

compensation. The amount of compensation claimed by the appellant

is Rs.1,40,000/- and he is placing reliance upon Ext.A2 job order

with estimate for substantiating the same. In this regard, the oral

evidence adduced by the appellant is also to be taken into

consideration. On going through the cross-examination of PW1, it can

be seen that, the 3rd respondent has not raised any objection as to

the amount required for repairing the vehicle as mentioned in Ext.A2

job order. The 1st and 2nd respondents were set ex-parte before the

Tribunal and, therefore, from their side also, there is no challenge as

to the quantum mentioned in Ext.A2. In the absence of any such

challenge, the amount in Ext.A2 is to be accepted. It is also

discernible from the perusal of the same that, it contains a detailed

estimate of the spare parts and the other charges required for

making the vehicle roadworthy. In connection with the above, the

appellant also placed reliance upon the judgment of the Himachal

Pradesh High Court in National Insurance Company v. The

Bilaspur Gramudhyog Association and Others [(2008) ACJ

2058]. In the said judgment, in order to quantify the damages

sustained to a third party, the estimate prepared by the qualified

Engineer was relied upon. In this case, it is seen that, the estimate is

provided by the authorized service centre of Toyota Vehicles.

Therefore, there is nothing wrong in accepting the said document for

the purpose of determining the quantum of damages to be awarded

in this case, particularly when, there is no challenge against such

assessment, from any of the respondents.

10. In the above circumstances, the award passed by the

Tribunal in OP(MV)No.955 of 2012 is hereby set aside.

11. However, in this case, going by the stipulations contained

in Section 147(2)(b) of the Motor Vehicles Act, 1988, the liability of

the 3rd respondent-Insurance Company as far as the third party

property damage is concerned, is limited to ` 6,000/- alone.

Therefore, the liability that can be imposed upon 3rd respondent

herein is confined to ` 6,000/- along with interest accrued thereon

and proportionate costs

In the above circumstances, this appeal is allowed holding that

the appellant is entitled to realize an amount of ` 1,40,000/- along

with interest at the rate of 9% per annum from the date of petition

till realization. However, it is made clear that, by virtue of the

statutory limit contained under Section 147(2)(b) of the Motor

Vehicles Act, the liability of the 3 rd respondent shall be confined to

` 6,000/- [Rupees Six thousand only) along with interest at the rate

of 9% per annum and proportionate costs, which shall be deposited

by the 3rd respondent within three months from the date of receipt of

a copy of this judgment. The appellant shall be entitled to realize the

balance amount ie. Rs.1,34,000/- from respondents 1 and 2 herein

along with interest and costs as mentioned above.

The appeal is disposed of as above.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk