Madras High Court
T.Saradambal vs M/S.United India Insurance ... on 12 November, 2021
S.A(MD)No.34 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.34 of 2017
T.Saradambal,
Wife of Thangappan,
No.52, Kamarajar Road,
Srinivasapuram,
Thanjavur,
Rep. by her power of Attorney,
A.Karthikeyan ... Appellant/Respondent/Plaintiff
Vs.
1.M/s.United India Insurance Company Limited,
Rep. by its Divisional Manager,
South Main Street,
Thanjavur,
Thanjavur District.
2.The Regional Manager,
United India Insurance Company Limited,
No.7A, West Veli Street,
Near Railway Station,
Madurai.
3.The United India Insurance Company Limited,
No.24, Whites Road,
Chennai. ... Respondents/Appellants/Defendants
1/12
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S.A(MD)No.34 of 2017
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 18.01.2016 passed in
A.S.No.03 of 2015, on the file of the Third Additional District and Sessions
Judge, Thanjavur, reversing the judgment and decree dated 24.07.2014
passed in O.S.No.11 of 2013, on the file of the Principal Subordinate Court,
Thanjavur.
For Appellant : Mr.V.Chandrasekar
For Respondents : Mr.I.Suthakaran
JUDGMENT
This second appeal has been directed against the Judgment and
decree, dated 18.01.2016 passed in A.S.No.03 of 2015, by the Third
Additional District and Sessions Judge, Thanjavur, wherein, the Judgment
and decree, dated 24.07.2014, passed in O.S.No.11 of 2013, by the Principal
Subordinate Court, Thanjavur, are reversed.
2.The appellant herein as plaintiff has instituted a suit in O.S.No.11 of
2013 on the file of the trial Court for recovery of money for a sum of
Rs.4,20,000/- with interest and costs, wherein, the respondents have been
shown as defendants.
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S.A(MD)No.34 of 2017
3.In the plaint it is averred that the appellant / plaintiff is the owner of
the Car bearing Registration No.TN-49-AB-2856. The third defendant-
Insurance Company is the insurer of the vehicle, the second defendant is the
in-charge of the affairs of the Insurance Company and the first defendant is
the Policy Issuing Officer of the Insurance Company. The vehicle owned by
the plaintiff met with an accident on 15.05.2010 and a complaint was lodged
before Sozhatharam Police Station, Cuddalore District. The vehicle was
handed over to Jayaraj Karz for retrieval on 21.05.2010. On 13.07.2010, the
Surveyor has sent a communication to the plaintiff stating that the plaintiff
has to bear around Rs.50,000/- in respect of depreciation factor and if the
plaintiff has agreed to retain the wreck to the value of Rs.1,00,000/-, then
the balance amount from the declared value will be settled by the Insurance
Company. The plaintiff submits that as per the policy, the insured's declared
value of the vehicle is Rs.3,00,000/-. The premium was collected by the
Insurance Company is in accordance with the provisions of Indian Motor
Tariff. As far as this case is concerned, the repairer has given an estimate to
the Insurance Company to the tune of Rs.3,51,061/-, which is over and
above the insured declared value of Rs.3,00,000/- and therefore, the loss
contemplated in GR.8 of the Indian Motor Tariff. The plaintiff has paid an
amount of Rs.15,000/-. But the Surveyor of the Insurance Company has
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S.A(MD)No.34 of 2017
given a report applying the depreciation factor which would be applied only
to partial loss claims. Even as per the Surveyor's assumption, the loss comes
to Rs.3,51,061/-, which is over and above the insured declared value, but the
Surveyor applying the depreciation factor has given a report that the plaintiff
is entitled only to an amount of Rs.1,21,061/-. As per the final bill issued by
the repairer, the entire amount comes to Rs.3,00,000/-. The plaintiff has paid
a sum of Rs.1,15,000/- by way of dismantling charges and advance and the
remaining amount was paid by the plaintiff on 29.10.2012 and the vehicle
was taken delivery by the plaintiff. Therefore, the plaintiff has filed the suit
directing the defendants to pay an amount of Rs.3,20,000/- with subsequent
interest towards the amount incurred for repairing the vehicle which was
already spent and directing the defendants to pay an amount of Rs.1,00,000/-
towards compensation towards pain and mental suffering.
4.In the written statement filed on the side of the defendants, it is
averred that the vehicle bearing Registration No.TN-49-AB-2956 was
insured with the defendants Company. It was alleged that the plaintiff has
reported that her vehicle met with an accident on 15.05.2005 and sent the
connected papers for claiming insurance. The claim of constructive total loss
could not be claimed as desired by the plaintiff. The interpretation relating to
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S.A(MD)No.34 of 2017
the provisions of the Indian Motor Tariff is not correct. The defendants
could not make payment more than the assessed value determined by the
Surveyor. The Surveyor has rightly and correctly applied the depreciation
factor and that the plaintiff is entitled only to an amount of Rs.1,29,061/-,
which cannot be termed as erroneous. At any rate, the plaintiff is not entitled
to Rs.4,20,000/- towards the damages for her vehicle and compensation for
pain and mental suffering and hence, the defendants prayed for dismissal of
the suit.
5.On the basis of the rival pleadings raised on either side, the trial
Court has framed necessary issues and after analysing both oral and
documentary evidence has decreed the suit and stated that the plaintiff is
entitled to get Rs.3,00,000/- from the defendants towards the amount
incurred for repairing the vehicle and Rs.10,000/- towards the compensation
for pain and sufferings of the plaintiff. Against the Judgment and decree
passed by the trial Court, the defendants as appellants has preferred an
Appeal Suit in A.S.No.03 of 2015 on the file of the first appellate Court.
7.The first appellate Court, after hearing both sides and upon
reappraising the evidence available on record, has allowed the appeal in part
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S.A(MD)No.34 of 2017
and the Judgment and Decree of the trial Court in O.S.No.11 of 2013, dated
24.07.2014 is set aside with regard to the cost of repairing of Rs.3,00,000/-
and the plaintiff is entitled to repairing cost of Rs.1,29,515/- with interest at
the rate of 12% per annum from the date of 07.04.2011 till the date of
disbursement to the plaintiff and confirmed the amount of Rs.10,000/- with
regard to the compensation. Against the Judgment and decree passed by the
first appellate Court, the present second appeal has been preferred at the
instance of the plaintiff as appellant.
8.At the time of admitting the present second appeal, the following
substantial questions of law have been framed for consideration:
"a) Whether the first Appellate Court is right in
applying G.R.9 of the India Motor Tariff instead of G.R.8
of the India Motor Tariff when the appellant has incurred
more than 75% of the Insured Declared Value (IDV)
towards cost of retrieval of the vehicle?
b) Whether the interpretation of the first Appellate
Court regarding the applicability of the principle of
depreciation is in tune with the tenor of the provisions
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S.A(MD)No.34 of 2017
contemplated in the India Motor Tariff whereas the
depreciation could be made applicable only in case of
partial loss claims only as per G.R.9 of the India Motor
Tariff?
c) Whether the approach of the first Appellate Court
is perverse in nature due to non-consideration of the
admission of the D.W.1 about the loss sustained by the
appellant as total constructive loss as per the provisions of
India Motor Tariff which amounts to admission as
contemplated in the Indian Evidence Act?"
9.The learned counsel appearing for the appellant/plaintiff contended
that the first Appellate Court has failed to note that if the aggregate cost of
retrieval or repair exceeds 75% of the insured declared value, then it should
be construed as a total constructive loss and the insurance company is liable
to pay the insured declared value. The first Appellate Court has also failed to
note that G.R.8 of the Indian Motor Tariff alone is applicable, because the
total cost of retrieval exceeds 75% of the insured declared value and prayed
for allowing the Second Appeal.
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S.A(MD)No.34 of 2017
10.The learned counsel appearing for the respondents/defendants
would submit that the first Appellate Court has rightly allowed the first
appeal in part and prayed for dismissal of the Second Appeal.
11.Heard the learned counsel for the appellant and the learned counsel
for the respondents and perused the materials available on record.
12.On going through the documents available on record, it is seen that
the spares has been estimated at Rs.2,68,336/-, but the Surveyor has
assessed the same by giving value and it comes around Rs.86,015.88/-.
Regarding the estimation for labour value, it is Rs.82,725/-, but, the said
Surveyor has assessed it totally as Rs.41,000/- and there is no reason stated
in the note how he has arrived at the said labour as Rs.41,000/- when
estimation is given at Rs.82,725/-. Hence, this Court is of the view that the
first Appellate Court is wrong in reversing the trial Court Judgment
regarding the labour alone. As it is seen that even though the outer portion
of the said Car has been damaged, as the Driver had applied brake and
steered to left in order to avoid dashing against a old man, lost control,
pulled to the left and rolled down the bridge. The said vehicle sustained
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S.A(MD)No.34 of 2017
damages in the outer parts, namely the glasses, doors and wipers have been
damaged. No other damages have been found regarding the seat or engine or
inner parts of the said vehicle. The outer part of the said vehicle has been
mostly damaged. The value given by the said Surveyor is accepted, but
regarding the labour which has been pointed out by the appellant's counsel
that the said vehicle has been lying in the garage for more than two years
and when there was a communication between the parties to show that when
and how the payments could be paid by the Insurance Company to the
garage dealer the time taken to repair is substantiated. The calculation made,
as per the said India Motor Tarrif by the owner / plaintiff which will apply
for totally damaged car only, but the said car has not been totally damaged.
Even though the appellant counsel stated that it is totally damaged, the
amount arrived at is more than 75% of the vehicle, but in reality when seen
that only bumper, blade and wiper and dent on some parts and other glass
have been broken and in the absence of any other material to show that the
vehicle cannot be repaired at all it is not the total damage of the vehicle and
that being the case, this Court is not inclined to interfere with the Judgment
made by the first Appellate Court, but only to an extent that estimated labour
value is given as Rs.82,725/-, but assessed as Rs.41,000/-. This Court is of
the view that we cannot assess the liability based on the work order issued to
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the dealer on 07.04.2011 from the Insurer, as the repair work was not
completed. The parts which are to be replaced this Court is not having any
expertise and it is the Surveyor who has to estimate the loss and expenditure.
It is pointed out that the Surveyor could not hold the said file for a long time
for want of getting the work completed and has released the final Surveyor
report without any basis regarding the labour charges. As this Court already
pointed out, labour charges alone has to be paid to the appellant instead of
Rs.41,000/- it should be Rs.82,725/- found in the estimate and the amount to
be deducted by the Surveyor.
13.Accordingly, the Insurance Company is hereby directed to pay the
remaining amount of labour fee, after deducting Rs.41,000/-, which has
already been deposited, within a period of two months from the date of
receipt of a copy of this order. In all other aspects, the Judgment and Decree
passed by the first Appellate Court remains unaltered. The substantial
questions of law are ordered accordingly partly in favour of the plaintiff and
partly in favour of the defendants.
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S.A(MD)No.34 of 2017
14.In fine, this second appeal is allowed in part without costs and the
judgment and decree, dated 18.01.2016 passed in A.S.No.03 of 2015, on the
file of the Third Additional District and Sessions Judge, Thanjavur is
modified. Consequently, connected Miscellaneous Petition is closed.
12.11.2021
Index : Yes/No
Internet : Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but, ensuring
that the copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate / litigant concerned.
To
1.The Third Additional District and Sessions Judge,
Thanjavur.
2.The Principal Subordinate Court,
Thanjavur.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.34 of 2017
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.34 of 2017
12.11.2021
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