C.B. Devaiah vs Bopale Gowda and Others

B.S. Patil, J.—This appeal is filed by the claimant aggrieved by the award passed by the Motor Accident Claims Tribunal dismissing the claim petition filed by the claimant in MVC No. 62/2009 for the damage sustained to his Mitsubish Lancer Car bearing registration No. KA-12-M-7704.

Facts leading to this appeal, stated in nutshell are that in an accident that occurred on 26.08.2003, when petitioner was driving his lancer car near Chikkodige Estate of Bale Honnur -Koppa Road, a bus bearing registration No. KA-20-9427 driven in a rash and negligent manner by its driver dashed against the car of the petitioner and caused extensive damage to the car.

The claimant lodged a complaint before the Bale Honnur Police Station. Case was registered against the driver of the offending vehicle. Spot mahazar was drawn by the Bale Honnur police. Petitioner got his car repaired from M/s. United Trading Corporation and Workshop (P) Limited, Mangalore. According to him, a sum of Rs. 1,27,635/- was spent for repairs. Out of the said amount, the insurer of the car paid a sum of Rs. 80,290/- and refused to pay the balance. Therefore, contending that he was entitled for the balance amount paid by him towards repair charges, he instituted the claim petition. He also sought for expenses incurred between 26.08.2003 to 09.09.2003 as he was allegedly deprived of the usage of his car and had to engage another car for hire for his personal use by spending Rs. 5000/- towards hire charges. Thus, he sought for a sum of Rs. 75,000/- from the owner, driver and the insurer of the offending vehicle.

The owner of the offending vehicle though served remained unrepresented and was placed ex-parte.

The insurer of the bus filed statement of objections. It admitted the policy of insurance covering the bus as on the date of accident. The insurer contended that the accident occurred not due to the negligence of the driver of the bus but on account of the negligence of the driver of the car. It also contended that the claimant ought to have made the insurer of the car as party respondent for the damage caused to the car due to his own negligence.

The claims Tribunal framed the following issues:

"1. Whether the petitioner proves that Bus bearing No. KA-20-9427 dashed against Car bearing No. KA-12-M7704 referred to in the accident?

Whether the petitioner is entitled to recover the compensation amount claimed?"

The claimant examined himself as P.W.1. One Sri Kalimulla - Head Constable of Bale Honnur Police Station was examined as P.W.2. Another witness by name Sri H. Shivamadaiah - branch manager of the National Insurance Company, Virajpet/insurer of the car belonging to the appellant - claimant was examined as P.W.3. Exs. P1 to P. 13 were produced and marked. Respondents did not lead any evidence. Policy of insurance was, however, produced and marked as Ex. R.1.

The Tribunal has dismissed the claim on the ground that the appellant - claimant had failed to establish actionable negligence on the part of the driver of the bus because no criminal case was registered against the driver of the vehicle and the spot mahazar conducted by the S.H.O of the jurisdictional police station was not in his official capacity. Therefore, non-registration of a criminal case by the police against the driver of the bus raised a doubt in the mind of the Court to accept the version of the claimant. Thus, the Tribunal has persuaded itself to dismiss the claim made.

I have heard the learned counsel for both parties. Perused the entire records of the Tribunal which have been summoned. The following points arise for consideration in this appeal:

"1. Whether the Tribunal has committed any illegality in recording a finding that actionable negligence on the part of the driver of the bus resulting in the accident and damage to the car belonging to the claimant was not established?

Whether the Tribunal was right and justified in dismissing the claim made over and above that has been reimbursed by the insurer of the claimant?"

The Claimant - C.B. Devaiah in his evidence has narrated the incident that took place on 25.08.2003 at about 11.00 am. He has stated in his evidence that the 1st respondent before the Tribunal was driving the Arshitha passenger bus belonging to the 2nd respondent therein in a rash and negligent manner and dashed against his Mitshubish lancer car causing extensive damage to the car. Soon after the accident, he has lodged a complaint before the Bale Honnur Police Station. Complaint has been indeed registered against the driver of the bus. Copy of the complaint is produced at Ex. P.1(a). He has clearly stated in the complaint that because of the rash and negligent driving of the bus by the driver he dashed against his car thereby causing extensive damages to the car. Endorsement issued by the Bale Honnur Police for having received the complaint is produced at Ex. P.1. Mahazar conducted in the presence of panch witnesses of the Bale Hoonur police station is produced and marked at Ex. P. 2. The nature of the damage and the location of the car have been noticed in the said mahazar.

Kalimulla - Head Constable of Bale Honnur Police Station has also spoken to the fact that a case was registered in NC No. 133/03. He has further stated that he was the SHO of the police station on that day and that he received the complaint as per Ex. P.1(a) and issued endorsement as per Ex. P.1. He further admits in the cross-examination that he did not submit FIR to the Court because the case had been registered as non-cognizable. He has denied the suggestion that though there was no accident, with a malafide intention he had registered the case only to assist the complainant to get the compensation.

P.W.3 - Branch Manager of the National Insurance Company, Virajpet has stated in his evidence that he was aware of the fact that car belonging to the claimant had met with an accident on 26.08.203; claimant had produced bills while claiming compensation for the damage caused; that they had carried out spot survey and the claimant was paid Rs. 80,290/-towards damages. In the cross-examination, he has stated that in accordance with the model of the vehicle and terms and conditions of policy, depreciation was calculated. At the time of settlement of the claim, work sheet was prepared and only admissible claims under the policy were settled and the total amount paid was Rs. 80,290/-.

As already stated above there is no evidence on the part of the respondents. Indeed, the owner of the bus has not appeared. He has not contested the claim made. It is therefore clear from the oral and documentary evidence adverted to herein above that accident involving the bus and the car did take place on 26.08.2003. The claimant did file a complaint before the Bale Honnur Police Station as per Ex. P.1. The endorsement clearly disclosed that complaint had been indeed filed. The complaint and the endorsement probablised the version of the claimant regarding the negligence attributed to the driver of the bus. There was absolutely no reason to disbelieve the documentary and oral evidence. Therefore, the Tribunal was in error in holding that actionable negligence on the part of the driver of the bus had not been established in the case. This finding is illegal and perverse.

Insofar as the claim made for damages to the vehicle is concerned, no doubt the insurer of the car has paid a sum of Rs. 80,290/-. The Branch Manager of the National Insurance Company has stated that only admissible charges as per the policy have been settled. The nature and extent of damage and the expenses incurred for getting the vehicle repaired has been established by the claimant by producing the bills from M/s. United Trading Corporation and Workshop (P) Limited, Mangalore. The bills are produced at Ex. P.4. Cash receipt is produced at Ex. P.3. The total amount reflected in the bills which includes labour charges, spare parts and other repair works comes to Rs. 1,27,635/-. Indeed the bill dated 08.09.2003 addressed to the claimant contains the bill numbers, date and the break-ups with a request to the claimant to send money in a sum of Rs. 1,27,635/-. This amount has been paid by the claimant as is evident from Ex. P.3- receipt. Therefore, once the claimant establishes actionable negligence on the part of the driver of the bus involved in the accident and the extent of damage caused to his car for which he has spent for repairs, he is entitled to claim the same from the owner, driver and the insurer of the bus. As the insurance company does not deny the coverage of the vehicle on the date of accident and the fact that the driver of the vehicle was having a due driving license, the liability has to be fastened on the insurance company.

The claimant has already received a sum of Rs. 80,290/-from his insurer. Therefore, he will be entitled for recovery of the balance amount only to make up Rs. 1,27,635/- which comes to Rs. 47,345/-. Though the insurer of the claimant has settled the claim as per the document produced by the claimant vide Ex. P. 12 in full and final satisfaction of the claim, as rightly contended by the learned counsel for the appellant by referring to the evidence on record, settlement of the claim by the insurer of the car in terms of the insurance policy as admissible cannot be taken as defense to deny the remaining liability that the claimant has suffered on account of the damage caused. The insurer of the offending vehicle cannot contend that it had to settle the claim only to the extent to which the insurer of the car had reimbursed. The insurer of the offending vehicle is compensating the loss caused which is otherwise payable by the owner and driver of the bus. As long as the claimant is able to establish the actual amount of damage sustained by him and the actual amount spent by him for repairs, the owner of the offending vehicle and the insurer thereof are liable to make good the same. The insurer of the car might not have reimbursed the entire charges for various reasons, that cannot be a criteria for the respondent herein to contend that it was not liable to reimburse the entire damages sustained by the claimant.

Hence, both the points raised are answered in favour of the appellant and against the respondents. This appeal is allowed. The judgment and award passed by the Tribunal dismissing the claim petition is set aside. Claim petition is allowed to the extent stated above. Compensation awarded shall be payable with interest at 6% per annum from the date of claim till the date of realization.