Sunil Bajaj vs Triyambak Sharma and Another

Hon''ble Shri R.N. Chandrakar, J.—The owner of the vehicle Tavera Car bearing registration No. CG-04/H-7211 (the appellant herein) has preferred this appeal u/s 173 of the Motor Vehicle Act, 1988 against the dismissal of the claim petition by the IInd Additional Motor Accident Claims Tribunal, Raipur (for short ''the Tribunal'') in Claim Case No. 49/2008 vide order dated 24.10.2008. Brief facts of the case are that on 13.06.2007 when the appellant was going to Sundamagar from Lakhenagar by his vehicle Tavera Car bearing registration No. CG-04/H-7211 which was insured with Insurance Company, at the same time the respondent No. 1/driver of the offending vehicle Santro Car bearing registration No. CG-04/H-3972 dashed his vehicle from back side near Ashwani Nagar in a rash and negligent manner, as a result of which his vehicle got damaged. The matter was reported to the police station Azad Chowk and challan was presented before the Judicial Magistrate First Class, Raipur (CG). Thereafter the applicant filed an application for compensation of Rs. 29,857/- before the insurer of his vehicle for damages of his car and he received Rs. 17,715/- from his insurer towards repairs of his vehicle. Thereafter, the applicant filed petition before the Tribunal against the owner and insurer of offending vehicle i.e., Santro Car bearing registration No. CG-04/H-3972 for remaining amount of Rs. 12,142/- towards repairing of his car and Rs. 10,000/- for mental agony.

The Tribunal on a close scrutiny of the evidence, dismissed the appellant''s claim petition for compensation holding that after receiving the awarded amount in full and final satisfaction from the insurer of his car, he does not have any right to file another claim petition arising out of same accident, therefore, the claim petition filed by the applicant is not maintainable.

Shri S.S. Rajput, learned Counsel for the appellant vehemently argued that the impugned award passed by the Tribunal is erroneous and bad-in-law. He also argued that the Tribunal did not appreciate the evidence available on record in its proper perspective and erroneously dismissed the claim petition. He further argued that the Tribunal miserably failed to appreciate that the claim petition was maintainable despite the fact that the appellant had received some amount of compensation from the Insurance Company of his car. He also argued that there is no bar under the law to present an application for the remaining compensation of property damage of third party. The Tribunal has misquoted and misinterpreted the judgment of Hanumanthappa Vs. Ganapathi R. Kini and Another, .

Per contra, Shri Amrito Das. learned Counsel for respondent No. 2-I.C.I.C.I. Lombard General Insurance Company Limited supported the impugned award passed by the Tribunal. In support of his arguments, he has placed reliance on the decision of High Court of Karnataka at Bangalore in the matter of Harkhu Bai and Others Vs. Jiyaram and Others,

I have heard learned Counsel for the parties, perused the record and the impugned award of the Tribunal.

A bare perusal of the record goes to show that applicant has received payment of Rs. 17,715/- against the claimed amount of Rs. 29,857/- from the insurer of his vehicle in respect of extensive damage caused to his vehicle. Sunil Bajaj (AW/1) has specifically stated that it is true that he received a sum of Rs. 17,715/- as compensation from his Insurance Company, thereafter he put his signature in the voucher and received the acknowledgment thereof. He has also stated that he could not see whether the words ''full and final settlement'' regarding payment were written in the voucher or not.

Ajit Pandey (AW/2) has stated in his deposition that Tavera Car of applicant Sunil Bajaj came for repairing to his garage namely Vardhaman Motors. He has also stated that bill (Ex. P/8) and acknowledge (Ex. P/9) were signed by the owner of Vardhaman Motors. Thus, from the above evidence, it is clear that the vehicle of applicant got repaired and payment made to Vardhaman Motors and acknowledgment thereof has been proved.

Now, the question remains to be seen in this case is that whether the claim petition filed by the applicant is maintainable or not. From the evidence of applicant Sunil Bajaj (AW/1) wherein he has stated in his cross-examination that he could not see whether the words "full and final settlement'' regarding payment were written in the voucher or not. He has also stated that it is true that he has not received the voucher issued by the Insurance Company under protest reserving the right to recover the balance amount after assessment of the claim. Thus, from the above statement of claimant, it cannot be said that amount of Rs. 17,715/- paid by insurer of his vehicle i.e., Insurance Company was not under full and final settlement of the claim. Further, in view of the above, burden to prove the claim petition lies on the applicant/appellant whereas neither he proved his case by oral or documentary evidence that the award is received as part payment in respect of his claim from the Insurance Company nor is able to prove that his case is maintainable under the law. Thus, it cannot be said that the payment of Rs. 17,715/- made by Insurance Company of his vehicle is part payment in respect of his claim.

The question whether the claim petition filed by the claimant before the Tribunal for compensation from the insurer of the offending vehicle, after receiving the payment for extensive damage caused to the vehicle from Insurance Company with which the vehicle was insured, is maintainable, came up for consideration before the Karnataka High Court in the case of Harkhu Bai and Others Vs. Jiyaram and Others, wherein it was observed in para 6 as under :

That leaves us with the claim in M.V.C. No. 3 of 1990. The Tribunal has rejected the said claim on two grounds. Firstly, because no negligence on the part of the offending vehicle is proved and secondly, because the claimant, owner of the vehicle, has already received from the insurance company with which the vehicle was insured an amount representing the loss suffered by him. While the finding on the first of the said question has been reversed by us, we see no reason to interfere with the view taken by the Tribunal on the second question. It is not in dispute that the vehicle owned by the claimant in M.V.C. No. 3 of 1990 had suffered extensive damage on account of the collision but it is also admitted that the vehicle being insured with one of the other insurance companies, the damage was assessed and paid. The order passed by the Tribunal further shows that the payment was received by the claimant 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 the other Insurance company represented a part only of the total damage, the Tribunal was justified in rejecting the claim for any further payment. We, therefore, see no merit in the appeal filed by the owner which shall have to be dismissed.

In the instant case, appellant has utterly failed to prove the fact that claim amount paid by the insurer of his vehicle was part payment and not full and final settlement and view taken in the matter Harkhu Bai and Others Vs. Jiyaram and Others, that "In the absence of any material to show that the claim paid by the other insurance company represented a part only of the total damage, the Tribunal was justified in rejecting the claim for any further payment." is very specific to this extent. The question regarding misquoting and misinterpreting the judgment Hanumanthappa Hanumanthappa Vs. Ganapathi R. Kini and Another, is concerned, in that case the claim petition was remitted to the Tribunal for a fresh consideration but in the instant case the Tribunal has decided the matter finally on merit after taking evidence. Thus, the facts and circumstances of the present case are entirely different from the facts of Hanumanthappa Hanumanthappa Vs. Ganapathi R. Kini and Another,

Having considered all the facts and circumstances of the case and in view of the law laid down in the matter of Harkhu Bai and Others Vs. Jiyaram and Others, ), I am of the considered opinion that the Tribunal has rightly dismissed the claim petition of the appellant/claimant on the ground of maintainability, which does not call for any interference in this appeal.

Accordingly, the appeal filed by the appellant/claimant is liable to be dismissed and is hereby dismissed. No order as to costs.