Andhra HC (Pre-Telangana)
New India Assurance Co. Ltd. vs T.M. Chayapathi And Anr. on 1 July, 2004
Equivalent citations: IV(2005)ACC61, 2006ACJ2206, 2004(5)ALD297, 2004 A I H C 4266, (2006) 1 TAC 715, (2004) 5 ANDHLD 297, (2005) 4 ACC 61, (2006) 4 ACJ 2206
JUDGMENT C.Y. Somayajulu, J.
1. First respondent who is the owner of the Maruti Van bearing No. AP 03-6399 filed a claim petition against respondents who are the owner and insurer of the bus bearing No. TN-01 N-0055, alleging that the drives of the said bus, due to his rash and negligent driving, dashed the bus against his van from behind resulting in extensive damage thereto, and so he had to spent Rs. 65,000/- for repairs thereto besides incurring an expenditure of Rs. 25,000/- towards travelling expenses etc., and underwent mental agony, and so he is entitled to Rs. 1,00,000/- from the respondents as compensation. Second respondent chose to remain ex parte both before the Tribunal and in this Court. Appellant filed its counter contesting the claim. In support of his case, first respondent examined himself as P.W. 1 and marked Exs.A1 to A7. Appellant did not adduce any oral evidence, but marked Ex.B1 by consent. The Tribunal having held that the accident occurred due to the rash and negligent driving of the driver of the bus, awarded Rs. 57,270/- as compensation to the first respondent against the second respondent and the appellant. Aggrieved thereby, this appeal is preferred by the insurer of the bus.
2. Learned Counsel for first respondent questioned the maintainability of the appeal by the insurer because no permission under Section 170 of the Motor Vehicles Act, 1988 (the Act) was obtained by it to take the defences open to the owner. The contention of the learned Counsel for the appellant is that though the appellant did not obtain permission under Section 170 of the Act, since the evidence of the first respondent as P.W. 1 shows that, he received Rs. 29,000/- from the United India Assurance Company Limited, with which the van damaged in the accident was insured, and failed to disclose the said fact in the claim petition, appellant can seek reduction of the compensation awarded by the Tribunal by Rs. 29,000/- which the respondent had received from his insurer, as he is not entitled to double payment for repairs to his damaged van. The contention of the learned Counsel for the respondent is that the question whether respondent received compensation from his insurer or not is irrelevant for deciding the liability of the owner of the offending vehicle and his insurer, that too when the accident took place due to the rash and negligent driving of the offending vehicle and so there are no grounds to interfere with the award of the Tribunal.
3. On the basis that Ex.A2 and Ex.A3 produced by the respondent show that he purchased spare parts worth Rs. 42,269-20 ps. from ABT work shop, Madras, the Tribunal awarded Rs. 42,270/-towards purchase of spare parts, Rs. 10,000/-towards travelling, boarding and lodging expenses, for the respondent going to and staying at Madras on 10 occasions in connection with repair to his van at Madras, and Rs. 5,000/- for the inconvenience suffered by the respondent during the period of repairs to his van involved in the accident.
4. The age of the vehicle or property involved in the accident is one of the important factors to be kept in view for awarding damages for the repairs affected to a vehicle or to the property damaged in the accident, because, due to wear and tear, the value of a vehicle or property gets depreciated over a period of time. The value of the parts in an old vehicle would be far less than the value of a new part. Respondent is entitled to the value of the parts that were damaged in the accident but not the value of a new part which was replaced in place of the old parts which were damaged. So the Courts while awarding damages to the owner of a vehicle damaged in an accident would usually deduct 1/3rd value from the value of the new parts to cover depreciation and award 2/3rd amount spent for purchase of the new parts as damages. That was not done in this case.
5. Rs. 10,000/- awarded to the respondent, towards the amount spent by him for making trips to Madras and his stay there, in connection with repair to his van is in fact a bonus to him, because his presence during repair was unnecessary and for his own reasons, he might have made 10 trips to Madras from Tirupati. That apart, Respondent could have got his damaged van repaired at Tirupati by bringing it to Tirupati. If it was not in a drivable condition after the accident, he could have got it towed to Tirupati and claimed towing charges. Obviously the rule of mitigation of damages was not kept in view by the Tribunal. Be that as it may since the Apex Court in National Insurance Company v. Nicolletta Rahtagi, , held that insurer, without obtaining permission under Section 170 of the Act, cannot maintain an appeal questioning the quantum of compensation awarded by the Tribunal, and since the appellant did not obtain permission under Section 170 of the Act, I do not wish to interfere with the compensation arrived at by the Tribunal. But I find force in the contention of the learned Counsel for the appellant that the Tribunal ought to have deducted Rs. 29,000/-received by the first respondent from his insurer while computing the compensation payable to the first respondent, and I find no force in the contention of the learned Counsel for the first respondent that a tortfeasor has to pay the compensation to the owner of the damaged vehicle, irrespective of the fact that he received compensation from his insurer, because damages are paid to the owner of the damaged vehicle, to bring it back into the same state or condition in which it was just before the accident, but not with a view to make him rich by awarding compensation twice from two different sources. So, respondent who received compensation from the insurer of his van for the damage caused to it in the same accident, cannot recover the same amount from owner or insurer of the offending vehicle also. It should be kept in view that principles for computing damages to the victims in a motor accident are different from the principles for computing damages to a property damaged in an accident, obviously because limbs of a human being, which are fractured in an accident, cannot be replaced, and even if operated they may not gain the normal shape, and human life, if lost, cannot be brought back. But damaged property can be replaced, if not easily, with some difficulty. Obviously for that reason some decisions laid down that ex gratia received from other sources cannot be taken into consideration for arriving at the damages payable to a victim or his legal representatives in a motor accident. In cases of death of a victim in a motor accident decisions held that since the victim would have had the benefit of the life insurance policy even if he survived up to the age upto which it was taken, the policy amounts received from the Life Insurance Corporation cannot be taken into consideration for computing the damages payable to the legal representatives of the deceased victim. In case of insurance of a motor vehicle question of insurer paying any amount to the insured, if no risk takes place, does not arise. So the principles governing computation of damage to victim in an accident cannot be applied to damage for property in an accident.
6. The evidence of the first respondent, as P.W. 1, that the claim made by him in this petition is apart from the amount of Rs. 29,000/- received from his insurer, cannot be accepted because there is no such averment in the claim petition. This apart a careful look into Ex.A2 and Ex.A3 bills show that they are Xerox copies, but not the originals. It is well known that for making a claim before the insurer of a vehicle, by the insured, he has to submit the original receipts with his claim. So the first respondent must have submitted the originals of Exs.A2 and A3 to his insurer. Respondent having received Rs. 29,000/- from his insurer towards the value of the parts purchased under Ex.A2 and Ex.A3, is not entitled to recover the said amount again from the owner and insurer of the offending vehicle, and so, I hold that the Tribunal was in error in not deducting Rs. 29,000/- received by the first respondent from his insurer while computing the compensation payable to the first respondent. Therefore, first respondent is entitled to Rs. 28,270/- only from the second respondent and the appellant.
7. Learned Counsel for the first respondent sought for direction being issued to the appellant not to recover the amount of Rs. 29,000/-, if it was already withdrawn by him. No such direction can be given because giving such direction tantamounts to allowing the first respondent to have a double benefit, which he is not entitled to. So it is unnecessary for me to go into the question whether the payment of entire amount covered by the award was made to the first respondent, and if the amount is still lying to the credit of the O.P. or not.
8. In the result, the appeal is allowed in part. The award passed by the Tribunal is modified. An award is passed for Rs. 28,270/-, in favour of the first respondent, with interest at 12% p.a., from the date of petition till the date of realization, with proportionate costs in the Tribunal. Rest of the claim of the first respondent is dismissed, without costs. Parties are directed to bear their own costs in this appeal.