Karnataka High Court
Nagesh Kotian vs Abu Rso Calicut Tata Motors Ltd on 7 December, 2018
Author: H.P.Sandesh
Bench: H. P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 7th DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H. P. SANDESH
M.F.A. NO.6362/2010 (MV)
BETWEEN:
Nagesh Kotian
S/o late Babu Poojary
Aged about 48 years
Abhishek Nilaya, Mullaguude,
Tenka Ulipady Village
Mangalore Taluk, D.K.
... Appellant
(By Sri N.B. Deshpande &
Sri N.S. Bhat, Advocates)
AND:
1. ABU RSO-Calicut Tata Motors Ltd.,
KRS Centre, Kannur Road,
Tikkodi, Calicut,
Kerala State
Represented by its Branch Manager.
2. The New India Insurance Co. Ltd.,
Head Office, 87, M.G. Road,
Fort Mumbai.
Represented by its Branch Manager.
... Respondents
(By Sri S.T. Rajashekara, Advocate for R2;
R1 - is served.)
2
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 25.01.2010
passed in MVC No.130/2007 on the file of Presiding
Officer, Fast Track Court, Member, MACT, Mangalore,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This MFA coming on for Final Hearing this day,
the Court delivered the following:-
JUDGMENT
The appellant-claimant has filed this appeal challenging the judgment and award dated 25.1.2010 on the file of Fast Track Court, MACT, Mangalore D.K. on the ground that the compensation awarded is very meager.
2. It is the claim of the claimants before the Tribunal that on account of the accident taken place on 20.8.2006 Mahindra Jeep bearing registration No.KA.19/B-3774 subjected to damage and the vehicle was got repaired and the cost of repair is Rs.1,39,663/- and also sought the compensation for the loss and inconvenience towards the conveyance. The Tribunal 3 after considering both oral and documentary evidence awarded the compensation of Rs.81,700/- with interest at 6% per annum.
3. Being aggrieved by the judgment and award granting compensation of Rs.81,700/-, the claimant has filed the present Miscellaneous First Appeal contending that the Tribunal has committed an error in not considering the evidence on record. It is further contended that the claimant has furnished the documents to the tune of Rs.1,39,663/- towards repair of the vehicle which is evident as per the evidence of PW9 and Ex.P5. But the Tribunal erred in awarding only Rs.75,700/- towards repair charges which is just and proper. The claimant also contended that he was earning Rs.25,000/- to Rs.30,000/- per month for hiring the jeep for transportation and other charges and he has suffered loss for a period of two months and Tribunal has awarded only loss of income at Rs.6,000/- 4 and committed an error in awarding interest only at 6% per annum without there being any cogent reasons for awarding interest.
4. The counsel appearing for the appellant in his argument vehemently reiterated the grounds urged in the appeal and further contended that in spite of documentary proof is placed before the Tribunal, the evidence of PW9 and also Ex.P5 clearly discloses the cost of repair, the Tribunal has committed an error in awarding the lesser compensation. The counsel also contended that the documentary evidence clearly discloses that for a period of two months the vehicle is in garage for repair and though the Tribunal has observed and taken the loss of Rs.200/- per day, only awarded an amount of Rs.6,000/- for a period of one month and not for a period of two months and the same has to be modified. The Tribunal has awarded interest only at 6% per annum, which is meager on the ground 5 that the claimant has already incurred the expenses for repair of the vehicle and Tribunal ought to have awarded the interest on the higher side and hence the judgment and award requires to be modified. The Tribunal also fastened the liability on the insured on the ground that the policy is an Act policy.
5. The counsel appearing for respondent No.2- Insurance Company contended that the Tribunal has rightly comes to the conclusion that the insurer is not liable to pay the compensation appreciating the fact that the policy issued is only an Act policy and hence fixed the liability on the insured.
6. The notice issued against the owner is also served and he did not choose to appear and engage the counsel.
7. After having heard the arguments of the appellant's counsel and respondent No.2 and on perusal 6 of the judgment and award, the Tribunal while disallowing the amount of Rs.1,39,663/- and awarding compensation of Rs.75,700/-, in detail discussed in paragraph 37 and also considered the evidence of PWs.8 and 9 and PW2 who has been examined before the Tribunal categorically says that the vehicle is also subjected to survey after the repair and after repair also the survey report is for Rs.75,665/- and there is no explanation for higher compensation though the bill was issued for an amount of Rs.1,39,663/- and same ought to have been explained by the claimant, that has not been done. PW8 who has been examined also categorically deposes that the vehicle also subjected to survey after the repair and when such being the case, I do not find any error committed by the Tribunal in awarding the compensation of Rs.75,700/-.
8. However, the Tribunal while considering the loss of income awarded an amount of Rs.200/- per day 7 for a period of one month and the documentary evidence placed before the Court which has been discussed in paragraph 38 of the judgment and on perusal of Ex.P5 the bill issued by the garage discloses that job card was issued on 4.9.2006 and due date was shown as 26.10.2006 i.e. one month 22 days, but there is no material on record to show that how many days they have taken to effect the necessary repairs of the jeep. However, after considering the Ex.P5-bill and Ex.P3 IMV report, the Tribunal has taken the loss only for a period of one month. When the accident was taken place on 20.8.2006 and job card was issued on 4.9.2006 and bill is dated 26.10.2006, the Tribunal ought to have taken the period in which the vehicle was subjected to repair and instead of Rs.6,000/-, considering the period of repair for two months the Tribunal ought to have awarded compensation at Rs.12,000/- and hence only enhanced compensation of Rs.6,000/- is payable to the appellant. 8
9. Regarding awarding of interest is concerned, the Tribunal has awarded 6% per annum and owner of the vehicle has already got it repaired the vehicle and made the payment. When that being the case, the Tribunal ought to have considered the said fact and same has not been considered and it is a fit case to award the interest at 9% per annum instead of 6% per annum and hence I pass the following:
ORDER The appeal is partly allowed. Additional compensation of Rs.6,000/- is awarded over and above the compensation already awarded by the Tribunal.
The interest part is modified as 9% instead of 6% per annum.
Respondent No.1 is directed to pay the compensation amount with interest. 9
The dismissal against the Insurance Company is confirmed, as the policy is an Act policy.
Sd/-
JUDGE *AP