Karnataka High Court
The Oriental Insurance Co Ltd vs The Divisional Controller on 20 February, 2017
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2017
BEFORE:
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.No.2217/2011 (MV)
BETWEEN:
The Oriental Insurance Co. Ltd.
J.L.C. Building, Katapady Road,
Velloor - 632 001.
Duly represented by:
The Regional Manager
The Oriental Insurance Co. Ltd.
Regional Office, Leo Shopping
Complex, 44/45, Residency Road
Bengaluru - 560 025
By its Manager. ... Appellant
(By Sri A. Ravishankar, Advocate)
AND:
1. The Divisional Controller
K.S.R.T.C., Mangalore Division,
Mangalore - 575 001
2. Sri. M. Chinnappan, 45 Years,
Kannakannapalaya,
Bangarapete Road,
Kolar - 563 101 ... Respondents
(By Sri F.S. Dabali, Advocate for R1,
R-2 service held sufficient V/C/O dated 15.01.2017)
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This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated 13.12.2010 passed in MVC
No.614/2007 on the file of the III Additional District
Judge and Member MACT, D.K., Mangalore, awarding a
compensation of Rs. 63,908/- with interest @ 6% P.A.
form the date of petition.
This appeal coming on for hearing this day, the
Court delivered the following: -
JUDGMENT
The Oriental Insurance Company Limited has filed this appeal challenging the judgment and award dated 13.12.2010 made in MVC No.614/2007 passed by the MACT, Mangalore (for short `Tribunal').
2. The main contention of the appellant is that the quantum of the compensation awarded for damages to KSRTC Bus bearing Registration No.KA-19/F-1898 is contrary to law. The KSRTC claimed that the bus was idle for a period of 26 days which is contrary to law and sought for setting aside the judgment and award passed by the Tribunal.
3. The 1st respondent herein filed a claim petition contending that on 11.09.2005 at about 5.00 p.m, while the driver of the KSRTC Bus bearing 3 Registration No. KA-19/F-1898 was driving the said bus on the extreme left side of B.M. Road of NH-48, near Balegadde within the limits of Sakaleshpura Town Police Station, a driver of lorry bearing Registration No.KA-07/B-6399 drove the same in a rash and negligent manner and dashed against the Bus from the hind side. Due to that, the KSRTC Bus was badly damaged. The bus was towed towards Mangalore for repair. The KSRTC had spent Rs.10,000/- towards repair charges. There was `loss of revenue' per day of Rs.4,394/- since the bus was kept idle for a period of 26 days. Hence, sought for compensation of Rs.1,14,244/- towards `loss of revenue' and Rs.10,299/- towards repairing charges and in all, a sum of Rs.1,24,543/- was claimed for compensation.
4. In response to the notice issued by the Tribunal, though the owner of the lorry was served with notice, he remained un-represented. The 2nd respondent - Insurance Company filed written statement denying the entire averments made in the claim petition and also disputed the compensation 4 claimed by the 1st respondent contending that due to rash and negligent driving by the driver of KSRTC bus, the accident had occurred. The compensation in the form of damages claimed by the KSRTC is exorbitant, for the minor damages, keeping the bus idle for a period of 26 days is unheard of and hence sought for dismissal of the claim petition.
5. On the basis of the pleadings of the parties, the Tribunal framed necessary issues.
6. The claimant in order to prove their case, the conductor of the bus was examined as PW-1, Mechanical Engineer of the bus was examined as PW-2 and the Statistical Assistant of the KSRTC was examined as PW-3 and the documents were marked as Exs.P-1 to P-8. On behalf of respondents, none of the witnesses were examined. However, the insurance policy was marked as Ex.R1 with consent.
7. The Tribunal after appreciating the oral and documentary evidence let-in by the parties, taking into consideration the IMV report, charge sheet, copy of the 5 complaint and other relevant records, held that due to actionable negligence on part of the driver of the lorry, the accident had occurred and the KSRTC bus was damaged. Hence, they are entitled for compensation in the form of damages. The Tribunal taking into consideration the cost of spare parts and labour charges awarded a sum of Rs.6,785.50/- towards expenditure incurred for the repair of the bus. Further the Tribunal taking into consideration the revenue loss of Rs.4,394/- per day and deducting 50% towards expenditure awarded the compensation for keeping the bus idle for a period of 26 days. In all, a sum of Rs.63,908/- has been awarded towards damages and `loss of revenue' caused as a result of the accident. Being aggrieved by the quantum of compensation awarded by the Tribunal, the appellant has preferred this appeal.
8. Sri A Ravi Shankar, Advocate appearing for the appellant contended that the quantum of compensation in the form of damages awarded by the Tribunal is on the higher side. The cost of spare parts 6 is Rs.4,572/- and labour charges is of Rs.1,756.50. The said amounts show that the bus has sustained minor damages. The minor damages to the bus and keeping the bus idle for a period of 26 days is unheard of. If the KSRTC kept the bus idle, the Insurance Company is not liable to compensate the same. Further, the compensation awarded by the Tribunal is on the higher side and sought for setting aside the same.
9. On the other hand, Sri F.S Dabali, learned Advocate appearing for the respondent No.1-KSRTC contended that in view of negligence on the part of driver of the lorry, the accident had occurred near Balegadde. Since the passengers traveling in the bus have to be shifted to some other bus, there is revenue loss till the bus is repaired. The bus was kept for repair for a period of 26 days. Taking into consideration all these aspects of the matter, the Tribunal awarded just and fair compensation and sought for dismissal of the appeal.
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10. I have carefully considered the arguments addressed by the learned counsel appearing for both the parties and perused the judgment and award and oral and documentary evidence.
11. The dispute in this appeal is only with regard to the quantum of compensation awarded in the form of damages to the bus. The records produced by the parties clearly disclose that the rear side of the bus was damaged due to actionable negligence on the part of the driver of the lorry. The bus was shifted to Mangalore depot for repair. The claimant claimed that for repair of the bus, they had spent Rs.4,572/- towards spare parts and spent Rs.1,756/- towards `labour charges'. Further, the bus was kept idle for 26 days. Looking into the expenditure incurred for repair of the bus and labour charges, it is clear that the damage caused to the bus is minor and for that minor repair of the bus, keeping it idle for a period of 26 days is contrary to law. If the KSRTC kept its bus idle for minor repairs, they cannot claim the compensation from the Insurance Company. The minor repair for damage to 8 the bus can be repaired within a period of five to ten days. Even though the accident had occurred on 11.09.2005, the bus was released from the jurisdictional police on the very next day. Thereafter the bus was shifted to Mangalore Bus Depot for repair. Taking into consideration the repair of the bus and the damaged portion on the rear side of the bus, the KSRTC might have spent for ten days for repair of the bus. Hence, taking into consideration the `loss of revenue' per day is Rs.2,197/-, claimant is entitled for Rs.21,970/- towards `loss of revenue' and a sum of Rs.6,786/- towards repairs. In all, the claimant is entitled for compensation in the form of damage to the bus of Rs.28,756/- as against Rs.63,908/- with interest at 6% p.a. Accordingly, I pas the following order:
ORDER Appeal is allowed in part. The judgment and award dated 13.12.2016 made in MVC No.614/2007 by the MACT, Managalore is modified. 9
Claimant is entitled for compensation of Rs.28,750/- as against Rs.63,908/- awarded by the Tribunal with interest at 6% p.a. The amount in deposit is ordered to be transferred to the concerned MACT for disbursement.
Excess amount, if any, be refunded to the appellant - Insurance Company.
Sd/-
JUDGE Bkm.