Karnataka High Court
M/S. Mccreade Software (Asia) vs Srinivas K on 9 September, 2015
Bench: N.K.Patil, P.S.Dinesh Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Dated this the 9th day of September, 2015
PRESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
MFA No.4423/2013 (MV)
BETWEEN:
M/s MCCREADE SOFTWARE (ASIA)
PRIVATE LIMITED
REPRESENTED BY ITS
MANAGING DIRECTOR
Mrs SOUNDARYA RAGHU
@ SOUNDARYA REDDY
W/O LATE T RAGHU
AGE: 62 YEARS
NO.811, 23RD MAIN
12TH A CROSS, 2ND PHASE
J.P. NAGAR
BANGALORE - 560 078 ...APPELLANT
(By Sri SANKET M YENAGI, Adv.,)
AND:
1. SRINIVAS K
NO.408, ASWATH LAYOUT
SARAVATHI ROAD, 3RD CROSS
DODDAKALLASANDRA POST
BANGALORE - 560 062
2. NATIONAL INSURANCE CO. LTD.,
DIVISION NO.10
FLAT NO.101-106
2
N-1, B.M.C. HOUSE CONNAUGHT PLACE
NEW DELHI-110 001
3. THE MANAGER
M/s NEW INDIA ASS. CO. LTD.,
INDOCEM HOUSE, 2ND FLOOR
NO.327/5, MYSORE ROAD
BANGALORE - 560 039 ... RESPONDENTS
(By Sri BHANUPRAKASH, Adv., FOR R1
Sri O. MAHESH, Adv., FOR R2
Sri A N KRISHNASWAMY, Adv., FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:16.02.2013 PASSED IN MVC
NO.7230/2008 ON THE FILE OF THE IV ADDITIONAL JUDGE,
MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.09.2015 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S. DINESH
KUMAR, J., DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the owner of a Car which was damaged in a road traffic accident claiming residuary compensation from the Insurer of offending vehicle after receiving compensation from its own Insurer.
2. Briefly stated the facts of the case are, that on 27.03.2007, the Managing Director of the appellant - Company was driving her Mercedes Car bearing 3 No.KA-05-MJ-2424 and it collided with a Maruti Car bearing No.KA-51-M-9409 on Mysuru - Bengaluru road in Mysuru City. Appellant's Car was damaged and she raised an own damage claim for a sum of Rs.23,20,881/- with its Insurer namely, the third respondent herein. The Insurer allowed a claim of only Rs.13,61,828/-. Therefore, feeling aggrieved, the appellant presented the instant petition against the Insurer of the Maruti Car, the second respondent herein and sought a compensation of Rs.25,00,000/- under different heads mentioned in the petition.
3. Two witnesses were examined on behalf of the appellant and 16 documents marked. An officer of the third respondent - Insurance Company was examined as RW.1 and two documents were marked. Tribunal on consideration of pleadings and evidence on record, dismissed the petition by the impugned Judgment and Award. Hence, this appeal. 4
4. We have heard Sri Sanket M. Yenagi, learned Counsel for the appellant, Sri Bhanuprakash, learned Counsel for respondent No.1, Sri O.Mahesh, learned Counsel for respondent No.2 and Sri A.N.Krishnaswamy, learned Counsel for respondent No.3.
5. Learned Counsel for the appellant vehemently contends that the appellant had to spent Rs.23,20,881/- to get its Car repaired and the second respondent with whom the Car was insured allowed only a part claim of Rs.13,61,828/-. Consequently, the appellant was entitled to recover remaining sum of Rs.9,59,053/- and other expenses from the owner of the offending vehicle and its Insurer. He submits that the reasoning of the Tribunal that the appellant raised a claim and received a sum of Rs.13,61,828/- towards full and final settlement to negate the claim of the appellant is erroneous because the owner of the offending vehicle as also its Insurer are liable to make good the remaining 5 expenditure incurred towards repair of the car and other incidental expenditure. Accordingly, he prays for allowing this appeal.
6. Per contra, learned Counsel appearing for both second and third respondents while opposing the appeal vehemently submit that the claim petition filed by the appellant per se is not maintainable in law. They submit that the appellant exercised its option to seek compensation from its own Insurer namely, the third respondent and received a sum of Rs.13,61,828/- towards full and final settlement of its claim. Simultaneously, with the exercise of its option, to seek damages from its own Insurer, the appellant looses its right against any person including the Insurer of offending vehicle. If at all, any rights subsist, it is the right of subrogation of the third respondent to recover the compensation paid to the appellant from the second respondent.
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7. Learned Counsel for the third respondent places reliance on paragraphs No.21, 26, 29 & 30 of the Judgment of the Hon'ble Supreme Court in the case of Economic Transport Organization, Delhi v. Charan Spinning Mills Private Limited and another reported in (2010) 4 SCC 114 and contends that the subrogation is an equitable assignment and collateral to a contract of indemnity and the insurer can sue the wrong doer in the name of assured. He further submits that his Insurance Company may or may not choose to recover the compensation paid to the appellant from the second respondent as may be advised keeping in view, the policy of the State Owned Insurance Companies. He further submits that at any rate, the instant claim petition is not maintainable.
8. Learned Counsel for the second respondent advanced similar contentions as that of the Counsel for the third respondent and made a specific additional submission that the appellant consciously opted to 7 make a claim against its own Insurer to claim 'own damages' because as per the terms of contract inter se between the third respondent and the owner of offending vehicle, the maximum compensation recoverable was Rs.7,50,000/-. He pointed out the relevant portion contained in the policy, which discloses that the liability of the Insurer in respect of a third party property is limited to Rs.7,50,000/-.
9. Learned Counsel for both respondents, conclude their submissions with a common prayer to dismiss this appeal.
10. In the light of the rival contentions, the following point that arises for our consideration:-
"Whether the claim petition filed by the appellant after receiving compensation from the third respondent in full and final settlement is maintainable?"
11. Detailed analysis of facts are not necessary as this case hinges around a pure question of law. 8 Appellant admittedly raised a claim of Rs.23,20,881/- against Insurer of its Car namely, the third respondent and received Rs.13,61,828/- in full and final settlement. The Tbribunal has carefully analyzed the evidence let in by the parties and recorded a finding that the evidence of RW.1 discloses that the appellant has received the sum of Rs.13,61,828/- towards the own damage claim after assessment of vehicle by an authorized surveyor in full and final settlement. It has also recorded a finding that RW.1 was not subjected to cross - examination by the Counsel for the petitioner - appellant and therefore it is remained unchallenged on record.
12. The Tribunal, placing reliance on the judgment of this Court in the case of Harkhu Bai and others v. Jiyaram and others reported in 2005 ACJ 1332 dismissed the petition. We have carefully perused the said judgment of wherein, it is held as follows:-
"6. That leaves us with the claim in M.V.C.No.3 of 1990. The Tribunal has rejected 9 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 questions 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 10 appeal filed by the owner which shall have to be dismissed."
(underlining is by us)
13. We have also carefully examined the deposition of RW.1. The relevant portion is extracted hereunder:-
"4. Further, I state that this respondent has got the loss suffered due to the damages caused in the accident assessed through its surveyor and loss assessor. Accordingly settled the OD claim of the petitioner in full and final settlement as per the settlement norms subject to which the policy would be issued."(sic) This witness was cross - examined by the second respondent. In the cross - examination, the witness has asserted that the appellant received the amount in full and final settlement. It is recorded by the Tribunal that the learned Counsel for the claimant - appellant had mentioned that the RW.1 would not be cross - examined by the appellant.11
14. A careful analysis of the facts required for the purpose of this case reveal that the appellant, owner of a luxury vehicle made an intelligent choice to seek compensation for repair of the vehicle from its own Insurer under the "own damage" scheme. The damage was assessed by an authorized surveyor at Rs.13,61,828/-. This amount was received by the appellant. Neither in the pleading nor in the evidence, the appellant has made any effort to demonstrate that the amount received from its own Insurer was not in full and final settlement. Particularly, the evidence of RW.1 is categorical to the effect that the payment made by the third respondent is in full and final settlement of the claim. The appellant has expressly chosen not to cross
- examine this witness, which has remained on record un-impeached.
15. In the circumstances and in the light of clear position of law as enunciated by this Court in the case of Harkhu Bai and others v. Jiyaram and others, which 12 we respectfully follow, we are left with no option but to hold that the appeal fails miserably and in the result, we dismiss the same without any order as to costs.
Sd/-
JUDGE Sd/-
JUDGE cp*