Karnataka High Court
The General Manager vs Accord Software & Systems Pvt Ltd on 27 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
NC: 2023:KHC:43207
MFA No. 11054 of 2012
C/W MFA No. 7592 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO.11054 OF 2012(MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.7592 OF 2012(MV)
IN MFA NO.11054/2012
BETWEEN:
ACCORD SOFTWARE & SYSTEMS PVT.LTD.,
#37, K.R. COLONY, DOMLUR LAYOUT,
BANGALORE -560 071,
REPRESENTED BY MISS C. BEENA,
ASSOCIATE MANAGER - ADMINISTRATION.
...APPELLANT
(BY SRI. INDRAN M.B., ADVOCATE FOR
SRI. RAJESH VELLAKKAT, ADVOCATE)
Digitally AND:
signed by
SOWMYA D 1. M/S ICICI LOMBARD GIC LTD.,
Location: #89, II FLOOR, SVR COMPLEX,
High Court of
Karnataka HOSUR MAIN ROAD, MADIVALA,
KORAMANGALA,
BANGALORE - 68.
2. SRI. MOHAN G.P.,
S/O PUTTASWAMY,
NO.11/1, 2ND MAIN ROAD,
CHOLURPALYA, VIJAYANAGARA,
BANGALORE - 560 023.
3. M/S SRS TRAVELS,
-2-
NC: 2023:KHC:43207
MFA No. 11054 of 2012
C/W MFA No. 7592 of 2012
K.T. RAJASHEKHAR,
NO.321/3, TSP ROAD,
OPP:BANGALORE MEDICAL COLLEGE,
KALASIPALYAM,
BANGALORE - 560 002.
4. ANTHONY D. COSTA P.,
S/O PATRIC,
NO.83/3, M.M. ROAD,
FRAZER TOWN,
BANGALORE.
5. NATIONAL INSURANCE CO.LTD.,
DIVISIONAL OFFICE-V, NO.72,
P KALINGA RAO ROAD,
BANGALORE - 27.
...RESPONDENTS
(BY SRI. BHUSHANI KUMAR, ADVOCATE FOR R3;
SMT. NANDINI M.G., ADVOCATE FOR
SMT. GEETHA RAJ, ADVOCATE FOR R5;
R1 AND R4 ARE SERVED;
VIDE ORDER DATED 13.08.2015, SERVICE OF
NOTICE IN R/O R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.6.2012 PASSED IN MVC
NO.5919/2010 THE FILE OF THE II ADDITIONAL JUDE, COURT
OF SMALL CUSES, MACT, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
IN MFA NO.7592/2012
BETWEEN:
THE GENERAL MANAGER,
M/S ICICI LOMBARD GIC LTD.,
# 89, II FLOOR, SVR COMPLEX,
HOSUR MAIN ROAD, MADIVALA,
KORAMANGALA,
-3-
NC: 2023:KHC:43207
MFA No. 11054 of 2012
C/W MFA No. 7592 of 2012
BANGALORE - 68.
...APPELLANT
(BY SRI. B. PRADEEP, ADVOCATE)
AND:
1. ACCORD SOFTWARE & SYSTEMS PVT.LTD.,
# 37, K.R. COLONY, DOMLUR LAYOUT,
BANGALORE - 560 071.
2. SRI. MOHAN G.P.,
S/O PUTTASWAMY,
NO.11/1, 2ND MAIN ROAD,
CHOLURPALYA, VIJAYANAGARA,
BANGALORE - 560 023.
3. M/S. SRS TRAVELS,
K.T. RAJASHEKHAR,
NO.321/3, TSP ROAD,
OPP:BANGALORE MEDICAL COLLEGE,
KALASIPALYAM,
BANGALORE - 560 002.
4. ANTHONY D COSTA P.,
S/O PATRIC,
NO.83/3, M.M. ROAD,
FRAZER TOWN,
BANGALORE.
5. NATIONAL INSURANCE CO.LTD.,
DIVISIONAL OFFICE-V, NO.72,
P. KALINGA RAO ROAD,
BANGALORE - 27.
...RESPONDENTS
(BY SRI. INDRAN M.B., ADVOCATE FOR
SRI. M.R. RAJESH VELLAKKAT, ADVOCATE FOR R1;
SMT. NANDINI M.G., ADVOCATE FOR
SMT. GEETHA RAJ, ADVOCATE FOR R5;R3 SERVED;
VIDE ORDER DATED 27.02.2015,
NOTICE TO R2 AND R4 IS DISPENSED WITH)
-4-
NC: 2023:KHC:43207
MFA No. 11054 of 2012
C/W MFA No. 7592 of 2012
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.6.2012 PASSED IN MVC
NO.5919/2010 THE FILE OF THE II ADDITIONAL JUDE, COURT
OF SMALL CUSES, MACT, BANGALORE, AWARDING A
COMPENSATION OF RS.46,500/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL AND
ETC.,
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988, (in short MV Act), challenging the judgment and award passed by the II Additional Judge, Court of Small Causes and MACT (SCCH-
13), Bengaluru, in MVC No.5919/2010, dated 11.06.2012.
2. MFA No.7592/2012 is filed by the Insurance Company, challenging the quantum, while MFA No.11054/2012 is filed by the claimant seeking enhancement.
3. The brief factual matrix leading to the case are that on 30.07.2010 at 8.30 a.m., the driver of the car bearing registration No.KA-01-MA-9609, was driving the vehicle on inner ring road near TVS showroom, Dommalur, Bengaluru. At that time, the driver of Swaraj Mazda -5- NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012 bearing registration No.KA-01-C-1820, drove it at high speed in a rash and negligent manner came from behind and dashed against the petitioner's car. As a result, the vehicle bearing registration No.KA-01-MA-9609 was damaged considerably and the claimant got repaired the vehicle and estimate was issued to the tune of Rs.71,812/- and he has also spent more than Rs.25,000/- for conveyance.
4. It is also alleged that there is lot of depreciation and the petitioner has incurred total loss of Rs.1,46,812/- and the case was registered in Crime No.72/2010 against the driver of Swaraj Mazda vehicle bearing registration No.KA-01-C-1820. Hence, the claimant has filed a claim petition under Section 166 of the Motor Vehicles Act and claiming compensation of Rs.1,46,812/-.
5. The claim petition came to be resisted by respondent No.3 - ICICI Lombard GIC Ltd., the insurer of the offending Swaraj Mazda vehicle. -6-
NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012
6. The Tribunal after appreciating the oral and documentary evidence, awarded total compensation of Rs.46,500/- with interest at the rate of 6% p.a.
7. Being aggrieved by this award, the claimant has filed MFA No.11054/2012 for enhancement, while Insurance Company of respondent No.3- ICICI Lombard GIC Ltd., has filed MFA No.7592/2012 on the ground that the compensation awarded by the Tribunal is on higher side.
8. Heard the arguments advanced by the learned counsel for the appellant/claimant and the learned counsel for respondent No.3- Insurance Company. Perused the records.
9. The main contention of the Insurance Company is that the claimant was reimbursed the repair charges by his Insurance Company and hence, he is not entitled for any compensation and he places reliance on a decision reported by this Court in 2005 ACJ 1332 in the case of Harkhu Bai and others V/s Jiyaram and others. -7-
NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012
10. Per contra, the learned counsel for the appellant-claimant would contend that from Exs.P.10 to 12, it is evident that he has spent more than Rs.96,133/- and the compensation awarded was a meager one and hence, he has sought for enhancement.
11. Having heard the arguments and perusing the records, there is no serious dispute of the fact that the vehicle belonging to the claimant bearing registration No.KA-01-MA-9609 met with an accident on 30.07.2010 at 8.30 a.m., when it was hit by Swaraj Mazda vehicle bearing registration No.KA-01-C-1820, resulting in damage to the said vehicle. The accident is not at all disputed and the damages to the vehicle of the claimant, is also not under serious dispute.
12. Further, Ex.P.4 is the copy of complaint and FIR and Ex.P.8 is the charge sheet clearly disclose that the driver of the Swaraj Mazda vehicle bearing registration No.KA-01-C-1820 was prosecuted.
-8-
NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012
13. The main contention of the Insurance Company is that the claimant has already obtained the compensation by way of reimbursement pertaining to repairs from his Insurer - Respondent No.5 to the tune of Rs.31,500/- Hence, by placing reliance on a decision of Division Bench of this Court 2005 ACJ 1332, in the case of Harkhu Bai and others V/s Jiyaram and others, he seeks to allow his appeal by dismissing the claim petition.
14. It is asserted that, the claimant is not entitled for compensation as the damages from the Insurer of the other vehicle in view of reimbursement. However, the Division Bench of this Court in the said decision has considered the said aspect and para No.6 is relevant which is reproduced herewith:
"6. That leaves us with the claim in MVC 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 -9- NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012 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 MVC 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".
15. In view of the observation of the Division Bench of this Court, it is evident 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 damages, the Tribunal is not justified in rejecting the claim and hence, it is required to be paid.
16. In the instance case from the Exs.P10 to 12, it is evident that the claimant has spent Rs.96,133/-.
- 10 -
NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012 However, it is evident from Ex.P.11-estimate that Rs.27,848.18/- is pertaining to replacement of wheels and the balancing etc., There is no evidence to show that the wheels were damaged. The claimants are entitled for cost of damage to the vehicle but, if he got repaired the vehicle and got replaced the wheels, the Insurer is not liable to pay the compensation. Hence, from Exs.P.10 to 12, it is evident that the total cost of Rs.96,133/- and if, Rs.27.848.18/- is deducted, in view of the fact, that it is pertaining to wheel, balancing, servicing and replacement of tyres etc., then the total estimated cost works out as Rs.68,185/-. Hence, the claimant would be entitle for total compensation of Rs.68,185/- under the damages to the vehicle.
17. Further, the records disclose that the vehicle met with an accident on 30.07.2010 and it was shifted to workshop on 01.08.2010 and entire repairs were done by 11.08.2010. Hence, for 13 days the vehicle was in workshop. The claimant has placed reliance on Ex.P.14 to claim Rs.2,000/- per day pertaining to use of alternative
- 11 -
NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012 vehicle. But, however he has not produced any documents and he has not examined author of Ex.P.14. Even the vehicle number is not mentioned in the Ex.P.14 to show that the particular vehicle was utilized by the claimant for 13 days. Hence, Rs.26,000/- appears to be on higher side and considering the facts and circumstances, and denial of use of the vehicle for 13 days by the claimant, in my considered opinion, Rs.1,000/- per day as conveyance charges can be awarded and it will work out to Rs.13,000/-. If, it is considered, the claimant would be entitled for compensation of Rs.68,185/- + Rs.13,000/- = Rs.81,185/-. Hence, he is entitled for Rs.81,185/- towards vehicle damages.
18. However, admittedly the Insurance Company i.e., respondent No.5 has already reimbursed Rs.31,500/- to the claimant. The claimant cannot get that benefit and again claim the same against respondent No.3. As such, Rs.31,500/- is required to be deducted and if it is deducted, the claimant would be entitle to Rs.49,815/-, which can be rounded up to Rs.50,000/-. The Tribunal has
- 12 -
NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012 awarded Rs.46,500/- and considering these aspects, the claimant would be entitle for Rs.50,000/- as against Rs.46,500/- awarded by the Tribunal.
19. As such, the claim petition MFA No.11054/2012 filed by the claimant needs to be allowed-in-part, while claim petition MFA No.7592/2012 filed by respondent No.3
- Insurance Company needs to be dismissed. Accordingly, I proceed to pass the following:
ORDER
(i) MFA No.11054/2012 is allowed-in-part.
(ii) The claimant is held entitled for total
compensation of Rs.50,000/- as
against Rs.46,500/- awarded by the
Tribunal.
(iii) The enhanced compensation of
(Rs.50,000 - Rs.46,500) = Rs.3,500/-
shall carry interest at the rate of 6% p.a.
(iv) The entire compensation is liable to be paid by respondent No.3 - ICICI Lombard GIC Ltd.,
- 13 -
NC: 2023:KHC:43207 MFA No. 11054 of 2012 C/W MFA No. 7592 of 2012
(v) Respondent No.3 - ICICI Lombard GIC Ltd., is directed to deposit the entire enhanced compensation with occurred interest thereon within a period of six weeks from the date of receipt of certified copy of this order.
(vi) The entire enhanced compensation shall be released in favour of claimant.
(viii) The amount in deposit made by the Insurance Company in MFA No.7592/2012 shall be transmitted to the Tribunal for disbursement.
Sd/-
JUDGE MS* List No.: 1 Sl No.: 12 CT:SNN