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Madras High Court · body

2000 DIGILAW 994 (MAD)

S. Kandaswamy & Others v. C. Thomas

2000-10-12

K.SAMPATH

body2000
Judgment : 1. The owner and the insurance company are the appellants. There was an award passed against the appellants for a sum of Rs.50,391.36 in M.C.O.P.No.22 of 1993 filed by the respondent herein towards damages caused to his vehicle and the loss of income because of the inability to run the vehicle damaged for 41 days. .2. Thecase, are set out in the petition for compensation, was as follows: .On 6. 1992 at about 6.30 p.m., the vehicle bearing Registration No.KLV.6309, belonging to the respondent, was proceeding along Tirunelveli-Nagercoil Main Road. When it was nearing Valliyur, a mini truck, bearing Registration No.TN.72-Z-0642, belonging to the first appellant, driven in a rash and negligent manner, dashed against a bullock-cart, which, resulted in damage being caused to the vehicle of the respondent. The appellants, either jointly or individually, were liable to make good the loss caused to the respondent. The respondent, because of the accident, could not run the lorry for 41 days and at the rate of Rs.500 he had lost Rs.20,500. Apart from that he had incurred Rs.63,479.30 being the expenses incurred by him for putting the vehicle back on the road. The claim was for Rs.1 lakh. 3. The first appellant remained ex parte and the second appellant, insurance company, alone contested the case. The accident was only due to the negligence of the driver of the vehicle belonging to the respondent. It was for the respondent to prove how the accident occurred and in any event, the claim was not maintainable. .4. On the above pleadings, the tribunal framed the necessary points for determination and held, on the materials produced, that the accident was only due to the rash and negligent driving of the vehicle belonging to the first appellant. 5. As regards the quantum, the tribunal held that the maximum that could be given was Rs.50.3936. Out of which, Rs.36,541.36 would represent the cost of repairs to the vehicle and Rs.12,300 towards revenue loss at the rate of Rs.300 for 41 days. There is some mistake with regard to the addition. 6. Mr.Sivakumar, learned counsel for the appellants, submitted that the tribunal erred in holding that the accident was only due to the rash and negligent driving of the vehicle, belonging to the first appellant, by its driver. There is some mistake with regard to the addition. 6. Mr.Sivakumar, learned counsel for the appellants, submitted that the tribunal erred in holding that the accident was only due to the rash and negligent driving of the vehicle, belonging to the first appellant, by its driver. According to the learned counsel, it was only the driver of the respondents vehicle, who had been rash and negligent in driving the lorry and he alone should have been held responsible for the accident and in any event it should have been held that the driver of the respondents vehicle had also contributed for the accident. 7. In coming to the conclusion that the driver of the first appellants vehicle alone was responsible, the tribunal relied on the F.I.R./Ex.P-2, Statement/Ex.P-3, Mahazar/Ex.P-4, the report of Motor Vehicles’ Inspector/Ex.P-5, Sketch/Ex.P-6 and also the oral evidence of P.W.3 the driver of the respondents vehicle. The sketch/Ex.P-6 proves beyond any doubt that the accident could have been only on account of the rash and negligent driving of the vehicle belonging to the first appellant. 8. I do not find any material to take a view different from the one taken by the tribunal. The finding that the accident was only due to the rash and negligent driving of the vehicle belonging to the first appellant, is confirmed. .9. Thetribunal has awarded Rs.46,541.36 towards the replacement and repair charges for the vehicle. The first appellant challenges the same. According to the first appellant, the Motor Survey Report dated 7. 1992 marked as Ex.R-1 and spoken to by one Ponnusamy, examined as R.W.1, would clearly show that the amount claimed for damages, for repairs and replacements was on the high side and the proper amount payable for repairs should have been fixed only at Rs.7,509.50 as opined by R.W.1. The tribunal has considered this aspect rather extensively and come to the conclusion that only the evidence on the side of the claimants in the shape of documents and oral evidence should be preferred as against Ex.R-1 and the oral evidence of R.W.1. It is not disputed that even on the date of the accident the claimants vehicle was road worthy, it had been carrying goods and proper shape. It cannot be contended that under the cloak of getting the damage caused to the vehicle the claimant had more extensive repairs carried out to the vehicle. It is not disputed that even on the date of the accident the claimants vehicle was road worthy, it had been carrying goods and proper shape. It cannot be contended that under the cloak of getting the damage caused to the vehicle the claimant had more extensive repairs carried out to the vehicle. The Tribunal has, in paragraph 7, dealt with the question that P.W.2, who is a recognised Central Government Valuer and Surveyor and on the panel of three Insurance Companies, namely, (1) United India Insurance Company, (2) National Insurance Company, and (3) Oriental Insurance Company, from 1986, had examined the vehicle at the request of the owner of the vehicle, that he had inspected the vehicle at the place of the accident, and at Appujam Motor Works, while the repair was in progress and the third occasion after the work had been completed. According to P.W.2, the sum of Rs.51,575, as certified by him under Ex.P-16, was required to put the vehicle back on the road, that only the damage caused to the vehicle on account of the accident was attended to and no extra work was done on the vehicle. There is no reason why the evidence of P.W.2 should not be accepted in toto. He is also a more qualified person than R.W.1 and his evidence is entitled to weight. .10. The learned counsel for the appellants, particularly, contended that according to the evidence of R.W.1, some of the parts of the vehicle would have suffered damage on account of lack of oil for circulation. This appears to be a mere surmise and it cannot be accepted as conclusive piece of evidence. As already noticed, the vehicle was road worthy originally and the minimum required repairs had to be carried out. Otherwise it would not have been possible to put the vehicle back on the road. Only the actual damage caused to the vehicle had been attended to and more than Rs.50,000 had been incurred. The photographs marked also show the extensive nature of the damage caused to the vehicle. While on this, the learned counsel for the appellants contended that certain other repairs in the interior of the vehicle had been attended to and the claim made. The photographs marked also show the extensive nature of the damage caused to the vehicle. While on this, the learned counsel for the appellants contended that certain other repairs in the interior of the vehicle had been attended to and the claim made. The learned counsel is not right in his submission as on account of the impact, the vehicle had suffered external damage and there would have been a chain reaction. When once a vehicle is hit in the front because of the impact the parts inside would also have got damaged. In these circumstances, the award of Rs.46,541.36 by the tribunal for repairs cannot be taken exception to. The same is confirmed. 11. The next contention relates to the revenue loss caused to the vehicle. The tribunal has quantified the amount at the rate of Rs.300 for 41 days and arrived at Rs.12,300. According to the learned counsel for the appellants, there cannot be a claim for economic loss. 12. In a recent judgment, K.P.Sivasubramaniam, J. in Rajendran v. Selvaraj , (2000)2 MLJ. 814 after a thorough and extensive analysis of the case law on the point has held that after 1988 Act, only the tribunal has jurisdiction to award compensation for loss of income or revenue loss arising out of damages caused to the property of the claimant. We have, therefore, to reject the contention of the learned counsel for the appellants that no amount could be claimed towards revenue loss. The vehicle was in the workshop for 41 days. According to the claimant, his loss was not less than Rs.500 per day. However, no material was produced before the tribunal, quantifying the loss of income at Rs.500 per day. The tribunal fixed it at Rs.300. The vehicle was being used as a transport vehicle carrying goods and after defraying the overheads, it cannot be said that Rs.300 could be on the high side. However, the learned counsel for the respondent/claimant had not been able to explain as to why the vehicle was in the workshop for so long. He should have ensured that the repairs were attended to immediately and the vehicle was put back on the road. However, the learned counsel for the respondent/claimant had not been able to explain as to why the vehicle was in the workshop for so long. He should have ensured that the repairs were attended to immediately and the vehicle was put back on the road. As pointed out by K.P.Sivasubramaniam, J. in the judgment already referred to, (in assessing) such (economic loss or loss of income arising from damage to the property, the tribunal has to adopt a strict assessment and claimants cannot be permitted to capitalise on the accident unreasonably. The period of assessment could be only the reasonable maximum period required to restore the property to its original condition). 13. In my view, while quantifying the loss of income at Rs.300 per day, the number of days, according to the claimant, he took to put the vehicle back on the road cannot be accepted. (The claimant should have taken every effort to get the vehicle repaired at least within a period of 30 days). The claimant would be entitled to only a sum or Rs.9,000 towards loss of income. Consequently, the appeal will stand allowed to the extent indicated above and instead of Rs.12,300 towards revenue loss, the claimant would be entitled to Rs.9000. In other respects, the award will stand confirmed. No costs. 14. The learned counsel for the respondent pointed out that the tribunal has made a mistake with regard to adding the various amounts and instead of awarding Rs.60,391.36, it has wrongly quantified the amount at Rs.50,3936. While deducting Rs.15,967.36 from Rs.63,871.15, instead of arriving at Rs.47,903.36, the tribunal arrived at Rs.37,903.36 which apparently is a mistake. 15. Consequently, the award of the tribunal will stand corrected as Rs.60.391.36 and the same will stand modified as Rs.57,0936.