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2002 DIGILAW 1357 (MAD)

Kannammal v. N. N. Shanmugam

2002-11-07

PRABHA SRIDEVAN, R.JAYASIMHA BABU

body2002
Judgment :- R. JAYASIMHA BABU, J. 1. The appellants lorry met with an accident as a result of which the lorry suffered considerable damage to the front right portion, including damage to the engine. The lorry had to be left with the repairer for a period of 49 days 2. The owner of the lorry had taken out a comprehensive policy. The owner produced the bills before his insurer for a total of Rs. 78,275/-. The insurer, however, paid only a sum of Rs. 22,023/- directly to the repairer. 3. That owner who is the appellant in this appeal, thereafter, made a claim as against the insurer of the bus, which had collided with the lorry and which accident had been caused due to the negligent driving of that bus. At the instance of that insurer, the insurance company, which had issued the policy to the owner was also impleaded. That insurer stated that it had paid the sum of Rs. 22,023/-in full quit of all the claim that the owner may have had against his insurer for the damage that was caused as a result of that accident. 4. The insurer of the bus rested its case on what had been done by the other insurer, who had comprehensively insured the owners lorry. It took the stand that the sum of Rs. 22,023/- that had been paid having been paid in final quit, the owner had no right to claim any further sum from the insurer of the bus. It also resisted the owners claim for payment of idling charges, as it had been claimed by the owner that the owner had lost earnings that could have been made from the use of the lorry for the period for which it remained with the repairer. 5. The Tribunal accepted the case of the two insurers and did not award anything towards the cost of repairs. It awarded a sum of Rs. 30,000/- towards the loss of earnings. The owner as also the insurer appealed. The award of Rs. 30,000/- was upheld by the learned single Judge. He, however, omitted to consider the owners appeal, even though in the course of the judgment the nature of the claim that had been made by the owner was set out. The owner, being aggrieved, is now in appeal before us. 6. The award of Rs. 30,000/- was upheld by the learned single Judge. He, however, omitted to consider the owners appeal, even though in the course of the judgment the nature of the claim that had been made by the owner was set out. The owner, being aggrieved, is now in appeal before us. 6. When the damage is caused to the vehicle by reason of the negligent use of another vehicle, the insurer of the vehicle which caused the damage is certainly liable for the damage so caused. The benefits received by the owner from his insurer for the damage suffered by his vehicle is an amount which is dependent upon the terms of the policy and does not necessarily reflect the actual damage and the proper amount of compensation payable therefor. 7. The evidence, which was firmly relied upon by the insurer before the Tribunal was an “Addendum Report”, dated 19.12.1990, issued by one G.R. Raj. That document sets out that it is a copy. The person who issued that report, viz., G.R. Raj, was not examined before the Tribunal. In that document which, as observed earlier, is a copy and is an addendum to a report which report had not been produced before the Tribunal, it is set out that the parts mentioned in that report were damaged and could not be repaired and required replacement. While making the calculation, a sum of Rs. 1,875/- had been deducted towards depreciation. The person who issued the report not having been examined, the contents of that report remained unexplained. 8. It is the case of the owner that he had produced the bills for a much larger sum and that he had incurred expense to that extent and, therefore, the difference between what he had expended and what he had received from his insurer was required to be made good by the insurer of the bus. In support of his case, the owner has produced bills for an aggregate amount of Rs. 78,275/-. The insurer did not contend that these bills were not genuine or that they had been procured in order to make a false claim. In support of his case, the owner has produced bills for an aggregate amount of Rs. 78,275/-. The insurer did not contend that these bills were not genuine or that they had been procured in order to make a false claim. It was also not the case of the insurer that the repairs carried out were unnecessary and that the bills pertain to repairs which were not required to be carried out as a consequence of anything that had occurred when the accident took place. 9. In this state of the record, the plea of the owner that he had in fact expended money to the extent to which he had produced the bills, such bills covering the value of the spare parts as also the cost of labour, is not to be rejected by placing reliance wholly on a copy of a report titled as “Addendum Report”, produced by the insurer, and the contents of which have remained unexplained, as the witness examined for the insurer, apart from producing that report, did not say anything in respect of its co ntents. 10. Judicial notice can be taken of the fact that in comprehensive insurance policies, covering the damage to the vehicle, reimbursement is never hundred per cent. There are provisions in the policy which provide for exemption from liability upto a certain sum and disallowance of a part of the claim towards depreciation etc. Unless the policy is looked into and the evidence is placed before the Court with regard to the basis on which the amount was determined by the insurer as its liability in terms of the comprehensive insurance policy, it would not be possible to state with exactitude the extent to which the amount expended by the owner fell short of the amount admitted as being liable to be paid by the insurer. The burden of showing that what had been paid under the policy in fact covered the entire cost of repairing the damage is on the respondent/insurer, as the insurers plea was that though the accident did occur as a consequence of the negligent handling of the bus which it had insured and damage had in fact resulted, it was liable to compensate in a sum which was much less than the amount claimed by the owner. The consequence of the failure to examine the person who carried out the assessment of the damage would, therefore, fall on the insurer, having regard to the fact that the insurer had at no point of time contended that the bills produced by the owner were not genuine or that they were inflated. 11. The claim made by the owner was not the whole of the sum which he had expended, but only for the difference between what he had spent and the amount which he had received from his insurer. It is, therefore, unnecessary to examine in this case the question as to whether the insurer of the bus is liable to compensate the owner for the whole of the amount expended by the owner for the repair without deducting the amount which the owner had received from his insurer. 12. The learned single Judge has completely omitted to examine the claim which the appellant had made and which had been urged in the appeal. The reasoning of the Tribunal is that in the receipt produced from the repairer it was stated in the printed form that the amount was received from the insurer of the lorry in full discharge of the claim of repair. That receipt itself cannot act as an impenetrable armour to the insurer of the bus to disclaim the liability for compensating the owner of the lorry for the sums which the owner had expended and in support of which bills had been produced. It has, therefore, to be held that the owner of the lorry was entitled to the amount of the difference between what had been spent by him for having the repairs effected and what had been paid to him by his insurer. We must observe here that it was never the case of the insurer of the bus that the repairs carried out by the owner were not required to be carried out to set right the damage that had occurred when the accident took place. 13. We, therefore, allow the appeal. The amount that had been claimed by the appellant towards the cost of repairs, after deducting the amount received from his insurer, shall be paid to the owner by the insurer of the bus. The amount so payable is Rs. 55,000/-. 13. We, therefore, allow the appeal. The amount that had been claimed by the appellant towards the cost of repairs, after deducting the amount received from his insurer, shall be paid to the owner by the insurer of the bus. The amount so payable is Rs. 55,000/-. The appellant/owner is also entitled to interest at the rate of 9% per annum on the said amount, from the date of the claim till the date of payment.