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Himachal Pradesh High Court · body

2009 DIGILAW 1148 (HP)

ORIENTAL INSURANCE COMPANY LTD v. KAMLA CHAUHAN

2009-11-26

DEEPAK GUPTA

body2009
JUDGMENT Deepak Gupta, J.-Both these appeals are being disposed of by this common judgment since they arise out of the same award. 2. Briefly stated the facts of the case are that the claimant Kamla Chauhan is the owner of truck No.HP-09-1771. This truck was parked near Badhal and was unloading the goods when it was struck by a dumper No.HP-06-1682 owned by Nathpa Jhakri Joint Venture and insured with the Oriental Insurance Company. The claimant filed a petition claiming compensation of Rs.4 lacs on account of damages to the truck. The petition was contested by the respondents and the Insurance Company in addition to all the pleas took up the plea that the claimant is not entitled to compensation as the claimant had already received the amount for damage to the truck from her own insurer and that this fact has been concealed by the claimant in the claim petition. 3. PW/1 Sh.K.C.Chauhan, is the husband of the claimant. He has admitted that they have received Rs.26,995/- as compensation from the United India Insurance Company with which the vehicle was insured. This fact has also been proved by RW/1 Ashok Kumar Negi, Assistant Divisional Manager, United India Insurance Company who states that the truck No.HP09-1771 was insured with United India Insurance Company. According to him the Insurance Company appointed a Surveyor who assessed the damage to the truck at Rs.27,195/- which was full and final. The claim was approved by the competent authority for Rs.26,995/- and paid to the claimant Kamla Chauhan vide cheque No.676200 dated 31.7.2000. He has admitted that as per the terms and conditions of the policy, there is depreciation of 50% is applicable to rubber parts and 25% to metal parts. He has also stated that they had paid Rs.2500/- only as towing charges whereas the bill of Rs.9000/- was submitted. 4. According to him the petitioner had given bills of Rs.38,045/- to the company in all. The learned Tribunal held that the claimant was entitled to compensation for Rs.66425/-. It rejected the claim of the petitioner with regard to the loss on account of non-plying of vehicle on the ground that this case could not be decided under the Motor Vehicles Act. The learned Tribunal held that the claimant was entitled to compensation for Rs.66425/-. It rejected the claim of the petitioner with regard to the loss on account of non-plying of vehicle on the ground that this case could not be decided under the Motor Vehicles Act. It however, did not accept the plea of the appellant-Insurance Company that Rs.26,995/- received by the claimant from its own insurance company should be deducted on the ground that the tort feasor cannot take benefit of a contract entered into by the petitioner. Aggrieved by this award, both sides have filed these two appeals. 5. As far as the appeal of the Insurance Company is concerned, they cannot challenge the assessment of damages. Sh.Ashwani Sharma, learned counsel for the Insurance Company has urged that in fact the claim petition was not maintainable. According to him since the claimant had received compensation from his own insurance company, he could not have filed the claim petition. This argument cannot be accepted. A party may not get the full amount of compensation from its own insurance company for various reasons. It can always claim the balance of the loss suffered by it damages from the tort feasor. Furthermore, in the present case, the appellant-Insurance company did not prove the receipt executed by the claimant while accepting the amount of compensation from her own insurance company which receipt could have shown whether this amount had been received in full and final satisfaction of her claimant or not. 6. Having held so, I am clearly of the opinion that the learned Tribunal gravely erred in not deducting the amount of compensation which the petitioner had received from her own insurance company. The petitioner in her claim petition did not even make a mention that she had filed a claim petition with her own insurance company and had received Rs.26,995/- in the year 2000. The claim petition was filed in the year, 2001 and the petitioner should have clearly stated so in her claim petition. The amount already received by her had to be deducted from the damages being awarded to her. The learned Tribunal gravely erred in relying upon the principle that the tort feasor cannot take benefit of any amount received by the injured from other sources. The amount already received by her had to be deducted from the damages being awarded to her. The learned Tribunal gravely erred in relying upon the principle that the tort feasor cannot take benefit of any amount received by the injured from other sources. This is a principle applicable in case of death and injury cases where if the injured receives gratuitous help from others, the tort feasor cannot take benefit of the same. This has no application in the case where the claim relates to damage to property. The reason is that in a claim petition nonpecuniary damages especially in case of death are not awarded under the Motor Vehicles Act. No value can be put to life or limb but damage to the property can be assessed precisely. In case of damage to property, in case the claimant has received any amount, this amount has to be deducted from the compensation to be awarded. This is also in consonance with the settled principle of law that a document should attempt to mitigate the damages. Therefore, this amount of Rs.26,995/-had to be deducted. 7. Come to the appeal of the claimant. After going through the record, I am clearly of the view that the claimant has filed a lot of manufactured documents. No reliance can be placed on the statement of the claimant and her witnesses. When the claim was filed before its own insurance company, the total bills presented by the claimant for repair of the truck were only to the extent of Rs.38,045/- and Rs.9000 for towing charges, i.e., Rs.47045/-. The own damage claim of the claimant could only be paid after the vehicle had been repaired. When the claimant before her own insurance company had submitted the bills for a sum of Rs.47045/-only, it is not understood how in the present claim petition, it has submitted bills of much higher amounts. In fact, the Tribunal itself has assessed the compensation at Rs.57425/- and Rs.9000/-, i.e., Rs.66,425/-whereas the claim before its own insurance company was only for Rs.47045/-. Therefore, I find no reason to enhance the compensation any further. In fact I would have had no hesitation to reduce the compensation but for the fact that the insurance company cannot challenge the assessment of damages. However, the insurance company can definitely urge that even if the damages are properly assessed, the Tribunal has not made proper deductions. Therefore, I find no reason to enhance the compensation any further. In fact I would have had no hesitation to reduce the compensation but for the fact that the insurance company cannot challenge the assessment of damages. However, the insurance company can definitely urge that even if the damages are properly assessed, the Tribunal has not made proper deductions. 8. Keeping in view the above discussion, the appeal filed by the claimant is dismissed and the appeal filed by the insurance company is allowed. The compensation is reduced from Rs.66425/-to Rs.39430/- alongwith interest as awarded by the Tribunal. Both the appeals are disposed of in the aforesaid terms. No order as to costs.