JUDGMENT M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claim Tribunal (Main), Vadodara (hereinafter referred to as "the Tribunal") passed in M.A.C.P. No. 225 of 1997, by which, the learned Tribunal has partly allowed the said claim petition and has directed the appellant herein to pay the original claimants a sum of Rs. 8,85,000/- towards damage caused to the vehicle in question (Mercedes Car No. GUT 8180), the appellant herein - original opponent No. 3 - United India Insurance Co. Ltd., has preferred present First Appeal. That the Mercedes car bearing Registration No. GUT 8180 owned by one Hasumatiben Kanubhai Patel-original claimant/applicant met with an unfortunate accident, which took place on 19-12-1993. That the said motor car met with an accident with one truck bearing No. GJ-1-T-6930 driven by the original opponent No. 1. That due to the accident, the said motor car was badly damaged, and therefore, the same was unreparable. The said car was inspected by the "Works Manager of United Motor (India) Limited, Bombay" who estimated Rs. 20 lacs for labour charges, repairs and spare parts etc. Hence, the said motor car had got for total loss. Therefore, the respondent No. 1 herein-original applicant-owner of the motor car claimed Rs. 20 lacs towards compensation for the damage caused to the aforesaid Mercedes car. 1.1. The aforesaid claim petition was opposed by the appellant herein-original opponent No. 3 - Insurance Company by filing written statement. It was the specific case on behalf of the appellant-Insurance Company that - original claimant-owner of the vehicle has not proved by leading cogent evidence, valuation/market price of the motor car. It was also the case on behalf of the appellant-Insurance Company that as such the motor car was insured with United India Insurance Company and it was Comprehensive Insurance Policy and that the original claimant-owner of the Motor car paid premium of Comprehensive Insurance Policy of her car to cover risk upto Rs. 4,45,000/-. Therefore, the claimant/owner of the motor car is not entitled to any further amount of compensation towards damage caused to the motor car. That the learned trial Court framed the issues. 1.2. That the original claimant-owner of the motor car - Hasumatiben came to be examined at Exh. 113. 4,45,000/-. Therefore, the claimant/owner of the motor car is not entitled to any further amount of compensation towards damage caused to the motor car. That the learned trial Court framed the issues. 1.2. That the original claimant-owner of the motor car - Hasumatiben came to be examined at Exh. 113. To prove the market price of the car at the time of accident, original applicant examined one Ketankumar Shah - Surveyor at Exh. 122. The original claimant heavily relied upon the report of the surveyor Shri Ketankumar Shah produced at Exh. 123. On behalf of the Insurance Company, Surveyor report prepared by M.P. Surveyors at Exh. 129 as well as Survey report prepared by Surveyor Shri J.I. Patel at Exh. 130 was produced. That on appreciation of evidence, the learned Tribunal considered the market value of the car around Rs. 12,50,000/- on the date of accident and after deducting Rs. 70,000/- towards salvage value of the damaged car, the Tribunal held that Rs. 11,80,000/- can be worked on total loss basis. The learned Tribunal negatived the contention on behalf of the Insurance Company that the amount of Rs. 4,45,000/- which was received by the owner from its Insurance Company received towards damage caused to the motor car was required to be deducted on the ground of unjust enrichment or double benefit. However, as the driver of the motor car was held contributory negligent to the extent of 25%, the learned Tribunal sliced down and deducted Rs. 2,95,000/- being 25% negligence and by impugned judgment and award has awarded a total sum of Rs. 8,85,000/- to the original claimant-owner of the motor car towards compensation for damage to the motor car, which in fact, gone for total loss. 1.3. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal awarding Rs. 8,85,000/- towards compensation for the damage caused to the motor car/Mercedes car, the appellant-original opponent No. 3 - Insurance Company has preferred the present First Appeal. 2. Shri Vibhuti Nanavati, learned Advocate for appellant-Insurance Company has vehemently submitted that the learned Tribunal has materially erred in awarding Rs. 8,85,000/- to the original claimant-owner of the motor car in question towards compensation for the damage caused to the motor car. 2.1. 2. Shri Vibhuti Nanavati, learned Advocate for appellant-Insurance Company has vehemently submitted that the learned Tribunal has materially erred in awarding Rs. 8,85,000/- to the original claimant-owner of the motor car in question towards compensation for the damage caused to the motor car. 2.1. It is further submitted by Shri Nanavati, learned Advocate for the appellant-Insurance Company that the learned Tribunal has materially erred in considering/assessing the value of the motor car as on the date of accident at Rs. 12,50,000/-. 2.2. It is submitted that as such the original claimant did not produce any cogent evidence to prove the market value of the motor car in question as on the date of accident. 2.3. It is submitted that to prove the market value of the motor car in question as on the date of accident, the original claimant as such heavily relied upon the deposition of Shri Ketankumar Shah - Surveyor who deposed at Exh. 122 as well as his survey report at Exh. 123. It is submitted that however he assessed/determined the market value of the car on the basis of oral inquiry with one United Motors, Bombay, however he had not produced any quotation etc. from United Motors, Bombay. It is submitted that therefore, in absence of any other cogent evidence with respect to the valuation of the motor car in question as on the date of accident, the learned Tribunal has materially erred in assessing the valuation of the car as on the date of the accident at Rs. 12,50,000/-. 2.4. It is further submitted by Shri Nanavati, learned Advocate for the appellant-Insurance Company that as the owner of the car herself while taking Comprehensive Insurance Policy with respect to car covered risk upto Rs. 4,45,000/- only, the learned Tribunal ought to have assessed and/or considered the market value of the car at Rs. 4,45,000/-. 2.5. It is further submitted by Shri Nanavati, learned Advocate for the appellant-Insurance Company that even otherwise when the owner of the car insured the vehicle and took the Comprehensive Insurance Policy and paid the premium of Comprehensive Insurance Policy of her car to cover risk upto Rs. 4,45,000/- and subsequently her claim towards compensation for the damage caused to the motor car came to be settled for an amount of Rs. 4,45,000/- and subsequently her claim towards compensation for the damage caused to the motor car came to be settled for an amount of Rs. 4,45,000/- and the original owner accepted the same, the learned Tribunal ought to have dismissed the claim petition by observing that once having settled the claim under the insurance policy towards compensation for the damage caused to the car, thereafter further claim is not maintainable. 2.6. It is further submitted by Shri Nanavati, learned Advocate for the appellant-Insurance Company that even otherwise having received Rs. 4,45,000/- by the original owner towards compensation for damage caused to the motor car from the Insurance Company under the Insurance Policy, while awarding compensation for damage caused to the motor car, at least amount of Rs. 4,45,000/-, which was received by the original owner was required to be deducted on the ground of unjust enrichment or double benefit. It is submitted that therefore, while awarding compensation towards the damage caused to the motor car, learned Tribunal has materially erred in not deducting amount of Rs. 4,45,000/-, which the owner received from her insurer. It is submitted that therefore, if this Court comes to the conclusion that the learned Tribunal has not committed any error in assessing/determining the market value of the motor car in question, as on the date of accident at Rs. 12,50,000/-, in that case also, the amount of Rs. 4,45,000/-, which was received by the original owner towards compensation for damage caused to the motor car is required to be deducted. In support of his above submissions, Shri Nanavati, learned Advocate for the appellant has heavily relied upon unreported decision of the learned Single Judge of this Court in the case of Narbahadur Nandkishor Prasad v. Jaherali K. Shaikh, rendered in Civil Application No. 7572 of 2012 in First Appeal No. 2016 of 2012 as well as decision of the learned Single Judge of the Kerala High Court in the case of National Insurance Co. Ltd. v. Mohan, reported in 2009 ACJ 326 . 2.7. Making above submissions and relying upon the above decisions, it is requested to allow the present appeal and quash and set aside the impugned judgment and award passed by the learned Tribunal and in the alternative to modify the impugned judgment and award passed by the learned Tribunal to the aforesaid extent. 3. 2.7. Making above submissions and relying upon the above decisions, it is requested to allow the present appeal and quash and set aside the impugned judgment and award passed by the learned Tribunal and in the alternative to modify the impugned judgment and award passed by the learned Tribunal to the aforesaid extent. 3. Present appeal is opposed by Shri M.T.M. Hakim, learned Advocate for the original claimant-owner of the motor car in question. 3.1. It is submitted that in the facts and circumstances of the case, the learned Tribunal has not committed any error in assessing and/or determining the market value of the motor car as on the date of accident at Rs. 12,50,000/-. It is submitted that the finding recorded by the learned Tribunal on determination and/or assessment of the market value of the motor car involved in the accident at Rs. 12,50,000/- is on appreciation of evidence. It is submitted that even from the documentary evidences relied upon by the Insurance Company produced at Exh. Nos. 129 and 130 and even from the deposition of the Surveyor Shri Ketan Shah (Exh. 122 and his survey report produced at Exh. 123) market price of the damaged car can be assessed Rs. 13,90,098/- (Rs. 10,42,973/- towards valuation of the spare parts + Rs. 3,45,625/- towards labour charges + Rs. 1,500/- towards towing expenses) and deducting salvage value of Rs. 25,000/- of damaged part, the net damage comes to Rs. 13,65,098/- and when car has gone for total loss, the learned Tribunal has not committed any error in assessing the market value of the car at Rs. 12,50,000/-. It is submitted that therefore, deducting Rs. 70,000/- towards salvage of the car, the learned Tribunal has not committed any error in assessing the damage to the motor car in question at Rs. 11,80,000/-. 3.2. Shri Hakim, learned Advocate for the original claimant has further submitted that the contention on behalf of the Insurance Company that as while taking Comprehensive Insurance Policy with respect to damage to the motor car while covering "owned damage" of the car, the owner of the car paid the premium to cover risk upto Rs. 4,45,000/-, and therefore, the valuation of the car can be considered at Rs. 4,45,000/- cannot be accepted. It is submitted that merely because the owner of the motor car paid the premium to cover the risk upto Rs. 4,45,000/-, and therefore, the valuation of the car can be considered at Rs. 4,45,000/- cannot be accepted. It is submitted that merely because the owner of the motor car paid the premium to cover the risk upto Rs. 4,45,000/- by that itself, it cannot be said that the market value of the motor car on the date of accident can be restricted to Rs. 4,45,000/- only. It is submitted that to pay the premium to cover the risk upto a particular amount means under the contract, whatever be the extent of damage, the Insurance Company shall be liable to pay sum, of which, the risk was covered and the premium was paid. 3.3. It is further submitted by Shri Hakim, learned Advocate for the original claimant that the learned Tribunal has not committed any error even in deducting Rs. 4,45,000/- which the original claimant-owner of the motor car received from her Insurance Company under the Comprehensive Insurance Policy, for which, there was an independent contract between the Insurance Company and the insured and for which insured paid the premium. It is submitted that so far as the appellant-Insurance Company - tort-feasor is concerned, there shall not be any question of unjust enrichment and/or double benefit to the owner of the car and as rightly observed by the learned Tribunal the tort-feasor cannot get benefit of whatever amount applicant/owner received on account of insurance contract between herself and insurance contract of her car. In support of his above submissions, Shri Hakim, learned Advocate for the original claimant has heavily relied upon the following decision of this Court as well as Delhi High Court:- (1) Gujarat State Road Transport Corporation v. Hargovindas R. Modi, reported in 2007 (1) GLR 369 . (2) Satishkumar Rasiklal Doctor v. Baldevbhai Chhaganbhai Thakore, reported in 2007 (1) GCD 727 . (3) Oriental Insurance Co. v. K.P. Kapur, reported in 1997 (1) ACC 138 (Delhi High Court). 3.4. Making above submissions and relying upon the above decisions, it is requested to dismiss the present First Appeal. 4. Heard the learned Advocates for the respective parties at length and perused the impugned judgment and award passed by the learned Tribunal and re-appreciated the entire evidence on record. 4.1. The following questions arise in the present appeal for the consideration of this Court. 4. Heard the learned Advocates for the respective parties at length and perused the impugned judgment and award passed by the learned Tribunal and re-appreciated the entire evidence on record. 4.1. The following questions arise in the present appeal for the consideration of this Court. "A. That in the facts and circumstances of the case whether the learned Tribunal has committed any error in assessing/determining the market value of the motor car in question as on the date of accident at Rs. 12,50,000/-? B. Whether on receiving of the amount of Rs. 4,45,000/- from the Insurance Company towards damage caused to the motor car in question under the settlement of claim towards insurance policy towards own damage to the vehicle, whether owner of the vehicle is debarred from claiming the compensation for damage caused to the motor car in question from the tort-feasor? C. If the question No. 2 is answered in affirmative, whether while awarding compensation towards damage caused to the motor car in question, an amount of Rs. 4,45,000/- received by the original owner/original claimant of the motor car in question received from her Insurance Company under the insurance policy and towards damage caused to the motor car in question is required to be deducted on the ground of unjust enrichment and/or double benefit?" 5. Now, so far as question No. 1 whether learned Tribunal has committed any error in assessing market value of the motor car in question at Rs. 12,50,000/- is concerned, on re-appreciation of evidence on record, more particularly, deposition of Surveyor-Ketankumar Shah (Exh. 122) and the documentary evidences on record produced at Exhs. 123, 129 and 130, we are of the opinion that the learned Tribunal has not committed any error in assessing market value of the motor car in question at Rs. 12,50,000/-. It is required to be noted that as such the motor car in question had gone for total loss. As per the documentary evidences on record, more particularly, Surveyor report and even as per the Surveyor report produced and relied upon by the Insurance Company the damage to the motor car was assessed at Rs. 13,65,000/-. As observed hereinabove, the car had gone for total loss. Therefore, even if the car had not gone for total loss the owner might have incurred expenses of Rs. 13,90,098/- which was required to be reimbursed to the owner. 13,65,000/-. As observed hereinabove, the car had gone for total loss. Therefore, even if the car had not gone for total loss the owner might have incurred expenses of Rs. 13,90,098/- which was required to be reimbursed to the owner. Instead car had gone for total loss. In his deposition at Exh. 122 Shri Ketankumar Shah Surveyor has categorically stated that at the time of assessing the damage of any car he first ascertains the market value of such car. He has further stated that at the time of making survey, he prepared report on the basis of cash loss, total loss and repairing basis. Even in the Survey report prepared by M.P. Surveyors Exh. 129 produced by the Insurance Company, insurer of the car and report produced at Exh. 130, the report submitted the estimate of repairs of car at Rs. 3,45,625/- for labour charges and Rs. 12,42,290/- for new parts, totalling Rs. 15,87,915/-. In the said report, it is further observed that it was not economical to repair the car, and it looked total loss and cannot be repaired. Therefore, the said Surveyor J.I. Patel in his report at Exh. 130 suggested the United India Insurance Company to finalize the claim on total loss basis for Rs. 4,45,000/- as the insured value of the car was Rs. 4,45,000/- only. Under the circumstance and considering the documentary evidences on record, it cannot be said that the learned Tribunal has committed any error in determining the market Value of the motor car in question at Rs. 12,50,000/- and thereafter deducting Rs. 70,000/- towards salvage, value of the car at Rs. 11,80,000/-. 6. Now, question No. 2 posed for consideration of this Court whether having received Rs. 4,45,000/- by the owner of the vehicle from her Insurance Company-United India Insurance towards settlement of her claim under the insurance policy of covering risk of "own damage" to the car, whether the original claimant-owner of the motor car in question can maintain the claim petition to recover the compensation towards the damage caused to the motor car from the tort-feasor-appellant and whether payment of premium covering the compensation towards the damage caused to the motor car from the tort-feasor-appellant and whether payment of premium covering risk upto Rs. 4,45,000/-, the original owner of the vehicle in question can claim the amount towards compensation more than Rs. 4,45,000/- and/or over and above Rs. 4,45,000/-, the original owner of the vehicle in question can claim the amount towards compensation more than Rs. 4,45,000/- and/or over and above Rs. 4,45,000/- is concerned, it is required to be noted that as such it is an independent insurance contract between the original claimant-owner of the car and Insurance Company of her car. Therefore, so far as appellant-tort-feasor is concerned, the owner of the vehicle can file claim petition claiming the compensation towards damage caused to the motor car irrespective of insurance policy and having received any amount from the Insurance Company under the insurance policy and if the valuation of the car is found to be more than the amount received from the Insurance Company on the basis of risk covered, the claim petition by the owner of the car would still be maintainable. 6.1. Even the contention on behalf of the appellant-Insurance Company that as while taking comprehensive insurance policy towards own damage to the car, the risk was covered upto Rs. 4,45,000/-, and therefore, the owner of the vehicle cannot claim any amount above Rs. 4,45,000/- and/or market value of the motor car cannot be considered more than Rs. 4,45,000/- is concerned, the aforesaid has no substance. Irrespective of value of the car, still the owner of the vehicle can cover risk upto a particular amount which may be lower than the market value of the vehicle. The risk covered would be only for the purpose of premium and liability to cover the risk under the contract. It means that if the premium is paid and the risk is covered upto a particular amount, under the said contract the Insurance Company shall be liable to pay damages/compensation towards damage to the extent risk covered, irrespective of actual loss which may be higher than risk covered or market value of the vehicle in question. Therefore, it is the discretion of the owner of any car to cover risk of his car for "own damage" to his car at a particular amount, which may be less than the market value of the car and sometime to save amount of premium. 7. Now, question No. 3 posed for consideration of this Court which can be an alternative submission made by Shri Nanavati, learned Advocate for the appellant-Insurance Company that whether an amount of Rs. 7. Now, question No. 3 posed for consideration of this Court which can be an alternative submission made by Shri Nanavati, learned Advocate for the appellant-Insurance Company that whether an amount of Rs. 4,45,000/- received by the applicant-original owner towards "own damage" from the Insurance Company of her car is required to be deducted while awarding compensation towards damage caused to the car on the ground of unjust enrichment or double benefit? 7.1. It is required to be noted that on appreciation of evidence, the learned Tribunal has determined/assessed the market value of the motor car in question at Rs. 11,80,000/- (Rs. 12,50,000/- market value and Rs. 70,000/- towards value of salvage). Therefore, as such, original claimant-owner of the vehicle shall be entitled to aforesaid amount towards compensation for the damage caused to the motor car and not more than that. The owner of the vehicle had already received Rs. 4,45,000/- towards "own damage" from the Insurance Company of her car. Therefore, if the contention on behalf of the original claimant-owner of the vehicle that the aforesaid amount of Rs. 4,45,000/- is not required to be deducted while awarding compensation towards damage caused to the motor car in question, from the appellant Insurance Company and she shall be entitled to Rs. 11,80,000/- as awarded by the learned Tribunal, in that case, the owner shall be paid Rs. 16,25,000/-, which shall be more than the market value of the motor car in question. 7.2. In the present case, learned Tribunal has held that the amount payable by the Insurance Company under the insurance policy to the claimant is not deductible from the compensation awarded against the tort-feasor on the ground that the said amount has been paid under the separate contract between claimant and her insurer and that tort-feasor cannot take advantage of the claimant contract with third party. Identical question came to be considered by the Kerala High Court in the case of Mohan, [ 2009 ACJ 326 ], and after considering the various decisions on the point the High Court has held that a person who sustained pecuniary damage cannot claim that amount from tort-feasor as well as his insurer. It is held that the insured is entitled to maintain an action against the tort-feasor even if he had received compensation from his insurer. It is held that the insured is entitled to maintain an action against the tort-feasor even if he had received compensation from his insurer. But he cannot appropriate that amount which he had received from the Company and he will hold that amount as trustee of the insurer and he is answerable and accountable to the Insurance Company to that extent. It is further observed and held that there is difference between personal loss and pecuniary loss. 7.3. Further, the claimant should not be permitted to earn profit out of accident which he met. Whatever expenses are incurred, he is entitled to get reimburse but no law provides that he can get reimbursement from two sources resulting in undue enrichment. As observed hereinabove, if the contention on behalf of the original claimant is accepted, in that case, as observed hereinabove, owner of the vehicle will get more amount than the actual market value/value of the motor car and to that extent the claimant shall earn profit, which is not permissible. Therefore, on the ground of unjust enrichment and/or double benefit the amount of Rs. 4,45,000/- which the owner of the car received from her Insurance Company towards "own damage" to the car is required to be deducted, while awarding the compensation towards damage caused to the motor car from the appellant. 7.4. At this stage, the decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. v. Sebastian K. Jacob, reported in 2009 (4) SCC 778 is required to be referred to. Before the Hon'ble Supreme Court, it was the case on behalf of the Insurance Company that insurer is not liable to make the payment since the claimant was already compensated by another Insurance Company for the same cause of action consequent to the same accident, and therefore, the claimants shall not be entitled to double payment of compensation. However, High Court did not accept the aforesaid plea and upheld the award of the Tribunal and on appeal before the Hon'ble Supreme Court, the Hon'ble Supreme Court accepted the same, and ultimately, remanded the matter to the High Court for fresh consideration by further observing that if there is any difference of amount, the insured of tort-feasor has to pay the same. 7.5. 7.5. In the present case, as observed hereinabove, the market value of the motor car in question on the date of accident has been assessed at Rs. 12,50,000/- and deducting Rs. 70,000/- towards salvage of the car, it comes to Rs. 11,80,000/-. The owner had already received a sum of Rs. 4,45,000/- from her insurer towards risk covered under the insurance policy for "own damage" to the car. Under the circumstances, while awarding compensation to the appellant towards damage caused to her motor car, from the appellant-Insurance Company, amount of Rs. 4,45,000/- was required to be deducted. 8. Now, so far as decisions which are relied upon by the learned Advocate for the original claimant, which are referred to hereinabove are concerned, it is required to be noted that as such all the decisions are dealing with damage for personal injury. There is difference between damages of personal injury and pecuniary loss. Damage caused to the motor car is pecuniary loss. So principles laid down in those decisions arising from personal injury claim, which are non-pecuniary damages, can have no application to cases for recovery of pecuniary damages. 8.1. Now, so far as reliance placed upon the decision of the Delhi High Court in the case of K.P. Kapur, [1997 (1) ACC 138] is concerned, for the reasons stated above, we are not in agreement with the view taken by the learned Single Judge of the Delhi High Court in the said decision that the amount received by the original owner from his Insurance Company is not required to be deducted on the ground of double enrichment. Similarly, for the reasons stated above, we are not in agreement with the view taken by the learned Single Judge in the case of Hargovindas R. Modi, [ 2007 (1) GLR 369 ] more particularly, when in the aforesaid decision the learned Single Judge had not noticed the difference between the claims arising out of the personal injury or non-pecuniary damages and pecuniary damages. 9. In view of the above and for the reasons stated above, it is held that the learned Tribunal has committed grave error in not deducting Rs. 4,45,000/- which original claimant-owner of the vehicle in question received from her insurer - Insurance Company, received while settling the claim under the insurance policy towards "own damage" to the car. 10. 9. In view of the above and for the reasons stated above, it is held that the learned Tribunal has committed grave error in not deducting Rs. 4,45,000/- which original claimant-owner of the vehicle in question received from her insurer - Insurance Company, received while settling the claim under the insurance policy towards "own damage" to the car. 10. In view of the above and for the reasons stated above, appeal succeeds in part. The impugned judgment and award passed by the learned Tribunal passed in M.A.C.P. No. 225 of 1997 dated 4-10-2004 is hereby modified to the extent that original claimant-owner of the motor car in question shall be entitled to Rs. 7,35,000/- towards compensation for the damage caused to the motor car in question and after deducting 25% towards contributory negligence on the part of the owner of the motor car i.e. Rs. 1,83,750/-, the claimant shall be entitled to Rs. 5,51,250/- from the original opponents including appellant herein with 9% interest thereon from the date of claim petition till realization. Present appeal is allowed to the aforesaid extent and the impugned judgment and award passed by the learned Tribunal is hereby modified to the aforesaid extent. No costs. It goes without saying that the appellant-Insurance Company shall be entitled to recover/get back the amount, which the appellant has deposited/paid in excess to the aforesaid, either from the Fixed Deposit, if any, lying with the Tribunal and/or from the original claimant. With this, present appeal is partly allowed to the aforesaid extent.