JUDGMENT : Mansoor Ahmad Mir, Chief Justice. This appeal is directed against the judgment and award dated 14.7.2006, made by the Motor Accident Claims Tribunal-II Solan, H.P. in MAC Petition No. 13-S/2 of 2004, titled Shri Jhenta Ram versus Sh. Abhay Singh and others, for short “the Tribunal”, whereby compensation to the tune of Rs.2,07,000/- alongwith interest @ 9% per annum was awarded in favour of the claimant and insurer was saddled with the liability, hereinafter referred to as “the impugned award”, for short. 2. Claimant Jhenta Ram filed claim petition before the Tribunal for the grant of compensation to the tune of Rs.2,71,142/-, as per the break-ups, given in the claim petition, on the ground that he is owner of truck No. HP-18-A-0476 financed by the Himachal Pradesh Scheduled Caste and Scheduled Tribe Corporation Solan by raising loan of Rs.3,86,000/-. It is averred that on 14.5.2003, this truck was being driven by its driver Shri Dharam Vir from Giankot Tehsil Rajgarh to Solan and when it reached near Amar Koti near Dharja at about 11.10 A.M. the driver parked the truck on the left side of the road. It is averred that a vehicle Tata Mobile bearing registration No. HP-07- 4774, loaded with goods came from Giripul and the driver parked the said vehicle in front of the said Truck. Tata Mobile suddenly and abruptly started moving backwards and it struck with full force with the truck, as a result of which truck fell into the gorge and offending Tata Mobile turned turtle on the road side. 3. FIR of the said incident was registered with the police Station Solan. It is averred that the market value of the said truck was Rs.3,50,000/- at the time of accident and also Rs.10,000/- was spent to retrieve the truck for bringing the salvage to the road side. In addition, a sum of Rs.1,73,142/- is due to the Himachal Pradesh Scheduled Caste and Scheduled Tribe Corporation Solan as balance loan amount. It is stated that Rs.2,02,000 was paid to him by his own insurance company and a sum of Rs.60,000./- only on account of salvage, meaning thereby that he has received total amount of Rs.2,62,000/- against actual loss of Rs.3,50,000/-. The claimant has claimed the balance amount of Rs.88,000/-, Rs.10,000/- on account of retrieving expenses of the salvage and Rs. It is stated that Rs.2,02,000 was paid to him by his own insurance company and a sum of Rs.60,000./- only on account of salvage, meaning thereby that he has received total amount of Rs.2,62,000/- against actual loss of Rs.3,50,000/-. The claimant has claimed the balance amount of Rs.88,000/-, Rs.10,000/- on account of retrieving expenses of the salvage and Rs. 1,73,142/- being the balance due to the loan account, details of which is given in the claim petition. It is apt to quote para 21 of the claim petition herein. “21.A sum of Rs. 2,71,142/- is claimed as special and specific damages on different counts detailed hereinafter. After from his specific and special damages, the applicant is also entitled to General Damages for the loss, pain and suffering caused to him on account of the total loss/damage to his vehicle in the accident dated 14.05.03. The vehicle no. HP-18A-0476, a Swaraj Mazda Open Truck, June 2001 Model had a total market value of Rs. 3,50,000/- at the time of the accident. The said vehicle was got financed by the Applicant from H.P.S.C. and S.T. Corporation Solan after taking a loan of Rs. 1.93 lacs at the interest rate of 7% compound repayable in quarterly installments w.e.f. 31.12.2001 to 31.03.2006. In the unfortunate accident on 14.05.03, the vehicle of the Applicant was totally and completely damaged and the same was virtually reduced to scrap. Apart from the total and complete loss of the vehicle valuing Rs. 3,50,000/- the applicant spent Rs. 10,000/- as retrieving charges (Chainkupi) for brining the salvage of the vehicle to the roadside. In addition to the above, a sum of Rs. 1,73,142/- is still due and payable by the Applicant to the Financers of the Vehicle i.e. H.P.S.C. and S.T. Development Corporation in the loan account of the said vehicle. The Applicant has received the payment of Rs. 2,02,000/- only from his own insurer i.e. The Oriental Insurance Company Ltd. Nahan as against his claim of Rs. 3,50,000/- on account of the total loss/total damage of the vehicle in question and this amount has been credited/paid by the Insurance Company directly into the loan account of the Applicant. The Applicant has further sold the salvage of the vehicle for Rs. 60,000/- and thus, has received payment of only Rs. 2,62,000/- as against the actual loss of Rs. 3.50,000/- The Applicant claims the balance amount of Rs. 88,000/-, Rs. The Applicant has further sold the salvage of the vehicle for Rs. 60,000/- and thus, has received payment of only Rs. 2,62,000/- as against the actual loss of Rs. 3.50,000/- The Applicant claims the balance amount of Rs. 88,000/-, Rs. 10,000/- on account of retrieving expenses of the salvage and Rs. 1,73,142/- being the balance due to the loan account of the Financers inclusive of all taxes upto 31.12.03. Thus, the total compensation claimed by the Applicant from the respondents jointly and severally comes to Rs. 2,71,142/-. Appropriate and adequate General Damage are also claimed by the Applicant against the Respondent.” 4. Respondents No. 2 and 3 contested and resisted the claim petition whereas respondent No.1- owner was proceeded against ex parte. 5. The Tribunal, on the basis of the pleadings of the parties, framed the following issues. “1. Whether the accident and consequent damage caused to the truck bearing No. HP-18-A-0476 was attributed to rash and negligent driving of the offending Tata Mobile bearing No. HP-07-4774 on 14-5- 2003 at about 11.15 AM at place Amarkoti near Dharaja as alleged? ….OPP 2. Whether the petitioner is entitled to compensation, if so to what extent and from whom? ….OPP 3. Whether the offending Tata Mobile bearing No. HP-07-4774 is not duly insured with the respondent No. 3 as alleged? …OPR-3 4. Whether the respondent No. 2 Gian Singh was not having valid and effective driving licence at the time of the accident. If so, its effect? ….OPR-3 5. Whether the offending Tata Mobile bearing No. HP-07-4774 is not duly registered with R.L.A. as alleged, if so what its effect? …..OPR-3 6. Relief. 6. Claimant examined as many as six witnesses, namely Jeet Ram (PW1), Satish Kumar (PW2), Satinder Singh (PW3), Madan Singh (PW4), Devi Dayal (PW5) and Dharam Vir truck driver stepped into the witness box as (PW6). 7. On the other hand, respondents examined three witnesses, namely Lekh Ram (PW2), Arun Ahauliwaila (PW3) and Gian Singh driver of Tata Mobile appeared in the witness-box as PW1. 8. The Tribunal, after scanning the evidence and the documents on the file held that the claimants have proved that the accident was outcome of rash and negligent driving of driver Gian Singh who had driven the offending vehicle Tata Mobile rashly and negligently. The said findings are not in dispute and have attained the finality. 9. 8. The Tribunal, after scanning the evidence and the documents on the file held that the claimants have proved that the accident was outcome of rash and negligent driving of driver Gian Singh who had driven the offending vehicle Tata Mobile rashly and negligently. The said findings are not in dispute and have attained the finality. 9. I have gone through the evidence and perused the record. I am of the considered view that the claimant has proved issue No.1. It is apt to record herein that the driver, owner and insurer-appellant herein have not questioned the findings returned on issue No.1 thus, the same have attained the finality. Accordingly the findings returned on this issue are upheld. 10. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3 to 5, at the first instance. Though the learned counsel for the appellant has not questioned the findings returned on these issues however, onus was on the appellant-insurer to discharge, has not led any evidence to prove that the driver of offending vehicle Tata Mobile was not insured with it, driver Gian Singh was not having a valid license and the offending vehicle was not registered with Registration and Licensing Authority. Thus, the findings recorded on these issues are upheld. 11. The learned counsel for the appellant argued that the claimant had claimed compensation on two counts, i.e., (i) damages and; (ii) loss of income. 12. I have gone through the claim petition, replies and the evidence on record. The case of the claimant before the Tribunal was that in the said accident his truck got totally damaged and it was insured with his own insurance company, i.e. Oriental Insurance Company, which has granted only Rs.2,02,000/- as assessed by the insurer. He has also received Rs.60,000/- as salvage but claimed that he was also entitled to balance amount as compensation from the insured of the offending Tata Mobile, which has not been paid to him by his own insurance company, for the reasons that the vehicle was damaged and market value of the vehicle was Rs.3,50,000/- at the time of the accident but the insurance agency restricted his claim to the tune of Rs.2,02,000/-, as per the insurance cap read with the terms and conditions of the insurance policy. He has obtained the loan from the Corporation, as mentioned supra, details of which is already given in para 21 of the claim petition. 13. The Tribunal, after examining all the facts of the case held that the insurer of the Tata Mobile has to pay the said amount. Thus, it can be safely concluded that the claimant has not made claim for the loss of income. He has claimed damages and loss suffered by him. 14. The Truck was insured and insurer has granted the claim only viz-a-viz the risk covered, within the insurance cap. The said amount plus the amount of salvage cannot be claimed from another insurance company. But at the same time he has suffered loss because his vehicle has totally damaged and he is not in a position to ply it and earn income, in order to adjust the loan, the market value of which is stated to be Rs.3,50,000/-. He has claimed the balance amount of compensation from another insurance company which is the insurer of Tata Mobile in terms of a different insurance contract. Both the insurance contracts are different and claimant has laid claim for difference of amount and was entitled to the same. The insurance contracts are different and the claimant has to claim balance amount/difference of amount. My this view is fortified by the judgment delivered by the Andhra Pradesh High Court in case United India Insurance Co. Ltd. versus K. Chandrasekharachari and another reported in 2008 ACJ 640. It is apt to reproduce paras 13 and 15 of the said judgment herein. “13. From a reading of Sections 165 and 166 of the Act it is clear that the State Government may constitute Claims Tribunal for the purpose of adjudicating claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles or damages to any property of a third party or both and such application can be filed by person sustain injury or by the owner of the property. In the present case, the claimant who is the owner of the damaged van who is a third party, filed petition for damages and in view of the above provisions, there cannot be any dispute with regard to the claim petition being filed under Section 166 of the Act and the same is maintainable. 14. …… ……. In the present case, the claimant who is the owner of the damaged van who is a third party, filed petition for damages and in view of the above provisions, there cannot be any dispute with regard to the claim petition being filed under Section 166 of the Act and the same is maintainable. 14. …… ……. ……. 15. The Tribunal has recorded finding of fact that the accident occurred due to rash and negligent driving of the lorry by its driver. This being a finding of fact, cannot be interfered within the appeal. Because of the accident, the van of the claimant got damaged and the insurer of the lorry is jointly and vicariously liable to pay compensation along with the owner of the lorry and as per Sections 165 and 166, the claimant is entitled to claim damages. As the van of the claimant was covered under a comprehensive insurance policy with the National Insurance Company, the claim of the claimant was settled. As rightly observed by the Tribunal, with regard to the present accident, which was the result of the negligent driving of the driver of the lorry, the contract is between the insured and insurer and the insurer has to indemnify the insured. Further there is no contract between the National Insurance Company, which is the insurer of the van and the United Indian Insurance Company, which is the insurer of the lorry that in case of settlement of claim by the claimant with the National Insurance Company for repairs, he is not entitled to claim damages from the United India Insurance Company which is the insurer of the lorry responsible for the accident. Both the contracts are for different purposes and operate in different fields. In view of this reasoning, I answer the issue in favour of the claimant holding that the claimant is not barred from claiming damages from the insurer of the lorry which is responsible for the accident.” [emphasis supplied] 15. Again, in National Insurance Co. Ltd. versus Bilaspur Gramudhyog Association and others reported in 2008 ACJ 2058 , this High Court has discussed the word “damages” It is apposite to reproduce para 15 of the judgment herein. “15.The petitioner has also claimed damage to the building due to accident. Learned counsel for the insurer has submitted that under the policy and the Act, the insurer is liable to pay only Rs. “15.The petitioner has also claimed damage to the building due to accident. Learned counsel for the insurer has submitted that under the policy and the Act, the insurer is liable to pay only Rs. 6,000 on account of third party property damage. She has relied on section 147 (2) (b) of the Act for advancing this argument. No doubt, under the Act, the statutory liability of the insurer is only to the extent of Rs. 6,000 but there is no bar to the insurer to cover more risk on account of third party property damage while insuring the vehicle. In the present case, the insurer has charged Rs. 75 extra for third party property damage. Insurer has not explained why even after charging Rs. 75 extra, the insurer is not liable to pay more than Rs. 6,000 for third party property damage resulting from the accident involving vehicle covered by policy, Exh. PC. In Oriental Insurance Co. Ltd. v. Balwant Singh (supra) the insurance company had charged Rs. 75 extra and in those circumstances, the learned single Judge of this court has allowed third party property damage amount to Rs.42,454 in favour of the wner of the truck No. HIB 4653 which was damaged by truck No. HP 34-0421 insured with the insurance company. Therefore, in my view the insurer is liable to pay damage to the petitioner on account of damage to the building caused by truck No. HIA 6835. ” 16. It is profitable to reproduce para 6 of the judgment delivered by the apex Court in National Insurance Company Ltd. versus Sebastian K. Jacob reported in (2009) 4 SCC 778 . “5. It conceded that if there is difference of amount the appellant has to pay the same, but that is not the case in the present scenario. The claimant claims the whole amount. The earlier payment is not disputed. In fact, the Oriental Insurance Company Ltd. has clearly accepted that the vehicle collided with the stage carriage on 13.7.1995 and the damage claim was settled for Rs. 21,700/- on 6.12.1995. The High Court does not appear to have considered this aspect in the proper perspective. Therefore, we set aside the impugned order of the High court and remit the matter to it for fresh consideration.” [Emphasis added] 17. 21,700/- on 6.12.1995. The High Court does not appear to have considered this aspect in the proper perspective. Therefore, we set aside the impugned order of the High court and remit the matter to it for fresh consideration.” [Emphasis added] 17. The point for discussion in Jacob’s case referred to above, was when the damage is caused to the vehicle by another vehicle, the damages have to be paid by its own insurer, as per the terms and conditions contained in the insurance policy but difference of amount has to be paid by the insurer of the offending vehicle by which the damage has been caused and the Court held that the High Court has not decided the issue and remanded the case, in order to determine, whether the claimant can claim from both the insurance agency, but if there is difference that has to be paid by the insurer of the vehicle by which the damage has been caused. 18. In another case titled G. Md. Masoom vs. S.K. Khader Vali and another reported in 2005 ACJ 1802 , the word “damages” is discussed. In this case, the Court held that the claimant is entitled to damages and also incidental loss. The word “damages” has been discussed in para 10 of the judgment. In the case in hand, the claimant has not claimed loss of income or business. He has claimed damages which he has suffered because of the accident. It is apt to reproduce para 10 of the said judgment herein. “10. In all the aforesaid decisions, it is clearly stated that the owner is entitled to claim damages for the vehicle involved in the accident. The Civil Court has no jurisdiction to award compensation after the amended provisions of Sections 165 and 166 of the Act which have come into force after the motor vehicle accident of 1988 as there is express bar of entertaining by Civil Court and the Civil Court cannot entertain a claim in respect of damage caused to the vehicle involved in the accident. The owner has been conferred with a right of presenting an application for compensation under Section 166 of the Act in respect of damages. The owner has been conferred with a right of presenting an application for compensation under Section 166 of the Act in respect of damages. The only thing that has to be decided is whether computation can be made in respect of business loss, which is part of the policy of insurance and whether the Tribunal has got jurisdiction under the head - Damages of compensation. It is clear from the principles laid down by the decisions rendered by the English Courts that the loss occasioned due to non-availability of the vehicle under repair can be awarded during the period of repair. It is not stated in those decisions that the entire business loss of income can be entertained on awarded. What is contemplated under the law is that the loss of income sustained during the period of vehicle under repair is an incidental loss, which resulted due to the damages to the vehicle, and it can be awarded and the Tribunal alone can entertain such a thing. Section 166 mentioned about the application to be made for compensation. Section 165 says that compensation can be claimed for damages to any property of a third party so arising out of the use of motor vehicle. Does it cover the loss of incidental income of the owner? It must be held that loss of incidental income due to non-availability of vehicle, which is under repairs is covered. That has to be taken into consideration while awarding compensation. It cannot be stated that the incidental loss sustained by the owner due to the damage to the vehicle and due to non-availability of the vehicle cannot be taken into consideration. The Court has to take into consideration about the ousting of Civil Courts jurisdiction for claiming compensation in respect of damages to any property. The incidental loss of income has to be taken into consideration while awarding compensation for damages to the property. The Single Judge of this Court has rightly observed that there cannot be two forums for claiming compensation. The incidental loss of income is part of the damages to be awarded by way of compensation. The same view has been taken by the English Courts. The method that has to be adopted is to calculate the loss of income due to non-availability of the vehicle. The incidental loss of income is part of the damages to be awarded by way of compensation. The same view has been taken by the English Courts. The method that has to be adopted is to calculate the loss of income due to non-availability of the vehicle. If the vehicle is insured with the Insurance Company, it is liable to pay damages which inclusive of incidental loss of income due to non-availability of the vehicle. The incidental loss of income differs from business loss. The business loss has to be arrived at after taking into consideration of non-availability of the vehicle on the particular period and its availability after repairs. We are of considered view that just compensation has to be arrived at by calculating the compensation towards damages including the incidental loss occasioned during the period of non-availability of the vehicle. On a consideration of the entire law, we are of the view that the owner of the vehicle is entitled to claim incidental loss of income under the head Damages caused to the vehicle before the Tribunal and the Civil Court has no jurisdiction. We also state that the Insurance Company is liable to pay compensation towards damages caused to the vehicle, which includes the incidental loss of income being part by business loss.” 19. In Harkhu Bai and others versus Jiyaram and others reported in 2005 ACJ 1332 , it has been held that if the payment has been made as full and final settlement without any reservation by the company with which the vehicle was insured, second claim cannot be made against the insurer of the offending vehicle by which damage has been caused but if it is pleaded and proved by the material brought on record that only part payment was made by the insurer with which the vehicle was insured and rest of the claim has to be paid by the insurer of the offending vehicle by which the damage has been caused. It is apt to reproduce para 6 of the said judgment herein. “6. That leaves us with the claim in M.V.C. No. 3 of 1990. The Tribunal has rejected the said claim on two grounds. It is apt to reproduce para 6 of the said judgment herein. “6. That leaves us with the claim in M.V.C. 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 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 M.V.C. 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.” [emphasis supplied] 20. Applying the tests in this case, the claimant has specifically pleaded damages, details of which has been given in para 21 of the claim petition which is reproduced supra. 21. It is also apt to reproduce paras 9 and 10 of the judgment delivered by the Kerala High Court in case titled United India Insurance Co. Ltd. versus Sekhara Marar reported in 2013 ACJ 1279. 21. It is also apt to reproduce paras 9 and 10 of the judgment delivered by the Kerala High Court in case titled United India Insurance Co. Ltd. versus Sekhara Marar reported in 2013 ACJ 1279. “8.The learned counsel for the claimant would argue that the contract of the claimant with the insurer of the elephant is a separate contract and if any claim is received under the said contract, the same cannot be deducted from the compensation claimed from the owner or insurer of the offending vehicle/it is true that the claim amount realised by the claimant under a separate contract with the insurer of the property shall not be a bar from claiming compensation from the insurer of an offending vehicle, if the claimant could not receive just compensation from the insurer of the property. It is a settled law, that in cases claiming compensation for the death of individuals, the amount received by the claimants under a life insurance policy of the deceased shall not be taken into account while awarding compensation. However, in cases relating to damage to property, the amount received by the claimant under a separate policy insuring the property in question, has some relevance. This is because, in such cases, the compensation shall be subject to a cap, which is the actual value of the property. Otherwise, it will lead to an unjust enrichment. The claimant is also entitled to get other reasonable incidental expenses incurred by him. There may be instances, where the sum assured would be less than the actual value of the property. This may be because of the inability of the insured to pay a higher premium. In such cases, the amount which the claimant receives from his insurer may not be adequate compensation for the loss suffered and the same will not debar the claimant from realising the balance from the insurer of the offending vehicle as a third party. 9. In this case the appellant/claimant could not recover the full amount which he is entitled to from the insurer of the elephant. Thus, he is entitled to get the balance amount from the insurer of the offending vehicle. The Tribunal has assessed the actual value of the elephant at Rs. 3,65,000/-, on the basis of Ext. 9. In this case the appellant/claimant could not recover the full amount which he is entitled to from the insurer of the elephant. Thus, he is entitled to get the balance amount from the insurer of the offending vehicle. The Tribunal has assessed the actual value of the elephant at Rs. 3,65,000/-, on the basis of Ext. A11 sale deed under which, the claimant purchased the elephant From this amount, the amount of compensation which the claimant has received from the insurer of the elephant was deducted. Such a deduction is legally permissible.” [Emphasis added] 22. Viewed thus, the insurer/appellant is liable to pay the difference of amount, as claimed by the claimant. 23. In view of the foregoing discussion and reasoning, the insurer/appellant is liable to pay the said amount as compensation along with interest, as awarded by the Tribunal. 24. The insurer/appellant is directed to deposit the entire amount in the Registry within six weeks from today, if not already deposited. 25. The Registry is directed to release the same in favour of the claimant, through payees’ cheque account, strictly as per the terms and conditions contained in the impugned award. 26. Accordingly, the impugned award is upheld and the appeal is dismissed. 27. Send down the records forthwith, along with copy of this judgment.