Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 10 (JK)

Sanjeev Sharma v. New India Insurance Company

2017-01-30

RAMALINGAM SUDHAKAR

body2017
Judgment 1. The claimant has filed this appeal challenging a part of the order of the Tribunal dated 30.07.2008 seeking compensation insofar as damage caused to the building is concerned, which he has occupied as tenant and was damaged due to rash and negligent driving of the driver of the offending vehicle insured with the respondent- insurance company. 2. On 11.07.2005, after the appellant/claimant closed his shop at 9.00 pm and went home, a vehicle No.JK02A-9394 driven by its driver in a rash and negligent manner hit the traffic booth in the middle of the road and / thereafter, crossed over the divider and rammed the shop belonging to the appellant and caused extensive damage. The building suffered serious damage as also the movable goods inside the shop. The damage was assessed by the surveyor and a report was filed. This report had two parts; first part is relatable to damage caused to the movables and the second part relates to damage caused to the building. 3. Insofar as claim relating to the movables is concerned, the Tribunal, after going through the evidence on record, granted a sum of Rs. 1,20,231/- as compensation with 7.5 % interest. Insofar as damage caused to the building and assessed by the surveyor which is Rs. 26,857/- is concerned, the Tribunal declined to grant the same on the ground that the claimant is a tenant and is therefore, not entitled to claim for loss of property, as he is not the owner of the shop/building/property as set in 166(1)(b) of the Motor Vehicles Act, 1988. 4. Aggrieved thereof, the claimant tenant is in appeal seeking to set aside the award of the Tribunal insofar as it declined to the grant of compensation for the loss caused to the building. 5. Mr. Surinder Singh, learned counsel for the appellant relies upon the affidavit of Smt. Vidhya Vasisth (Vidhya Devi), who is the owner of the property/shop that is rented to the appellant. The affidavit of the owner, Smt. Vidhya Devi was filed after the evidence of the claimant was closed. The claimant filed an application to take on record the affidavit as a document. This was resisted by the insurance company. The Tribunal, however, disagreed with the insurance company and allowed the application and took on record the affidavit of Vidhya Devi. 6. The claimant filed an application to take on record the affidavit as a document. This was resisted by the insurance company. The Tribunal, however, disagreed with the insurance company and allowed the application and took on record the affidavit of Vidhya Devi. 6. The Tribunal, however, declined to entertain the claim insofar as damage of the property is concerned purely relying on section 166(l)(b). It held that a claim for compensation in respect of damage caused to a building can be preferred by the owner of the property alone and the appellant/claimant will have no right to such claim as tenant. 7. Mr. R.K. Gupta, learned Senior Advocate appearing for the respondent-insurance company, laid emphasis on the words used in section 166 (i)(b) and pleaded that owner alone can claim compensation. He pleaded that the affidavit of Vidhya Devi (owner), was an afterthought. Further she has not been examined before the Tribunal. Therefore, the Tribunal was justified in holding that the insurance company was not liable to pay compensation for the damage caused to the building. 8. Before the Tribunal, it was stated that the appellant/claimant had restored the building to its original shape so as to continue the tenancy. He had an understanding with the owner on the claim. As a result tenant/appellant made the claim seeking compensation for the damage caused to the building that he was using for his business. It is true that the affidavit of the landlady was not filed at the initial stage before the Tribunal. After the evidence of the claimant was closed, the said affidavit was filed in support of the claim of damage caused to the building, which was allowed by the Tribunal and taken on record. If this document had not been taken on record, the objections of the insurance company would have some relevance. If the document is in support of the claim and the landlady had endorsed the claim as one on her behalf then the factual position changes. 9. In the present case the affidavit of Vidhya Devi is relevant for appreciation of the facts which led to the prosecution of the claim petition. On reading the affidavit annexed thereto, it emerges that the owner was conscious of the fact that compensation has to be paid by the insurance company (respondent herein) to the appellant/claimant towards damage caused to the building. On reading the affidavit annexed thereto, it emerges that the owner was conscious of the fact that compensation has to be paid by the insurance company (respondent herein) to the appellant/claimant towards damage caused to the building. She clearly states that the tenant/appellant has reconstructed the shop on his own expenditure after the damage caused. She further goes on to state that the tenant, Sanjeev Sharma-appellant, is entitled to make an insurance claim for the damage caused to the shop, after acknowledging the fact that the tenant has reconstructed it. She also makes it clear in the affidavit that she will not prefer any claim for damage caused to the shop or for reconstruction, with the insurance company. The relevant portion of the affidavit dated 25th February, 2008 is as follows:— 1. “That Mr. Sanjeev Sharma son of Late Sh. Sant Ram R/o. 295 Rehari Colony, Jammu in my tenant having taken One shop on rent from me at Jewel Chowk Jammu where he is running his business under the name and style of M/S WESTON SERVICE CENTRE. 2. That on 11th July 2005 Truck No. JK 02 A 9394 hit my above shop due to which loss/damage occurred to my said shop. 3. That my above named tenant got reconstruction of said my shop with his own expenditure. 4. That my tenant Sanjeev Sharma is entitled for Insurance Claim of reconstruction/damage to the shop structure. 5. That I hereby undertake not to make separate claim for damage to the construction of my shop as well reconstruction of my said shop with the said Insurance Co. 6. That I solicit this affidavit, that I shall have no objection if the claim regarding loss to construction or my shop be release in favour of my tenant Sanjeev Sharma and I further undertake not to make any claim in future.” 10. In this background, it has to be analyzed as to whether the appellant/claimant, who is a tenant, is subject to suit as an owner. Admittedly, the provisions of clause 166 (1) (b) do not speak about the owner of the property in any other terms. In this background, it has to be analyzed as to whether the appellant/claimant, who is a tenant, is subject to suit as an owner. Admittedly, the provisions of clause 166 (1) (b) do not speak about the owner of the property in any other terms. However, in the claim filed for compensation, it has to be understood that the owner of the property if he or she endorses his/her right to a third party, the tenancy in the present case, it would not, in any manner, offend clause 166(l)(b) that authorization should be valid and proved before the Tribunal. There is no legal impediment to do so. 11. In this view of the matter, the evidence placed by the appellant/tenant by way of affidavit of the owner of the property before the Tribunal in relation to the immovable property owned by her and the Tribunal having accepted the same and taken on record the said affidavit ought to have examined the issue in light of the statement made by the owner of the property in the said affidavit. If the learned Tribunal had any doubt, it would have gone through the averments of the affidavit of the owner of the property produced by the claimant. The welfare legislation in the Motor Vehicles Act should be read in a manner consistent with the object that is sought to be achieved. 12. The objections of the respondents that the owner has not been examined could, of course, be relevant, but the learned counsel for the appellant states that there is no impediment in examining the owner. Even now it is stated that the appellant has come back with the approval of the owner. 13. In view of the above, this Court is inclined to presume that the Tribunal has erred in rejecting the compensation insofar as damage caused to the building is concerned that too without examining the vital facts of the case in light of the affidavit filed by the owner as undertaken by the appellant. The owner has to be examined before the Tribunal and her admission has to be taken on the issue of determination insofar as property in question is concerned, subject to the owner reiterating her stand as stated in the affidavit. To that extent, the appeal is allowed by way of remand of the file to the Motor Accident Claims Tribunal, Jammu. 14. To that extent, the appeal is allowed by way of remand of the file to the Motor Accident Claims Tribunal, Jammu. 14. The appeal is disposed of as above. 15. Record of the Tribunal be sent back forthwith along with a copy of this order.