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2020 DIGILAW 1336 (BOM)

Yeshoda Y. Palyekar v. Babu Bhago Varak

2020-11-06

M.S.JAWALKAR

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JUDGMENT : M.S. JAWALKAR, J. 1. Heard Mr. Sudin Usgaonkar, Senior Advocate with Shri K. Padgaonkar, learned Advocate for the Appellants and Mr. U.R. Timble learned Advocate for the Respondent No. 3. 2. The present appeal is filed being aggrieved by the judgment and award dated 28.07.2009 passed by the Motor Accident Claims Tribunal, Mapusa, in Claim Petition No. 69 of 2007. 3. The case of the claimants before Claims Tribunal was as under: That on 21.05.2007 at about 06.20 hours, at New Wada Colony, Nagzer, Pernem, the respondent no. 1 Babu Bhago Varak drove his mini truck bearing no. GA-01-2-3637 in a rash and negligent manner and while negotiating reverse turn, dashed against the left side front corner of the house of the claimant bearing no. 268. They claimed Rs. 55,300/- as compensation on account of damages sustained to the house and things in the house. 4. The Claims Tribunal after considering the evidence on record awarded Rs. 15,000/- with interest at the rate 6% towards property damaged. This appeal is preferred on the ground that while computing compensation Claims Tribunal failed to consider Surveyor's report on record who was examined by the claimant as AW-2. It is further contended that there was no any survey report placed on record by respondents. Learned Claims Tribunal erred in separating repairing work of damaged portion and damage caused by the truck to the appellants house. In fact the cost towards repairing is equal to the damages. The learned Tribunal totally erred in disregarding the assessment of surveyor and relying on the amount mentioned in FIR. 5. As against this, learned Counsel for the respondent Shri Timble submitted that the accident occurred on 21.05.2007 and claimed was filed on 29.11.2007 i.e. around six months after the accident. There was no intimation to the insurance company before that and therefore, after appointment of a surveyor by the claimant and after carrying out repair works, there was no question of appointment of surveyor by the insurance company to assess damages. The learned Trial Court justified in holding amount of Rs. 10,000/- towards damages as the claimant himself assessed it while lodging FIR. 6. Learned Counsel for the respondent pointed out from the record that the surveyor's report is not at all reliable and so it is rightly discarded by the learned Tribunal. 7. It is pointed out by learned Advocate for the respondent no. 10,000/- towards damages as the claimant himself assessed it while lodging FIR. 6. Learned Counsel for the respondent pointed out from the record that the surveyor's report is not at all reliable and so it is rightly discarded by the learned Tribunal. 7. It is pointed out by learned Advocate for the respondent no. 3 Mr. U.R. Timble that area of plot allotted to the claimant if seen on exhibit 22 is 100 sq. mts. As per condition 2/3rd of the said land shall be left open. Thus construction at the most will be on the 66.66 sq. mts. On perusal of surveyor's report, it is evident that the alleged surveyor is not registered as a surveyor and loss assessor. The learned Advocate relied on the Provisions of the Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000. On the basis of those provisions and certain rulings of the Hon'ble Apex Court Insurance Company issued Section 64 UM. In The Insurance Act, 1938. Clause 2 of Act clearly mandates that no claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding Rs. 20,000/- in value on any policy of Insurance be admitted for payment or settled by the insurers unless he has obtained a report on the loss that has occurred from a person who holds a licence issued under this Section to act as a surveyor or a loss assessor. 8. Claimant's survey report shows that under the guise of reconstruction of the damaged part, the whole house is renovated. Admittedly, when the claimant can construct only 66.66. sq. mts and only one corner of the said construction is damaged, the reading in survey report is not only exaggerated but even contrary to the other evidence on record. If abstract sheet is perused against column no. 2 it is written “laterite masonary in neatly dressed stones for 20 cms. Thick walls in 1:4 C.M... upto floor two level 20 cms thick” whereas if photographs are seen, there was no second floor in existence. Similarly against column no. 8 it is written “providing and laying 2nd class managalore tiles roof covering 25 x 50 mm jamba wood batten including nails but excluding rafters” and quantity shown is 25.75 sq. mts. 9. upto floor two level 20 cms thick” whereas if photographs are seen, there was no second floor in existence. Similarly against column no. 8 it is written “providing and laying 2nd class managalore tiles roof covering 25 x 50 mm jamba wood batten including nails but excluding rafters” and quantity shown is 25.75 sq. mts. 9. There is no substance in the contention of learned Counsel for the appellant that there is no challenge to the surveyor's report nor any surveyor is examined by the insurance company. Admittedly the claim is filed after a period of six months. From the evidence of Civil Engineer he conducted survey in the month of May, 2007. Claim is filed on 29.11.2007. Thus there was no opportunity of appointing any surveyor to assess the damages after the repair work was over. Secondly, if photographs at exhibit 24 colly are seen, there is no second floor as mentioned by the surveyor of claimant. The learned Tribunal held that what the claimants are entitled to is not the cost towards the repairs of the damaged house but to the amount towards the actual loss caused to them on account of damage to their house. 10. Though there is substance in the argument of the appellant that cost of repairs to the damaged portion itself is the loss due to damage of the property. However, under the guise of repair of damaged portion, one cannot claim amount of total renovation of the house. 11. The learned Tribunal held damages of Rs. 10,000/- on the basis of the figure appearing in FIR which was filed by the claimant himself. The learned Counsel for the appellant pointed out that if the complaint and FIR is perused at exhibit 20, the complaint is written as per the say of the complainant in Marathi and there is no reference of any amount of damage. However, FIR which is written by a police person in English there is mention of Rs. 10,000/- damage caused to the claimant's property. There is substance in the contention of learned Advocate for the appellant. Figure of Rs. 10,000/- cannot be the basis for holding damage of Rs. 10,000/-. Even if it is presumed that complainant would have mentioned amount of Rs. 10,000/- orally, it cannot be the basis for such conclusion. 10,000/- damage caused to the claimant's property. There is substance in the contention of learned Advocate for the appellant. Figure of Rs. 10,000/- cannot be the basis for holding damage of Rs. 10,000/-. Even if it is presumed that complainant would have mentioned amount of Rs. 10,000/- orally, it cannot be the basis for such conclusion. It appears that the learned Tribunal gave importance to what police has recorded than the evidence of Civil Engineer. 12. In my considered opinion, learned Claims Tribunal definitely erred in concluding amount of damage on the basis of figure mentioned in the complaint. Simply because if complainant would have stated while lodging FIR, that he caused damage of Rs. 1,00,000/- then such conclusion may result in injustice to the other side. The learned Tribunal ought to have by taking into consideration the basis of photographs from outside as well as inside the house and by some guess work has to arrive at some reasonable figure. Admittedly surveyor's report is not reliable in my considered opinion. He is also not a registered surveyor. The figure of Rs. 10,000/- is also unjustified. True, it is that even if the corner of the house was damaged, and it caused damage to roof tiles also, there may be damage to the supporting walls also. There is some damage to the articles inside the house which can be seen from the photographs. So in my considered opinion, it would be just and proper to grant an amount of Rs. 30,000/- towards damage to property and Rs. 5,000/- towards mental agony. 13. Thus the total amount of damages to which the claimants are entitled is Rs. 35,000/-. Claimant is also entitled for interest on the amount of award at the rate of 9% p.a. From the date of filing of the petition. 14. Accordingly, I proceed to pass the following: ORDER: 1. Appeal is partly allowed. 2. The judgment and award dated 28.07.2009 in Claim Petition No. 69/2007 of the Claim Tribunal, Mapusa is hereby modified as under: (i) Claim petition is partly allowed with proportionate cost. (ii) Claimants are entitled for compensation of Rs. 35,000/- (Rupees Thirty Five Thousand only) alongwith interest at the rate of 9% per annum from the date of filing of the Claim Petition till its realisation. (iii) The amount awarded shall be paid jointly and severally by the respondent nos. (ii) Claimants are entitled for compensation of Rs. 35,000/- (Rupees Thirty Five Thousand only) alongwith interest at the rate of 9% per annum from the date of filing of the Claim Petition till its realisation. (iii) The amount awarded shall be paid jointly and severally by the respondent nos. 2 and 3 to the claimant. (iv) Award be drawn accordingly. 3. If any amount is deposited by the respondents in accordance with the award dated 28.07.2009 the respondents are entitled to adjust the same.