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2021 DIGILAW 597 (UTT)

KASTURI DHYANI v. NUTAN MANCHANDA

2021-11-24

S.K.MISHRA

body2021
JUDGMENT Sri S.K. Mishra, J. 1. Mr. Pankaj Purohit, the learned counsel for the appellants and Mr. Bharat Tewari, the learned counsel appearing for the Insurance Company/respondent were heard on 21.10.2021. 2. In this appeal against order, the appellants/petitioners have assailed the final order passed by the learned Additional District Judge/MACT, Tehri Garhwal in MACP case no. 3 of 2009 allowing the application of the appellants in part and awarding a sum of Rs. 28,364.67/- only, with simple interest @ 5%, from the date of filing of the claim application on account of loss sustained because of a motor accident which completely destroyed two floors of the building of the petitioner. 3. On 03.12.2007, in the night, the offending truck bearing registration No. UA07R 8760 while proceeding on Devprayag-Srinagar National Highway, being driven in a rash and negligent manner, lost control and fell/dashed against the building of the petitioners standing on a low level by the side of the road as a result of which two rooms on the fourth floor and the entire roof of the third floor was damaged. Some consumer durables and domestic utilities like refrigerator, tank, bed, T.V. etc., were damaged as a result of the accident. Such accident caused loss of rent that petitioners were getting @1800/- per month. The applicants, therefore, prayed for a sum of Rs. 1,48,300/- for damage to the property plus Rs. 3285/- for damage to the utensils and durables and Rs. 4,32,000/- for twenty years of rent @ Rs 1800/- per month and Rs. 50,000/- for mental agony and pain. In other words, they have claimed Rs. 6,63,150/- as compensation. 4. Opposite party no. 1 admitted the accident but contends that it is covered by a valid insurance coverage. Hence, he submitted that the Insurance Company should be made liable to pay the compensation. 5. Opposite party no. 2, inter alia, submits that the claimants have not given detailed description of the property damaged nor they have produced any document of title of the same. He also stated that the petitioner has submitted a very high sum of compensation on imaginary grounds. 6. Respondent no. 3 died during the pendency of the writ application. On such factual aspect, the learned Additional District Judge, Presiding the Tribunal cast three issues relating to taking place of the accident on 03.12.2007 due to rash and negligent driving of the goods vehicle no. 6. Respondent no. 3 died during the pendency of the writ application. On such factual aspect, the learned Additional District Judge, Presiding the Tribunal cast three issues relating to taking place of the accident on 03.12.2007 due to rash and negligent driving of the goods vehicle no. UA07 R 8760 and damaged the house and household articles kept therein; regarding the valid license, valid permit, fitness certificate also and; finally the amount of compensation to be paid to the opposite party. 7. In support of their case, the claimants/appellant examined four witnesses. Vikas Dhyani, petitioner no. 2 was examined as PW1, Ajay Kumar Sayana was examined as PW2, petitioner no.7 Kasturi Devi was examined as PW3 and one Firoz Ahmed, Junior Engineer, Public Works Department (hereinafter referred to as PWD) was examined as PW4. One witness DW1 Nutan Manchanda was examined on behalf of the opposite party. 8. The petitioners have also relied upon the documentary evidence, viz., copy of the plaint, copy of family register, site plan, list of domestic articles, copy of estimate, certificate issued by Nagar Panchayat, copy of the house tax etc. The opposite party has also adduced documentary evidence, those are road tax, permit, registration certificate, D.L., policy of vehicle, photo copy regarding insurance of vehicle, copy of statements given in MACP no. 5 of 2008, accident report, insurance policy etc. 9. On the basis of said pleadings, the learned Additional District Judge, presiding the Tribunal came to the conclusion that the accident took place due to rash and negligent driving of the driver and the house in question sustained damages as a result of the falling of the goods vehicle on it which damaged the third and second floor of the said building. Regarding issue no. 2, the learned Judge, Tribunal also held that the driver of the offending vehicle had a valid driving license and the owner of the vehicle had a valid permit, fitness etc. 10. However, the disputed question is regarding issue no. 3. Issue no. 3 has been decided by the learned Judge, Tribunal holding that the report prepared by the Junior Engineer, PWD, is not acceptable as a separate cost of building material and damages sustained to the building separately has not been shown for each floors. The estimated cost is Rs. 1,34,000/- but the Tribunal has granted Rs. 28,364.67/- to the claimants. 3 has been decided by the learned Judge, Tribunal holding that the report prepared by the Junior Engineer, PWD, is not acceptable as a separate cost of building material and damages sustained to the building separately has not been shown for each floors. The estimated cost is Rs. 1,34,000/- but the Tribunal has granted Rs. 28,364.67/- to the claimants. This issue is to be decided in this case. 11. The first question came up for discussion whether compensation can be claimed in an application under Section 164, 165 read with Section 166 of the Motor Vehicle Act for damage to the property. In this connection, the learned counsel for the appellants relied upon the unreported case of this Court in Ganga Singh vs. Union of India passed in FA No. 358 of 2001 decided on 29.06.2007 and submitted that this issue is no more res integra. Section 165 of the M.V. Act provides as follows:- “165. Claims Tribunal.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudication upon claims for compensation in respect of accident 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 so arising, or both. Explanation.- For the removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under Section 140 [and section 163A]." (underlined for emphasis). 12. Thus, it will appear from the aforesaid provisions that if any damage to the property has been caused by use of motor vehicle and the property belongs to a third party, the application for claim is maintainable. 13. On analysis of the materials on record, in the light of the arguments advanced by both the parties, this Court is of the view that the judgment and award, so far as it relates to the quantum of compensation because of the damages caused to the house of the appellant is erroneous and against the tenor of the materials available on record. The Tehsildar, on the application made by the claimants for assessment of the damage caused by the accident, deputed the officer of the PWD for assessments to the loss caused to the house. Under the direction the Junior Engineer, PWD i.e. PW4 Firoz Ahmed, inspected the house and prepared a report giving in detail the assessment to the loss to the house. He estimated the property to have sustained damages of Rs. 1,48,300/- but from the record it appears that he has reduced it to Rs. 1,34,000/- by an endorsement made by him. The Ex. 1 i.e. assessment/ depreciated cost, was disbelieved by the Tribunal on a very untenable and flimsy ground. It was stated that Ex. 1 was not original but a photocopy of the original. However, as per the provision of Section 169, the Claims Tribunal is required to have an enquiry and follow such summary procedure as it thinks fit. Such a proceeding before the Court-Tribunal is not a trial, as we understand regarding trial of suit in strict sense of the termrather it is an enquiry and the tribunal has a discretion to adopt such summary procedure as it thinks fit. 14. So in that view of the matter when the Assistant Engineer, PWD, himself has been examined and he has produced the document which may be a xerox copy or photocopy of the original prepared by him, there is no need to disbelieve the same. Even Section 168 of the M.V. Act speaks of issuing notice and holding an enquiry into the claim made by the claimant. So in all fitness of the case Ex. A1 should have been accepted by the Tribunal. It is also shown from the record that PW4 mentioned each and every damage to the building and has come to the conclusion regarding the damage sustained to the building which has been reflected in the notification. 15. In that view of the matter, this Court comes to the conclusion that the estimate made by PW4 to the building should be accepted, this is so especially because it is prepared by an expert who in due discharge of his official duty, has prepared this document. 15. In that view of the matter, this Court comes to the conclusion that the estimate made by PW4 to the building should be accepted, this is so especially because it is prepared by an expert who in due discharge of his official duty, has prepared this document. Unless there is incisive cross-examination showing that he has committed gross illegality in holding the survey and valuation of the damages and preparation of the document, in a summary enquiry, the same should not have been rejected by the Tribunal, as it has been done. Hence, this Court is inclined to allow this appeal as far as the calculation of compensation regarding damage to the property is concerned. 16. Once a property is damaged by a motor accident which is not because of any reasons, which can be attributed to the owner but because of rash and negligent act of a another person who was driving the motor vehicle then owner of the house shall definitely undergo some kind of pain and suffering especially when it is regarding the house property, which renders the house partially inhabitable, a sum of Rs. 30,000/- should be granted towards pain and suffering. 17. So, the appeal is allowed. The order passed by the Tribunal is modified to the extent that the petitioners/appellants are entitled to Rs. 1,34,000/- towards damage to the property and Rs. 30,000/- towards pain and suffering, in to to Rs. 1,64,000/- (subject to deduction of the amount which has already been paid by the Insurance Company i.e. Rs. 28,364.67/-). Hence, the appellants are entitled to receive additional amount of Rs. 1,35,635.33/-, rounder upto Rs. 1,36,000/- from the Insurance Company. The additional amount shall be paid within two months along with 5% interest, from the date of filing of the appeal, failing which it shall carry simple penal interest @ 8% from the date of the accident. 18. Lower court record be sent back. 19. Urgent certified copies of this order be provided as per rules.