Remanded

Sri. v. Kumar v the New India Assurance Company Ltd.

Karnataka HC23 Aug 2024MFA/7667/2014

Case brief

AI extract

What is this about?

Appeal against dismissal of a claim for vehicle damages in a road accident. The High Court held the Tribunal wrongly cast the burden of proving no double claim and extent of damage on the claimant, and remanded the matter for fresh disposal in light of its observations.

What the court decided

AI extract

Sri. v. Kumar Vs the New India Assurance Company Ltd. — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:33946 MFA No. 7667 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO.7667 OF 2014 (MV)

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BETWEEN:

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SRI V. KUMAR, S/O M. VENKATARAMANAPPA, AGED ABOUT 36 YEARS, R/A NO.MIG-336, 4^TH B CROSS KHB SURYANAGAR, PHASE-I, CHANDAPURA, BANGALORE-560 099. (OWNER OF FORD ICON CAR NO.KA 05 MC-7374)

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…APPELLANT

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(BY SRI S. VIYAJ KUMAR, ADVOCATE FOR SRI NAGARAJA N., ADVOCATE)

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AND:

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THE NEW INDIA ASSURANCE CO. LTD., NO.96, BHARATHIAR STREET, SATTUR-626 203, VIRUTDHU NAGAR DISTRICT, TAMIL NADU STATE.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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THIRU R. ANANTHAM, S/O RAMASWAMY NADAR, MAJOR IN AGE, R/A NO.44-A BHARATHIAR STREET, SATTUR, VIRUDHUNAGAR DISTRICT, TAMILNADU STATE - 626 203. (OWNER OF THE LORRY BEARING NO.TN-67 F-3582).

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R. BALARAJ, S/O THANGASWAMY, AGED ABOUT 41 YEARS, REDDAIR, NO.82, NORTH RATHA STREET, MADATHUPATTI, VIRUDHUNAGAR DISTRCT, TAMILNADU STATE - 626 203. (DRIVER OF THE LORRY NO.TN 67 F-3582)

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…RESPONDENTS

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(BY SRI NARASAPPA, ADVOCATE FOR SRI A.M. VENKATESH, ADVOCATE FOR R1; R2 - SERVED)

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NC: 2024:KHC:33946 MFA No. 7667 of 2014

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.08.2014 PASSED IN MVC NO.1690/2008 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES & XXVI ACMM, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 13.08.2014 passed by Court of Small Causes and Motor Accident Claims Tribunal, Bangalore (SCCH-09) (for short 'Tribunal') in MVC.no.1690/2008, this appeal is filed by claimant.

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Sri S. Vijay Kumar, learned counsel appearing for Sri Nagaraja N, advocate for appellant submitted that appeal was by claimant. It was submitted on 21.11.2006 at 6:30 a.m., owner of Ford Ikon Car bearing registration no.KA-05-MC-7374 was driving it from Bangalore towards Hosur, near BIOCON Factory Hebbagodi, a Lorry bearing registration no.TN-67-F3582, driven by its driver in rash and negligent manner dashed against Car causing accident. Due to accident, vehicle was completely crushed and was rendered unworthy of use. It was submitted, estimate of repair cost was Rs.5,82,758/-. In view of same, claimant filed claim petition under Section 166 of Motor Vehicles Act, 1988 against owner and insurer of Lorry.

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3 - NC: 2024:KHC:33946 MFA No. 7667 of 2014

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On appearance, claim petition was opposed on all

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counts.

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Based on pleadings, Tribunal framed issues and recorded evidence. Claimant examined himself as PW-1, investigator as PW-2 and Official of Cauvery Ford as PW-3. Exs.P1 to P15 were got marked. On other hand, copy of insurance policy got marked as Ex.R1 with consent.

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On consideration, Tribunal proceeded to reject claim petition on ground that claimant had failed to establish that he had not claimed compensation for damages to vehicle from his insurer and on ground that claimant had merely produced repair estimate and not actual bills. It was submitted, dismissal of claim petition on mere suspicion of double claim was not justified in absence of specific material about same. It was submitted, even reason assigned that Motor Vehicle Inspector’s report was not produced would not be tenable as this Court at time of passing order in earlier round of appeal had remanded matter directing Tribunal to consider material placed on record by appellant. It was submitted, though claimant had purchased pre-owned vehicle for Rs.3,50,000/- and repair estimate was

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NC: 2024:KHC:33946 MFA No. 7667 of 2014

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for Rs.5,82,758/- would not by itself be a ground for rejection of claim petition. On above grounds sought for allowing appeal.

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On other hand, Sri Narasappa, learned counsel

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appearing for Sri A.M. Venkatesh, advocate for respondent no.1 - insurer sought to oppose appeal. At outset, it was submitted, claim petition was earlier rejected on ground of failure of claimant to produce Motor Vehicle Inspector’s report and failure to examine author of documents. It was submitted, even after remand, claimant had failed to produce Motor Vehicle Inspector’s report and certificate that he had not made any claim from insurer of his Car and in establishing nature of damages and repair charges. It was submitted, reason assigned by Tribunal were just and proper and did not call for interference.

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Heard learned counsel and perused impugned judgment and award.

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From above since claimant is questioning dismissal of claim petition, point that would arise for consideration is: "Whether dismissal of claim petition by Tribunal is justified?"

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NC: 2024:KHC:33946 MFA No. 7667 of 2014

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From above, occurrence of accident involving claimant's vehicle and insurer's vehicle is not in dispute. This is a claim petition for damages to vehicle. Even claimant's vehicle was insured is also not in dispute. While passing impugned award, reason assigned by Tribunal are that claimant failed to produce Motor Vehicle Inspector’s report and had failed to produce material to establish that he had not made any claim from insurer of his Car and repair estimate to tune of Rs.5,82,758/- in respect of vehicle purchased by claimant for Rs.3,50,000/- was not believable.

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Insofar as failure to produce Motor Vehicle Inspector’s report, though said contention was considered fairly in favour of insurer in earlier round, this Court at time of remand had specifically observed that Tribunal would be required to reconsider material and evidence produced by claimant. It is seen that claimant has produced original RC Book, Driving Licence, RC Book copy of respondent's vehicle, Form no.17, Form no.47, Insurance Policy, Complaint, FIR, Charge-sheet, Survey report, Estimate Bill, Insurance Policy copy, Survey report, 8 photos with negatives and Letter issued by Motor Vehicle Inspector as Exs.P1 to P15.

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NC: 2024:KHC:33946 MFA No. 7667 of 2014

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Perusal of impugned award would indicate that Tribunal has examined only Exs.P10, P12 and P15. To substantiate damages sustained by vehicle in an accident, FIR and Charge-sheet as well as Survey reports would be prima-facie sufficient. Claimant has also produced photographs with negatives and estimate bill. When claimant has produced same and also examined Surveyor as PW-2 as well as Official from Authorized Service Center as PW-3 to substantiate contents of survey reports/estimate bill, Tribunal was not justified in rejecting claim for failure to produce Motor Vehicle Inspector’s report. If, respondent-insurer were to dispute nature and extent of damages and need for repair as per estimate, burden would be on insurer to produce Motor Vehicle Inspector's report or such other material which would contradict claim. Therefore, casting burden on claimant would not be justified.

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Even insofar as possibility of claimant having claimed compensation from insurer of his Car, Tribunal has not stated whether claimant had stated that there was no claim or whether there was any suggestion by insurer about possibility of double claim. Material on record indicates that claimant had

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NC: 2024:KHC:33946 MFA No. 7667 of 2014

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stated that Car was lying in his residential compound in ‘unrepaired condition’. On said material, it can be ( prima-facie) presumed that claimant had not claimed compensation from insurer of his Car as same would normally be paid only after repair.

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Further as noticed by Tribunal, claimant had purchased Car for Rs.3,50,000/-, whereas estimate for repair of Car was Rs.5,82,758/-. Since estimate was higher than value paid by claimant, same could be reason for not getting vehicle repaired. Therefore, casting burden upon claimant to get it repaired first and then seek compensation would not be justified. Direction issued by this Court in MFA.no.5408/2010 being to dispose of claim petition on basis of material on record, manner of disposal would not appear compliant with said direction. Therefore, a remand would be necessary. But for same respondent - insurer would not be at fault. Therefore, at time of passing award, tribunal would be required to pass appropriate orders to moderate liability of insurer to pay interest. Point for consideration is answered in negative . Consequently, following:

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NC: 2024:KHC:33946 MFA No. 7667 of 2014

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ORDER

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i. Appeal is allowed .

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ii. Matter is remitted back to Tribunal for fresh disposal in light of observations above.

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iii. Since both parties are represented, they are directed to appear before Tribunal without awaiting fresh notice on or before 23.09.2024.

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iv. Registry to draw decree and forward copy of judgment to Tribunal forthwith well before said date.

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v. Tribunal is directed to dispose of matter afresh in light of observations above as far as possible within an outer limit of three months.

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vi. Parties would be at liberty to lead any further evidence within reasonable time.

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Sd/(RAVI V HOSMANI) JUDGE

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GRD

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List No.: 1 Sl No.: 19

Sri. v. Kumar v the New India Assurance Company Ltd.

Case brief

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What the court decided

Sri. v. Kumar v the New India Assurance Company Ltd.

Case brief

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