Mr. Rajesh. K Vs Mr. Jaya Shankar

MR. RAJESH. K S/O. LATE SANJEEVA, AGED ABOUT 46 YEARS, R/AT N.S.N.-16, SOORYA NAGARA, ALAPE VILLAGE, PADIL, MANGALURU TALUK, D.K. DISTRICT, PIN-575 003.

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APPELLANT

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(BY SRI. RAVISHANKAR SHASTRY G.,ADVOCATE)

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AND:

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BHARATHI H M

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Digitally signed by BHARATHI H M Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD

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MR. JAYA SHANKAR S/O. LATE MUNIYAPPA, AGED ABOUT 55 YEARS, R/AT D-1, KIOCL TOWNSHIP, KAVOOR, MANGALORE, MANGALURU TALUK, D.K. DISTRICT-575 006.

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THE BRANCH MANAGER NATIONAL INSURANCE COM. LTD., 8TH FLOOR, TOWER C, KONNECTUS BUILDING, NEW DELHI, RAILWAY STATION, NEW DELHI, REPRESENTED BY ITS DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., BHARATH BUILDING, II FLOOR, P.M. RAO ROAD, MANGALURU TALUK,

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2 -

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NC: 2025:KHC:27924 MFA No. 5436 of 2017

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HC-KAR

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D.K. DISTRICT-575 003.

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RESPONDENTS

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(BY SRI. K KISHORE KUMAR REDDY, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2017 PASSED IN MVC NO.1835/2016 ON THE FILE OF THE MEMBER-MACT AND II ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, DAKSHINA KANNADA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988¹ calling in question the judgment and award dated 25.04.2017 passed in MVC No.1835/2016 by the Member-MACT and II Additional Senior Civil Judge, Mangaluru, D.K² , whereunder the Tribunal while considering the case of vehicle damage of the claimant has partly allowed the claim petition and awarded a total compensation of `23,000/- together with interest at 6% per annum.

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1 Hereinafter referred to as ‘Act, 1980’

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2 Hereinafter referred to as ‘Tribunal’

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3 - NC: 2025:KHC:27924 MFA No. 5436 of 2017

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HC-KAR

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Heard submissions of learned counsel

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Sri G Ravishankar Shastri appearing for the appellant - claimant and learned counsel Sri K Kishore Kumar Reddy appearing for respondent No.2 - insurer. Perused the records, including the records of the Tribunal.

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The findings of the Tribunal on negligence and liability are not under challenge and have attained finality. Hence, the only aspect that is required to be considered in the present appeal is with regard to adequacy of the quantum of compensation awarded.

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The claim petition was filed seeking for recovery of the cost incurred by the claimant towards vehicle damage. The claimant has been examined as PW1 and the surveyor as PW2. The surveyor report (Ex.P3) discloses that the total cost towards spare parts, labour charges and professional charges of the surveyor was a sum of 62,898.38/-. The surveyor has also calculated the loss as per net salvage loss basis and estimated the market value of the insured auto-rickshaw as 55,000/-, deducted 6,000/- towards wreck value and assessed the net loss at 49,000/-. The professional charges of the surveyor of

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HC-KAR

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4,278/- is evident from the bill of the surveyor (Ex.P4). PW.1 has stated in his affidavit by way of examination-in-chief that since the cost of repair has exceeded the cost of the vehicle, he has sold the wreckage of the vehicle. In his cross-examination PW.1 has stated that he received a sum of 3,000/- towards the wreckage value.

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It is clear from the aforementioned that the compensation under the salvage loss basis is required to be awarded. In that regard, although PW.1 has stated that he received only a sum of 3,000/-, since no documents have been placed on record towards the same, it is just and proper to assess the wreckage value as estimated by the surveyor (PW.2) in a sum of 6,000/-. Accordingly, to net salvage loss of 49,000/- assessed by PW.2, the professional charges of PW.2 of 4,278/- is required to be added. Hence, the total amount payable is (49,000/- + 4278/-)=53,278/-. The Tribunal has awarded a sum of 23,000/-. If the said amount is deducted, the balance amount payable to the claimant towards the cost of the vehicle is, a sum of (53,278/- - 23,000/-)=`30,278/-.

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HC-KAR

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Although, PW.1 has deposed in his affidavit by way of examination-in-chief that he has used the auto-rickshaw for transport purpose, since the claimant was a painter by profession and has incurred expenses for transport when the auto-rickshaw was in the workshop and that he has submitted that he has spent more than 15,000/- towards transport, since no documents have been produced towards the same, it is just and proper to award 5,000/- towards the loss incurred.

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Hence, the enhanced compensation payable to the

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claimant is a sum of (30,278/- + 5,000/-) =`35,278/.

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The Tribunal has award interest at 6% per annum. However, taking judicial notice of the rate of interest awarded towards fixed deposits, interest on the enhanced compensation is awarded as 7% pa.

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In view of the aforementioned, the following:

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ORDER

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i) The appeal is allowed in part;

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ii) The judgment and award dated 25.04.2017 passed in MVC No.1835/2016 by the Member-

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HC-KAR

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MACT and II Additional Senior Civil Judge, Mangaluru, D.K, is hereby modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The appellant/claimant is entitled to a further compensation of `35,278/- together with interest at 7% per annum from the date of petition till its realization in addition to the compensation awarded by the Tribunal;

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iv) Respondent No.2 – insurer shall deposit the said compensation together with accrued interest within a period of six weeks;

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v) Upon such deposit, the entire enhanced compensation together with interest accrued thereupon be disbursed to the claimant;

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vi) The Registry to draw the modified award accordingly;

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vii) Records be transmitted to the Tribunal forthwith. No costs.

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Sd/(C.M. POONACHA) JUDGE

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PNV - List No.: 1 Sl No.: 30

Mr. Rajesh. K v. Mr. Jaya Shankar

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Mr. Rajesh. K v. Mr. Jaya Shankar

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