B.G. Bhaskar v. Biju Varghese and Ors.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942 ## MACA.No.220 OF 2014 AGAINST THE AWARD IN OPMV NO.955/2012 DATED 05-07-2013 ON THE FILE OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE ## APPELLANT/PETITIONER: B.G.BHASKAR AGED 70 YEARS S/O.B.M.GOPAL,18/564, BEMPLASSERI, THALI, KOZHIKODE673 002. BY B.G.BHASKAR, PARTY-IN-PERSON ## RESPONDENTS/RESPONDENTS: 1 BIJU VARGHESE S/O.VARGHESE, CHANNAKKADAN HOUSE, KARAYAMPARAMBU, KARUKUTTY PO, ERNAKULAM - 683 576 2 T.I. ANSHEER S/O.IBRAHIMKUTTY, 7/497 A, THOPPIL HOUSE, THAIKKATTUKARA PO, ALUVA WEST VILLAGE-683 106 3 THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE, THODUPUZHA-685 584 R1 & R2 BY ADV. SRI.N.MUHAMMAD SAJU & ADV. SRI.M.A.NOUSHAD R3 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.220 of 2014 2 ## **JUDGMENT** ## **Dated this the 12th day of March 2021** ... The appellant is the petitioner in OP(MV)No.955 of 2012 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode. The said claim petition was filed by him seeking compensation for the damage sustained to his Toyota Qualis car, in a motor accident occurred on 14.11.2011. The accident occurred when the vehicle belongs to the appellant/petitioner was hit on its back by a tipper lorry and due to its impact, the petitioner’s car moved forward and hit against another lorry which was in front of the said vehicle. It is contended by him that, the vehicle suffered extensive damages and as compensation, he claimed an amount of Rs.1,40,000/-. 2. The owner and driver of the vehicle involved in the accident had chosen not to appear before the Tribunal even though notices were served upon them. Accordingly, they were set ex-parte. The 3[rd] respondent-Insurance Company filed a written statement admitting the existence of policy but disputed the liability. The 3[rd] respondent seriously disputed the negligence on the part of the 2[nd] M.A.C.A.No.220 of 2014 3 respondent in causing the accident. The quantum of compensation was also disputed by them. 3. The evidence in this case consists of the documentary evidence of Exts.A1 to A11 and the oral evidence of the appellant/petitioner, who got himself examined as PW1. No evidence was adduced from the side of the respondents. 4. After trial, the Tribunal dismissed the said claim petition by observing that, the petitioner failed to prove the quantum of damages, as no bills evidencing the repairing of the vehicle were produced. However, it was found that, the accident occurred due to the negligence of the 1[st] respondent. Challenging the order of dismissal of the petition, this appeal is filed. 5. Heard Sri.B.G.Bhaskar, the appellant/petitioner who appeared in person and the learned counsel for the Insurance Company. 6. It was contended by the appellant that, the reasoning adopted by the Tribunal while dismissing the appeal is unsustainable. According to him, merely because of the reason that, the vehicle was not repaired so far, the compensation should not have been denied by the Tribunal. In order to prove the quantum of compensation, he M.A.C.A.No.220 of 2014 4 has produced Ext.A2 which is a detailed estimate containing the split up details of all the works to be carried out for making the vehicle roadworthy. However, the Tribunal did not rely upon the said document and the claim petition was rejected. According to him, the said finding is liable to be interfered with. 7. In response to the said contentions, the learned counsel appearing for the 3[rd] respondent contended that, the appellant miserably failed in establishing the quantum of damages and, therefore, the award impugned in this case is liable to be sustained. 8. It was contended by the appellant that the claim under Section 166 of the Motor Vehicles Act is basically a claim arising under the principles of Law of Torts. Therefore, once it is shown that the party suffered a loss due to negligent act of another, he will be entitled for compensation for such loss. Hence, while applying the said principles in a claim arising under Motor Vehicles Act, the victim of the accident will be entitled for compensation, once it is shown that the vehicle sustained damage due to the negligent act of the respondent. The question whether he actually repaired the vehicle or not is immaterial. In support of his contentions, the appellant relied upon the judgment of this Court reported in **Motor and General** M.A.C.A.No.220 of 2014 5 **Finance (India) Ltd. v. Mary Mony** [1990(2) KLT 971]. In the said judgment, it has been clearly observed that, the scope of adjudication in the matters relating to compensation under the provisions of Motor Vehicles Act is based on the principles of law of torts. It was observed therein that “the Act does not create a new right or even a new remedy, but has simply changed the forum and the process for adjudicating claims for compensation arising from accidents by the use of motor vehicles”. It was also observed that, the Motor Accidents Claims Tribunal were constituted to substitute the civil courts in the matter of adjudicating the question of compensation arising out of accident due to use of motor vehicles. Thus, on the strength of the above observations, it was contended that, the Tribunal has to adjudicate the dispute in respect of a motor accident by relying upon the principles of law of torts. In this case, it is evident from the records such as Exts.A11 charge sheet submitted by the Police, Ext.A9, report of the Motor Vehicles Inspector and also from Ext.A8 photographs that, the vehicle sustained extensive damage in the motor accident occurred on 14.11.2011. In the light of the above, the appellant is entitled for compensation for the damages, particularly in view of the fact that, the Tribunal had already found M.A.C.A.No.220 of 2014 6 while answering the issue number 1 that, the accident had occurred due to the negligent driving of the 1[st] respondent. Therefore, it is evident that, it is a case where principles of tortious liability is attracted and hence under no circumstances, the appellant can be denied compensation for such tortious act. Mere fact that, the appellant has not so far repaired the said vehicle and produced the bills evidencing the same, will not in any manner disentitle him to claim the compensation. It is a fact that, if the vehicle is not repaired and made roadworthy, it may not be possible for the appellant to use the same for his purposes. In such an event, his loss will be higher than what is actually claimed by him, as he will be prevented from using the said vehicle at all. Therefore, under no circumstances, the fact that the vehicle has not been repaired so far will not have any impact upon the damages sustained to him but on the other hand the non repairing of the vehicle would cause more difficulty and inconvenience to him. Thus, even in cases where the vehicle is not repaired, the appellant will be entitled to compensation to the extent of damages suffered to the vehicle. Therefore, the finding of the Tribunal is to be set aside. M.A.C.A.No.220 of 2014 7 9. The next question is relating to the quantum of compensation. The amount of compensation claimed by the appellant is Rs.1,40,000/- and he is placing reliance upon Ext.A2 job order with estimate for substantiating the same. In this regard, the oral evidence adduced by the appellant is also to be taken into consideration. On going through the cross-examination of PW1, it can be seen that, the 3[rd] respondent has not raised any objection as to the amount required for repairing the vehicle as mentioned in Ext.A2 job order. The 1[st] and 2[nd] respondents were set ex-parte before the Tribunal and, therefore, from their side also, there is no challenge as to the quantum mentioned in Ext.A2. In the absence of any such challenge, the amount in Ext.A2 is to be accepted. It is also discernible from the perusal of the same that, it contains a detailed estimate of the spare parts and the other charges required for making the vehicle roadworthy. In connection with the above, the appellant also placed reliance upon the judgment of the Himachal Pradesh High Court in **National Insurance Company v. The Bilaspur Gramudhyog Association and Others** [(2008) ACJ 2058]. In the said judgment, in order to quantify the damages sustained to a third party, the estimate prepared by the qualified M.A.C.A.No.220 of 2014 8 Engineer was relied upon. In this case, it is seen that, the estimate is provided by the authorized service centre of Toyota Vehicles. Therefore, there is nothing wrong in accepting the said document for the purpose of determining the quantum of damages to be awarded in this case, particularly when, there is no challenge against such assessment, from any of the respondents. 10. In the above circumstances, the award passed by the Tribunal in OP(MV)No.955 of 2012 is hereby set aside. 11. However, in this case, going by the stipulations contained in Section 147(2)(b) of the Motor Vehicles Act, 1988, the liability of the 3[rd] respondent-Insurance Company as far as the third party property damage is concerned, is limited to ` 6,000/- alone. Therefore, the liability that can be imposed upon 3[rd] respondent herein is confined to ` 6,000/- along with interest accrued thereon and proportionate costs In the above circumstances, this appeal is allowed holding that the appellant is entitled to realize an amount of ` 1,40,000/- along with interest at the rate of 9% per annum from the date of petition till realization. However, it is made clear that, by virtue of the statutory limit contained under Section 147(2)(b) of the Motor M.A.C.A.No.220 of 2014 9 Vehicles Act, the liability of the 3[rd] respondent shall be confined to ` 6,000/- [Rupees Six thousand only) along with interest at the rate of 9% per annum and proportionate costs, which shall be deposited by the 3[rd] respondent within three months from the date of receipt of a copy of this judgment. The appellant shall be entitled to realize the balance amount ie. Rs.1,34,000/- from respondents 1 and 2 herein along with interest and costs as mentioned above. The appeal is disposed of as above. **Sd/-** **ZIYAD RAHMAN A.A.** **JUDGE** pkk