BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.370 of 1992 United India Insurance Company, Namakkal. .. Appellant/D2 Vs 1.K.Ramaswamy Chettiar .. First Respondent/Plaintiff 2.A.Suseela .. Second Respondent/D1 3.New India Assurance Co., Fort Station Road, Trichy-2. .. Third Respondent/D3 Prayer Appeal filed under Section 96 of Civil Procedure Code, against the Judgment and Decree dated 22.01.1990 passed in O.S.No.720 of 1987 on the file of the learned Subordinate Judge, Tiruchirapalli. !For Appellant ... Mr.V.R.Subramanian ^For Respondents ... No appearance :JUDGMENT
This appeal is focussed as against the judgment and decree dated dated
22.01.1990 passed in O.S.No.720 of 1987 on the file of the learned Subordinate
Judge, Tiruchirapalli.
2. Heard the learned counsel for the appellant. Despite printing the name
of the respondents, no one represents.
3. The parties are referred to hereunder in the same order as they were
arrayed before the trial Court.
4. The gist and kernel of the averments in the plaint would run thus:
D1 got insured her lorry with D2. D3 is the insurer of the plaintiff’s
van. It so happened that the van bearing Registration No.TDS 6846 belonging to
the plaintiff and D1’s lorry got collided with each other and in that process
the van of the plaintiff got damaged; whereupon M.C.O.P.No.191 of 1985 was filed
before the Motor Accidents Claims Tribunal, Thajavur claiming damages, which
awarded damages to a tune of Rs.56,985.15 (Rupees fifty six thousand nine
hundred and ninety five and paise fifteen only). However, it did not grant any
compensation towards loss of business income of the plaintiff, consequent upon
the damage caused to his vehicle. Thereupon, the plaintiff herein filed the
suit claiming damages to a tune of Rs.57,000/- (Rupees fifty seven thousand
only) towards loss of his business, consequent upon the damage caused to his van
and he also claimed various other charges.
5. Denying and refuting the claim of the plaintiff, D2 filed the written
statement, which was adopted by D1; the gist and kernel of it would run thus:
D2 already deposited in the Tribunal the damages awarded by the Tribunal
as per the insurance policy issued by D2 and D2 prayed for the dismissal of the
suit.
6. However, D2 alone filed additional written statement as under:
The plaintiff is having no right to claim damages towards loss of business
as against the insurer of D1’s vehicle. The policy issued by D2 in favour of D1
was only to the extent of covering third party risks and as such D2 cannot be
mulcted with the liability to pay loss of business income of the plaintiff, as
the insurance policy does not cover all those aspects. The plaintiff also did
not sustain damage to a tune of Rs.57,000/- (Rupees fifty seven thousand only)
as claimed in the suit. Accordingly, he prayed for the dismissal of the suit.
7. The trial Court framed the relevant issues and during trial, the
plaintiff examined himself as P.W.1 and Exs.A.1 to A.15 were marked. On the
side of the defendants, one Ramasamy examined as D.W.1 along and Exs.B.1 and B.2
were marked.
8. The trial Court ultimately decreed the suit in awarding a sum of
Rs.750/- (Rupees seven hundred and fifty only) as business loss of the
plaintiff.
9. Being aggrieved by and dissatisfied with the Judgment and decree of the
trial Court, the plaintiff himself filed one appeal suit in A.S.No.1915 of 1991
before this court, expressing his grievance that the compensation awarded was
inadequate and mingy. But it was dismissed for default on 02.09.2006, whereas
D2 filed this appeal as against the awarding of the sum of Rs.750/- (Rupees
seven hundred and fifty only) in favour of the plaintiff and as against D2.
10. The grounds of appeal would run thus:
11. Even though there was no evidence, the trial Court on presumptions and
assumptions simply held that for about nine days, the damaged vehicle of the
plaintiff might not have been put into use and thereby he might have incurred a
loss of Rs.750/- (Rupees seven hundred and fifty only) and that too in the
absence of clinching evidence. He has not proved the loss sustained by him in
the way known to law. Accordingly, the appellant/Insurance Company prayed for
setting aside the Judgment and decree of the trial Court so far D2 is concerned
and for the dismissal of the original suit as against D2.
12. Heard the learned counsel for the appellant/D2 Insurance Company.
13. Perused the records.
14. The learned counsel for the appellant/D2 Insurance Company would
submit that the plaintiff in fact did not get his damaged van repaired, but on
the other hand after a pretty long time, he simply sold it in ‘as is where is’
condition and in such a case the question of business loss would not arise.
15. I could see considerable force in the submission made by the learned
counsel for the appellant/D2. It is a peculiar case in which even though the
plaintiff has claimed damages for loss of business income due to the damage
caused to his van, nonetheless there is nothing to show that he had once again
put that van into service and there is also nothing to prove as to what steps he
had taken to minimise the damage to the maximum. The evidence as such reveals
that he kept his vehicle in idle condition and there after sold it in, ‘as is
where is’ condition. In such a case he cannot call upon the Court to visualise
that but for the accident he would not have earned income for a certain period
etc. In order to claim damages for business loss there should be evidence that
he had taken steps to get the vehicle repaired within the shortest possible
time. If there is no negligence on his part in getting his vehicle repaired
then his business loss may be quantified precisely. But in this case, as has
been already highlighted by the learned counsel for the appellant/D2 by placing
reliance on the evidence that the plaintiff was keeping quite i.e., from the
date of accident on 21.08.1984 till 02.03.1985 and in such a case, it is not
known as to how he could claim damages for business loss. There were latches on
his part in getting the vehicle repaired.
16. The learned counsel for the appellant/D2 also would draw the attention
of this Court to the relevant portion of the Judgment of the trial Court and
more specifically to the last portion of paragraph No.9 and develop his
arguments to the effect that the finding of the trial Court itself is
that soon after the accident, so to say, on the next day itself, the plaintiff
intended to sell the vehicle. But he kept quiet subsquently. However, the
trial Court simply held that for nine days damages could be awarded. I am at a
loss to understand as to why after giving a clear finding that there were
latches on the part of the plaintiff in taking steps to get his vehicle repaired
or in selling it, the trial Court could have awarded damages notionally for nine
days without any basis.
17. As such, there is considerable force in the submissions made by the
learned counsel for the appellant/D2 that without any basis the trial Court
awarded a sum of Rs.750/- (Rupees seven hundred and fifty only) as damages and
accordingly this appeal is partly allowed, setting aside the Judgment and decree
of the trial Court relating to D2 is concerned. The rest of the Judgment of the
trial Court is left as such as there is no appeal by another affected person.
However, in the facts and circumstances of the case, there is no order as to
costs.
smn
To
The Subordinate Judge,
Tiruchirapalli.