1 M.F.A.131 17/D7{MV}
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07"' DAY OF SEPTEMBER 2009
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
MISCELLANEOUS FIRST APPEAL NO.1 31 I 7' / 2007 (MB
BETWEEN:
SMT. SANDHYA N. RAO.
W/0. NITHYANANDA RAO.
AGED ABOUT 42 YEARS,
R/O. "ANUGRAHA".
BHAGAVATHI NAGARA,
KODIALBAIL, MANGALORE.
...APPELLANT
(By Sri K. RANJAN KUMAR ADV.)
AND
1. JAWAHAR NAZRATH,
S/0 RAYMOND NAZRATH.
R/0. VISHAL PINTO LANE,
KARANGALAPADY,
MANGALORE675 003.
2. THE NEW INDIA ASSURANCE CO. LTD.,
II FLOOR, FLORA COMPLEX.
BENDOOR WELL CIRCLE,
KANKANADY, MANGALORE~5'75 O02.
REP. BY ITS MANAGER.
2 M.F.A.I3117/O'7(MV]
3. GIRIJA SHERIGARTHI.
W/0. LATE. NARASIMHA SHERIGAR,
KAVERI PRASADA NILAYA.
CHURCH ROAD, VODERA HOBLI.
KUNDAPURA, UDUPI DISTRICT.
4. NATIONAL INSURANCE CO. LTD,
DIVISIONAL OFFICE.
BI-IARATI-I BUILDING,
P. M. ROAD. MANGALORE.
REP. BY ITS MANAGER.
... RESPONDENTS
{By SR1 C. R. RAVESHANKAR ADVOCATE FOR R-2
R-- 1 AND R-3 ARE SERVED
SRI S. SRISHAILA ADVOCATE FOR R4}
THIS IS AN APPEAL FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 5.5.2007
PASSED IN MVC NO. I94/98 ON THE FILE OF THE I ADDL.
CIVIL JUDGE (SR. DN.) AND CJM AND MEMBER, MACT,
MANGALORE, DESMISSING THE CLAIM PETITION F OR
COMPENSATION.
This appeal coming on for final hearing this day, the
court delivered the following:
JUDGMENT
This is a claimanfs appeal for enhancement of
compensation. j A E
gxs .. A. I
3 M.F.A.131l’7/0′?'(MV]
2. I have heard Sri K. Ranjan Kumar, learned counsel
for claimant and Sri. S. Srishaila. learned counsel for
insurance company.
3. The claim relates to compensation for damage
caused to maxi~cab bearing N0.KA–l9/7459, which belonged
to the claimant and insured with National insurance
Company Ltd. [IV-Respondent before the Tribunal}.
4. The vehicle of claimant had been insured under
comprehensive policy. Therefore, claimant had submitted
claim to NUS. National Insurance Company. The survey to
assess damage was conducted by a surveyor. The total loss
was evaluated at Rs.2,08,172/– by the surveyor. The
insurance company paid Rs.1,45,125/– to the Canara Bank
with which the maxi cab was hypothecated by claimant. The
claimant has sought for the difference amount of
Rs.55,000/–. Therefore, the point for determination is
whether the claimant is entitled to recover the difference
ru .
4 M.F.A.13117/O7{MV]
amount of Rs.55,(}00/– from M/s. New India Assurance
Company {Insurer of the bus/ offending Vehicle}.
5. Sri K. Ranjan Kumar, learned counsel for claimant
would submit that claimant had not received damages in
terms of survey report. Therefore, the claim petition can be
maintained for recovery of difference amount.
6. The learned counsel for insurance company would
justify the impugned award. The learned counsel for the
insurance company has relied on a decision reported in
2005 ACJ 1332 (Harkhu Bai and others V/s. Jiyaram and
Others}, wherein a Division Bench of this court, has he1d:–
“6. That leaves us with the claim in
lVl.V.C. No.3 of 1990. The Tribunal has
rejected the said claim on two grounds.
Firstly, because no negligence on the part
of the offending vehicle is proved and
secondly, because the claimant, owner of
the vehicle, has already received from the
insurance company with which the
vehicle was insured an amount
3
5 M.F.A.13l17/O7[M.V]
representing the loss suffered by him.
While the finding on the first of the said
questions has been reversed by us, we
see no reason to interfere with the View
taken by the Tribunal on the second
question. It is not in dispute that the
vehicle owned by the claimant in M.V.C.
No.3 of l990 had suffered extensive
damage on account of the collision but it
is also admitted that the Vehicle being
insured with one of the other insurance
companies, the damage was assessed and
paid. The order passed by the Tribunal
further shows that the payment was
received by the claimant in full and final
settlement of his claim without any
reservation or demur. In the absence of
any material to show that the claim paid
by the other insurance company
represented a part only of the total
damage, the Tribunal was justified in
rejecting the claim for any further
payment. We, therefore, see no merit in
the appeal filed by the owner which shall
have to be dismissed.”
6 M.F.A.1311’7/07(MV)
7. In the case on hand, on 26.09.2003, IV-
Respondent, M/ s. National Insurance Company has settied
the claim for Rs.1,4~5.125/– and credited the cheque for
Rs.1,45,125/- to the account of claimant in Canara Bank,
Gandhinagar Branch, to which the claimant had
hypothecated his vehicle. On receipt of the letter of
settlement dated 26.09.2003 from M/s. National Insurance
Company, the ciaimant had not made any protest. The
settlement of claim was accepted without any protest or
demur. Therefore. the claimant can not claim the difference
amount from other insurance company namely M/ s. New
India Assurance Company Ltd. [IIwResp0ndent).
8. The next point for determination is whether
claimant is entitled to loss of earnings and interest paid by
claimant to M / s. Canara Bank. At the outset, it is necessary
to say that the claimant can not claim both interest and loss
of earnings. %\3 ‘ C ‘.E,=,M
7 M.F.A.13117/OTIMV}
The claimant was running a maxi cab (bearing No.KA–
19/7459) and he was earning Rs.15,000/– per month. After
the accident he did not run the maxi cab. The loss of
earnings has to be assessed for number of days of non–usage
of vehicle. Considering the nature of damages, it would be
appropriate to award ioss of earnings for a period of two
months @ Rs.12,000/– pm.
9. In View of the above, I pass the following»
ORDER
(i} The appeal is accepted in part.
{ii} The impugned award is set aside.
{iii} The claimant is entitled to
compensation of Rs.24,000/– with
interest at 6% p.a. from the date of
petition till the date of realisation
from H — Respondent [M/s. New
India Assurance Compan Lt:d.].
(iv)
RKK/–
3 M.F.A.13l 17/07{MV)
Parties are directed to bear their
costs.
Sd/-»
JUDGE