Malleshappa S/O Rahuthappa … vs K V Allagesan on 20 August, 2009

IN THE HIGH COURT OF KARNAT AKA CIRCUIT BENCH AT
DHARWARD

Dated 20%' day of August 2009
BEFORE

I~ION'BLE MR. JUSTICE NKUMAR   C
AND 

HON'BLE MR. JUSTICE B. SREE:N1VASFi iG'O'§VDAv   C '

M.F.A. N0. 2013/2o07i(M.iV.e)
Between:   " A. 
Malleshappa S/0 Rahuthappa Beilada, 
Age about 78 years, Occ: Business, V 
R/0 Hosur, Hubii, Dist. Dharweéh.  -«  
(by Sri H.N. Kasai, Ad\A/_0cate)_...         

2. K.v.Ai1a"ge-giau,     
Age; 'Major, Ocei Truck Owner,
R/:)"2"dE Crqss Road,.._,A.u'to Nagar,

  'JAijCé1yw"a.Cia2 _(A:idhra Pradesh).

 2.   

C V' V. §VU"at..'Ummayampatti, Tamil Nadu.

S/Q4 Sidd.ara1:jaan,
--V Age' ijy'njaajer, Occ: Truck Driver,
 AP-I6fliU=-5720,

\:/C



3. The Divisional Manager,
The Oriental Insurance Co. Ltd.,

Enkay Complex.

Hubli--23.
-- Respondents
("By Sri K.A. Patil, Adv. For R3) = "

This M.F.A. is filed under Section 173(1) of M.\Fi__Act".'agai1i.st' 
the judgment and award dated 21.08.2006 passed" Nof_ 
514/2000 on the file of 1 Addl. Civil }L!dge_(SI'. mysas ViAddl_. '
MACT, Hubli, partly allowing the claimtzppetpitgiorz 'for'1icor_npen_s'ation'

and seeking enhancement of compensation.  

This appeal coming for preliniinary .'he.aring:'v_.on-wth'is'iday."
Sri N. Kumar. 3, delivered the followingfizdgrnent. "  _ E
1. This is the clairnantfsenhancement of

compensatioitgfor the dafi1age,ca.u'sed' to the building on account of a

motor vehicle acci-dgent. 0 ._ A

 Theiappcllantiiiwiailgegsheppa is the owner of building bearing

CT 1\Io;'*25«l3i.'Wa.rdvNo. III of Hosur, Iriubli. On 09.01.2000 at about

:5*.__0v0--45 i'h..oi;irs  lorry belonging to respondent no. 1 K.V.

_ Allagesan driven by its driver in a rash and negligent manner dashed

ii~-jagainistv.hiisA"g_'building. Lorry went inside the building of Malleshappa

XV/,



Lo.)

and damaged the entire building. The claimant lost the rentals and
suffered loss in the business and also entire building needs repairs at

heavy cost. In fact the lorry damaged two adjoining shOP.5__ll

the three shop owners preferred independent pet_iti'o_ns'f_c~lai1ni1;g_' I

damages. The said lorry was insured with p_ 
3. After the service of notice first,i'espond--ent+owner T
remained absent. Therefore he  second
respondent driver was giveni_ii':'up.'l.i:ig  Insurance

Company filed a written stat:er11'ent:" admi»tting_ theaccident, damage

caused to   coverage to the tanker in
question. and negligent driving of the lorry
 the ow;ne1*shiplllor"thVe' to the shops.

    pleadings the Tribunal framed four issues. To

substlantiiatei t'l1eii'_r.._cla;irri, the claimant Malleshappa was examined as

 .1 and hajéissll examined the Technical Expert Mr. Shankar Rao

;.--..K.'1lilsl1naj'iii'RaoHlKadam as P.W.2. In fact Hrishikesh Sharma, another

 ll.'j~V.S__urveyor who estimated the damage caused to the building was

\/



examined as P.W.3 in M.V.C. No. 333/2000. They also produced six
documents which are marked as Ex.P.] to Ex.P.6. On behalf "of the

respondents one Hanamant Ramarao Nadiger was exa1nined"_as

and they produced 9 documents which are inarkedias   

Ex.R.7. V

5. The Tribunal on consideration  "afor'es_iaid._ 
documentary evidence on record held'--the..claimants arev_:ovvners of the'
respective shops. The lorry weis..driven'in' a.'i'asE;.and negligent manner

by its driver which is the cause for_the' therefore it held

the claimants have negligence. Thereafter in
assessing the damage'  of the evidence of Shankarrao
Krishnaji Kadan: has assessed damages on the basis of the

annual' income of ea-cvh of petitioner from their respective shops at Rs.

  l,80,il000i;*~.,and ilcaineigitoii the conclusion that each one of them will get

 iiiffive years and there is net loss of "Rs. 17,03,453/--

'rdediucting 33% of taxes, maintenance charges. The Technician

 V-Sharina who made preliminary survey of the building of



Malleshappa and noticed visible damage of rolling shutters, brick
works, R.C.C. Colum, front Pardi. According to him to restore the

shop to its normal condition a sum of Rs. l,02,000/-- is reqtlired.

Further, he has estimated the loss at Rs. 24,000/- by 

shop for four months at the rental rate of Rs. 4,000/:__ya'e--r.Vrnonth  _ 

then total loss of rental revenue for 15 years as j.2O--;,7O4,_()0..0'/'~.. 

loss of Rs. 15,45,000/--. They were cros.s_Vexamined.V  * it i

6. The Tribunal on cons,ideration"mof ..tl1ei"aforesaid"'evidence on

record held the photographs proiduced' i'v'.Vi(i)Lll(Ii'_:S:i*i:{)Ai'_L":«'.Vi1iiZi1.§e damage caused

to the    are exaggerating, the
claimants haye 'rent documents and income tax
returns to  the the business and also not produced
 Show tihatlshop was not let out on rental after the

accid'ent;'l'.___Sio'~,4=.il'so_ clliairhant has not produced any document to show

they costiiiof  of the building whEch they have undertaken.

.: 'V..Sirni»1arly--t,here is no evEden_ce to show the loss of future income due to

  caused to the shops. 



7. Therefore looking at the damage and the report of the exports
the Tribunal was of the View that each of the claimants has sustained

damage of Rs. 1,00,000/- per shop. Therefore the Tribunal a

sum of Rs. 1,00,000/- with interest at 6% pa. frornjitheaiisdalte 

petitions till realisation.

8. Aggrieved by the said judgrnentout of  three:.c;lairnanits.lionly 

Malleshappa has preferred this appelalgl' Learncdlpi"coiuns'el 'tor the
appellant assailing the  Vi"aaw_ard«.contends that the

Technical Experts havegiven eviciehce -statiné"thatlthe loss on account

of the accidenltllislitohfthell Rs.l._lll9l,i(ii)0,000/~ to Rs. 20,00,000/..
but the Tribunal was' "in awarding only a sum of Rs.

1,00,000/-- ; aiidptheirefore' he lsubimitted a need for an interference is
ll-1'lei:':coritra,..lvearned counsel for respondent no. 3 supported the

 v  impugmid-.award;v» -- ..  V ' it .



10. From the material on record it is clear the claimant is the owner
of a shop. The said shop got seriously damaged on account of gas
tanker ploughing into the shop. The photographs are produced to

show the extent of damage. The evidence on record 

were 32 years old. According to experts it had anotherpilife  K  

years. However in order to claim damages fotfithe darr'iag'e_ cau.seid,on'

account of the accident Sri S.K. Kgadam hadV_iadoptedl'i'

caiculating the rental income for remaining 15 ' years which the
claimants would have got if th'eiaccidger:{.t ihadijnoptitaken place and on
that basis he has given his report' idathiage is to the extent

of Rs. 17,03;453;'~'.   has given his report that the
rental income  deducting tax and maintenance
charges lieii'¢~hasV:es.timated'th-e*net toss at Rs. 15,45,000/-. This is the

basisfor tire claimant. Both of them have failed to notice,

if the building. isiifeconstructed not only the claimant would get the

.. present market «rent and continue to get rent for 15 years. That is not

   't-oassess the damage caused to the building. It is not the case

  V  y _ it  the shop being acquired by an acquiring authority depriving right

it,



and title of the property to the owner. This is a case where because of
the accident building is collapsed. Therefore in order to assess the

damage they are expected to take into account the age of the building,

depreciation which is legally permissible and then arrive 

construction. Sri H.K. Shanna has made an attemptthisflidirectiion  i 

and according to him Rs. 1,02,000/-- is siifficiient to 

building to its original position. Acting o"n.v_th:3 sai.d'i'i'eé.riden(;li3 thed'.

Tribunal has awarded Rs. l,00,000/-  --i.s_» ileqtiitable. In
that View of the matter we do"--not,sle§ "glo:0iCi'lgr0und to interfere

with the well considered judgnaentll Hence the appeal

is dismissed'; 

 /'  g Sam'
 .....  

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