ORDER
B.K. Somasekhara, J.
1. Respondent No. 3, the insurer in M.A.T.O.P. No. 555 of 1988 on the file of the Motor Accidents Claims Tribunal, Khammam has filed this appeal challenging the award of the Tribunal dated 23-3-1990 awarding Rs. 65,000/- by way of compensation in a claim petition under Section 110-A of the Motor Vehicles Act (for short ‘the Act’) filed by the present Respondent No. 1 alleging negligence against the driver of the lorry bearing No. RNR 2309 which involved in the accident dated 25-3-1988 damaging the machinery and the foundry belonging to Respondent No. 1 herein. The Tribunal having found that the accident was due to the negligence of the driver, awarded compensation at Rs. 52,946/- towards damages to the machinery and the foundry; Rs. 12,000/- towards loss of earnings for six months at the rate of Rs, 2,000/- per month and in all Rs. 65,000/- in addition to interest at 12% per annum from the date of the petition till the date of payment and costs. Aggrieved by that this appeal is filed wherein Mr. Kota Subba Rao, the learned Counsel for the appellant has raised the following contentions:
(1) The Tribunal was in error in not deducting l/3rd out of the value of the new or spare parts used for repairing the machinery which is said to have been damaged due to the accident and
(2) The Tribunal had no powers to award any amount towards the loss of business said to have been suffered by the claimant due to the damage to the machinery for six months after the accident.
2. In regard to the first contention, the learned Advocate has relied upon a decision of our Court in Jagadeshwar v. Rajaiah, 1986 (1) ALT 105, which followed its own pronouncement in United India fire & General Insurance Co. Ltd, Guntur v. Mowli Bhai, 1985 (1) ALT 33 (NRC). In regard to the second contention, the precedents depended upon by him are Rajkumar v. Mahendra Singh, AIR 1985 M.P. 4 (D.B.).; Shankarlal v. M.P. State Road Transport Corporation, 1983 ACJ 447 (M.P.); Shantilal Chitarji Soni v. M.P. Rajya Parivahan Nigam, 1992 ACJ 780 (M.P.); Kacharmal Kishanlal Mahajan v. Chainram Kishanlal Mahajan, 1992 ACJ 986; and Kerala State Road Transport Corpn v. Bhaskaran, 1992 ACJ 133. Mr. Rajasekhar Reddy, the learned Counsel for the claimant-Respondent No. 1 has contended that the views taken in the above pronouncements are not in tune with the legal position correctly laid down by the Allahabad High Court in Niranjan Lal Ram Chandra v. Ram Swarup Bhagwan Singh and Anr., , and the Madras High Court in Ranganathar Transport (P) Ltd v. Tanjore Co-op. Marketing Federation, 1982 ACJ 199 (Mad.) and Dharmalinga Mudaliar v. N. Mohamed Ebrahim, 1977 ACJ 36 (Mad.). Apart from that, it is his contention that like any other consequential loss which is one of the items of compensation to be awarded in such a case, the loss of income from the business with the very machinery which was damaged due to the accident and idle for six months should also be considered and awarded in a claim petition under Section 110-A of the Act. It is his further contention that if the insurer is allowed to raise such a contention to deduct any amount towards the spare parts added to the machinery, that would amount to challenging the quantum of the compensation by the insurer, which is not permissible in law. Regarding the second contention, it is his endeavour to demonstrate on facts and law that when the insurer did not produce the insurance policy in the present case, not only the value of the loss of business and the damages are to be awarded but it should also be absolute and unlimited and not to be restricted in view of Section 95(2) (d) of the Act. Mr. Subba Rao at this stage contends that it is for the claimant to prove that there was a contract between the insurer and the insured in relation to the limit of liability de hots the statutory limit.
3. The law in regard to deduction of l/3rd of the value of the new parts or spare parts added to the machinery damaged during the accident is settled by this Court in the pronouncements supra and there is no reason or justification to take any other view than that. This Court respectfully agrees and follows such a view for justifiable reasons.
4. In United India Fire & General Insurance Co. Ltd, Guntur’s case this Court rationated the rests in support of such a view in meticulous terms as hereundcr.
“In measuring damages there is no distinction between tort and contract. The general principle is restitutio in integrum. It determining the sum of money as reparation for breach of contract as damages, as nearly as possible, get at that sum of money which will place the party injured in the same position as he would have been as if the contract has been performed or in the case of tort as if he had not sustained the wrong for which the compensation is being paid for. Appreciation of value to the motor vehicle or greater benefit or advantage due to repair or replacement of part or parts or accessories is only incidental to restitution and an inevitable and inseparable consequence. It is for the plaintiff to establish the factum of actual loss or damage suffered or the amount required or spent for replacement of part, or parts or accessories and reasonable repairing and fitting charges. The liability to indemnify the insured is limited to the contract. In no case it shall exceed the actual loss or damage or charges incurred subject to the maximum liability under the contract whichever is less. l/3rd is to be deducted from the value of the replaced new parts or accessories.”
These reasons can be supplemented with something more. Damage to a property involves the depreciation in value. In India, the replacement of such a damaged property is not always possible nor being done. Reparation has been the habit and the practice. In such a situation, the reparation will only supplement the damage and the person suffering loss of the value of such a damage has to be reimbursed to the extent of loss or damage and nothing more than that. It cannot be lost sight of that when a part of the property or machinery or the vehicle is damaged, for so many reasons, other parts may also be damaged or lost warranting the repair or the replacement. A part of the property may be diminished in quality or the value by constant use or misuse. Replacement of such parts of the damaged property will always enure to the benefit of the onwer or the possessor. Therefore, in the guise of the repair if replacement is made, the courts will be reimbursing to the owner something more than the actual loss and that is what is highlighted by this Court in the precedents supra. It cannot be forgotten that in many cases under the guise of the repairs possibly several of the parts may be replaced to make it a brand new property and this need not be deliberate but an opportunity to make the property a new one. Therefore, deduction of atleast l/3rd in such replacement of parts due to the damages during repairs is very much reasonable. However, it must be hastened to add that deduction of l/3rd or any portion may not be constant or permanent. It depends upon the facts and circumstances of each case. For example, in a given case, if the damage or loss to a particular proportion the deduction of the replacement, either be refused or increased. However, in the absence of any facts and circumstances leading to a clear guideline, in the normal cases, the deduction of 1 /3rd should be taken as proper and reasonable. In this case, no such deduction has been made and that requires to be done. From the evidence in the case and in particular Ex.B-10 in item No. 3 extra fittings are separately classified to be valued at Rs. 15,240/-. Out of that, l/3rd of the value would be Rs. 5,080/- Deducting that amount, the claimants ought to have been awarded Rs. 10,160/- under item No. 3 for extra fittings and not the full amount. In other words, out of the total amount of compensation of Rs. 65,000/- by deducting Rs. 5,080/- the remaining portion of the award i.e., Rs. 59,920/- should be retained and confirmed.
5. But for the view of the High Courts of Madhya Pradesh and Kerala in the precedents, having due regard to the consistency in awarding the value of the loss of income as a consequence of the accident to the victim, the law could have been taken as settled for all purposes. Out of the precedents supra, four are of High Court of Madhya Pradesh and one is of Kerala. Obviously, the High Court of Madhya Pradesh consistently took the view that loss of profit or business due to the accident is not one of the items of the compensation to be awarded in a claim petition under Section 110-A of the Act. While doing so, in Rajkumar’s case (3 supra), the contrary view of the High Court of Madras in Dharmalinga Mudaliar’s case (10 supra) and Ranganathar Transport (P) Ltd.’s case (9 supra) has been referred and dissented. In view of this and in view of the decision of the High Court of Allahabad in Niranjan Lal’s case (8 supra) falling in line with the view of the High Court of Madras and holding contrary to the view of High Courts of Madhya Pradesh and Kerala, this Court is confronted with the task of clearing the controversy in the view, to lay down the law in the light of the implications of the relevant provisions of the Act dealing with the accident claim cases.
6. The High Courts of Madhya Pradesh and Kerala have taken such a view in the light of the implications of Section 110(1) (A) and Section 110-F of the Act. Similarly, the High Court of Madras has also taken the contrary view in the light of the same provisions. Such a view has been mainly based on the interpretation of the purpose behind the statute incorporated within Section 110(1) of the Act as amended by Act 1956 and 1969 as follows;
“A State Government may, by notification in the Official Gazette, constitute one or more Motor Accident Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of Motor vehicles, or damages to any property of a third party so arising, or both;
“Provided that, where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a Civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim.”
Based on that, it was reasoned as follows;
“This Section empowers the State Government to constitute Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving, amongst others, “damages to any property” of a third party. In the proviso to sub-section (1) of Section 110 of the Act, the words used are: “a claim for compensation in respect of damage to property”. We are of the opinion that the word “damages” or “damage” used in Section 110 of the Act means injury to any property involved in the accident, due to the use of the motor vehicle. The use of the word “damage” in plural in the body of Section 110(1) and that of singular in the proviso does not make any difference. The Claims Tribunal constituted under Section 110 of the Motor Vehicles Act is empowered only to adjudicate upon claims for compensation in respect of accidents involving ‘damages to any property’ arising out of use of the motor vehicle. Therefore, at best, the claim which can be lodged and adjudicated upon by the Claims Tribunal contemplated by the Section is claim for compensation for damages resulted in the vehicle due to the accident. Usually a claim of such a nature is made to recover expenses which may be or might have been incurred for repairs or restoration of the vehicle to its original condition. A claim for ‘loss of business on account of vehicle remaining idle during repairs is not a ‘damage to the property’ of the owner, but may be damage or loss to the owner. We do not think that the Claims Tribunal is empowered under Section 110 of the Motor Vehicles Act to entertain such a claim.”
It was concluded as hereunder.
“The words “any claim for compensation” in this Section mean any one of the classes of the claims specified in Section 110(1) of the Act namely (1) death (2) bodily injury and (3) damage to the property. After the amendments made by the Amending Acts No. 56 of 1969 and No. 47 of 1978, as held above by us, there cannot be any doubt that a claim simpliciter for damage to the property can be made before the Claims Tribunal. This also confirms our conclusions. A claim for compensation for ‘loss of business’ on account of the damaged vehicle remaining idle during its repairs cannot be laid before the Claims Tribunal. A party aggrieved on this count will be free to file a civil suit and Section 110-F of the Act does not bar the jurisdiction of Civil Court.”
In Ranganathar Transport (P) Ltd.’s case, (9 supra) the High Court of Madras while dealing with the question of the jurisdiction of the Civil Court to deal with the claim for, recovery of damages to the lorry and compensation for loss of earning by reason of the lorry being kept idle during repair held as follows in the light of Section 110-F of the Act.
“A clear reading of Section 110-F of the Motor Vehicles Act (Act 4 of 1939), as amended by Act 56 of 1969, clearly shows that the claim now made, as a matter of fact, all the claims made in the suit, can be entertained only by way of an application under Section 110 by the Tribunal specially constituted for the purpose of adjudicating upon such claims and Section 110-F clearly bars the jurisdiction of the Civil Court with respect to such claims by way of suit and as such the trial Court is correct in having held that the Civil Court has no jurisdiction.”
It is true that in Dharmalinga Mudaiiar’s case (10 supra) the Court did not lay down any law but took it for granted that such an item of compensation can be granted and accordingly awarded. The High Court of Allahabad in Niranjan Lal’s case (8 supra) dealt with such an item of compensation in the light of damages for negligence whether it can be remote or direct and without actually dealing with the law elaborately concluded as follows;
“The next point urged is that the plaintiff was not entitled to damages on account of loss of business. The finding of the Court below is that the lorry remained idle on account of the accident for a period of about one month and loss was caused to the plaintiff. In my opinion the loss caused to the plaintiff on account of the lorry standing idle because of the accident is directly referable to the negligent act of the defendant. 2. It cannot be said to be a remote damage. The plaintiff is also entitled to damages on account of the depreciation caused to the vehicle. Depreciation in the value of the vehicle was undoubtedly the direct result of the injury caused to the vehicle.”
Therefore, the conflicting views of implications was to consider whether the loss of business or profit or earnings was due to the accident or as a consequence of the accident and whether such an item of compensation could be or could not have been awarded by the Claims Tribunal under Section 110-A of the Act as understandable thereto or otherwise and if so whether the jurisdiction of the Civil Court was barred under Section 110-F of the Act and if not whether the Civil Court had the jurisdiction to deal with such a matter to award such an item of compensation.
7. Now, on proper examination of the legal implications flowing from Sections 110-A and 110-B of the Act inasmuch as Section 95(2) (d) of the Act and Section 110-F of the Act, this Court has no doubt that the view taken by the High Court of Madras and Allahabad is more appropriate and correct than the view taken by the High Courts of Madhya Pradesh and Kerala. Section 110-A of the Act has nothing to do with the items of compensation to be awarded in a particular case and it only concerns with the application to be made by particular persons for particular relief viz., by the person who has sustained the injury, by the owner of the property and by the legal representatives of the deceased in the case of death and by any agent duly authorised by the person injured or on behalf of other persons mentioned therein. It is Section 110-B of the Act which empowers and obligates the Tribunal constituted under the Act to make an award in favour of such persons mentioned in Section 110-A of the Act determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and also fix the liability on the part of the owner or driver as the case may be subject to the liability of the insurer to be governed under Section 95 and Section 96 of the Act. The law is settled that even now the items of compensation to be awarded is only under the law of torts and Rule 533 of the A.P. Motor Vehicle Rules is only for the purpose of payment of the Court fee and not for other purposes. It forms part of explanation specifying for the purpose of the sub-rule wherein special damages and general damages are defined, Even assuming that certain items of compensation have been defined in the rule as long as it is inconsistent with Section 110-B of the Act which declares the power of the Tribunal to award just compensation, that should prevail. More over, the items of compensation to be awarded in a particular case in favour of such persons making applications may be innumerable and cannot be listed or regulated. The law in relation to the item of damages to be awarded in the light of tortuous liability by a tort feascr was settled quite a long back. They are broadly classified as pecuniary damages and non-pecuniary damages. Some times, they are also styled as special damages and general damages. Among the special damages, the loss of earning or loss of income is also included. Undoubtedly, special damages are to be classified as pecuniary damages, which depends upon the facts and circumstances of each case. The Supreme Court had an occasion to deal with such a question in a case of death in a recent pronouncement in R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd., . Without classifying the nature of the claim under Section 110 of the Act, the items of compensation were classified as pecuniary damages and non- pecuniary damages and it would be useful to seek the guidance of the Supreme Court in the precedent in its own words in para 9 as follows;
“Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.”
The emphasis therein shows that such compensation to be awarded is to a victim of the accident meaning thereby that the victim of the accident may be the insured person himself, the legal heirs of the deceased and the person whose property is damaged. Mr. Subba Rao, the learned Counsel’s interpretation in this regard that the Supreme Court had no occasion to deal with the question of item of compensation in damage to property has no force in view of the clear expressions of the Supreme Court and the correct interpretation of Section 110-A of the Act. If loss of earnings or income to a victim of an accident is available to an injured person or the legal heirs of the deceased, it is not under-standable as to how such an item of compensation is not available to a victim, of an accident whose property has been damaged. The whole concept lies in the region of nexus between the accident and the consequences viz., whether the injury was due to the accident, whether the death was due to the accident and whether the damage to the property was due to the accident and the consequences of such an expenditure was due to the accident. That has been pithily explored and recorded by John Munkman in ‘Damages for personal Injuries and Death’ 7th edition of 1985 to the effect that in general, damages are given for every kind of injury and damage caused by an unlawful act and for all consequential loss and expense. That is how while dealing with the pecuniary loss to a victim of the accident loss of earnings is said to be generally the main item of financial loss due to the accident (P.55 of Munkman supra). Therefore, whatever is the consequence of the accident as detailed above should be reimbursed by the Tribunal by way of compensation. If the Tribunal can do it, within the implication of such provisions, then the jurisdiction of the Civil Court ought to be barred under Section 110-F of the Act to consider such a claim and to award the same. More over, Mr. Rajasekhar Reddy, the learned advocate is right in postulating that the relevant provisions of the Act dealing with the compensation claim cases under Chapter VIII should be taken as a complete code within itself. However, subject to the principles of law of torts and similar laws operating upon them the law makers cannot be taken to have intended that the parties should be driven to different forums to deal with the same items of compensation one before the Tribunal and another before the Civil Court. If so many items of compensation can be considered and given by the Tribunal under the powers of Section 110-A & B of the Act, to think that for the loss of earnings or loss of business or loss of profit, the victim of the damage to the property should approach the Civil Court only for one item of compensation is nugatory and is totally inconceivable and unconvincible. Judged in that light, of the principal object of constituting Tribunals to deal with such matters and barring the jurisdiction of the Civil Courts to deal with such questions the view of the High Courts of Allahabad (sic. Kerala), and Madhya Pradesh or any precedent in that matter cannot be taken as good law, particularly in the light of the guide line in Hattangadi’s case (11 supra). It must be taken that the Supreme Court has declared the law under Article 141 of the Constitution of India as a binding precedent making the contrary view not good law and the view of the Madras and Allahabad High Court falling in line with the view of the Supreme Court as above in addition to the other consequences stated above deserve to be followed with all respects whereas the view of other High Courts and similar precedents if any deserve to be dissented with all respects. Therefore, the contention in this regard as above, has no force and should be rejected.
8. Mr. Subba Rao has contended that in view of Section 95(2) (d) of the Act, the limit of liability of the insurer in this case should be restricted to Rs. 6,000/- Mr. Rajasckhar Reddy on the contrary contends that as the insurer has not produced the insurance policy, no such restriction of liability can be placed. This Court is in full agreement with the latter contention. The result of the matter will depend upon the burden of proof. When the Supreme Court time and again cautioned the Insurance Company to produce the policy, so that the contents can be known to enforce the liability, it meant that the burden of proving the contents of the insurance policy is on the insurer or to expose itself to the adverse inference that the production of such a policy would expose the truth that there maybe a clause in the insurance policy which may stipulate the liability beyond the statutory liability. An illustration may be useful in this regard. If the contract of insurance policy between the insured and the insurer stipulates the condition that the limit of liability of the insurer is more than the statutory liability, it is the production of the insurance policy and proof which either proves or disproves the same. Normally, it is the person in possession of such a policy who should produce it to dispel such a doubt and the insurer who is a person to issue an insurance policy is bound to produce it who should have the special means of knowledge and custody of such a material. The failure of production of the same would mean that the production would expose them to the truth that there may be some stipulation which either reads down any statutory implication or that it de hors the statutory limitations. So far, that task is concerned, the claimant has no control over the same as it should be either the insurer or the insured who should do it. Particularly in a case like this where there is no dispute that the vehicle involved in the accident was insured with the appellant before us, two inferences are possible, viz., that either there was a stipulation in the policy which prescribes the limitation of the liability of the insurer something different from the statutory limitation under Section 95(2) (d) of the Act or that definitely it was something more than that and ultimately, the production of the same would have shown the truth and therefore it is not produced. Even the negligence of the insurer in not placing the material before the Court, exposes to the adverse inference under Section 114 of the Indian Evidence Act also whether it is within the statute or out of the spirit of the statute. Therefore, in this case, the limit of liability cannot be Rs. 6,000/- and it should be to the entire extent of the amount awardable under the award.
9. The appeal is partly allowed as follows;
(1) The award is modified to the effect that the claimant shall be entitled to recover Rs. 59,920/- with other reliefs already granted by the Tribunal.
(2) There shall be no orders as to costs in this appeal.