2. There is common judgment and award passed in MVC Nos. 604, 605 and 606 of 1996. The present appeal arises against the judgment and award passed in MVC No. 605 of 1996.
3. The place, date and time of accident are not in dispute. A Maruthi Omni van bearing No. KA-02-M 6996 was involved and hit by a lorry and it was damaged. The van is insured by the New India Assurance Company with a comprehensive policy. The lorry is insured by the appellant for unlimited liability because of the contractual obligation as extra premium has been paid.
4. Mr. A.K. Bhat has fairly admitted that the Insurance Company has made good of Rs. 35,762-00 and further submits that there was surveyor and according to the surveyor, the total damage would be about Rs. 1,35,000/-. These are the admitted facts. Mr. A.K. Bhat, learned Counsel for respondent 1 relied upon the decision in the case of Shankarayya and Another v United India Insurance Company Limited and Another, Although his submission has got some force, it is patently illegal and the Insurance Company may challenge the liability.
5. Mr. M.U. Poonacha, learned Counsel for the appellant submits that the respondent 1 stands gained doubly as New India Assurance Company has already reimbursed the loss. On the other hand, Mr. A.K. Bhat, learned Counsel submits that according to the surveyor, the damage is to the extent of Rs. 1,35,000/-. Although it was a comprehensive policy, it did not include all the items and as such he had to agree only for Rs. 35,000/- as still he has got remedy open to proceed against third party. As far as his right to proceed against the third party is concerned, I do not think any interference is required. The surveyor report is to be now looked into.
6. According to the surveyor, the whole damage is assessed as Rs. 1,35,000/-. It means that this amount is necessary to get the vehicle repaired. Further it is also necessary that the vehicle should be repaired in the first instance. If the repair charges and other damages are less than what it is, naturally the owner of this Omni Maruthi car has to refund the amount but if it exceeds the surveyed amount, naturally the Insurance Company-appellant has to reimburse the amount. The whole loss is Rs. 1,35,000/-. According to him, it includes repair charges, idle charges, hiring of alternative vehicle to meet day-to-day business and other loss if any arises. The Tribunal has unfortunately not gone into these aspects at all. Abruptly, it has jumped to the conclusion and passed the impugned order. I am of the opinion that the evidence is required to prove that in the first instance, the vehicle is repaired. Nextly the respondent 1 has to adduce evidence under which of the items he is entitled to be compensated by the appellant. With these observations, the following order is passed:
In the result, the appeal is allowed. The judgment and award insofar
as MVC No. 605 of 1996 is concerned, is set aside. The parties are
permitted to adduce the evidence only in respect of the damages and