G D GOPAL Vs. KANNAMMAL

JUDGEMENT

(1.) RESPONDENTS 2 and 3 in MCOP No. 329 of 1991 and the petitioner on the file of Motor Accident Claims Tribunal (Subordinate Judge's Court), Tiruppur have filed these appeals respectively aggrieved against the award dated 15.10.1993.

(2.) THE case in brief for disposal of both the appeals is as follows: " THE petitioner in MCOP 329 of 1991 being the owner of the lorry filed petition under Section 166 of the Motor Vehicles Act for grant of compensation for the damages caused to the vehicle bearing No. TDE 9339 due to a motor accident which took place on 04.11.1990. THE lorry of the petitioner was parked in Avinashi to Erode NH 47 Road near Athuyur Pirivu on the left side of the mud road. THE bus bearing No. TN 37A 4671 was driven by the 1st respondent from the opposite side proceeding to Ernakulam in a rash and negligent manner, crossed the road came to the right extreme of the road and hit the lorry on the front side. THE accident took place only due to the rash and negligent driving of the 1st respondent. THE lorry sustained heavy damages. It was moved with great difficulty towed to Velmurugan Body Builders at Perundurai. From 06.11.1990 the lorry was kept idle for repairs at Perundurai. Due to the accident, there was heavy business loss to the petitioner. After the accident, Velmurugan Body Builders gave a quotation for repairs including the spare parts for Rs. 57,570/= and they engaged Sri Andavar Motors Engineering Works to rectify the damages of the entire cabin and charged Rs. 2,450/=. THE lorry was taken delivery after completion of the repairs and they charged Rs. 14,050/=. THE petitioner has spent more than Rs. 60,000/= towards purchase of spare parts and labour charges. THE petitioner during the course of operation of the lorry used to earn Rs. 400/= per day after deducting the expenses towards diesel, batta, etc. Because of the accident, for a period of 80 days she would not be able to earn anything and incurred heavy business loss besides mental agony and suffering. During the said period, she had to go to Perundurai from Coimbatore for seeing the repairs to the vehicle and incurred transport expenses. THE petitioner is entitled to claim compensation for transport charges at Rs. 5,000/=. THE 2nd respondent is the owner and the 3rd respondent is the insurer of the bus. THE respondents are jointly and severally liable to pay compensation to the petitioner. Charge sheet was also filed by the police against the 1st respondent, who admitted the offence and paid the fine. THE petitioner claimed a sum of Rs. 1,00,000/= by way of compensation. THE 3rd respondent alone filed a counter and stated that the petitioner's lorry was insured with M/s. United India Insurance Company Limited, Divisional Office, Coimbatore-18 for the period from 11.03.1990 to 10.03.1991 for own damage and third party cover. THE "petitioner, in fact, lodged an own damage claim with her insurer and the surveyor had surveyed the damages and the claimant had been settled for Rs. 22,023/=. THE cheque was given to the vehicle repairer M/s. Velmurugan Body Builders, Perundurai . THE present petition for compensation is not maintainable since the petitioner has been adequately compensated for the damages to her lorry. M/s. Velmurugan Body Builders as well as M/s. United India Insurance Company are also necessary parties. THE 3rd respondent is not liable to pay any amount and the amount claimed is also excessive. THE accident had occurred due to the carelessness of the driver of the lorry since he parked the same in the middle of the road and the parking lights were not burning. It is false to say that the lorry remained idle for a long time. P.W.1 and R.Ws. 1 and 2 were examined and Exs.A-1 to A-6 and B-1 to B-3 were marked. THE tribunal on the basis of the documents and evidence, passed an award for a sum of Rs. 30,000/= against the respondents and the 3rd respondent was directed to pay the amount on behalf of respondents 1 and 2 with interest at 15%. Aggrieved against this award only, respondents 2 and 3 preferred CM A 198 of 1994 and the claimant filed CMA 210 of 1994 for enhancement of the amount.

(3.) THE petitioner stated that between 04.11.990 and 24.01.1991 for a period of 80 days the lorry was in the workshop and she could not earn any money. She would be getting a sum of Rs. 400/= per day excluding the other expenses. THE lorry had sustained extensive damage is not in dispute. Similarly, records have been filed to show that the repair works have been carried out at Perundurai and the insurer of the lorry, namely, United India Insurance Company had already settled the claim to the extent of Rs. 22,000/= and odd. This is relied upon by learned counsel for respondents 2 and 3 and contended that a full and final settlement has been made relating to the damage caused to the lorry and, as such, the petitioner is not entitled to file this application claiming a fabulous amount towards revenue loss. It was also pointed out that under the Motor Vehicles Act, the petitioner is not entitled to claim any revenue loss and the only remedy open to her is to file a civil suit under a common law. When once it is admitted that the vehicle was kept at Perundurai for effecting repairs, naturally P.W.1 could not use the same. Considering the extensive damages caused to the vehicle, it had taken nearly 80 days for completing the repairs and during those days naturally P.W.1 may not be able to get any income from this lorry. THE tribunal relied upon 1991 ACJ 453 came to the conclusion that damage to property means not merely actual damage to the property but also loss on account of its non-availability for use. THE tribunal also determined the revenue loss at Rs. 400/= per day and for a period of 75 days granted a sum of Rs. 30,000/=.