C H JAGDESHWAR Vs. S RAJAIAH

JUDGEMENT

(1.) The first appellant is the owner of the lorry APJ 3619 and the second appellant is the insurance company. On 22/06/1979, when the lorry APT 9569 was stationed at Bhiknoor, the driver of the lorry of the first appellant hit the lorry APT 9569 as a result of which extensive damage was done to it. Therefore, the first respondent laid claim in two parts. The first part consists of the loss suffered during the period of repairs, viz., from 22/06/1979, to 27/08/1979, at the rate of Rs. 250 per day and a total sum of Rs. 16,500 was claimed. On the second count, he claimed a sum of Rs. 34,350 for effecting repairs to the lorry APT 9569. The Tribunal below that the first respondent is entitled to damages for non-user of the vehicle during the said period at the rate of Rs. 50 per day and awarded Rs. 3,300 towards the loss caused and with regard to the second count, the Tribunal below allowed the entire claim of Rs. 34,350. As against this award, the present appeal has been filed.

(2.) In this appeal, Sri Shankar Ram, learned counsel for the appellants, raised a tow-fold contention. Firstly, that the Tribunal below has no jurisdiction to assess the damages caused to the vehicle and, therefore, the decree is a nullity ; secondly, that the entire amount cannot be awarded as damages. Admittedly, APT 9569 is of 1965 model and at the time the accident had occurred, its value was Rs. 50,000 and after repairs its value had increased to Rs. 1,00,000. Therefore, the circumstances clearly show that the entire vehicle was replaced with new parts. Therefore 50% of the value should be deduced in awarding damages. Even in that regard, only to the extent of Rs. 2,000, the insurance company is liable under section 95(2) of the Motor Vehicles Act, 1939 (in short "the Act"), and the amount awarded against the insurance company to the entire extent is illegal.

(3.) Shri Bb. Prakash Rao, learned counsel for the first respondent, on the other hand, contended that the first respondent has adduced unimpeachable evidence, viz., that the parts he purchased on various items were required for replacement. The damage done has been shown by the Motor Vehicles Inspector in exhibit A-17. The mechanic, P.W. 2, is a disinterested witness and a resident of Hyderabad. He spoke of the extent of the damage and the expenses incurred by the first respondent. The Tribunal below has awarded the actual amount incurred. Therefore, it does not warrant interference. He contends that if at all any rebate is to be given, 10% rebate is proper.