:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 215 OF 2004 Shri A. P. Braganza Major, married, Advocate S/o Joao Martinho Braganza, residing at Church side Mansion Near church, Mapusa Goa. … Appellant V e r s u s 1. Shri Sagar R. Chauhan, S/o Rajaram Chauhan, R/o H. No.228, Comba, Margao. 2. Shri Nitin B. Soni S/6 Bhimji Soni New Vadem Vasco, 3. National Insurance Co. Ltd., 1st Floor, Sanjay Chambers, F. C. Gomes Road, Vasco Da Gama. … Respondents Mr. J. P. Mulgaonkar, Advocate for the Appellant. Mr. M. S. Joshi, Advocate for the Respondent No.3. CORAM :F. M. REIS, J. DATE :2 nd DECEMBER, 2010. ORAL JUDGMENT. The above Appeal challenges the judgment and award passed by the learned Presiding Officer of the Motor Accident Claims :2: Tribunal, at Mapusa, in Claim Petition No. 4/2002. 2. The Appellant filed a claim petition on the ground that on 13.11.2001 at about 06.30 hours he was proceeding on the one-way road towards Panaji by his Ford Escort car bearing registration No. GA- 01-R-0592 from Mapusa to Panaji. Near the petrol pump at Porvorim, a Hero Honda motorcycle bearing registration No. GA-02-F-9360 driven by the Respondent No.1 came suddenly from the opposite direction on the 'No Entry' and in a rash and negligent manner and gave a dash to the claimant's car. On account of the said accident, the car got damaged and as such the Appellant had to incur substantial expenses to the tune of Rs.61,465/-. It is further his case that he received a sum of Rs.48,206/- from his insurance company and filed the above petition to claim the balance amount of damages to the tune of Rs.13,259/- along with interest. It is further his case that he was not able to use the said vehicle for about two weeks and on account of mental torture and inconvenience he had qualified damages to the tune of Rs.21,741/-. It is further his case that the vehicle was driven by the Respondent No.1 and the same was owned by the Respondent No.2 and it was duly insured with the Respondent No.3. The claim petition was accordingly filed to recover the said amount from the Respondents. Respondent Nos. 1 and 2 did not file any written statement. But however Respondent No.3 filed the written statement and contended that as the claim was settled by the :3: insurer of the Appellant namely New India Assurance Company Limited in full and final settlement, the Appellant was not entitled to maintain the petition. It is further their case that the said insurance company was a necessary party to the petition and the petition was itself bad for non- joinder of necessary party. It is further their case that insurance policy issued is subject to “knock for knock agreement” between the insurance company and the Appellant having recovered the damages to his vehicle from his insurance company, no further claim could lie against the said Respondent No.3. It is further their case that the accident occurred on account of rash and negligent driving on the part of the Appellant. 3. The learned Presiding Officer after framing the issues and recording of evidence by impugned judgment and award dated 15th May, 2004 dismissed the claim petition filed by the Appellant. Being aggrieved by the said judgment and award, the Appellant has preferred the present Appeal. 4. Shri J. P. Mulgaonkar, learned Counsel appearing for the Appellant has assailed the impugned judgment and submitted that the claim put forward by the Appellant was on account of torturous liability and as such the question of the Respondents taking any benefit on account of the fact that some amounts were recovered from the :4: insurance company of the Appellant would not arise at all. He further submitted that the claim for damages is on account of vicarious liability of the Respondents which cannot be denied merely because the Appellant had received an amount from his insurance company for the repairs of his motor vehicle. Learned Counsel further submitted that the judgment relied upon by the learned Tribunal is not at all applicable to the facts of the present case as there is no evidence on record to demonstrate that the amount received by the Appellant from his insurance company was in full and final settlement of his claim. Learned Counsel further submitted that in any event there is no estoppal against the Appellant to claim the amount towards the torturous liability on account of damages sustained by him. Learned Counsel took me through the evidence on record and pointed out that there is sufficient material on record to establish that the Appellant had in fact incurred expenditure to the tune of Rs.61,465/- for the repairs of his vehicle. Learned Counsel further submitted that the learned Tribunal had misdirected itself in appreciating the evidence on record and has come to an erroneous conclusion that the Appellant was not entitled for any amount from the Respondents. 5. On the other hand, Shri M. S. Joshi, learned Counsel appearing for the Respondent No.3 has supported the impugned :5: judgment. Learned Counsel submitted that the judgment of this Court in the case of Nitin Transport V/s Maharashtra State Road Transport Corporation reported in 2002 ACJ 1383 is squarely applicable to the facts of the present case. Learned Counsel further submitted that as per the evidence on record, the Appellant had received an amount from his insurance company towards the expenses incurred for the repairs of the motor vehicle in full and final settlement and as such the question of claiming any further amount from the Respondents would not arise at all. Learned Counsel further submitted that the evidence discloses that the Appellant had in fact received the amount in full and final settlement of his claim for the expenses incurred for the repairs of his vehicle. Learned Counsel further submitted that there is no evidence on record to substantiate the claim of the Appellant that in fact the Appellant had incurred the expenses to the tune of Rs.61,465/- on account of the repairs of his vehicle. Learned Counsel further submitted that on account of an understanding between the insurance company, no amount can be claimed from the Respondent No.3 herein. Learned Counsel further took me through the impugned judgment and pointed out that there is no infirmity committed by the learned Tribunal in rejecting the claim of the Appellant. 6. Having heard the learned Counsel for the Appellant and the Respondents and on perusal of records, the following point for :6: determination arise in the present Appeal : POINT FOR DETERMINATION Whether the learned Tribunal was justified in refusing the claim of the Appellant for the balance amount of Rs.13,259/- incurred for the repairs of the motor vehicle ? 7. In support of his claim for compensation, the Appellant has examined himself and he has duly established on the basis of the material on record that the accident occurred on account of rash and negligent driving on the part of the Respondent No.1. In fact there is no challenge to the findings of the learned Tribunal on the issue no.1 to the effect that the Respondent No.1 drove his motor cycle in a rash and negligent manner and caused the accident. 8. The only point for consideration is whether the Appellant is entitled for the balance amount spent for the repairs of his motor vehicle. As far as the claim by the Appellant on account of mental torture and inconvenience, no submissions on that count were advanced by the learned Counsel for the Appellant and in any event there is no material on record to justify such a claim on the part of the Appellant herein. The only claim which remains to be considered is an amount of Rs.13,259/- which is the balance amount paid by the Appellant towards the repairs of his motor vehicle. :7: 9. In support of his claim for the said amount, the Appellant has produced a copy of the works undertaken in respect of his vehicle along with receipt towards the payment of Rs.61,465/-. In his affidavit in evidence, the Appellant has stated that he had received a sum of Rs.48,206/- from M/s New India Assurance Company who had insured the said vehicle. The Appellant has also examined Shri Narayan Walawalkar as AW3 who was working with Caculo Ford Motors Limited as Accounts Officer. The said witness has identified his signature on the receipt produced by the Appellant. He has also identified his signature on the workshop invoice. The said receipt is taken on record and marked as Exhibit 39 while the workshop invoice is marked as Exhibit 40. The said witness has further stated that on completion of the work undertaken by the company at its workshop, the payments are effected at the front office and on such payment, the relevant receipts are issued and only thereafter the vehicles are released in favour of the customers. In the cross examination, there is nothing obtained from the said witness to the effect that the said amount was not paid by the Appellant. On the basis of the said material on record, I find that the evidence on record discloses that in fact the Appellant had paid on account of repairs of his vehicle a sum of Rs.61,465/-. 10. Dealing with the contention of learned Counsel for the Respondent No.3 to the effect that the said amount was paid by the :8: Appellant in full and final settlement of his claim towards the repairs of his vehicle, I find that in the evidence on record there is no material evidence to come to any such conclusion. AW1 in his deposition has only stated that he had received from his insurance company a sum of Rs.48,206/-. In the cross examination of the said witness, no suggestion has been put nor anything stated to the effect that the amount which has been received by the Appellant was in full and final settlement of his claim towards the repairs of the vehicle. Apart from that, the only challenge in cross examination is with regard to the fact that no such amount was spent towards the repairs of the vehicle. A suggestion was put to the Appellant that no amount beyond Rs.48,000/- was paid by the insurance company as the actual cost of the repairs did not exceed the said amount which was derived. From the said deposition of AW1, I find that there is no suggestion nor the Appellant was confronted with any document to the effect that the amount which he had received from his insurance company was in full and final settlement of his claim on account of the repairs of the vehicle. In fact on perusal of the receipt produced by the Appellant which has been taken on record, the same does not suggest that the amount which has been received by the Appellant was in full and final settlement of the claim of the Appellant towards the repairs of the vehicle. :9: 11. Learned Counsel appearing for the Respondent No.3 sought to rely upon the evidence of RW2 Mathew Pires. He has stated in his affidavit that the said Appellant had received a sum of Rs.48,206/- from M/s. New India Assurance Co. Ltd., by a cheque dated 4th January, 2002 drawn on Central Bank of India in full and final settlement of his claim which amount was accepted by the Appellant. The said witness admittedly was not representing M/s. New India Assurance Co. Ltd. Apart from that, the said witness was not at all related with any inspection of the said vehicle or any payment effected by M/s. New India Assurance Co. Ltd., to the Appellant. The said statement cannot be accepted in view of the fact that the receipt produced by the Appellant does not disclose that the amount which has been received by the Appellant is in full and final settlement of the amount receivable by the Appellant on account of the said repairs of the vehicle. Apart from that, the said witness in his cross examination has stated that he is not aware if full amount towards the tin work is reimbursed or towards the plastic only 15% was paid. He also stated in his cross examination that he did not verify what was the total estimated cost of the damaged vehicle. He has further stated that the insurance company does not settle the entire claim of the damages which is restricted to certain percentage. The said evidence on record suggest that the Appellant has not been paid the said amount in full and final settlement of his claim towards the :10: repairs of his vehicle. There is nothing on record to suggest that the Appellant had spent any amount less than the one as disclosed in the receipt produced by the Appellant. In view of overall evidence on record specially considering the receipt produced by the Appellant which is at Exhibit 31, I find that the amount received by the Appellant cannot be said to be in full and final settlement of the claim towards the repairs of the vehicle. 12. Dealing with the submission of learned Counsel appearing for Respondent No.3 relying upon the judgment of this Court in the case of Nitin Transport ( supra ), I find that the said judgment is not applicable to the facts of the present case. At para 23 of the said judgment, it discloses that the claimant therein had admitted that the firm had settled its claim finally with the insurance company in respect of the repairs of the tanker. In the present case, no such settlement has arisen and as such it cannot be said that the judgment relied upon by the learned Counsel for the Respondent No.3 is applicable to the facts of the present case. 13. From the foregoing evidence on record, I find that the claim of the Appellant is on account of torturous liability against the Respondents herein. Merely because an amount has been received :11: from his insurance company, it cannot create any estopple against the Appellant to recover the balance amount actually spent for the repairs of the damaged vehicle from the Respondents herein. The alleged contention of the Respondent No.3 that the insurance policy is subject to “knock for knock” agreement between the insurance company has not been established by the Respondent No.3 by any evidence. As such I find that the learned Tribunal has erroneously come to the conclusion that the Appellant is not entitled to claim the balance amount from the Respondents. Learned Tribunal has failed to consider that there was nothing on record to the effect that the amount received by the Appellant was in full and final settlement of the claim towards the repairs of the vehicle. Apart from that, on the basis of the evidence of Respondent No.3 himself, it shows that the insurance company has not paid the full amount spent towards the repairs of the damaged vehicle. The amount received by the Appellant is on account of the contractual obligation between the Appellant and his insurance company. The receipt of the said amount cannot come in the way of the Appellant to claim the amount actually spent towards the torturous liability on the part of the Respondents. As such the impugned judgment of the learned Tribunal cannot be sustained and deserves to be quashed and set aside. The point for determination is answered accordingly. :12: 14. In view of the above, I pass the following order :- O R D E R (i) Appeal is partly allowed. (ii) The impugned judgment and award dated 15th May, 2004 is quashed and set aside. (iii) The Respondents are directed to pay jointly and severally to the Appellant the said sum of Rs.13,259/- along with interest thereon at the rate of 6% per annum from the date of filing of the claim petition i.e. 18th January, 2002 up to the actual payment. (iv) The Appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. at* :13: