IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 AS.No. 119 of 1999() ----------------------------- OS.259/1994 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... APPELLANT/DEFENDANT: -------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., PUTHUSSERRY COMPLEX, GOVERNMENT HOSPITAL JUNCTION, ALUVA, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.A.A.MOHAMMED NAZIR RESPONDENT/PLAINTIFF: --------------------------------------- V.K. SAINABHA, W/O.PAREED, THACHAVALLATHU HOUSE, THAIKKATTUKARA P.O., ALUVA TALUK, CHOORNIKKARA VILLAGE. BY ADV. SRI.K.J.JOSEMON, SRI.MATHEW SKARIA. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 119 of 1999 ORDER ON C.M.P. NO.882/1999 IN A.S. NO.119/1999 DISMISSED 21/05/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... A.S.NO.119 OF 1999 ............................................. Dated this the 21st day of May, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, North Paravur in O.S.No.259/1994. Plaintiff is the owner in possession of a bus bearing Reg. No.KBE 9977. On 21.4.1993 it met with an accident when there was a collision between the bus and a car. The vehicle was comprehensively insured with the defendant in the suit and according to the plaintiff, the bus had sustained heavy damages and hence claimed damages which was turned down by the insurance company. Therefore the plaintiff had instituted the suit for damages. On the other hand, the defendant would contend that the plaintiff is not entitled to the damages as claimed since the bus had not suffered any serious damages. The damages were simple in nature and therefore the claim cannot be allowed. 2. In the trial court Exts.A1 to A8 and Exts.B1 to B8 were marked. PWs 1 to 3 and DWs 1 to 3 were examined. : 2 : A.S.NO.119 OF 1999 The court granted a decree in favour of the plaintiff. It is against that decision, the defendant has come up in appeal. 3. Heard the learned counsel for the appellant as well as the respondent. The points that arise for determination in the appeal are: (1) whether the plaintiff is entitled to the amount as claimed in the plaint, (2) whether the trial court was justified in granting the amount so asked for. The following facts are admitted. 4. The bus was owned by the plaintiff. There was an accident on 21.4.1993 with a car. It is also admitted that the vehicle was comprehensively insured with the insurance company which entitles the plaintiff to claim damages for own vehicle damages asper law. The two documents prepared immediately after the accident which have to be given credence are Exts.B4 and B6. Exhibit. B4 is the vehicle mahazer prepared on 22.4.1993 at 3.30 p.m from the premises of the police station. It is seen that the damages noted are on the right front side bumber and the metalic portion attached to the body had dented and went inside. AMVI inspected the vehicle on 22.4.1993 itself and what : 3 : A.S.NO.119 OF 1999 he has noted is front right side bumber dented and front right side cowl dented. So going by the two documents - Exts.B4 and B6 immediately prepared by inspecting the vehicle after the accident reveal two damages in the form of denting of the bumber as well denting of the cowl. Large number of bills are seen produced in the form of Exts.A6 to A8. All those bills relate to the engine work, boring of the piston, repair of the gear, repair of the crank shaft etc. These are all internal damages. Suppose a car had rammed into a bus, certainly there will be evidence for the internal dash into the body of the bus or the engine of the bus. One has also to remember that position of the engine in a bus is always at a slightly higher level. The impact is seen on the front bumber as well as on the cowl. They are very much on the lower side of the bus. Similarly the internal mechanism like gear etc also be placed in such a manner. The very impact on the bumber or cowl could not affect the same. Boring of the piston is done when the hole becomes larger because of the loss that is sustained by the piston on account of its continuous working. That is why the hole is bored so as to have smooth movement of the piston. : 4 : A.S.NO.119 OF 1999 All these are mechanical problems that is caused to the engine, but it would not have been by any impact on the accident which had just brushed on the bumber and cowl. The owner of the bus when puts bus into workshop, he can do all the works which he wants but one cannot direct the insurance company to pay the amount for all those repairs which had no nexus with the accident. Further it has to be remembered that it is not a tortfeasor liability that is looked into. It is really the liability of the insurance company which issued a policy for own damage to the property. It has also to be stated that the surveyor's report is not at all happy or satisfactory. He would submit that at the time of his inspection the work regarding the bumber and cowl was over. The AMVI who had been examined also does not give any evidence to support the plaintiff. What ever damages he has noted is stated as evidence. He would also depose that on account of the impact there can be other mechanical damages but it is a matter that has to be proved by the plaintiff in order to succeed. 5. So taking into consideration totality of the : 5 : A.S.NO.119 OF 1999 materials, I am of the view that the plaintiff has not properly succeeded in proving the damages sustained by him. At the time of admission of the appeal, this Court directed one third of the amount to be deposited and an amount of Rs.14,845/= has been deposited and withdrawn by the plaintiff. This court does not want to cause difficulty to the plaintiff by directing him to reimburse any portion of the said amount. For the damages sustained to the bumber and cowl, the above amount is sufficient and therefore, I restrict the decree to an amount of Rs.14,845/=. 6. In the result, judgment and decree of the lower court is modified and the plaintiff is given a decree for a consolidated sum of Rs.14,845/= and since that amount has already been deposited and withdrawn by the plaintiff, no further amount is payable by the company to the plaintiff. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.119 OF 1999 M.N. KRISHNAN, J. . ................................... A.S.NO.119 OF 1999 ....................................... 21st day of May, 2010. J U D G M E N T