1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.321 OF 1995 The New India Assurance Co. Ltd. .. Appellant versus Suman Babasaheb Desai & Ors. .. Respondents Mr.S.R.Singh for the appellant. Mr.K.V.Saste for respondent No.1. CORAM : A.S.OKA, J. DATE : 23rd March 2010. JUDGMENT: . The appellant who is the original opponent No.3 has challenged the judgment and award dated 15th December 1993 passed by the learned Member of the Motor Accident Claims Tribunal in a claim petition filed by the 1st respondent. 2. The 1st respondent is the owner of a matador. The said matador met with an accident on 30th May 1990 on Bombay-Goa Highway. A dash was given to the said matador by a truck which was owned by the original opponent No.1 to the claim petition and which was being driven at the relevant time by the original opponent No.2 to the claim petition. The allegation in the claim petition is that the accident occurred due to rash and negligent driving of the truck. The appellant is the insurer of the truck. In the 2 claim petition filed by the 1st respondent it was disclosed that the 1st respondent has received sum of Rs.52,000/- from his own insurance company with which the matador was insured. According to the case of the 1st respondent total expenditure incurred for carrying out repairs to the matador was Rs.90,000/-. A sum of Rs.6000/- was claimed towards the loss of income as the matador was lying ideal for months. After deducting a sum of Rs.52,000/- which was received from his own insurer, claim of Rs.44,000/- was made. The claim petition was contested by the appellant by filing written statement as well as additional written statement. In both the written statements it was contended that as the 1st respondent has received compensation amount of Rs.52,000/- from his own insurer , he is not entitled to seek compensation. The Tribunal allowed the claim petition partly. The Tribunal held that bills have been produced by the 1st respondent showing that expenditure of Rs. 82,501/- was incurred on repairs of the matador. After deducting the sum of Rs.52,833/- received by the 1st respondent from his insurer, claim of Rs.29,668/- was allowed by the Tribunal towards the costs of repairs. Relying upon a decision of this Court in the case of Karnataka State Road Transport Corporation V. Pishori Lal (1993 ACJ 778), the learned Member granted compensation of Rs.5,000/- towards the loss of income. 3. The learned counsel appearing for the appellant submitted that impugned award has been passed only against the appellant-insurer of the truck. He pointed out that the record shows that the names of the owner and driver of the truck were deleted. He submitted that unless there was an 3 award made against the insured, the appellant-insurer cannot be held liable. He submitted that there is evidence on record to show that the 1st respondent received a sum of Rs.52,833/- in full and final settlement of her claim from her own insurer and therefore the 1st respondent was disentitled to claim any compensation. He submitted that the Claims Tribunal cannot grant compensation on account of alleged loss of income and compensation can be granted only as regards damage to the property. He also placed reliance on a decision of this Court in the case of Suba Transport Co & Anr. V. Phiroze Sethane Pvt. Ltd.(1993 ACJ 77). The learned counsel appearing for the appellant, therefore, submitted that the claim petition ought to have been dismissed. The learned counsel appearing for the 1st respondent stated that there is nothing on record to show that certain amount was accepted by the 1st respondent in full and final settlement of her claim from her own insurer. He submitted that bills showing expenditure incurred on repair of matador were produced and proved by the 1st respondent. He also placed reliance on a decision of this Court in the case of Sadiq Shaikh Vs. Chandrakant D. Volvoikar & Ors (1992 Maharashtra Law Journal 1546). The learned counsel appearing for the 1st respondent submitted that no interference is called for. 4. I have carefully considered the submissions. I have perused the record. The 1st respondent claimant examined her son and constituted attorney. He referred to the bills of repairs worth Rs.82,501/- issued on the Unique Services, Kolhapur. In the deposition bills were marked as Exhibit 47. 4 In the cross-examination, in paragraph 3 the witness stated thus: “3. We got claim of Rs.52,833/- on production of these bills of Exh.No.47. We had issued the voucher and the receipt of this amt.of Rs.52,833/- to the United Insu.Co as towards the full and final settlement of our claim for damages of this matador. Not true that our claim is exorbitant and false.” 5. Thus, what has been admitted is that a sum of Rs.52,833/- was accepted by the 1st respondent from United India Insurance Company. At Exhibit 32 there is a letter dated 3rd September 1992 addressed by the United India Insurance Company Ltd recording that out of the total claim , a sum of Rs.52,833/- has been accepted by the said company. At Exhibit 44 a photo copy of the receipt issued by Unique Services Company has been produced on record which is dated 9th November 1990 which shows that a sum of Rs.52,833/- was received by said M/s.Unique Services from United India Insurance Company. There is a clear admission in evidence by the 1st respondent that the said amount was accepted in full and final settlement of the claim of the 1st respondent. He has also admitted that the claim was based on the same set of bills which have been produced in the present claim petition. The claim for expenditure on repairs in the present claim petition is based on the same set of bills. The letter at Exhibit 32 issued by the United India Company Ltd clearly shows that an amount exceeding Rs. 52,833/- was claimed by the 1st respondent but the said amount was accepted in full and final settlement of the claim by the 1st respondent without making any grievance. 5 6. Apart from this, it must be noted that the bills which have been collectively marked as Exhibit 47 were produced by 1st respondent alongwith list at documents at Exhibit 28. Except the said eight bills, rest of the documents were admitted by advocate appearing for the appellant. Thus, the said bills were not admitted by the appellant. The owners/proprietor of Unique Services Company Ltd was not examined and the bills have been merely exhibited by the learned Member of the Tribunal though the same were not proved. The claim has been granted on the basis of the bills which were not proved. 7. As far as claim regarding loss of income is concerned, there is a bald statement in the examination-in-chief of the constituted attorney of the 1st respondent that there was loss of income to the extent of Rs.6,000/-. No material is placed on record to show as to how alleged loss was quantified. It must be stated here that perusal of paragraph 9 of the judgment shows that the claim of Rs.5,000/- towards loss of income has not been accepted on merits. It is accepted only on the basis of the decision of this Court in the case of Karnataka State Road Transport Corporation (supra). In the said decision considering the facts of the case, amount of Rs.5,000/- was awarded by this Court to the claimant. Thus, there was absolutely no basis for grant of compensation to the 1st respondent. The impugned judgment and award being illegal has to be quashed and set aside. 6 8. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and award dated 15th December 1993 is quashed and set aside. (b) The appeal is allowed with no orders as to costs. (c) If any amount is deposited by the appellant in this Court is pending, on expiry of period of twelve weeks from today, the appellant shall be entitled to withdraw the said amount with interest ,if any , accrued thereon. (A.S.OKA,J)