IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.38 OF 2000 BETWEEN Bandaru Rama Rao. …APPELLANT AND Badaballu Venkata Hari and three others. …RESPONDENTS Counsel for the appellant: Mr. S. Ramachandra PRasad Counsel for the Respondents: Mr. Kurella Subrahmanyam Mr. K.V. Ramana Rao Mr. B. Devanand The Court made the following: - JUDGMENT: This appeal is by the claimant in O.P.No.161 of 1997 aggrieved to the extent of disallowed claim as well as the apportionment of compensation among the third respondent on the one hand to the extent of Rs.6,000/- and the respondents 1 and 2 on the other hand to the extent of Rs.24,000/-. 2. The present claim was filed under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) by the claimant claiming damages with respect to the vehicle damage caused in a road accident. The first respondent before the tribunal is the driver of the offending vehicle, which dashed against the vehicle driven and owned by the claimant. The second respondent is the owner of the said offending vehicle and the third respondent is the insurer of the offending vehicle. The fourth respondent is the insurer of the claimant’s vehicle. 3. In the aforesaid claim petition, the claimant examined himself as P.W.1 and the surveyor as P.W.3, who has marked survey report – Ex.A2. No evidence was led by the respondents except marking Exs.B1 and B2 policies issued by the fourth respondent and third respondent respectively. The tribunal below accepted the case of the claimant to the extent of rash and negligent driving and on issue No.1 found that the offending vehicle was being driven in a rash and negligent manner and therefore, held the respondents 1 and 2 i.e. driver and owner thereof jointly and severally liable. To the extent of third respondent, insurer of the offending vehicle, the tribunal was of the view that since the policy issued by the third respondent is an Act policy, the total compensation of Rs.30,000/- assessed by the tribunal was apportioned between respondents 1 and 2 to the extent of Rs.24,000/- and Rs.6,000/- so far as the third respondent is concerned. It is the aforesaid order, which is under challenge in the present appeal. 4. Learned counsel for the appellant contends that the said apportionment is wholly unwarranted inasmuch as the policy issued by the third respondent is a comprehensive policy, which is described as ‘B’ policy under the Act whereas the policy issued by the fourth respondent with reference to the vehicle of the claimant is an Act policy described as ‘A’ policy under the Act. Learned counsel also submits that loss of earning on account of the claimant’s vehicle being lying idle for 50 days is not appropriately compensated by the tribunal. The loss of damage on that count was claimed at Rs.5,00/- per day whereas the tribunal found the sum rather excessive and granted an amount of Rs.8,000/- on that count. 5. Learned counsel for the respondents have, however, supported the award of the tribunal below. 6. On the basis of the evidence on record it is clear that the evidence of P.W.3 – licenced surveyor, who has assessed the damage itself certified the damage as about Rs.30,000/-. There is hardly any cross-examination of the said witness and as such, the estimate of damages as found in Ex.A2 and as spoken to by P.W.3 ought to have been accepted by the tribunal below. However, the report – Ex.A2 shows that as against the total amount estimated the surveyor has deducted 10% on labour charges and 50% on spares and has given the report that the net loss to the claimant is Rs.32,120/-. 7. However, I am not inclined to accept the contention of the learned counsel for the appellant that the said assessed amount ought to have been granted as prayed for in view of the fact that the said survey report – Ex.A2 is only an estimate of possible loss which the claimant may be put to. The amount mentioned therein is not the actuals but is only estimation of the actuals. I am, therefore, not inclined to interfere with the manner in which the tribunal below has arrived at the estimation of Rs.30,000/- aggregate compensation, which also includes loss caused on account of the vehicle lying idle. 8. However, the apportionment of compensation made by the tribunal appears to be erroneous. It is clear and apparent that only in case of an Act policy (‘A’ policy) the maximum liability of the insurance company would be restricted to Rs.6,000/- regarding damage to property of a third party, as provided under Section 147(2)(b) of the Act. In the present case, the Act policy was that of the claimant’s vehicle, which was insured by the fourth respondent. The claim against the fourth respondent was already dismissed in the OP under the impugned order. What remained and what was adjudicated by the tribunal was only the liability among the respondents 1 to 3. Since the liability on respondents 1 and 2 was rightly imposed in view of the finding on issue No.1, the insurer of the vehicle of respondents 1 and 2 i.e. the third respondent was consequently liable. The policy issued by the third respondent, marked as Ex.B2, is a comprehensive policy i.e. ‘B’ policy and the requisite premium covering several risks was collected by the third respondent not only towards public risk but other additional risks were also covered by the said policy. The tribunal below has apportioned the compensation presumably under the impression that the policy issued by the third respondent is an Act policy whereas, in fact, it is a comprehensive policy. 9. The operative portion of the award of the tribunal below and decree, therefore, shall stand modified by granting compensation of Rs.30,000/- as granted by the tribunal below with interest at 6% per annum from the date of claim till realization as granted by the tribunal below. However, the said liability shall be joint and several against respondent 1 to 3. The decree under appeal shall accordingly stand modified and the appeal shall stand disposed of with the above modification. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 2, 2009 DSK