IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2332 of 2004 (O&M) Date of decision:16.12.2010 Kuldeep Kakkar ....Appellant versus Harpal Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Anurag Goyal, Advocate, and Mr. Ashish Chaudhary, Advocate, for the appellant. Mr. Kunal Garg, AAG, Haryana. Mr. Ravinder Arora, Advocate and Mr. Neeraj Khanna, Advocate, for respondent No.4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The appeal is against dismissal of a petition for claim for compensation for damage to a car belonging to the claimant. The petition was dismissed on the ground that the petitioner had not proved the ownership of the vehicle. It is contended by the counsel that it was nobody's case that the vehicle did not belong to the petitioner and that it was not even raised in the written statement or taken as an issue for consideration specially. The learned counsel would refer to the copy of the registration certificate for the car that stands registered in his name FAO No.2332 of 2004 (O&M) - 2 - and I cannot allow the dismissal of a case on a plea which is not expressly taken by the claimant. 2. Indeed such a plea shall not be permissible for the respondents since admittedly the accident took place on account of an alleged mechanical failure when the vehicle went out of control of the driver and it dashed against a car that had been parked outside the bus stop. It was suggested to the claimant in the cross-examination that he had made a OD claim against his own insurer. Such situation ill-fits with the contention that the vehicle did not even belong to the claimant. As I pointed out as it was not a plea which was taken in the pleadings and, therefore, the claim for compensation against the Haryana Roadways of the insurer cannot be denied at all. As regards the claim of compensation before the Tribunal, the evidence was that the esteem car was a 1996 model and he had purchased it as second hand and the accident had taken place 5 years after the year of manufacture. PW2-Krishan Chugh, who was a surveyor, stated that the vehicle was completely damaged and the total value if sold would only fetch about Rs.25,000/- to Rs.30,000/-. The petitioner gave evidence to the effect that he had caused the vehicle to be assessed from M/s Ravi Motors and the estimate of cost of replacement would be Rs.2,79,058.80. The assessment of damage have not been properly done by duly applying depreciation for the respective components and I will adopt 25% depreciation across the board for the vehicle which was about 5 years and take the damage at Rs.2,09,293/-. The claimants had also claimed that he had to hire a taxi for a period of 6 months when the vehicle could not be put to use. The Tribunal shall FAO No.2332 of 2004 (O&M) - 3 - have no power to estimate the financial loss that has occasioned to a person by non-user of such a vehicle. Such a right can be exercised only before the Civil Court as laid down in several decisions of various Courts including this Court (please see: Tiruvallurar Transport Corporation Versus Syeed Yacoob-(2000) 1 ACC 67; Raj Kumar Versus Mahendra Singh-AIR 1985 MP 4; and Maniyya Versus Sambasivarad-2000 AIHC 970 (AP). The amount of compensation as determined above shall carry interest at 6% from the date of petition till date of payment. The liability shall be jointly on the respondents 2 to 4. It is contended that the liability of the Insurance Company is restricted only to Rs.6,000/- for a third party liability. A Full Bench judgment of this Court in The New India Assurance Company Limited Versus Smt. Chameli Devi and others-AIR 2010 P&H 156 has held that a restriction of liability made in a policy cannot be used to a disadvantage of a third party and a third party shall be entitled to enforce it against. The claimant shall, therefore, be entitled to enforce the award against the Insurance Company in full and the Insurance Company in turn shall have a right to recover any amount over and above what is contractually limited against its insured. 3. The appeal is allowed to the above terms. (K.KANNAN) JUDGE 16.12.2010 sanjeev