IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SECOND DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.1576 OF 2007 BETWEEN United India Insurance Company Limited. …APPELLANT AND Madasu Padmavathi and another. …RESPONDENTS Counsel for the Appellant: SMT. W.V.S. RAJESWARI Counsel for the Respondents: MR. K. PURUSHOTHAM The Court made the following: - JUDGMENT: This is an appeal by the insurance company, who is respondent No.2 in M.V.O.P.No.1470 of 2005 before the Motor Accidents Claims Tribunal cum X Additional District & Sessions Judge (FTC), Visakhapatnam at Anakapalle. 2. The claim relates to the damage to the vehicle of the claimant bearing No.HR 38 A 7991, which is a trailor lorry. On 20.12.2004, while the lorry was proceeding towards Hyderabad, the offending lorry bearing No.AP 31 X 2100 came in opposite direction, allegedly, in a rash and negligent manner without blowing horn and dashed against the claimant’s lorry. It is alleged that claimant’s lorry suffered heavy damage and the driver and the cleaner sustained injuries and the offending lorry’s driver was booked in Cr.No.281 of 2004 by the police at Anakapalle and the driver and the cleaner received medical treatment at Government Hospital, Anakapalle. The insurance company was informed by the claimant, who sent their surveyor and who assessed the damage of Rs.1,90,470/-. The photographs of the damage to the vehicle were taken and thereafter, the said vehicle was kept at Sagar Body Building Works garage. Claiming total damage to an extent of Rs.2,50,00/- incurred towards repairs and that the vehicle had to be kept at garage for eight months resulting in loss of Rs.50,000/- per month, a claim for Rs.4,50,000/- towards damage was made in the present OP. However, the claim was restricted to Rs.2,00,000/- though claimed at Rs.50,000/- per month. 3. The said claim was contested by the appellant/insurance company alleging that the collision of two heavy vehicles is caused on account of contributory negligence of both vehicles and that the loss as assessed by the surveyor is not binding on the insurance company and that the claim made by the claimant is excessive. The claimant examined P.Ws.1 to 3, out of whom P.W.1 is the claimant whereas P.W.2 is the Surveyor, who works for General Insurance Company and he has given the loss assessment report – Ex.A3 and P.W.3 is the owner of Sagar Body Building Works, where the vehicle was repaired, who has given Ex.A7 bills. As against the said evidence, the appellant/insurance company examined it’s Administrative Officer as R.W.1 and marked Ex.B1 insurance policy. 4. On issue No.1, on the basis of the evidence on record and in the absence of any rebuttal evidence by the appellant/insurance company or the owner of the offending vehicle, the tribunal found that the accident was caused on account of rash and negligent driving of the driver of the vehicle insured by the appellant. On issue No.2, the tribunal has followed the decision of this Court in G.Md. MASOOM v. S.K. KHADER VALI [2005 ACJ 1802] and with regard to the actual assessment of damage the tribunal below accepted that total expenditure incurred by the claimant on the basis of Exs.A7 and A8 bills, which works out to Rs.2,05,000/-. Further, as regards, loss of earning for eight months, the tribunal has awarded an amount of Rs.1,00,000/-, as against the claim for Rs.50,000/- per month made by the claimant. The aggregate amount awarded by the tribunal was, therefore, Rs.3,05,000/- with interest at 7.5%. The said award is questioned by the appellant/insurance company. 5. In this appeal, the learned counsel for the insurance company contended that there is no evidence of negligence on the part of the offending vehicle and the tribunal below should have accepted the appellant’s case that the accident was caused on account of the rash and negligent driving of the drivers of both the vehicles and contributory negligence on the part of the claimant’s vehicle should have been accepted. She also contends that there is no evidence of the claimant’s vehicle remaining in garage for eight months, as alleged. 6. Per contra, the learned counsel for the respondents/claimants contends that there is no evidence of such contributory negligence on the part of the claimant’s vehicle inasmuch as the evidence led on behalf of the claimant remains unrebutted. Learned counsel also points out that in the cross-examination of P.Ws.1 to 3 also there is hardly any suggestion with respect to contributory negligence. To the extent of the vehicle being in garage is concerned, the learned counsel states that the evidence of P.W.3 is not subjected to any cross-examination worth the name and the bills, which are exhibited clearly show that from the date of accident i.e. December 2004, the vehicle was ready only in August 2005. He also submits that the loss for eight months at Rs.50,000/- per month would work out to Rs.4,00,000/-, but the said claim was restricted to Rs.2,00,000/- by the claimant herself and the tribunal below has awarded only Rs.1,00,000/-, which warrants no interference. 7. I have considered the aforesaid submissions and to the extent of contributory negligence, as contended by the appellants’ counsel, is concerned, I do not find any evidence whatsoever even suggesting contributory negligence on the part of the claimant’s vehicle. The evidence of P.Ws.1 to 3, particularly the cross-examination of the said witnesses, does not support the said theory, as contended by the appellant’s counsel. The entire cross-examination is directed against the quantum of claim and except the suggestion to P.W.1 that there was contributory negligence on the part of her driver there is no other cross-examination of P.W.1. Similarly, P.W.2, the surveyor also is not subjected to any cross- examination on the assessment of damage nor P.W.3. The Administrative Officer of appellant, who is examined as R.W.1, cannot be said to have competence to depose on the said aspect in the absence of any evidence. In the absence of any rebuttal, therefore, the tribunal below was right in accepting the said contention of the claimant and issue No.1 is rightly decided by the tribunal holding that the offending vehicle of the appellant/insurance company is liable. 8. To the extent of the claim for damages is concerned, there is evidence of P.W.3, the owner of the garage, who has issued Ex.A7 bills. The bills themselves are dated 01.08.2005, which means that in August 2005, after eight months, the vehicle was repaired and bills were issued, which pre- supposes that before that date the repairs of the vehicle were not completed. Obviously, therefore, when the vehicle was in garage, it would earn no income and the conservative estimate of Rs.1,00,000/- at which the tribunal has arrived, the amount under that head, warrants no interference. So far as the claim for reimbursement of expenditure towards repairs is concerned, the same is evidenced by bills – Exs.A6, A7 and A8 and the said expenditure duly accounted for and established by evidence of P.W.3 has not been shaken in the cross-examination. I am, therefore, not inclined to interfere with the quantum of compensation awarded by the tribunal under the impugned judgment. However, the interest awarded by the tribunal below at 7.5% per annum is required to be scaled down to 6% per annum in view of the decisions of the Supreme Court including the latest decision in SARLA VERMA v. DELHI TRANSPORT CORPORATION [1] . The appeal, therefore, is allowed in part to the extent of reducing interest from 7.5% per annum to 6% per annum. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J August 2, 2010 DSK [1] (2009) 6 SCC 121