IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1376 of 1995 (O&M) Date of decision:18.01.2011 Sat Pal ....Appellant versus M/s Essar Sons 209, Sector 7, Panchkula and others ..Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Puran Singh Rana, Advocate, for the appellant. None for respondents 1 to 4. Mr. Neeraj Khanna, Advocate, for Mr. Ravinder Arora, Advocate, for the Insurance Company-respondent No.5. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. The appeal is for enhancement of compensation for the value of broilers lost in the accident while on a transit to Delhi. The evidence was that there were 1100 broilers and he was to sale them at Rs.40 per broiler. He had himself purchased at Rs.8.50 per broiler under P2 and he had fed them and when they were about to be sold, the accident had taken place causing the loss of the entire stock of broilers. In support of his contention, the claimant had examined a witness PW4, who gave evidence to the effect that on 17.05.1992, he had sold his stock at Rs.50/- per broiler and he had also produced the document P8 in FAO No.1376 of 1995 (O&M) - 2 - evidence of the value of the broilers. The suggestion to the witness was that he had prepared the vouchers for the purpose of the case. 2. The Tribunal while assessing the compensation provided the cost price and the expenses which would have been incurred which he estimated at Rs.6.50 and provided for a compensation @ Rs.15 per broiler. The Tribunal held that the claimant was not entitled to the amount which he would earn if he had sold in the market but the claimant would be entitled only to the cost at which he had purchased for and the expenses that he had incurred for rearing them. In my view, the assessment of compensation is wrong. The claimant was certainly entitled to make an estimation of the value of the goods on the day when the accident took place and if it involved an element of profit, he was certainly entitled to estimate the same for awarding damages. The law of damages in tort is in the realm of restitution and the assessment shall invariably be on the loss which had resulted to him by the fact of loss of goods on that day. Authorities that lay down that a Tribunal can award only the cost of the goods and not the resultant secondary loss have dealt with different type of situations of how for a particular item of goods by a non-user, there is a resultant loss which can not be awarded. In this case, supposing eggs laying chicken are lost, the actual cost of the chicken could have been claimed but not the profit that he could have earned by the sale of eggs that the chicken could yield. The cost of eggs would be a prospect of income but they cannot be assessed by a Tribunal in a case under MV Act. In this case, we are not looking for a loss that had occasioned to a person by the owner by keeping the broiler for some FAO No.1376 of 1995 (O&M) - 3 - time and looking for regular source of income. It was the cost of the goods that the claimant was claiming and the cost shall be taken as the cost on the day when the accident took place. The cost of the goods at the proximate time of the accident was given through an independent evidence and I have no reason to suspect that the document was produced only for the purpose of the case. In any event, the respondent himself did not have any positive evidence to displace the evidence given by the claimant. I would, therefore, take the value of the broiler at Rs.40/- as claimed and hold that the claimant was entitled to Rs.44,000/- being the loss of value of the property. The Tribunal has awarded Rs.16,500/- and the amount in excess that is determined shall attract attract at 6% from the date of petition till date of payment. The appeal is allowed to the above extent. 3. I have seen through the terms of the policy and the Tribunal while making the insurer liable has observed that it is an unlimited liability. The limits of liability under the terms of policy reads inter alia, “limit of the amount of the Company's liability under Section II-1(ii) in respect of any one claim or series of claims arising out of one event.- Rs.6,000”. Section II-1I(ii) refers to damage to property. The liability is not unlimited for claim for damage to property but limited to what the Act provides for at Rs.6,000/-. Unlimited liability as seen from the policy is only for a 3rd party liability for personal injuries or death and an additional premium of Rs.100/- has also been paid. There is no additional premium paid for unlimited liability for damage to goods. The liability of the Insurance Company shall, therefore, stands restricted only FAO No.1376 of 1995 (O&M) - 4 - to Rs.6,000/- with interest and the amount in excess of what is determined above shall be recovered by the claimant against the owner of the truck, who is arrayed as the first respondent in the appeal. (K.KANNAN) JUDGE 18.01.2011 sanjeev