IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 MACA.No. 1568 of 2005() ----------------------- OPMV.680/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- MRS. JIMMY RAJU, PROPRIETRESS, GRANMA FOOD PRODUCTS, P.B.NO.31, MUVATTUPUZHA. BY ADVS. SRI.M.K.DILEEPAN SRI.DEEPAK T.NEDUNGADAN RESPONDENT(S): RESPONDENTS -------------------------- 1. K.P.VARGHESE, PANATTU HOUSE, ASSAMANNOOR P.O., ASSAMANNOOR. 2. BABU MATHEW, S/O.CHINNAMMA MATHEW, MANATTATHU HOUSE,PULINTHANAM, KOTHAMANGALAM. 3. THE UNITED INDIA INSURANCE CO. LTD., PERUMBAVOOR BRANCH, PERUMBAVOOR ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1568 OF 2005 --------------------------------- Dated this the 18th day of December, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Perumbavoor in O.P.(MV) No.680/1998. The claimant, owner of a vehicle bearing Registration No.KL-7P. 3544, had filed this application for damages. The tribunal found that the accident took place on account of the negligence of the offending vehicle and held that since the claimant has received Rs. 1,35,000/- on the ground of own damages, he is not entitled to get any further amount. The tribunal awarded some amount for the loss of articles and it is against that decision the claimant has come up in appeal. 2. Heard both sides. The vehicle had a comprehensive insurance policy with United India Insurance Company and the claim was settled by the applicant for Rs. 1,35,000/-. The vehicle was insured showing the value of Rs. 3,41,000/-. The vehicle was totally damaged in the accident and the salvage or scrap value was Rs. 1,47,000/-. The Insurance Company after taking into consideration the same, settled the matter for Rs. 1,35,000/-. Thus M.A.C.A.No. 1568/2005 -2- a total of Rs. 2,82,000/-. It is contended by the Insurance Company that by virtue of the settlement, it is not entitled to claim further damages. On the other hand, the learned counsel for the appellant would contend that the claimant is entitled to get compensation from the tortfeasor for the balance amount at least and therefore he prays for interference with the award. The decision on the point are reported in Dr. A.C. Mehra v. Behari Lal and another [1998 ACJ 379] and a Single Judge decision of this Court reported in National Insurance Co. Ltd. v. Mohan [2008 (2) 683] . In the Delhi decision, i.e in Dr. Mehra's case, the Delhi High Court has taken the view that a tortfeasor cannot get out of the liability because the property claim is settled by the Company with which the vehicle was insured under the own damages claim. Striking a different note the Single Judge of this Court in the decision in Mohana's Case held that there cannot be any claim for enrichment or double payment. It is true under the own damage claim the matter has been settled for Rs. 1,35,000/-. The value of the vehicle at the time of insurance is shown as Rs. 3,41,000/-, which has been accepted by that Insurance Company. Unfortunately it is the very same Insurance Company M.A.C.A.No. 1568/2005 -3- that has issued the policy to the tortfeasor also. Now there are settled decisions which would indicate that after issuing a policy showing a particular value, the Company could not detract from the same as it is bound by the contract. It is true, when it is a case of tortfeasor, it may not be applicable to him because he is not a party to the contract. Admittedly the vehicle herein was almost a new vehicle which met with an unfortunate accident within 5 or 6 months. The market value fixed by the surveyor of the Insurance Company was Rs. 2,90,000/-. A private estimate shows the salvage value at Rs. 1,47,000/-. The said private surveyor did suggest 5% depreciation for the vehicle. Now this court is placed in a position where it did not have concrete materials to fix the value as on the date of the accident. So some guess work is really necessary. Before finding out the value to be assessed, I am inclined to hold that the tortfeasor's liability cannot be taken away because some compensation is received under the own damages policy. But over and above the own damage, one cannot claim the entire value again for the reason that it will result in unjust enrichment through two different sources for the very same vehicle. So in such cases the policy to be adopted is to find out the value of M.A.C.A.No. 1568/2005 -4- the vehicle and then deduct the compensation received under the own demand coverage and grant the balance, so that justice is done to the party and the tortfeasor is not let free to escape from the liability. So I am inclined to grant the difference. Such a view had been taken by me in an earlier decision also in M.A.C.A. 530/08 disposed of on 19.9.08. 3. Now let me fix the value. Whether it is Rs. 3,41,000/- with depreciation of 5% or Rs. 2,90,000/- with depreciation is the matter to be considered. I feel a via media can be struck by fixing the value at Rs. 3,41,000/- and the depreciation at 7% for the reason that the vehicle is about six months old. So far as this case is concerned, Rs. 1,35,000/- is received as own party damage, Rs. 1,47,000 is received as salvage value and Rs. 23,850/- has to be deducted for depreciation and when all the three are added it will come to Rs. 3,05,850/-. Out of the total Rs. 3,41,000/-, if this Rs. 3,05,850/- is deducted, the amount would come to Rs. 35,150/-. Towards the miscellaneous expenses, towing charge etc., I am inclined to grant Rs. 5,000/- more. Thereby making compensation of Rs. 40,000/- in this case, towards damage to the vehicle. M.A.C.A.No. 1568/2005 -5- Therefore the M.A.C.A is partly allowed and the claimant is awarded an additional compensation of Rs. 40,000/- with 6% interest on the said sum from the date of petition till realisation. The Insurance Company is directed to deposit the same within 60 days from the date of receipt of copy of the judgment. M.N. KRISHNAN,JUDGE vkm