IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.3177 of 2004 Between: S. Khaseem Miah .. Appellant AND 1. T.S. Tananjayan 2. The Oriental Insurance Company Limited .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.3177 of 2004 JUDGMENT: The appeal is directed against the award in M.V.O.P.No.634 of 2003, on the file of the Motor Accidents Claims Tribunal-cum-V Additional District Judge (Fast Track Court), Kurnool, dated 18.05.2004. 2. The basis for the claim is an accident in which the lorry No.AEK 7155 was totally damaged on 14.07.2003 and the accident was claimed to have happened due to the rash and negligent driving by the driver of the opposite coming tanker No.TN 47D 6139 in high speed in violation of the traffic rules. The owner of the damaged lorry, hence, claimed a compensation of Rs.75,500/- from the owner and insurer of the offending tanker. 3. While the owner of the offending tanker remained ex parte, the insurer put the claimant to strict proof of his allegations including the condition of lorry before the accident. The damages were to be proved strictly and any claim is subject to the terms and conditions of the insurance policy issued by the insurer in respect of the offending tanker. The insurer, therefore, desired the claim to be negatived. 4. The Tribunal framed issues about the cause of the accident and the entitlement of the claimant to compensation and during the enquiry, P.Ws.1 to 3 were examined and Exs.A-1 to A-4 were marked. 5. The Tribunal rendered the impugned award firstly concluding that the driver of the tanker, with his rash and negligent driving, caused the accident as alleged in the earliest version in Ex.A-1-First Information Report to contradict which there is no other evidence. The Tribunal, hence, considered both the respondents to be liable to compensate the claimant jointly and severally and referring to Ex.A-2-Surveyor’s Report by P.W.3, the Tribunal observed that the cross-examination of P.W.3 by the learned counsel for the second respondent/insurer could not elicit anything to the contrary. The Tribunal also observed that P.W.3 also withstood lengthy cross-examination and there was nothing to disbelieve the evidence of P.W.3. The cross-examination of P.W.1, the owner, and P.W.2, the driver of the damaged lorry, was also noted to have not resulted in disclosure of anything to the contrary and the photos filed by the claimant were also observed to have disclosed the vehicle to have become unfit for the road. The claim about the claimant being forced to keep the damaged lorry idle having no money to spend and the claimant having lost his earnings during that period, was also noted to have not been rebutted. Concluding that the lorry sustained heavy damage and the damage was estimated and recorded by a licenced Surveyor, the Tribunal considered the claimant to be entitled to be compensated for the said damage to the lorry by both the respondents. Relying on the binding precedents, the liability of the insurer was opined to be not avoidable. But, as there was no proof of the date of purchase of the lorry or the age of the lorry, the compensation awarded was restricted to Rs.50,000/- with interest at 9% per annum and proportionate costs. Out of the said compensation, the insurer’s liability was restricted to Rs.6,000/-/the liability under the act policy. 6. The claimant is before this Court with this appeal being aggrieved by the said award contending that the entire compensation ought to have been awarded against both the respondents jointly and severally. 7. Heard Sri V. Praveen Kumar, learned counsel representing Sri J. Janakiram Reddy, learned counsel for the appellant and Sri Routhu Suresh Kumar, learned counsel representing Sri Bathula Venkateswara Rao, learned standing counsel for the second respondent/insurer. None entered appearance on behalf of the first respondent/owner of the offending tanker. 8. The point for consideration is whether the appellant is entitled to the entire compensation claimed against both the respondents jointly and severally? 9. In so far as the conclusion of the Tribunal about the rash and negligent driving of the offending tanker causing the accident and the tanker being owned by the first respondent and being insured with the second respondent is concerned, there was no challenge by any party and on such conclusions, the joint and several liability of both the respondents to compensate the appellant cannot be in dispute, of course, with the liability of the insurer being restricted to the terms and conditions of the insurance policy in accordance with the provisions of the Motor Vehicles Act, 1988. 10. P.W.3 is a licenced Surveyor and for his Survey Report-Ex.A-2, there is corroboration from Ex.A-3-Photographs with negatives of the damaged lorry. He explained that while assessing the loss at Rs.75,500/-, he applied depreciation and also deducted the value of the realizable salvage. The cost of the repair, according to him, would have been much more at Rs.1,20,000/- and he denied his survey being not in accordance with the prescribed procedure. While there was absolutely no reason for P.W.3 to resort to falsehood to support the claimant, the cross-examination of P.W.3 did not bring out any reasons or circumstances to suspect the dependability of Ex.A-2- Surveyor’s Report. The finding of fact recorded by the Tribunal in this regard can be safely accepted with reference to the evidence of P.W.3 and Exs.A-2 and A-3. Ex.A-3-Photographs disclose the lorry to have become a total wreck and the Tribunal which accepted Ex.A-2-Surveyor’s Report and the evidence of P.W.3, restricted the compensation only on the ground that the age of the lorry and the date of its purchase were not placed before the Court. The fact that the Surveyor himself debited the depreciation due to age and also the value of the realizable salvage was ignored by the Tribunal for no reason and on the own reasoning of the Tribunal, the entire compensation claimed on the basis of Ex.A-2-Surveyor’s Report should have been awarded to the claimant. 11. Grant of interest and costs also should have followed suit at the same rate. 12. In so far as the liability of the insurer is concerned, the statutory limit in respect of damage to any property of a third party is Rs.6,000/- under Section 147(2)(b) of the Motor Vehicles Act, 1988, and the Tribunal rightly restricted the liability of the insurer to that amount only. The liability of the owner of the vehicle will be to answer the claim in full. 13. In the result, the award, dated 18.05.2004, in M.V.O.P.No.634 of 2003, on the file of the Motor Accidents Claims Tribunal-cum-V Additional District Judge (Fast Track Court), Kurnool, is modified by awarding a compensation of Rs.75,500/- with interest at 9% per annum from the date of the petition till the date of realization and costs against the first respondent to the claim with joint and several liability for the insurer/the second respondent to the appellant/claimant to the extent of Rs.6,000/- with proportionate interest and costs thereon. 14. The Civil Miscellaneous Appeal is allowed, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 14th March, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.3177 of 2004 Date: 14th March, 2011 KL