IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 AS.No. 2 of 2001(A) ------------------------ OS.476/1995 of ADDL.SUB COURT, N. PARAVUR .................... APPELLANT(S)/3RD DEFENDANT -------------------------------------- THE ORIENTAL INSURANCE CO. LTD., M.G. ROAD, TRICHUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S)/PLAINTIFF --------------------------------- 1. V.A.THOMAS, S/O. ANTONY, VEMBIYATH HOUSE, ANGAMALY. * 2. T.T.KURIAKOSE, S/O.ANTOY, THEMARAPILLY HOUSE, KURIACHIRA, THANIKUNDON, TRISSUR - 680 006. R2 IS DELETED ** R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 26/03/2003 ON C.M.P. NO. 1581/2003. 3. SHIBU P.B., S/O.BHASKARAN, PUTHETOO HOUSE, KUNDUKAD P.O., TRISSUR. 4. THE UNITED INDIA INSURANCE CO. LTD., ALUVA, REPRESENTED BY ITS DIVISIONAL MANAGER. R1 BY ADV.SRI.JOSE THETTAYIL R3 BY ADVS. SRI.P.T.JOSE SRI.C.A.SUNIL R4 BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON C.M.P. NO. 1722/2003 IN A.S. NO. 2/2001 DISMISSED 25/11/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 2 OF 2001 = = = = = = = = = = = = = = = Dated this the 25th day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Addl. Subordinate Judge, North Paravur in O.S.476/95. The suit is one for realisation of damages. It is the case of the plaintiff that he is the owner cum driver of a tempo van bearing Reg.No.KRH-3695. His vehicle met with an accident when it collided against a vehicle KL- 8C/619. Very heavy damages is sustained to the vehicle and he had received some amount from his insurance company and therefore he is entitled to the damages prayed for in the plaint. He had claimed Rs.59,968 as value of the spare parts and labour charges and deducted Rs.24,500/- as A.S. 2 OF 2001 -2- the amount received from his insurance company and thereafter had claimed Rs.25,000/- for non- plying of the vehicle as well as Rs.6,500/- towards penal interest and loss of insurance bonus. Thus a consolidated sum of Rs.66,968/- is claimed in the suit. 2. The defendant, namely the first defendant would contend that the civil Court has no jurisdiction to decide the matter and that the plaintiff is not entitled to any of the amount claimed and therefore prays for dismissal of the suit. The trial court granted a decree for Rs.26,000/- and it is against that decision the defendant has come up in appeal. 3. Heard. There was a contention before the trial court that the civil Court has no jurisdiction with respect to the entertaining of this case. It is true that the plaintiff has A.S. 2 OF 2001 -3- received amount from his insurance company as own property damages. He has not approached any other forum. Now it is fairly settled that when the plaintiff has obtained the amount from his insurance company as full and final settlement of the amount, then he cannot again proceed against the tortfeasors for the very same amount for the reason that there will be unjust enrichment. Nothing is available before Court to show it otherwise. Further the trial court felt that it is not competent to decide the question of damages with respect to the vehicle and it can only consider the damages on other heads. It can be seen that a Division Bench of this Court in the decision reported in General Manager, K.S.R.T.C. v. Saradamma (1987 (2) KLT 135) has held that “The Tribunal is constituted under S.110 of the Motor Vehicles Act A.S. 2 OF 2001 -4- with specified powers. It may also be noted that by the proviso to sub-s. (1) of S.110, liberty is given to the claimant to move the civil Court for adjudication of any claim for compensation in respect of damage to property exceeding Rs.2,000/-.” The Court further held that, “The direct damage to property alone is taken by the words 'damages to property'. If there is any claim for damages suffered by the owner of motor vehicle which was involved in an accident, apart from the claim for damages to the vehicle itself, it will thus have to be preferred before a civil Court since the Motor Accidents Claims Tribunal has no jurisdiction to consider such a claim.” A.S. 2 OF 2001 -5- 4. So the finding of the Tribunal with respect to damages other than vehicular damages cannot be found fault with and that the Court has jurisdiction. 5. Learned counsel for the appellant had brought to my notice regarding the absence of evidence regarding negligence. It is true that the evidence of PW1 is available coupled with the judgment of a Criminal Court which has found the other driver guilty for the offences. I feel in the absence of any contra materials that can be accepted to hold that there was negligence on the part of the driver of the vehicle insured by the first defendant, Company. 6. Now the crucial question is the quantum. Unfortunately neither the plaint nor the written statement gives an idea to assess the damages. According to the plaintiff it is averred that he A.S. 2 OF 2001 -6- had lost Rs.25,000/- on account of the vehicle being kept in the workshop. From which date to which date the vehicle was in the shed or workshop is not available before Court except the mere ipse dixit of PW2, the workshop owner. Conveniently he would submit that the records kept in his office had been destroyed by fire. The trial court makes it from 18.4.94 to 23-6-94 and granted damages for 65 days. I am afraid this approach is not correct. When a civil suit is filed claiming damages on account of stationing the vehicle in the workshop, there must be some positive materials to prove the same so as to at least know precisely the number of days. The mere oral vibration is not sufficient. If he had not paid tax during that period it would have also been a piece of evidence. Therefore I feel a reasonable time A.S. 2 OF 2001 -7- alone can be taken in case of repairs and I reduce it to one month. Of course it is only a legitimate guess for the reason that there is no supporting materials for the Court to hold otherwise. 7. Then I accept the loss at Rs.400/- as stated by the trial court and arrive at a figure of Rs.12,000/- as the amount. Therefore the amount is to be fixed at Rs.12,000/-. So far as the interest is concerned let interest be paid at the rate of 12% from the date of suit till the date of decree, i.e. 4th January, 2000 and thereafter at the rate of 6% till realisation. In the result, the judgment and decree of the trial court are modified and the plaintiff is given a decree for realisation of Rs.12,000/- with 12% interest on the said sum from the date of suit till 4.1.00 and from 5.1.00 at the rate A.S. 2 OF 2001 -8- of 6% till realisation. Defendants 1 to 3 are made jointly and severally liable for the amount. M.N. KRISHNAN, JUDGE. ul/- A.S. 2 OF 2001 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 2 OF 2001 = = = = = = = = = = = J U D G M E N T 25th November, 2010.