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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
M.S. Sonak, J.
National Insurance Co. Ltd., Through Its Manager, – Appellant
Versus
Iqbal Subhani Sakali & Ors. – Respondents
First Appeal No. 84 of 2016
Decided On : 28-04-2022
Mr. U. R. Timble and Ms. Y. Mandrekar, Advocates for the Appellant-insurance company, for the Appellant; Mr. Shailesh Redkar, Advocate for respondent No.1
The main legal point established in the judgment is the interpretation of the limitations of liability covered under the insurance policy and the scope of 'damage to property' as per the legal provisions and relevant case laws.
Headnote:
Insurance - Motor Accident Claims - Sections 64UM, 147(1)(b) of the Motor Vehicles Act, 1988 - The court discussed the provisions of Section 64UM and 147(1)(b) of the Motor Vehicles Act, 1988, and their interpretation in the context of the insurance policy. The court highlighted the limitations of liability covered under the insurance policy and the scope of 'damage to property' as per the legal provisions and relevant case laws.
Fact of the Case:
The appeal was against the judgment and award by the Motor Accident Claims Tribunal, where the claimant was awarded compensation for damages sustained by the claimant's vehicle and loss of income and payment of salary to the driver. The appellant-insurance company objected to the compensation awarded.
Finding of the Court:
The court found that the compensation awarded for loss of income and salary to the driver was not sustainable based on the evidence and legal provisions. The court also reduced the awarded amount and interest rate.
Issues: The main issue was whether the tribunal was justified in awarding compensation for loss of income and salary to the driver, and the compliance with the provisions of Section 64UM of the Insurance Act.
Ratio Decidendi: The court held that the compensation for loss of income and salary to the driver was not sustainable based on the evidence and legal provisions. The court also discussed the limitations of liability covered under the insurance policy and the scope of 'damage to property' as per the legal provisions and relevant case laws.
Final Decision: The appeal was partly allowed, and the impugned award was modified and reduced. The interest amount was also reduced, and the claimant was directed to bring back the excess amount with interest. The appeal was disposed of without any order for costs.
JUDGMENT
1. Heard the learned counsel for the parties.
2. This appeal is directed against the judgment and award dated 09.10.2015 in Claim Petition No.176/2014, by which the Motor Accident Claims Tribunal (Tribunal) awarded the respondent No.1(claimant) the compensation of ?5,03,840/- for the damages sustained by the claimant to his vehicle and for the loss of income and payment of salary to the driver, during the period the claimant's vehicle could not be repaired and made roadworthy.
3. The record bears out that on 02.01.2014, an accident took place between the claimant's truck bearing registration No. GA-05-T-7714 and another truck (insured truck) bearing registration No. KA-25-B-1394. The claimant's case is that this accident not only damaged his truck but affected his income.
4. The record also bears out that the claimant has himself deposed that initially, he claimed damages with his own insurance company and not the Appellant- insurance company that had insured the truck bearing registration No. KA-25-B-1394. The claimant deposed that the claim was not settled because his insurer held that the cleaner without an effective license was driving the truck. This evidence is found in paragraph 13 of the affidavit in lieu of examination-in-chief of the claimant (page 38 of the paper book). This evidence is backed by a letter dated 22.05.2014 from the claimant's insurer, "Universal Sompo General Insurance Co. Ltd." which confirms this position. Admittedly, the claimant did not pursue the matter further with his own insurer. Mr. Timble submits that this indicates that the claimant admitted that his truck was not being driven by a driver holding an effective driving license.
5. The evidence on record also bears out that the claimant did not give any intimation of the accident to the Appellant - insurance company or require the Appellant- insurance company to appoint an approved surveyor or loss assessor as contemplated by Section 64 U.M. (4) of the Insurance Act, 1938 or Section 64UM (2) of the Insurance Act, 1938. Therefore, the Appellant - insurance company had no opportunity to get the claimant's truck surveyed or assessed. Moreover, this claim petition was filed on 02.12.2014, i.e., almost 11 months after the accident. Furthermore, the claim petition was filed after the claimant himself carried out repairs through a mechanic/garage without the involvement of any approved surveyor or loss assessor.
6. The claimant had claimed damages/compensation under the following distinct heads:
(a) an amount of ?5,82,950/- for the actual damage to the truck, i.e., for repairs to the truck;
(b) an amount of ?4,80,000/- towards loss of income during ten months when the truck was under repairs;
(c) an amount of ?2,28,000/- towards the salary paid to his driver during 12 months when the truck was under repairs or could not be used.
7. The tribunal has awarded the claimant an amount of ?1,55,000/- towards the actual repairs, ?38,840/- towards the purchase of spare parts, and ?10,000/- towards towing charges. The tribunal had also awarded compensation of ?2,40,000/- towards the income loss for six months when the truck was under repair. The tribunal has also awarded compensation of ?60,000/- towards the driver's salary for six months.
8. Mr. Timble learned counsel for the Appellant-insurance company did make some submissions about how the award of any compensation in this matter was not proper. However, he made it clear that he would not object to sustaining the award to the extent of ?2,03,840/- towards actual repairs, spares, and towing charges. He submitted that though the objections based on Section 64UM would apply to this claim, going by the sketch attached to the panchanama, the Appellant-insurance company will not object to award to ?2,03,840/- because this would represent the component of "damage to property" that was covered by the insurance policy.
9. However, Mr. Timble submitted that the claim to the balance compensation was neither established
