Hanumanthappa Vs. Ganapathi R. Kini and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 168; [v. jagannathan, j] claim under claim for damage caused to the vehicle claim made against the insured for the balance amount - dismissed held, award of the tribunal cannot sustain in law and dismissal of the claim petition without giving him an opportunity to place the evidence to show that what was paid to him by the insurance company was only a part of damage amount claimed by him is bad in law. impugned order was set aside and matter remanded to the tribunal for fresh consideration after affording opportunity to all parties, in accordance with law within 3 months. - 7. under the above circumstances, i am of the considered opinion that the award of the tribunal cannot sustain in law and dismissal of the claim petition filed by the appellant without giving him an opportunity to place the evidence to show that what was paid to him was only a part of damage amount claimed by him is bad in law.v. jagannathan, j.1. dismissal of the claim petition filed by the owner of the goods vehicle no. ka 27-2694 (the appellant herein) is the cause for this appeal.2. motor accidents claims tribunal, ranebennur dismissed the appellant's claim petition for compensation following the damage caused to his vehicle, mainly on the ground that the appellant can take the recourse to civil court by filing an original suit against the insurer of his vehicle and it is this finding of the tribunal that is called in question.3. learned counsel for the appellant submitted that in the accident that occurred on 5.2.1998, his vehicle was damaged and he sought compensation from his insurer in a sum of rs. 2,50,000, but his insurer paid him only rs. 60,000 and hence, the appellant was constrained to move the claims tribunal claiming the balance compensation from the owner and insurer of the other vehicle which was involved in the accident. therefore, the claims tribunal could not have dismissed the claim petition and the appellant is entitled to recover the balance compensation from the owner and insurer of the other vehicle, i.e., ka 25-8366 and the reasoning of the tribunal that the appellant has to seek his remedy by filing an original suit is totally erroneous and unsustainable in law.4. on the other hand, learned counsel for insurance company, respondent no. 2, referring to a decision reported in the case of harkhu bai v. jiyaram , submitted that as the appellant has been duly compensated by the insurer of the appellant's vehicle, the appellant cannot further ask for compensation from the insurance company of the other vehicle involved in the accident.5. i have given careful consideration to the decision referred to by the learned counsel for the respondent no. 2 and the facts and circumstances with which we are concerned are entirely different from the subject-matter of the aforesaid ruling. in the decision referred, this court has observed that the owner of the truck 'b' received compensation in full and final settlement of the claim from the insurance company of truck 'a' and, therefore, the court ruling that the owner of the truck 'b' cannot claim compensation from the insurance company of truck 'a'. furthermore, in para 6 of the aforesaid decision, it was observed thus:(6) ...the order passed by the tribunal further shows that the payment was received by the claimant in full and final settlement of his claim without any reservation or demur. in the absence of any material to show that the claim paid by the other insurance company represented a part only of the total damage, the tribunal was justified in rejecting the claim for any further payment...6. it is, therefore, clear from the aforesaid observation that the facts in the said case disclose that the claimant therein had accepted the compensation from his insurer in full and final settlement of his claim without any reservation or demur and, secondly, that was the case where there was no material placed by the claimant to show that the claim paid by the insurance company was only a part of the total damage. whereas in the case on hand, a perusal of page 2 of the award goes to indicate that the appellant did take a stand before the tribunal that he was paid only rs. 60,000 by his insurer and, therefore, appellant had to prefer the claim petition claiming the balance amount from the insurer of the other vehicle. such being the nature of pleadings of the appellant, the tribunal, in my view, ought to have given an opportunity to the appellant to establish the above said fact and upon the evidence, if the tribunal came to the conclusion that the appellant was paid compensation in full and final settlement of his claim, thereafter, the tribunal would have been justified in dismissing the claim petition filed by the appellant.7. under the above circumstances, i am of the considered opinion that the award of the tribunal cannot sustain in law and dismissal of the claim petition filed by the appellant without giving him an opportunity to place the evidence to show that what was paid to him was only a part of damage amount claimed by him is bad in law. therefore, i have no hesitation to hold that the order impugned is liable to be set aside and accordingly, it is set aside.8. the matter is remanded to m.a.c.t. for fresh consideration and after affording opportunity to all the parties, the tribunal shall dispose of the case in accordance with law within a period of three months.