New India Assurance Co. Ltd. Rep. by Its General Manager Vs. Andhra Pradesh State Road Transport Corporation Rep. by Its Managing Director/Vice Chairman Rep. by Its Regional Manager, Guntur Region and - Court Judgment

Excerpt:
- orderc.y. somayajulu, j.1. first respondent filed a claim petition under section 166 of the motor vehicles act, 1988 (the act) seeking compensation of rs. 18,650/-from the 2nd respondent and the appellant on the ground that its bus was damaged due to the rash and negligent driving of the driver of the lorry bearing no. ap 21 u 3379 belonging to the 2nd respondent and insured with the appellant. second respondent chose to remain ex parte. appellant filed its counter contesting the claim of the 1st respondent. in support of its case, 1st respondent examined three witnesses as p.ws. 1 to 3 and marked exs.a.1 to a.7. no oral evidence was adduced by the appellant, but ex.b.1 was marked by consent on its behalf. the tribunal, on the basis of the evidence, held that the 1st respondent is entitled to rs. 4,200/- towards repairs to the damaged vehicle and rs. 14,450/-towards loss of earnings for five days during which the bus was under repair and thus awarded rs. 18,650/- as compensation to the 1st respondent from the 2nd respondent and the appellant jointly and severally. questioning its liability to pay the compensation to the 1st respondent towards loss of earnings the insurer of the lorry that caused the accident preferred this appeal.2. the learned counsel for the appellant relying on rajkumar v. mahendra singh and ors. 1985 a.c.j. 103, konala maniyya v. k. sambasivarao and ors. : 1999(6)ald703 and general manager, k.s.r.t.c. v. saradamma 1987 a.c.j. 926 contended that inasmuch as the claim for loss of earnings from a damaged vehicle is not covered by section 165 of the act, the tribunal has no jurisdiction to pass an award for loss suffered by the 1st respondent during the period of repair of its bus and so the award for rs. 14,450/- passed by the tribunal under that head is without jurisdiction and hence is liable to be set aside. there is no representation on behalf of the respondent either on the previous date of hearing or today.3. the point for consideration is whether the tribunal constituted under the act has jurisdiction to pass an award for the loss suffered by the 1st respondent during the period of repair of its damaged vehicle or not? section 165 of the act reads:165. claims tribunals: (1) a state government may, by notification in the official gazette, constitute one or more motor accidents claims tribunals (hereinafter in this chapter referred to as claims tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.4. rajkumar case 1985 a.c.j. 103 relied on by the learned counsel for the appellant is a case that arose under the motor vehicles act, 1939 (for short the 1939 act). in that case a division bench of madhya pradesh high court while considering section 110(1) of that act which is almost in pari materia with section 165 of the act, held that the words 'damages to any property' used in section 110(1) of 1939 act, do not take in their sweep 'loss of business' on account of the damaged vehicle remaining idle during the period of damage, which may be a damage to the owner. similar view was taken by a division bench of kearala high court also in saradamma case 1987 a.c.j. 926 relied on by the learned counsel for the appellant, where it is held that the direct damage to property alone is taken by the words 'damages to property'. that decision was followed by a learned judge of this court in konala maniyya case 1999(6) a.l.t. 663. in view of the ratio in the above decisions i also am of the considered opinion that the tribunal constituted under the act can pass an award with regard to the damage caused to the property only, but it is not empowered to pass any award relating to the damage or loss suffered by the owner of the vehicle due to its remaining idle during the period of its repair. for that purpose the civil court only is competent to pass a decree and so i hold that the tribunal erred in granting damages towards loss of earnings to the 1st respondent. the point is answered accordingly.5. in the result, the appeal is allowed, the award passed by the tribunal is modified and an award is passed for rs. 4,200/- in favour of the 1st respondent against the 2nd respondent and the appellant jointly and severally with interest at 9% p.a. from the date of petition till date of deposit. rest of the claim of the 1st respondent is dismissed without costs. parties are directed to bear their own costs in this appeal.

Judgment:
ORDER

C.Y. Somayajulu, J.

1. First respondent filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (the Act) seeking compensation of Rs. 18,650/-from the 2nd respondent and the appellant on the ground that its bus was damaged due to the rash and negligent driving of the driver of the lorry bearing No. AP 21 U 3379 belonging to the 2nd respondent and insured with the appellant. Second respondent chose to remain ex parte. Appellant filed its counter contesting the claim of the 1st respondent. In support of its case, 1st respondent examined three witnesses as P.Ws. 1 to 3 and marked Exs.A.1 to A.7. No oral evidence was adduced by the appellant, but Ex.B.1 was marked by consent on its behalf. The Tribunal, on the basis of the evidence, held that the 1st respondent is entitled to Rs. 4,200/- towards repairs to the damaged vehicle and Rs. 14,450/-towards loss of earnings for five days during which the bus was under repair and thus awarded Rs. 18,650/- as compensation to the 1st respondent from the 2nd respondent and the appellant jointly and severally. Questioning its liability to pay the compensation to the 1st respondent towards loss of earnings the insurer of the lorry that caused the accident preferred this appeal.

2. The learned Counsel for the appellant relying on Rajkumar v. Mahendra Singh and Ors. 1985 A.C.J. 103, Konala Maniyya v. K. Sambasivarao and Ors. : 1999(6)ALD703 and General Manager, K.S.R.T.C. v. Saradamma 1987 A.C.J. 926 contended that inasmuch as the claim for loss of earnings from a damaged vehicle is not covered by Section 165 of the Act, the Tribunal has no jurisdiction to pass an award for loss suffered by the 1st respondent during the period of repair of its bus and so the award for Rs. 14,450/- passed by the Tribunal under that head is without jurisdiction and hence is liable to be set aside. There is no representation on behalf of the respondent either on the previous date of hearing or today.

3. The point for consideration is whether the Tribunal constituted under the Act has jurisdiction to pass an award for the loss suffered by the 1st respondent during the period of repair of its damaged vehicle or not? Section 165 of the Act reads:

165. Claims Tribunals: (1) A state Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.

4. Rajkumar Case 1985 A.C.J. 103 relied on by the learned Counsel for the appellant is a case that arose under the Motor Vehicles Act, 1939 (for short the 1939 Act). In that case a division bench of Madhya Pradesh High Court while considering Section 110(1) of that Act which is almost in pari materia with Section 165 of the Act, held that the words 'damages to any property' used in Section 110(1) of 1939 Act, do not take in their sweep 'loss of business' on account of the damaged vehicle remaining idle during the period of damage, which may be a damage to the owner. Similar view was taken by a division bench of Kearala High Court also in Saradamma case 1987 A.C.J. 926 relied on by the learned Counsel for the appellant, where it is held that the direct damage to property alone is taken by the words 'damages to property'. That decision was followed by a learned Judge of this Court in Konala Maniyya case 1999(6) A.L.T. 663. In view of the ratio in the above decisions I also am of the considered opinion that the Tribunal constituted under the Act can pass an award with regard to the damage caused to the property only, but it is not empowered to pass any award relating to the damage or loss suffered by the owner of the vehicle due to its remaining idle during the period of its repair. For that purpose the civil Court only is competent to pass a decree and so I hold that the Tribunal erred in granting damages towards loss of earnings to the 1st respondent. The point is answered accordingly.

5. In the result, the appeal is allowed, the award passed by the Tribunal is modified and an award is passed for Rs. 4,200/- in favour of the 1st respondent against the 2nd respondent and the appellant jointly and severally with interest at 9% p.a. from the date of petition till date of deposit. Rest of the claim of the 1st respondent is dismissed without costs. Parties are directed to bear their own costs in this appeal.