Madras Motor and General Insurance Co. Ltd., Madras vs A.V. Subramanian and Others

Gokulakrishnan, J.—Second defendant, Madras Motor and General Insurance Co. Ltd., is the appellant. The suit is for damages claiming

Rs. 6176-54 and for costs. Out of this amount of Rs. 6176-54 a sum of Rupees 3956-54 was claimed towards the costs of repair as per the bills

from T. V. S. and Sons (P) Ltd., and Rs. 2220 towards loss of income owing to the fact that the taxi was not put on road due to the accident for a

period of 74 days. This claim is due to the fact that the lorry MDJ 4632 belonging to the first defendant in the suit was driven rashly and negligently

resulting in a collision with the taxi belonging to the plaintiffs and caused damages to the taxi.

The first defendant contended that the lorry was not driven rashly and negligently and that the driver of the lorry accepted the guilt because of

inducement by the police The first defendant further averred that the damages claimed are excessive and that the (claim for?) damages for non-user

is not maintainable. The second defendant-Insurance Company has put forward that the suit claim is false and that the claim in any event is

excessive. The Insurance Company also pleaded that the taxi was old and many parts were removed and the claim for non-user of the taxi is not

Maintainable.

The trial court after elaborately discussing the oral and documentary evidence in this case found that the driver of the lorry MDJ 4632 was

negligent and the accident was caused due to rash and negligent driving of the driver of the lorry. It also found that the claim for repairs of the taxi

and also damages for non-user of the taxi are proved and on that basis decreed the suit in toto. Aggrieved by the decision of the trial Court the

second defendant preferred an appeal to the District Judge, Coimbatore (East). The lower appellate court after elaborately discussing the evidence

on record and adverting to the relevant facts of the case came to the conclusion that the driver of the lorry was rash and negligent and as a result

the accident occurred. The lower appellate court also held that the sum of Rs. 3956-54 spent for the purpose of repair by T. V. S. and Sons (P)

Ltd., is correct. But as regards the damages for non-user of the taxi due to the accident the lower appellate court instead of Rs. 2220 claimed by

the plaintiffs awarded only Rs. 1005 at the rate of Rs. 15 per day for 67 days only. Aggrieved by the decision of the lower appellate court the

second defendant has preferred the above second appeal. Aggrieved by the reduction of the damages as regards non-user of the taxi, the plaintiffs

have preferred the cross-objections herein.

Thiru Srinivasan, the learned counsel for the appellant, submitted that the Insurance Co. cannot be made liable for the damages caused to the

taxi inasmuch as there is no privity of contract between the Insurance Co. and the plaintiffs. This contention was not put forward by the appellant

before the trial court. On the other hand, the appellant as second defendant participated in the proceedings and vehemently opposed the claim of

the plaintiffs. Therefore, I do not think it is open to the appellant to put forward the contention as if he is not liable to pay damages as there is no

privity of contract between him and the plaintiffs in the suit. I do not find any provision of law debarring the plaintiffs from claiming damages both

against the owner and the driver of the lorry and also the Insurance Co., with which the lorry has been insured.

Section 95(1)(b)(i) of the Motor Vehicles Act states that in order to comply with the requirements of that Chapter a policy of insurance must be

a policy which insures the person or classes of person specified in the policy to the extent specified in Sub-section (2) against any liability which

may be incurred by him in respect of the death of or bodily injury to any persons or damages to any property of a third party caused by or arising

out of the use of the vehicle in a public place. Thus it is clear that the Insurance Co. is liable to answer the claims of the third party in respect of

damages caused to a third party''s property also. No doubt the provision referred to above is in relation to the claim that has to be settled by the

Claims Tribunal constituted under the Motor Vehicles Act. But by this enactment the civil court''s right to go into the question of claim made by a

third party as regards loss to his property is not barred. If that be the case, the civil court has jurisdiction to entertain such claims. Hence the courts

below are correct in awarding damages to the plaintiffs as regards the costs incurred in repairing the taxi.

The plaintiffs have preferred cross-objections as regards the sum of Rs. 1215 disallowed by the lower appellate court under the head loss

incurred by the plaintiffs by non-user of the taxi. The trial Court after discussion accepted the loss at the rate of Rs. 30 per day for 74 days. The

lower appellate court fixed the amount at Rs. 15 for 67 days only. The evidence on record clearly establishes that the net income of the taxi is Rs,

30 per day and the taxi was in the workshop for 74 days. P. W. 9 gives evidence to this effect. On the other hand, D. Ws. 1 and 2 neither

contradicted this evidence nor adduced any evidence as regards the net income of the taxi per day. In the absence of such evidence by the

defendants, the trial court correctly accepted the evidence of the plaintiffs and decreed the suit on this account as prayed for. But the lower

appellate court even though had discussed the evidence on record on this head reduced the net income to Rs. 15 per day without any data or

proper discussion. This in my opinion is arbitrary and runs contra to the evidence on record. Hence in my view a sum of Rs. 30 per day as net

income for a taxi cannot be considered to be excessive and the net income of Rs. 30 per day for a period of 74 days has to be granted to the

plaintiffs as claimed.

In these circumstances, the second appeal is dismissed. No costs. The cross-objections are allowed. With the result, the judgment and decree

of the trial court are confirmed. No order as to costs. No leave.