MADRAS MOTOR AND GENERAL INSURANCE CO. LTD Vs. A.V. SUBRAMANIAN

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.