Ravi V. Malimath, J.The case of the plaintiff is that he is a Contractor and doing building work. For the said purpose, he uses his truck bearing No. KA 19/7627. It was used for livelihood by self employment. In the course of doing such a work, it met with an accident on 28.5.1999 near Hassan. It was insured with the second defendant/insurer. The truck was damaged. It was taken to the repairer and estimation was prepared for Rs. 1,23,384/-. Hence, he prepared a claim for the said amount before the second defendant/insurer. The defendant deputed its Surveyor for inspection. He inspected the damaged truck. The plaintiff got the truck repaired through one Sai Kumar. The total cost of repairs including the cost of spare parts was Rs. 96,138/-. He submitted the original bills of the cost on repairs to the second defendant. The second defendant once again deputed an officer for inspection and thereafter, sanctioned an amount of Rs. 7,300/-. Thereafter, the plaintiff approached the Consumer Forum seeking for remedy and the same was dismissed on the ground that appropriate remedy is to approach the Civil Court. Thereafter, the instant suit was filed.

2. The defendant entered appearance and denied the suit averments. The Trial Court framed the following issues:

"1) Whether the plaintiff proves that he is a contractor of building work and used the truck bearing Regd. No. KA 19/7627 is for earning his livelihood

2) Whether the defendant proves that the surveyor assessed the loss at Rs. 7857/-

3) Whether the defendant proves that suit is bad for non-joinder of necessary parties

4) Whether the defendant proves that present suit is barred by the principles of res judicata and estoppel

5) Whether the defendant proves that suit is barred by law of limitation

6) Whether the plaintiff proves that while in use, the said truck was met with an accident on 28.5.1999 near Hassan"

7) Whether the plaintiff is entitled for the reliefs as prayed for

8) What order or decree

Addl. Issue:

1) Whether the defendant proves that this Court has no jurisdiction to try this suit"

3. The Trial Court held issue Nos. 2 and 6 in the affirmative. Issues 3, 4, 5 and additional issue No. 1 in the negative and partly decreed the suit directing the defendant to pay a sum of Rs. 7,850/- along with interest at 6% p.a. Aggrieved by the same, the plaintiff filed an appeal before the District Judge at Mangalore. The appeal was allowed. The judgment and decree of the Trial Court was modified. The suit was decreed for a sum of Rs. 96,138/- along with interest at 6% p.a. Aggrieved by the same, the first defendant has filed this appeal.

4. By the order dated 2.7.2012, the appeal was admitted to consider the following substantial question of law:

"When the respondents (plaintiffs) exhausted their remedy for compensation before the Consumer Forum and their request for compensation was rejected on merits, whether they could maintain a suit for damages"

5. Learned counsel for the appellant contends that yet another question of law arises for consideration and pleads that the same may be added on, for consideration.

6. On hearing the learned counsel, the following substantial question of law is added on to the question of law already framed.

"Whether the judgment and decree of the first appellate court is perverse in forming its opinion with regard to the extent of damages while interfering with the extent of damages as held by the Trial Court"

7. The first substantial question of law is as to whether a suit could be maintained when the plaintiff has exhausted the remedy for compensation before the Consumer Court. So far as exhaustion of remedy of approaching before the Consumer Forum is concerned, the same would not arise for consideration. Even though the plaintiff had approached the District Consumer Forum for relief, the claim was dismissed on the ground that the Consumer Forum did not have the jurisdiction and therefore held that the Civil Court alone has the jurisdiction to entertain the plea of the plaintiff. Under these circumstances, it cannot be held that there is exhaustion of the remedy of approaching the Consumer Forum by the plaintiff. Hence, the substantial question of law is answered by holding that the plaintiffs suit for damages is maintainable.

8. So far as second substantial question of law with regard to the finding of the first appellate court with regard the extent of damages is concerned, reliance is placed by the learned counsel for the appellant on Ex. D-7 dated 10.7.1999. It is a Motor Survey Report prepared by the Surveyor and addressed to the Branch Manager, National Insurance Company Limited, Panambur Branch. Therein, he has narrated various issues and points wherein the truck was repaired, the extent of repairs and all such materials. He has also furnished the details of damages and assessment which he had quantified at Rs. 7,857/-. It is therefore pleaded that the Trial Court having rightly considered Ex. D-7, decreed the suit to the said extent. However, the appellate Court reversed the said findings and granted a decree to the extent of Rs. 96,138/-. Therefore, it is pleaded that the appellate Court could not have his own view of the matter while enhancing the decretal amount.

9. I have considered the judgment of the appellate Court. The contention of the appellant that there is substitution of the view of the appellate Court, is not supported by the judgment. The appellate Court has considered the material produced by the plaintiff as well as the exhibits produced by the defendant with reference to Ex. D-7. The reasoning assigned by the first appellate Court is that in terms of the Survey Report/Ex. D-1, the same was prepared at the earliest point of time wherein the damages to the vehicle was noted. The extent and every damage that has occurred to the truck was made a note of by the officers of the defendant themselves. It is thereafter that Ex. D-7, the Survey Report was prepared. Therefore, the appellate Court was of the view that there is no merit in the argument that Ex. D-7 alone requires to be accepted. Furthermore, in terms of Ex. P-5, the accident repairs as incurred was Rs. 96,138/-. It is on the basis of all theses exhibits that the appellate Court accepted the same and held that there is a damage which has repairs to the extent of Rs. 96,138/-. I have also considered Ex. P-12. The same would narrate the extent of damages that the truck has incurred and the amount spent on it. Therefore, it cannot be said that Ex. D-7 constitutes the true extent of damages incurred by the truck. The Trial Court having considered the pros and cons of Ex. P-12 as well as other exhibits has rightly come to the conclusion that the expenses as narrated in terms of Ex. P-12 are just and appropriate. It cannot be said that the appellate Court has imported its own views while enhancing the extent of damages. Damages that has been granted by the first appellate Court is not a figment of its imagination. It is based on Ex. P-12 and other documents. Therefore, the second substantial question of law is answered by holding that the first appellate Court was justified in decreeing the suit of the plaintiff to an extent of Rs. 96,138/-.

10. For the aforesaid reasons, on having answered the substantial questions of law, the appeal is dismissed.