EXECUTIVE DIRECTOR, SICILIA HOTELS (PVT) LTD. v. SHAJAN RAPHEL KAREKKATTIL, SHAJU S/O JOSE PANOKKARAN, NEW INDIA ASSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** **MACA.No.1848 OF 2010** **AGAINST THE AWARD IN OPMV 928/2006 DATED 22-04-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **THE EXECUTIVE DIRECTOR, SICILIA HOTELS SICILIA HOTELS(PVT) LTD.IDUKKI ROAD,, THODUPUZHA PO, IDUKKI DISTRICT,REP. BY ITS, POWER OF ATTORNEY HOLDER C.J.VINCENT,, S/O.C.P.JOSEPH,CHIRAYATH HOUSE,POTTA PO,, MUKUNDAPURAM TALUK,THRISSUR** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/S:** **1 SHAJAN RAPHEL KAREKKATTIL HOUSE,VENGINISSERY PO,, PALAKKAL,THRISSUR DISTRICT. 2 SHAJU S/O.JOSE PANOKKARAN HOUSE VENGINISSERY PO,PARALAM,THRISSUR DISTRICT. 3 NEW INDIA ASSURANCE CO.LTD. THRISSUR.** **R1, R3 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1848 OF 2010** ..2.. ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.928 of 2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the damage caused to Mitsubishi Lancer car bearing registration No.KL-06/A-7245, in a motor accident which occurred on 17.04.2005, involving a Scorpio Jeep bearing registration No.KL-8/AD-2323 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. Alleging that the accident occurred due to the rash and negligent driving of the Scorpio jeep by by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,02,264/-. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set _ex parte_ . The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the Scorpio jeep involved in the accident 4. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. On the side of the **MACA.No.1848 OF 2010** **==> picture [17 x 8] intentionally omitted <==** respondents, the insurance policy of the offending vehicle was marked as Ext.B1. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the Scorpio jeep by the 2[nd] respondent driver. Since the insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,03,900/-, together with interest at the rate of 7% per annum from the date of petition till date of realisation, with proportionate cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice **MACA.No.1848 OF 2010** **==> picture [18 x 8] intentionally omitted <==** on the 2[nd] respondent driver was dispensed with, by the order of this Court dated 12.11.2019. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 9. The grievance of the appellant pertains to deduction of 40% of the cost of spare parts towards depreciation, on the ground that the Lancer car was six years old, as on the date of accident. 10. The accident occurred on 17.04.2005. The vehicle owned by the appellant is a 1999 model Mitsubishi Lancer car. As per Ext.A5 survey report, the surveyor assessed Rs.26,500/- as labour charges and Rs.1,29,833/- as cost of spares. The Tribunal deducted 40% of the cost of spares towards depreciation on the ground that the vehicle was six years old and awarded balance amount of Rs.77,900/together with Rs.26,500/- as labour charges, totalling to a sum **MACA.No.1848 OF 2010** **==> picture [17 x 8] intentionally omitted <==** of Rs.1,04,400/-. After deducting Rs.1,500/- towards salvage value, the total amount was fixed as Rs.1,02,900/-. A further sum of Rs.1,000/- was awarded towards surveyor fee, thus totalling to Rs.1,03,900/- together with interest at the rate 7% per annum from the date of petition, till realisation with proportionate cost. The 3[rd] respondent insurer was directed to satisfy the award. 11. The question as to whether a claimant for property damage of vehicle is entitled for actual value of spare parts used for repairing that vehicle is no more _res integra,_ in view of the law laid down by a Full Bench of this Court in _**Joseph M.M. v. Venkata Rao M. and others**_ **[2016 (1) KHC 756].** In the said decision, the Full Bench held that in a claim for property damages of a motor car, the claimant is entitled for actual value of spare parts used for repairing the vehicle. Thus, there cannot be any depreciation for actual value of spare parts. Paragraphs 15 to 17 of the said decision reads thus:- 15. Therefore, the only factor that requires to be **MACA.No.1848 OF 2010** ..6.. considered is with regard to the reasonableness of the compensation. As already indicated and as evident from the above discussion, what is required to be paid is just compensation. If the vehicle can be repaired and used, to make it roadworthy, necessarily, the cost incurred by the claimant will be the proper compensation. The compensation can include the actual cost of repairs, labour charges and other expenses. Only in instances, where the cost of repairs exceed the market value of the vehicle, that claim can be limited to the market value. 16. It is submitted by the learned counsel for the appellant that the Surveyor himself had reduced certain percentage as depreciation. It need not be stated that each case will depend upon its own facts and circumstances. If the claim is found to be genuine and it is found that the claimant has suffered the loss as claimed, there is no reason why a further depreciation should be ordered by the Tribunal. 17. In the case of MACA No.990/2005 (supra), the Division Bench took a view that when a vehicle is repaired, the owner will get a better utility for the vehicle as if it is a new vehicle and therefore depreciation is justified to arrive at the actual damage. But what is to be considered is whether these spare parts are required for making the vehicle roadworthy. One cannot expect a person to repair his vehicle with old spare parts. Therefore, necessarily, new spare parts will have to be purchased for making the vehicle roadworthy. Even assuming for the sake of argument that the utility of the vehicle might be increased on account of new spare parts being fitted into the vehicle, it is by way of restitution, to ## **MACA.No.1848 OF 2010** ..7.. enable the claimant to use the vehicle as he was using it before the accident. In other words, without effecting such repairs, it may not be possible for the claimant to put the vehicle on road. Therefore, making a further reduction to the actual value of spares will in effect amount to reduction from the actual loss suffered by him.” 12. In view of the law laid down by the Full Bench in **Joseph's case** (Supra) , the appellant is entitled for payment of value of spare parts used for repairing his vehicle, without 40% deduction towards depreciation. 13. In the result, this appeal is disposed of by holding that the appellant is entitled for a sum of Rs.1,29,833/towards cost of spare parts, instead of Rs.77,900/- awarded by the Tribunal. The 3[rd] respondent insurer shall pay the balance amount of Rs.51,933/- together with interest at the rate of 8% within a period of 2 months from the date of receipt of a copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in ..8.. ## **MACA.No.1848 OF 2010** Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellants to provide their Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment This appeal is disposed of as above. No order as to costs. All pending interlocutory applications in this appeal are closed. Sd/- ## **ANIL K. NARENDRAN,** ## **JUDGE** kkj