Khadeeja v. Velayudhan P.K., Satheesan and New India Assurance Company Ltd.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943 M.A.C.A. NO. 979 OF 2011 (AGAINST THE AWARD DATED 25.6.2010 IN OP(MV)No.1664/2009 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE) ## APPELLANT/PETITIONER IN OP(MV): KHADEEJA, W/O.ALI, PROPRIETOR, M/S.ZUHARA RICE FLOUR AND OIL MILL, OLAVATOOR POST, KUNDOTTY, MALAPPURAM. BY ADVS. SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA ## RESPONDENTS/RESPONDENTS IN OP(MV): 1 VELAYUDHAN.P.K, S/O GOVINDANKUTTY, DWARAKA HOUSE, PARAKKUNNATH, CHEROOPA POST, MAVOOR, KOZHIKODE, PIN-673 661. 2 SATHEESAN, S/O.RAMAN , KOWAL HOUSE, KOLATHUR POST, CHENGALA, MALAPPURAM, PIN-679 338. 3 NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, SILVER PLAZA BLDGS., IG ROAD, KOZHIKKODE-673 001. BY ADV P.K.BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _M.A.C.A.No.979 of 2011_ -: 2 :- ## **C.S.Dias, J.** --------------------------------------------------------- **M.A.C.A.No.979 of 2011** ---------------------------------------------- **Dated: 24[th] August, 2021** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.1664 of 2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are; on 20.10.2008, a tipper lorry bearing Registration No:KL-11/AA9488(lorry) driven by the 2[nd] respondent at exorbitant speed, hit against the building of the appellant named M/s.Zuhra Rice Flour Mill and Oil Mills unit, Olavatoor P.O., Kundotty, Malappuram. The accident occurred _M.A.C.A.No.979 of 2011_ **==> picture [67 x 11] intentionally omitted <==** solely due to the rash and negligent driving of the lorry by the 2[nd] respondent. The first respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The appellant sustained a loss of Rs.2,05,973/-, which she has entitled to recover from the respondents. Hence the claim petition. 3. Respondents 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent/insurer filed a written statement admitting that the lorry had a valid insurance coverage. Nevertheless, the 3[rd] respondent disputed its liability to pay the compensation to the appellant, principally on the ground that the survey report was prepared ten months after the accident. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. _M.A.C.A.No.979 of 2011_ -: 4 :- 5. The appellant examined the surveyor(PW1), who conducted the survey and proved Ext.A1 survey report. Exts.A1 to A8 were also marked in evidence. The respondents did not let in any contra evidence. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award after finding that there was negligence on the part of the 2[nd] respondent in driving the vehicle, dismissed the claim petition for the reason that the appellant had failed to prove the actual damage caused to the building. 7. Assailing the impugned award, the petitioner is in appeal. 8. Heard Sri.A.V.M.Salahudin, the learned counsel appearing for the appellant/petitioner and Sri.P.K.Babu, the learned counsel appearing for the 3[rd] respondent/insurer. _M.A.C.A.No.979 of 2011_ -: 5 :- ## 9. The question that arises for consideration in the appeal is; _Whether the impugned award passed by the Tribunal is justifiable or not?_ 10. It was the specific case of the appellant in the claim petition that the building was damaged by the lorry driven by the 2[nd] respondent. The appellant produced Exts.A2 FIR and A3 charge-sheet filed by the police to prove the negligence on the part of the 2[nd] respondent. The Tribunal accepted Exts.A2 and A3 and found that the 2[nd] respondent was negligent in causing the accident. Undisputedly, the lorry was insured by the 3[rd] respondent. Therefore, the liability of the 3[rd] respondent to indemnify the 1[st] respondent-the owner of the lorry stands proved. 11. The appellant examined PW1, the surveyor who proved Ext.A1 survey report. As per Ext.A1 and _M.A.C.A.No.979 of 2011_ **==> picture [67 x 11] intentionally omitted <==** the oral testimony of PW1 it is proved that the appellant has incurred damages to her building to the tune of Rs.1,05,788/-. Nonetheless, the Tribunal went on to hold that the assessment made by PW1 in Ext.A1 was for re-construction of the new building and was not the actual damage sustained by the appellant. 12. I have re-appreciated Ext.A1 survey report prepared by PW1 and his oral testimony. PW1 has specifically mentioned in Ext.A1 that Rs.1,24,457/- is the actual damage that was incurred by the appellant after using the salvages retrieved from the debris. PW1, after deducting the depreciation of the building for a period of four years at the rate of 15%, has clearly found that the actual damage incurred by the appellant was Rs.1,05,788/-. It is no one's case that the assessment made by PW1 in Ext.A1 is not the _M.A.C.A.No.979 of 2011_ **==> picture [67 x 9] intentionally omitted <==** actual damage incurred by the appellant. It is pertinent to state that none of the respondents have let in any oral or documentary evidence. In the light of the uncontraverted oral testimony of PW1 corroborating Ext.A1 survey report, I have no doubt in my mind that the appellant has proved the actual damage caused to her building. Therefore, the finding of the Tribunal that PW1 has not assessed the damage of the building is erroneous and perverse. 13. The learned counsel appearing for the appellant also relied on the decision in _**Mukta Chaudhary v. Harpal Singh and Others (2013 KHC 5069)**_ , wherein the High Court of Punjab and Haryana has categorically held that the owner of the building is entitled to claim compensation for damages in view of Section 165(1) read with Section 166(1)(b) of _M.A.C.A.No.979 of 2011_ -: 8 :- the Motor Vehicles Act, 1988. 14. On a comprehensive re-appreciation of the pleadings and materials on record, especially taking note of the un-controverted oral testimony of PW1 read with Ext.A1 survey report, I am of the definite opinion that the appellant is entitled for compensation as assessed by PW1 in Ext.A1 report at Rs.1,05,788/-. In the result, the appeal is allowed by setting aside the impugned award and allowing O.P. (MV)No.1664 of 2009 by ordering the 3[rd] respondent/insurer to pay the appellant an amount of Rs.1,05,788/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, after excluding the period of 228 days i.e., the period of delay in filing the appeal and as ordered by this court on 19.11.2020 in C.M.Application No.2/2011, and a _M.A.C.A.No.979 of 2011_ **==> picture [67 x 11] intentionally omitted <==** cost of Rs.2,500/-. The 3[rd] respondent shall deposit the above compensation amount with interest and costs before the Tribunal, within a period of 60 days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation amount to the appellant in accordance with law. _Sd/-_ **C.S.Dias, Judge** ss