Remanded

The Oriental Insurance Company Limited v. K. Saraswathi Amma

Kerala HC23 Nov 2018MACA/1883/2012

Case brief

AI extract

What is this about?

The Kerala High Court, in an appeal by the insurer, dismissed the award of the Motor Accidents Claims Tribunal which had granted Rs. 2,50,000. The court held that the claimant's evidence was insufficient to prove actual damages. Consequently, the award was set aside and the matter remitted for fresh consideration and evidence.

What did the court decide?

The award of the Tribunal set aside and matter remitted for fresh consideration; liberty to adduce fresh evidence.

The Oriental Insurance Company Limited Vs K. Saraswathi… — Motor Accident Claims | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940

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MACA.No. 1883 of 2012

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AGAINST THE AWARD IN OPMV 308/2003 of ADDL.D.C.& MACT,PATHANAMTHITTA DATED 02-05-2012

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APPELLANT/3RD RESPONDENT:

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THE ORIENTAL INSURANCE COMPANY LIMITED PUNALUR, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18.

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BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

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RESPONDENTS/ADDL.PETITIONERS:

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1 K. SARASWATHI AMMA JAYABHAVANAM VEEDU, KURUMBAKARA MURI, ENADIMANGALAM, ADOOR, PIN-689 315.

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2 JAYAKUMAR

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JAYABHAVANAM VEEDU, KURUMBAKARA MURI, ENADIMANGALAM, ADOOR, PIN-689 315.

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3 AJAYAKUMAR JAYABHAVANAM VEEDU, KURUMBAKARA MURI, ENADIMANGALAM, ADOOR, PIN-689 315.

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BY ADVS. SRI.KISHOR B. SRI.TOMS MATHEW

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 1883 of 2012

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JUDGMENT

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This appeal is preferred against the award in OP(MV) No.308/2007 of Motor Accidents Claims Tribunal, Pathanamthitta by the injured. On 25.02.2003 at 5.00 pm, the compound wall of the first respondent was damaged in a motor accident. The learned Tribunal awarded compensation of Rs.2,50,000/- with 7.5% interest and proportionate cost. Being aggrieved by that, the insurer preferred this appeal.

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The accident was not disputed by the respondents in the lower court. Claimant's case was that on 25.02.2003 at 5.00 pm, the first respondent was standing in front of his house, which is on the western side of the Puthuval - Maloor public road. At that time, a mini lorry KEK 4918 driven in a rash and negligent manner hit against the compound wall. As a result, extensive damages was caused to the compound wall and the petitioner's house. The accident was due to the rash and negligent driving of the mini lorry by its driver. The insurer admitted the insurance of the vehicle. The driver and owner were set ex-parte. The claimants evidence consist of oral testimony of PW1 and documentary evidence of Exts.A1

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MACA.No. 1883 of 2012

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to A6. Respondents did not adduce any oral evidence.

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The learned counsel appearing for the

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appellant contended that the lower court relied upon the estimate prepared by the Assistant Executive Engineer, Minor Irrigation Sub Division, Adoor, that itself is not sufficient to award the aforesaid amount.

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Section 166 confers jurisdiction on the Tribunal to award compensation both for personal injury as well as damages to property of a third party arising out of a motor accident. This court in United India Insurance Company Limited v. P.N. Thomas AIR 1999 Ker 174 : (1999) 1 Ker

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LJ 178 held that the “damage to any property of a third party” as contemplated under Sec.165 of the 1988 Act, would mean the direct damage caused to the property of the third party. It is not disputed that the jurisdiction of the Tribunal to award compensation for personal injury also includes compensation which could be awarded towards damages to property. If the person injured is unable to earn income and that the Courts have been awarding compensation not only for the actual personal injury but also towards future loss of income to the person injured. To this extent the scope of Sec.166 of the

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MACA.No. 1883 of 2012

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Motor Vehicles Act, 1988 is well settled and this position is not controverted by both parties. When this is the position regarding personal injury, it would be incongruous to say that in respect of damages to the property the jurisdiction of the Tribunal is confined to the award of compensation only insofar it relates to the actual damage to the property and does not include the loss of income directly arising out of the damage to the property. In Karnataka State Road Transport Corporation v. V.K. Abdul Majeed 1991 ACJ 453 (Karn) (DB) it was held that the concept of damages to property includes compensation for loss of use or loss of income directly resulting from damage.

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It is true that the first respondent in this case is entitled to get compensation for damages to the property. In this accident, Adoor Police registered a crime and Ext.A4 is the final report after investigation. Ext.A5 is the estimate prepared by Assistant Executive Engineer, Minor Irrigation Sub Division, Adoor after inspecting the compound wall and the building, he prepared an estimate of Rs.2,50,000/-. PW1 is the wife of the claimant, who is the first respondent in this appeal. Her evidence, itself, is not sufficient to prove the actual damages.

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MACA.No. 1883 of 2012

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In the circumstance, the award of the Tribunal is set aside and the matter is remitted to the lower court for fresh consideration. Both parties are at liberty to adduce fresh evidence and directed to appear before the Tribunal on 03.01.2019. The Tribunal shall dispose of the matter within three months from the date of their appearance.

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Sd/- P.D.RAJAN JUDGE

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bng/27.11.18

The Oriental Insurance Company Limited v. K. Saraswathi Amma

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Company Limited v. K. Saraswathi Amma

Case brief

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