Dismissed

K.S.E.Board v. Dileep

Kerala HC10 Nov 2021MACA/1302/2009

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal for damage to a transformer caused in a bus collision, holding the amount awarded was just and reasonable based on available evidence.

What did the court decide?

The appeal was dismissed as it was devoid of merit; parties to bear respective costs.

K.S.E.Board Vs Dileep — Motor Accident Claims | Kerala HC (2021)

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MACA NO. 1302 OF 2009

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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 C.S.DIAS

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WEDNESDAY, THE 10^TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943

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MACA NO. 1302 OF 2009

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AGAINST THE ORDER/JUDGMENT IN OP(MV) 1098/2005 OF MOTOR ACCIDENT

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CLAIMS TRIBUNAL TIRUR

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APPELLANT/PETITIONER:

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THE KERALA STATE ELECTRICITY BOARD, REP.BY ITS ASST.EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, VALANCHERY.

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BY ADVS. SRI. ASOK M.CHERIYAN, SC, KSEB SRI.ARUN KUMAR.A. SC KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB SRI.K.P.ASHOK KUMAR, SC, KERALA STATE ELECTRICITY BOARD LIMI

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RESPONDENTS/RESPONDENTS:

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1 DILEEP, S/O.PARAMESWARA PANICKER, KUTOPALLIL HOUSE, PALARIVATTOM, SOUTH JANATHA, COCHIN-25.

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2 V.P.SUKUMARI W/O.RAGHAVAN VALIYAPARAMBIL HOUSE, NADAKKAVI P.O.,, UDAYAMPERUR, THRIPPUNITHARA.

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3 NATIONAL INSURANCE CO.LTD. PARCO TOWERS, P.M.TAJ ROAD, CALICUT.

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4 MOHAMMED KHALLEL S/O.ABDUL KAREEM 7TH CLASS ROAD, PATHIRAYINPURA,, BANGALORE-26.

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5 B.S.SIVASANKER PROPRIETOR M/S.SHIVA TRANSPORT, 185/5, 1ST CROSS ROAD, WILSIN GARDEN,, BANGALORE-27.

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MACA NO. 1302 OF 2009

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6 THE ORIENTAL INSURANCE CO.LTD. BANGALORE. BY ADVS. SRI.GEORGE CHERIAN (SR.) R6 SMT.SARAH SALVY R3

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 1302 OF 2009

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JUDGMENT

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The appellant was the petitioner in O.P(MV) No.1098/2005 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents in the appeal were the respondents before the Tribunal.

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The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming damages on account of the loss sustained to the appellant's property in an accident that occurred on 17.7.2004. It was the case of the appellant that, in the collision between the bus bearing Reg.No.KL-7AA – 925, driven by the 1^st respondent, owned by the 2^nd respondent and insured with the 3^rd respondent, and the bus bearing Reg. No.KA-1AE 6219, driven by the 4^th respondent, owned

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MACA NO. 1302 OF 2009

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by the 5^th respondent and insured with the 6^th respondent,

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a transformer of the appellant got damaged.

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Consequently, the appellant incurred a loss of Rs.64,536/-. Hence the claim petition.

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The respondents 1,2,4 and 5 did not contest the proceedings and were set ex parte.

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The respondents 3 and 6 – the insurers of the two buses filed separate written statements refuting the allegations in the claim petition. However, they admitted that both the buses were covered by valid insurance policies.

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The appellant examined one of its employee as PW1 and marked Exts. and A1 and A2 in evidence.

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The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the 3^rd respondent an amount of Rs.28,300/- with interest and costs.

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MACA NO. 1302 OF 2009

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Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal.

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Heard; Sri.Arun Kumar.A, the learned counsel appearing for the appellant/petitioner, Smt.Sarah Salvy, the learned counsel appearing for the 3^rd respondent and Sri.George.A.Cherian, the learned counsel appearing for the 6th respondent.

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The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?

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The specific case of the appellant was that in the collision between the two buses, its transformer got damaged. To substantiate its assertion in the claim petition, the appellant examined one of its employees as PW1 and marked Ext.A1- Estimate for rectification of the

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damaged transformer and LT Lines.

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MACA NO. 1302 OF 2009

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The Tribunal after appreciating Ext.A1 document, found that the said document was a self-serving estimate prepared by the appellant. As there was no material to prove the actual loss and expenses incurred by the appellant, the Tribunal only permitted the appellant to recover an amount of Rs.28,263/-, the cost of spare-parts that was required to repair the transformer.

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It is settled law, that in a claim for damages, the onus of proof is on the plaintiff/petitioner to prove the damage sustained.

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In the instant case, other than for the interested oral testimony of PW1 and the self-serving Ext.A1 Estimate, there is no material to prove that the actual amount spent by the appellant to repair the transformer. The appellant should be satisfied, if not fortunate, with the amount awarded by the Tribunal based on an estimate, that too without supporting invoices. I do not find any error or

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MACA NO. 1302 OF 2009

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illegality in the conclusion arrived at by the Tribunal warranting interference by this Court in appeal. The Tribunal has awarded just and reasonable compensation on the basis of the available materials on record.

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In the result, the appeal is devoid of any merit and is hence dismissed. The parties shall bear their respective costs.

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Sd/-

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C.S.DIAS

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ma/10/11/2021 JUDGE

K.S.E.Board v. Dileep

Case brief

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K.S.E.Board v. Dileep

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