Allowed

Nazeer v. China Gownder

Kerala HC1 Feb 2024MACA/436/2012

Case brief

AI extract

What is this about?

Motor accident appeal against compensation awarded for damage to the appellant's shop building caused by the respondents' tanker lorry. Holding that neither the claimant's vouchers nor the commissioner's expert-backed estimate were substantiated by witness examination, the High Court set aside the award and remanded for fresh consideration with opportunity to adduce further evidence.

What did the court decide?

Award set aside; matter remanded to the Tribunal for fresh consideration with opportunity to both parties to adduce further evidence on quantum; parties to appear on 04.04.2024.

Nazeer Vs China Gownder — Motor Accident Claims | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945

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MACA NO. 436 OF 2012

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AGAINST THE AWARD DATED 21.11.2011 IN OP(MV) 735/2001 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,ATTINGAL

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APPELLANT/APPLICANT:

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NAZEER
S/O. MUHAMMED MUSTHAFA
THENGUVILAVEEDU KARAVARAM VILLAGE
KALLAMBALAM P.O., THIRUVANANTHAPURAM DISTRICT

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BY ADV SRI.K.RAVIKUMAR

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RESPONDENTS/RESPONDENTS:

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1CHINNA GOWNDER
S/O NALLY GOWNDER
DOOR NO.153-C7, SALEM TALUK,
NAMAKKAL DISTRICT – 6000002

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2MURUGAN
S/O. NATARAJAN, 60M, KUTTINGARAM
NEAR AYARAKATTU KUTTINAYARAM
THENGASHI, THIRUNELVELI DISTRICT
TAMIL NADU 600083

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3 THE NEW INDIA ASSURANCE COMPANY NAMAKKAL DIVISIONAL OFFICER 2 PARAMATHY ROAD NAMAKKAL DISTRICT 600002

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BY ADVS.
SRI.K.C.SANTHOSHKUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

M.A.C.A. No.436/2012

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JUDGMENT

The appellant was the petitioner in OP(MV) No.735/2001 on the files of the Motor Accident Claims Tribunal, Attingal.

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The claim petition was submitted by him seeking compensation for the damage sustained to the building owned by the petitioner when a tanker lorry bearing registration No.KA21/3610 driven by the 2^nd respondent ran into the shop in excessive speed. Due to the same, serious damages were sustained to the building. The said tanker lorry was owned by the 1^st respondent and was insured with the 3^rd respondent herein. The accident occurred on 21.05.2001. The claim petition was submitted by him in such circumstances seeking a total compensation of Rs.12 lakhs.

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The 3^rd respondent, the insurer of the tanker lorry resisted the claim by filing a written statement. They contended that there was no negligence or rashness on the part of the 2^nd respondent in driving the vehicle. They disputed the extent of damage claimed by the appellant in the claim petition. The quantum of compensation sought was also disputed by them.

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M.A.C.A. No.436/2012

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The evidence in this case consists of Exts.A1 to A15

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from the side of the appellant and from the side of the respondents RWs1 and 2 were examined and Ext.C1 commission report was also marked.

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After the trial, the tribunal came to the conclusion that, even though the appellant was able to establish that the building sustained some damage due to the rash and negligent driving of the 2^nd respondent, it was held that the appellant could not prove the extent of the damages as claimed in the claim petition. Therefore, an award was passed permitting the appellant to recover an amount of Rs.35,000/- as compensation from the 3^rd respondent with interest at the rate of 7.5% per annum from the date of petition till the date of expiry of 60 days from the date of award and in case of failure to make the deposit within the said period, the same shall be recoverable with interest at the rate of 9% per annum. This appeal is filed challenging the said award.

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Heard Sri. K. Ravikumar, the learned counsel appearing

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for the appellant and Sri. K.C. Santhosh Kumar, the learned counsel appearing for the 3^rd respondent insurance company.

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The only question that arises for consideration is the

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M.A.C.A. No.436/2012

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amount awarded by the tribunal is reasonable or not. It is discernible from the award that the tribunal came to a definite finding after evaluating the evidence that the appellant could not prove that all the damages claimed to have been sustained were due to the accident occurred. It was found by the tribunal that, the appellant spent the amount for renovation of the building and the entire amounts were not for addressing the damages sustained in the accident. It was in the circumstances, the tribunal granted a lumpsum amount of Rs.35,000/- as compensation. The appellant mainly relied on Exts.A8 to A14 which are the vouchers, receipts and expenditure statements evidencing the expenses incurred by him for rectifying the damages sustained. The total amount covered as per the said bills comes to Rs.3,58,328/-. As far as Exts.A1 to A7 documents are concerned, those were relied on by the appellant to show the accident and the ownership of the appellant over the building in question.

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From the side of the respondents, RWs 1 and 2 were examined in which RW1 was the Advocate Commissioner, who conducted an inspection of the building and submitted Ext.C1 commission report. The said commission report was prepared with

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M.A.C.A. No.436/2012

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the help of one K. Salahudheen, Assistant Executive Engineer (retired) from the Public Works Department. Along with Ext.C1 commission report, RW1 had produced the estimate prepared by the Engineer referred to above wherein the total amount shown as damages was Rs.2,20,843/-. While being examined as RW1, the Advocate Commissioner explained the circumstances under which the inspection was conducted and the manner in which the assessment of the amounts was made. It is seen that, a detailed deposition has been given by him and he was subjected to thorough cross examination as well. However, the tribunal took note of the fact that, even though the inspection was conducted on 09.06.2001, the commission report was dated 31.01.2008, i.e., after almost 7 years. The explanation for the delay, offered by RW1 was to the effect that, even though a timely inspection of the premises was done by the Advocate Commissioner with the help of the Engineer, as the Engineer was not available in station, he could not complete the assessment and submit the report in time.

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After analysing the entire materials placed on record, the crucial aspect to be noticed is that, the appellant did not adduce any evidence by mounting the box or by examining any of the

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M.A.C.A. No.436/2012

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persons connected with the assessment of the damages made. Even the Advocate Commissioner who conducted the inspection was not examined at his instance, but he was examined as a witness to the respondent herein. Moreover, on going through the commission report as well as the deposition made by him as RW1, it can be seen that, the assessment of damages made by him was mainly relying upon the assessment made by the Assistant Executive Engineer who had the expertise in this regard. Since the Advocate Commissioner cannot be treated as a person, having expertise in the assessment of damages sustained to a building, and when the said assessment was admittedly made by him with the help of an expert in this regard, the non examination of such expert was very crucial. Moreover, RW1, the Advocate Commissioner by himself cannot be treated as an expert, for assessing the damages, as he may not have the necessary expertise in this regard. He can only report the damages which he could witness when an inspection was conducted on the property along with an expert, and report the valuation of the damages the expert in this regard. In this case, when the evidence available on record is considered in that perspective, there is a lacuna in this

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M.A.C.A. No.436/2012

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regard, as no expert was examined to substantiate the assessment of damages made.

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Moreover, when coming to the documents relied on by the appellant to show the actual expenses incurred by him for rectifying the mistake, which is Exts.A8 to A14, it is to be noted that the same was also not substantiated by examining any person. The appellant also did not opt to mount the box and assert the claim. The aforesaid documents were marked without examining any person. Exts.A8 to A14 are seen issued by various persons towards the expenses incurred for purchasing the materials for carrying out the repairs and also the other expenses incurred for such repairs. None of the persons associated with the aforesaid documents or works were also examined. Therefore, I am of the view that in the absence of examination of any of the persons concerned, the said documents as such cannot be acted upon for the purpose of assessing the compensation. However, it is evident from the records that, the building owned by the appellant sustained serious damage due to the accident. Therefore, I am of the view that, a further opportunity can be granted to the petitioner to substantiate the documents which he relied on for assessing the

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M.A.C.A. No.436/2012

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damages. Therefore, it is only proper that the matter be remanded to the Tribunal for fresh consideration.

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In the result, this appeal is allowed. The award is set aside and the matter is remanded to the Tribunal for fresh consideration. The Tribunal shall provide reasonable opportunities to the appellant and the respondents to adduce such further evidence as they deem it fit to substantiate their respective contentions and thereupon, the question as to whether any further amount than already awarded by the Tribunal needs to be granted or not, shall be decided after appreciating the same. The parties shall appear before the Tribunal on 04.04.2024.

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Sd/ZIYAD RAHMAN A.A. JUDGE

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ncd/

Nazeer v. China Gownder

Case brief

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Nazeer v. China Gownder

Case brief

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