IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 MACA.No. 1 of 2003(B) --------------------- OPMV.2080/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/3RD RESPONDENT -------------------------------------- NATIONAL INSURANCE CO.LTD., SALEM, TAMIL NADU, REP. BY THE DY.MANAGER, KRO ANNEXE, AJAY VIHAR, M.G.ROAD, ERNAKULAM COCHIN-682016. BY ADV. SRI.E.M.JOSEPH RESPONDENT(S): CLAIMANT & RESPONDENT 1 & 2 ------------------------------------------ 1. ROBY PAYUVA, MELANGATHU VEEDU, C.M.C. 21, CHERTHALA, ALAPPUZHA DISTRICT. 2. P.NATRAJAN, PATTILINGAM, VELLAMADHIYAN LANE, BUNGHAMEDU, METTUPALAYAM, TAMIL NADU. 3. R.SARASWATHI, W/O.LATE M.R.CHELLAPPAN, PROPRIETRIX, SAKTHI TRANSPORTS, 1-17-13D, EBENZAR COLONY, SANKARI, TAMIL NADU. ADV. SRI.G.SHRIKUMAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1 of 2003 ------------------------------------------------------ Dated: JUNE 7, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act, the 3rd respondent Insurance Company challenges the judgment and award of the Tribunal, dated, March 26, 2002 in OP(MV) 2080/1997 on the file of the Motor Accidents Claims Tribunal, Alappuzha, awarding a compensation of Rs.88,455/- for the loss caused to the claimant on account of the damage caused to his car in a motor accident. 2. The facts leading to this appeal in brief are these: On September 14, 1997 at about 1.30 a.m. deceased Shefi was driving the Ambassador car bearing registration No.KLY 9412 along Alappuzha - Kollam NH 47. The car belonged to the claimant. When the car reached near the Medical College Men's Hostel, Vandanam, Alappuzha, a tourist bus bearing registration No. TN.28/X 4488 driven by the 1st respondent came at a high speed and dashed against the car of the claimant. Shefi died on the spot and the car sustained heavy damage. According to the claimant the accident occurred due to the rash and negligent driving of the offending bus by the 1st respondent. The 1st respondent as the driver, the 2nd respondent as the owner and the 3rd respondent as the insurer of the M.A.C.A. 1 of 2003 2 offending bus are jointly and severally liable to pay compensation to the claimant for the damage caused to the car. The claimant claimed a compensation of Rs.2 lakhs. 3. Respondent No. 1, the driver of the offending bus remained absent and was set ex parte by the Tribunal. The relief against the 2nd respondent was struck off by the Tribunal. The 3rd respondent, insurer of the offending vehicle, filed a written statement admitting the accident, but disputing the quantum of damage claimed by the claimant. 4. This O.P. was jointly tried along with OP(MV) 2005/1997 filed by the legal heirs of deceased Shefi and a common award was passed. PWs.1 to 4 were examined and Exts.A1 to A20 were marked on the side of the claimant. Exts.X1and X1(a) were also marked. On the side of the contesting 3rd respondent Ext.B1 was marked before the Tribunal. On an appreciation of evidence the Tribunal awarded a compensation of Rs.88,455/-. The 3rd respondent, Insurance Company, has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/Insurance Company and the counsel for the claimants. 6. The accident is not disputed. The Insurance Company M.A.C.A. 1 of 2003 3 challenged the finding of the Tribunal that the accident occurred due to the negligence on the part of the 1st respondent, driver of the bus , and also disputed the quantum of compensation awarded by the Tribunal. 7. The following points arise for consideration: 1. Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the 1st respondent can be sustained? 2. Whether the compensation awarded by the Tribunal is excessive? 8. The Tribunal, relying on he evidence of PWs.1 and 2 and Exts.A1 to A5 and A8 found that the accident occurred due to the negligence on the part of the 1st respondent, driver of the offending bus. Ext.A8 shows that the police has charged case against the 1st respondent. The scene mahazar Ext.A2 also shows that the 1st respondent was driving the bus at a very high speed on the wrong side. No contra evidence was adduced on the side of the contesting 3rd respondent to show that there was any negligence on the part of the deceased who was driving the car or to show that there was no negligence on the part of the 1st respondent. Therefore we are inclined to confirm the finding of the Tribunal that the accident M.A.C.A. 1 of 2003 4 occurred due to the negligence of the 1st respondent. 9. As regards the quantum of compensation awarded by the Tribunal, Ext.A13 survey report shows that the car was badly damaged and the market value of the car on the date of the accident was Rs.1,20,000/-. As the vehicle was about 14 years old, 30% of depreciation was allowed by the Tribunal and fixed the compensation at Rs.88,455/- which appears to be reasonable. In the light of the above findings, we feel that there is no merit in this appeal and the same has to be dismissed. In the result, the appeal is dismissed. No costs. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-