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 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 MACA.No. 1028 of 2005() ----------------------- OPMV.1005/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER IN THE OPMV ---------------------------------------------- M.S.SUKUMARAN, AGED 45 YEARS, S/O.SIVARAMAN, MANGALAMUNDAKKAL HOUSE, PERINGASSERY P.O., THODUPUZHA. BY ADV. SRI.M.R.SUDHEENDRAN SRI.P.A.KUMARAN RESPONDENT(S): RESPONDENTS IN THE OPMV -------------------------------------- 1. SANTHOSH, S/O.FRANCIS, THEVARUPATHIYIL HOUSE, ELEMDESAM, KALAYANTHANI P.O., THODUPUZHA. 2. PAILYCHAN, KANIYANKUZHIYIL HOUSE, VELLIYAMATTOM VILLAGE, VELLIYAMATTOM P.O. 3. UNITED INDIA INSURANCE COMPANY LTD., PERUMBAVOOR. ADV. SRI.T.GOPALAKRISHNAN FOR R3 SRI.T.J.LAKSHMANAN IYER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1028 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1005/2001 on the file of Motor Accidents Claims Tribunal, Thodupuzha. In this appeal he challenges the judgment and award of the Tribunal dated November 29, 2004 awarding a compensation of Rs.33,500/- for the damages caused to his building in a motor accident. 2. On December 10, 2001 at about 8.45 p.m., a stage carriage bearing Reg.No.KBV 6337 overturned and fell on the building belonging to the claimant. Alleging negligence against the driver of the offending stage carriage, the claimant filed the O.P. before the Tribunal claiming a compensation of Rs.1,08,960/- including the damages caused to the furniture etc. The claimant has leased out the building to one Binoy who was running a hotel. 3. Respondents 1 and 2, the owner and the driver of the offending stage carriage remained absent before the Tribunal. The MACA.No.1028/2005 2 third respondent, the insurer of the offending stage carriage filed a written statement admitting the accident and the policy of the offending vehicle. 4. This O.P. was jointly tried along with another O.P. filed by the owner of the adjacent building which was also damaged in the accident and a common award was passed. Pws 1 and 2 were examined and Exts.A1 to A20 and Ext.C1 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the driver of the offending vehicle and awarded a compensation of Rs.33,500/- with interest @ 6% per annum from 20/12/2001 till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Insurance Company. 6. The accident was not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second MACA.No.1028/2005 3 respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The Tribunal found that the construction cost of the two buildings damaged in the accident would come to Rs. 70,000/- and awarded Rs.31,500/- towards cost of construction of the house and Rs.2,000/- towards damages caused to the furniture. The Advocate Commissioner who estimated the construction cost of the building was examined as PW1. He has estimated the cost of the construction as Rs.2,70,800/-. Ext.A5 series are the photographs of the damaged building. It is a building constructed during 1988-89 and was constructed with mud and clay. Taking into consideration the nature of the damage caused to the building and in the light of the Advocate Commissioner's report Ext.C1, we feel that towards the damage caused to the building a compensation of Rs.60,000/- would be reasonable. Thus, the claimant is entitled to an additional compensation of Rs.26,500/-. 8. In the result, the claimant is found entitled to an additional MACA.No.1028/2005 4 compensation of Rs.26,500/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1028/2005 5