IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 MACA.No. 304 of 2003 ----------------------------------- OPMV.777/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/PETITIONER: M.A. PARAMESWARAN, S/O. VELUPILLAI, MANGALAM KUNNU ANGADI, KATTIKULAM P.O., OTTAPALAM-679 514. BY ADV. SRI.VPK.PANICKER SRI.T.R.RAJEEV SRI.T.S.RADHAKRISHNA PILLAI RESPONDENTS/RESPONDENTS: 1. THE MANAGING DIRECTOR, TAMILNADU STATE TRANSPORT CORPORATION LTD., COIMBATORE DIVISON-1, COIMBATORE (OWNER OF BUS NO.TCB 1914). 2. S. YAKEEM, AGE AND FATHER'S NAME NOT KNOWN, P & R 11892, NO.3, M.G.R. NAGAR, GANDHIJI ROAD, RATNAPURI POST, COIMBATORE-27 (DRIVER OF THE BUS TCB 1914). ADV. SRI.P.RAVINDRAN (SR.) FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.304 of 2003 --------------------------------- JUDGMENT Balachandran, J. Appellant filed an application under Section 166 of the Motor Vehicles Act claiming compensation for the death of the elephant Vinayakan belonging to him, which sustained fatal injuries in a motor vehicle accident on 5.1.1996 and succumbed to the injuries on 13.1.1996. The Tribunal originally passed an award on 4.9.2000 where under loss incurred by the appellant/petitioner to meet the expenses of treatment, transportation of elephant to his place and later to Nelliampathy for cremation of the carcass consequent on its death were separately assessed with reference to the records produced by the claimant, but rejecting portions of the claims as being excessive. The amounts so awarded was Rs.5,000/- towards payment to the Doctors/Veterinary Surgeons for the MACA 304/03 2 treatment of the injured elephant, Rs.5,604/- towards purchase of medicines for treatment, as evidenced by Exhibit A17, Rs.4,500/- towards taxi fare to get the Veterinary Surgeons on several days to attend on to the elephant, Rs.2,000/- towards lorry hire to take the injured elephant to his place of abode and a total amount of Rs.14,000/- towards carrying of the carcass to his estate at Nelliampathy for cremation, as the carcass could not be cremated at places where people are residing. Thus, the total compensation so awarded under those heads comes to Rs.31,104/-. 2. Towards loss caused by reason of death of the elephant, which is a tusker aged 31, claim was advanced by the appellant/petitioner on the basis of the income that he used to earn by leasing out the elephant for festival purposes and for work in timber depots. The Tribunal estimated the income and after deducting the expenses, the net income was arrived at and estimated the loss at Rs.1,25,000/- and thus, a total compensation of MACA 304/03 3 Rs.1,56,104/- was awarded to be realised from respondents 1 and 2 jointly and severally. 3. Appeal was filed by the appellant/petitioner as M.F.A.No.70/01. The first respondent Tamil Nadu State Road Transport Corporation filed M.F.A.No. 529/01. A Division Bench of this Court, to which one of us was a party (Justice J.B.Koshy) was of the view that in the nature of the claim advanced, what the claimant suffered by the death of the elephant is the loss of the elephant itself; that the loss of elephant has got a bearing in the matter of assessment of compensation and the question that ought to have been considered is as to what is the actual damage so sustained to the claimant by the death of the elephant and not the possible pecuniary losses and therefore, allowing both the appeals remanded the matter to the Tribunal for calculating the actual damages caused to the claimant, after re-considering the entire aspects. MACA 304/03 4 4. After remand, the respondents did not adduce any evidence, whereas, the claimant examined PWs 6 and 7 and also recalled PWs 1 and 3 and got them further examined to prove the value of the elephant. Exhibits A35 to A44 were also produced after the remand. PW3, who proved Exhibit A35 certificate, has deposed that he treated the elephant involved in the accident. According to him, he himself is an elephant owner and is the Vice President of Elephant Welfare Association and the Executive Member of Elephant Owners' Association and he purchased a tusker in 1996 for Rs.8,50,000/-. He is retired Dean of the Veterinary Division of Agricultural University, Mannuthy. PW1 gave evidence that the market value of the elephant Vinayakan, which died in the accident, will be about Rupees eleven lakhs. He further deposed that the elephant Vinayakan was aged about 31 years and its hight was about 260cms. As per Exhibit A12, the tusks of elephant Vinayakan was having a length of 65cm and girth of 28cm on the right side and a MACA 304/03 5 length of 64cm and girth of 27cm on the left side. The Tribunal, after considering the entire evidence adduced on the side of the appellant/petitioner, which was not even attempted to be countered by adducing any evidence in defence by the respondents, came to the conclusion that to assess the actual damages only the market value of an average tusker belonging to the age group of 30-31 years during the relevant period, viz., in 1996, alone can be taken into consideration. The Tribunal also concluded on evidence that the market value of an average tusker will vary from Rupees seven lakhs to Rupees eleven lakhs, taking into account also the value of the elephants insured vide Exhibits A36 to A43 Insurance Policies produced. Having concluded thus as regards the value of the elephants of that age group, the Tribunal has held that under the circumstances, a consolidated sum of Rupees seven lakhs is assessed as the value of the tusker. Further, the Tribunal, without any reliable evidence with respect to the value of the tusks, MACA 304/03 6 has concluded that each tusk will fetch around Rs.1.5 lakhs and accordingly deducted an amount of Rs.3 lakhs from the value of the elephant, which was fixed at the minimum of the value ranging from Rs.7-11 lakhs and assessed the loss sustained to the appellant/petitioner, by reason of the death of the elephant Vinayakan, at Rs.4 lakhs. It was further made clear in the impugned award that any amount paid to the appellant/petitioner by the respondents as per the earlier award shall be adjusted from the revised award amount. 5. It is vehemently contended before us by the learned counsel for the appellant that after concluding as to the market value of an elephant between the age group of 30-31 years during the relevant period in 1996 as ranging from Rs.7-11 lakhs, the Tribunal was unjustified in fixing the value of the deceased elephant involved in this case at the lowest price of Rs.7 lakhs only; that deducting an amount of Rs.3 lakhs towards the value of the tusks, which is not marketable and further MACA 304/03 7 that omitting to provide for special damages of Rs.31,104/- granted under the award passed initially are unjustified. 6. On going through the evidence and the Insurance Policies, where under other elephants are seen insured vide Exhibits A36 to A43, we also concur with the conclusion arrived at by the Tribunal that the value of a tusker between the age group of 30-31 years during 1996, which is the relevant period, will range from Rs.7-11 lakhs. All the same, considering the evidence adduced in the case on the side of the claimant, we are of the view that value of the tusker elephant Vinayakan, which breathed its last on account of the injuries sustained in the accident involved in this case, should not have been fixed at the bare minimum of Rs.7 lakhs. Taking an average, it was only reasonable to fix the value of the deceased elephant at least at Rs.9 lakhs. Considering the measurements of the tusks, deposed to by PW3, we are of the opinion that the value of the tusks MACA 304/03 8 estimated by the Tribunal at Rs.3 lakhs, does not deserve to be interfered with, though the value thereof cannot be ascertained exactly, being a not marketable commodity. The value of the deceased elephant, excluding the value of the tusks, will be the actual loss sustained to the appellant and that in the instant case is Rs.6 lakhs. The Tribunal has awarded only Rs.4 lakhs. The appellant will, therefore, be entitled to a further amount of Rs.2 lakhs by way of damages for the loss of the elephant Vinayakan. The appellant will also be entitled to the special damages as found by the Tribunal in the award passed initially, which comes to Rs.31,104/-. Thus, over and above the amount granted under the impugned award, the additional compensation to which the appellant would be entitled is Rs.2,31,104/-. The said additional amount of Rs.2,31,104/- shall be deposited by the first respondent with interest at 7.5% per annum from the date of application till date of deposit. On deposit, the appellant is allowed to withdraw MACA 304/03 9 the same. Appeal is allowed in part. (J.B.Koshy, Judge) 17th October, 2008 (K.P.Balachandran, Judge) tkv