IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 MACA.No. 308 of 2005(D) ----------------------- OPMV.257/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- DILEEPKUMAR, SON OF KESAVAN, ERATH HOUSE, KUNNAMKULAM, THRISSUR. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): RESPONDENTS: --------------------------- 1. OUSEPHUNNY, S/O. KUNJUVAREED, ALIKKAL HOUSE, MARKET ROAD, IRINJALAKUDA. 2. PAUL, S/O. OUSEPH, KUNNAN HOUSE, IRINJALAKUDA. 3. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., IRINJALAKUDA. ADVS. SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 308 OF 2005 --------------------------------- Dated this the 10th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Irinjalakuda in O.P.(MV) No.257/1999 .It is with respect to damages sustained to a Tempo van in a road accident. The Tribunal found that the driver of the tempo has contributed 60% to the accident and further held that the claimant is entitled to 40% of Rs. 16,000/- as compensation and awarded Rs. 6,400/- as compensation. It is against that the appeal is preferred by the claimant. 2. Heard the counsel for both sides. The first complaint is regarding the finding of contributory negligence. The learned counsel for the appellant would contended before me that the police has filed charge sheet against the driver of the car who had pleaded guilty and with that material of record and without any counter evidence, the Tribunal was not justified in apportioning the negligence. The said argument of the learned counsel needs consideration. But at the same time the claimant himself had chosen to produce the scene mahazar and exhibit it as his M.A.C.A.No. 308 OF 2005 -2- document. The car was proceeding from south to north and the tempo was proceeding from north to south. The correct side of the car was the western side and that of the tempo van was the eastern side. The road was having width of 7.10 metres at the place of the accident. The accident had taken place at 4.12 metres west from the eastern tar end. If this place of accident is correct then one has to hold that the driver of the tempo van had transgressed to the wrong side resulting in the accident. But with the very same scene mahazar, the police has charge sheeted against the car driver who had pleaded guilty. Most probably taking note of that situation the Tribunal apportioned the negligence at 60% on the tempo driver and 40% on the car driver. I do not propose to interfere with the said decision for the above reason. The next thing is regarding the quantum. Now it is well settled position that when an vehicle is repaired on account of the damages sustained to it or in other words it is repaired to make it into a road worthy condition the depreciation cannot be permitted to be deducted. The depreciation can be permitted only when the vehicle is assessed on the basis of scrap value. In the decision reported in M.R. Narahari Pandit v. Veenadevi Jalan and M.A.C.A.No. 308 OF 2005 -3- another [1997 ACJ 245] the High Court of Karnataka has taken the view that the necessity to purchase spare parts is to repair the vehicle for the damages sustained on account of the accident and therefore there cannot be any deduction. A Division Bench of this Court in the decision reported in M.A.C.A. 693/2004 has also taken the same view whereby deduction is not permitted. With this in background one has to fix the damages. The Tribunal itself has recorded in para 10 of the award that the cost of the spare parts and labour charges would come to Rs. 14,815/- and Rs. 15,556/- respectively. If it is totalled it will come to Rs. 30,371/-. The Tribunal then held that the vehicle is five years old and ultimately arrives at a cost of Rs. 16,000/- and fixed it as compensation. It is totally incorrect. Bills are produced, the person who issued the bills is examined and Tribunal should not have rejected the same. Therefore I fix the amount as proved by the documents at Rs. 30,371/-. The owner of the tempo van is entitled to get 40% of that amount which would come to Rs. 12,148/- which I round as Rs. 12,150/-. In the result, the M.A.C.A is partly allowed and the claimant is awarded a total compensation of Rs.12,150/- with 6% interest on M.A.C.A.No. 308 OF 2005 -4- the said sum from the date of petition till realisation and the 3rd respondent Insurance Company is directed to deposit the same within 60 days from the date of receipt of copy of the judgment. The deposit shall be after deducting the amount which has already been deposited in the case. The M.A.C.A is disposed of accordingly. M.N. KRISHNAN, JUDGE vkm