IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 MACA.No. 1104 of 2008() ----------------------- OPMV.647/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT:PETITIONER: ---------------------------------------- SRI.TRIPPALLAVUR DEVASWOM, REPRESENTED BY EXECUTIVE OFFICER, PALLAVUR P.O., PALAKKAD DIST. BY ADV. SRI.A.R.GANGADAS RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. K.SOMASUNDARAN,S/O. SEKHARAN NAIR (KSRTC DRIVER) VALLANGI, NEMMARA P.O., PALAKKAD DIST. 2. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 3. STATE INSURANCE COMPANY, THIRUVANANTHAPURAM. R2 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2010 ALONG WITH MACA NO.1630 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. Nos. 1104 and 1630 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 1st day of June, 2010 JUDGMENT Barkath Ali, J. Both these appeals arise out of the judgment and award of the Motor Accidents Claims Tribunal, Palakkad in O.P. (MV) No.647 of 1998 dated February 24,2007. M.A.C.A. No.1104 of 2008 is filed by the claimant, Sri Thrippallavur Devawom, represented by its Executive Officer. M.A.C.A. No.1630 of 2008 is filed by the second respondent in the O.P., the Managing Director, K.S.R.T.C. 2. The facts leading to this appeal, in brief, are these:- On November 23, 1996 at about 6 p.m. the elephant named Gangadharan, belonging to the claimant-devaswom, was walking along the side of the road at Nelliamkunnu . When it reached near Jaya Rice Mill, it was knocked down by a K.S.R.T.C. bus bearing registration No. KL.15-1480, driven by the first respondent. The elephant sustained very serious injuries and succumbed to the injuries sustained, while undergoing treatment, on July 2, 1998. According to the claimant-devaswom, the accident occurred due to the MACA 1104/2008 2 rash and negligent driving of the offending bus by the first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending vehicle are jointly and severally liable to pay compensation to the claimant. The claimant- devaswom claimed a compensation of Rs.29,18,507/-. 3. First respondent, driver of the offending bus, and second respondent, the Managing Director, K.S.R.T.C., filed a joint written statement admitting the accident, but denying the liability. The third respondent, State Insurance Department, filed a written statement, stating that the offending bus was not insured with the said department. 4. PWs.1 to 4 were examined and and Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. No evidence was adduced on the side of the respondents. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs.13,48,250/- with interest at the rate of 6% p.a. from the date of petition till realization against respondents 1 and 2. The claimant-devaswom has MACA 1104/2008 3 filed M.A.C.A. No. 1104 of 2008, claiming enhancement of the compensation awarded by the Tribunal. The first respondent, the Managing Director, K.S.R.T.C. filed M.A.C.A No. 1630 of 2008, contending that the compensation awarded is excessive. 5. Heard the counsel for the claimant, the learned standing counsel for the K.S.R.T.C. and learned Public Prosecutor. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not seriously challenged in these appeals. Therefore, the following questions arise for consideration in this appeal:- 1) Whether the compensation awarded by the Tribunal is excessive? 2) Whether the claimant is entitled to any enhanced compensation? 8. The Tribunal awarded a total compensation of Rs.13,48,250/-. Break up of the amount awarded is as under :- MACA 1104/2008 4 Loss of earnings : Rs. 29,400/- Cremation expenses : Rs. 50,000/- Transportation, treatment : Rs. 3,28,624/- and extra-nourishment. Fuel charges : Rs. 10,000/- Pecuniary loss due to the : Rs. 9,00,000/- death of elephant. Pain and sufferings : Rs. 30,000/- -------------------- Total : Rs.13,48,024/- Rounded to : Rs.13,48,250/- ======== 7. Sri.Nandagopal Nambiar, learned standing counsel for the K.S.R.T.C. mainly argued that compensation awarded by the Tribunal for the cremation expenses, for transportation, treatment and extra-nourishment, for pain and suffering and for loss of earnings are excessive. Sri.A.R.Gangadas, learned counsel for the claimant devaswom, on the other hand, argued that the compensation awarded by the Tribunal is very low. 8. On going through the award of the Tribunal, we are of the view that the compensation awarded by the Tribunal is just and reasonable. The Tribunal awarded Rs.9 lakhs towards pecuniary loss on the death of the elephant, on the MACA 1104/2008 5 basis of evidence of PW3, Expert of Elephant. We have gone through the evidence of PW3 as an Expert of Elephant, we find no ground to doubt his version. The learned standing counsel for the K.S.R.T.C. was not able to point out any mistake in the assessment made by PW3. Therefore, we are of the view that the assessment made by PW3 is reasonable. 9. Rs.30,000/- was awarded by the Tribunal for pain and suffering endured by the elephant. The accident occurred on November 23, 1996 and elephant died on July 7, 1998. During the said period, the elephant was under the treatment of PWs.3 and 4. The elephant also sustained very serious injuries, as seen from Ext.A5 wound certificate. Therefore, we are of the view that Rs.30,000/- awarded by the Tribunal towards pain and suffering endured by the elephant just and reasonable. 10. The Tribunal has elaborately discussed each and every aspect and awarded Rs.29,4000/- for loss of earnings, Rs.50,000/- for cremation expenses and Rs.3,28,624/- for MACA 1104/2008 6 transportation, treatment and extra nourishment of the elephant. We find the same is just and reasonable. 11. Therefore, we hold that the compensation awarded by the Tribunal is just and reasonable and that the claimant-devaswom is not entitled to any enhanced compensation. That being so, both the appeals have to be dismissed. In the result, the appeals are dismissed. The parties shall bear their own costs. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.