Kunhiparambath Chathu vs C.Kantaswamy on 18 June, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1602 of 2005()


1. KUNHIPARAMBATH CHATHU, S/O.SANKARAN,
                      ...  Petitioner
2. KELU KUMARAN, S/O.KUNHUKAKANNAN,

                        Vs



1. C.KANTASWAMY, S/O.CHINNA GOWDA,
                       ...       Respondent

2. R.GANESHAN, AGED 44, S/O.RAMASWAMY,

3. THE ORIENTAL INSURANCE CO.LTD.,

                For Petitioner  :SRI.P.NARAYANAN

                For Respondent  :SRI.P.V.JYOTHI PRASAD

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :18/06/2009

 O R D E R
                    C.N.RAMACHANDRAN NAIR &
                            C.K.ABDUL REHIM, JJ.
               ....................................................................
                          M.A.C.A. No.1602 of 2005
               ....................................................................
                  Dated this the 18th day of June, 2009.

                                      JUDGMENT

Abdul Rehim, J.

Appellants 1 and 2 herein are the first claimant and the legal heir

of the second claimant in O.P.(M.V.) No.1132/1997 on the files of the

Motor Accidents Claims Tribunal, Thalassery. The claim petition was

filed seeking compensation on account of the damages sustained to the

shop buildings owned by the claimants, when it was hit by a lorry

bearing Registration No.TN.28/6337. For the purpose of assessing

damages, there is Ext.B1 report produced by the approved Surveyor of

the third respondent-Insurance Company, estimating the damages at

Rs.98,093/-. Ext.C1 report of the Advocate Commissioner deputed at

the request of the claimants is also available on record. In Ext.C1

commission report filed before the Tribunal along with estimate

prepared by a qualified Engineer, the total damage is assessed at

Rs.3,54,093/-. With respect to Ext.B1 report of the approved Surveyor,

the Tribunal found that the report is not accompanied by any valuation

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statement and therefore, it is not acceptable. While considering Ext.C1

commission report it is found that no depreciation was calculated on

the value of the building, which admittedly is about 40 year old. The

Tribunal found that when the building is 40 year old, atleast 50%

deduction ought to have been made on account of depreciation.

Further, it is pointed out that the building which was damaged is an old

building with tiled roof, whereas the assessment is made based on the

cost to be incurred for putting up a new concrete building with all

fittings and fixtures. Hence it is found that the estimation made by the

Advocate Commissioner does not correspond with the actual damage

sustained to the building, which was 40 year old. However,

considering the entire aspects, the Tribunal awarded a total sum of

Rs.1,21,228/- along with interest at the rate of 9% p.a. Taking note of

the fact that the claim is of the year 1997 and that the award was passed

only in the year 2004, the amount which the appellants have received

including the interest is the reasonable compensation corresponding to

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the damages sustained to the old building. In the result, we do not find

any ground to enhance the amount awarded by the Tribunal. Appeal is

dismissed accordingly.

C.N.RAMACHANDRAN NAIR
Judge

C.K.ABDUL REHIM
Judge
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