A.K.Bhaskaran vs United India Insurance Co.Ltd

C.S Dias,J

The appellant was the petitioner in OP(MV) 480/2000 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondent in the appeal

was the third respondent in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition.

The petitioner had filed the claim petition claiming himself to be the Managing Partner of M/s.A.K.Agencies. He, inter alia, contended that on

5.6.1999, the second respondent drove a bus bearing registration No.KL-9/7260 in a rash and negligent manner and hit the front shutter, pillar and wall

of the shop room of the above firm, causing damages. The first respondent was the owner and the third respondent was the insurer of the bus.

Therefore, the respondents were jointly and severally liable to pay compensation for the damages caused to the property, which was quantified at

Rs.22,950/-.

The first and second respondents did not contest the proceedings and were set ex parte.

The third respondent filed a written statement refuting the allegations in the claim petition. According to the third respondent, no damage was

caused to the building as claimed in the claim petition.

The petitioner marked Exts A1 to A11 in evidence.

The Tribunal, after analysing the pleadings and materials on record, by the impugned award dismissed the claim petition holding that there was no

reliable evidence to prove the entitlement of the petitioner for damages.

Aggrieved by the impugned award, the petitioner is in appeal.

Heard the learned counsel appearing for the appellant /petitioner and the learned counsel appearing for the respondent/third respondent.

The sole question that emerges for consideration in the appeal is whether the impugned award passed by the Tribunal is sustainable in law or not.

The claim petition was filed under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the alleged damages caused to

the rolling shutter, Pillar and wall of the shop room of the firm of the petitioner. The petitioner claimed damages to the tune of Rs.22,950/-.

It is pertinent to note that the petitioner did not mount the box and let in any oral evidence in order to corroborate Exts A1 to A11 documents. The

trump card of the petitioner was that as per Ext A6 valuation report, the Surveyor had quantified the damages at Rs.22,950/-.

Sec.101 of the Evidence Act categorically casts an obligation on the party who desires any Court to give judgment as to any legal right or liability

to prove that those facts exist.

Admittedly, neither the petitioner nor the Surveyor, who purportedly prepared Ext A6 valuation report, were examined.

The learned counsel appearing for the respondent relied on a Division Bench decision in Associated Transport Corporation PrivateÂ

Ltd vs. National Insurance Company Ltd [1989 (1) KLT 386], wherein this Court has held that a decree for damages cannot be granted merely on

the basis of a Survey report. It is imperative that the Surveyor who prepared the report has to be examined and also that the plaintiff give oral

evidence in order to substantiate his claim.

The ratio in the said decision applies on all fours to the facts and circumstances of the case.

In view of the aforesaid findings and the ratio in Associated Transport Corporation Private Ltd (supra), I do not find any error or illegality in the

impugned award warranting interference by this Court.

Resultantly, the appeal is dismissed. The parties shall bear their respective costs.