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Judgment
P.R. Shivakumar, J.—This Civil Miscellaneous Appeal is directed against the award dated 1.3.1999 passed by the Motor Accidents Claims
Tribunal (IV Additional Sub Judge), Madurai in M.A.C.T.O.P. No. 1319 of 1994.
The respondent herein/claimant in the MCOP preferred the above said M.C.O.P. No. 1319 of 1994 on the file of the Motor Accidents Claims
Tribunal, (IV Additional Sub Judge), Madurai praying for an award directing the appellant herein/respondent in the MCOP to pay a sum of Rs.
1,00,000/- as compensation for the damage caused to his provision/fertiliser shop and the stocks kept therein together with a future interest and
cost of litigation.
The Tribunal after enquiry, on an appreciation of evidence adduced on either side, held that the accident was the result of rash and negligent
driving of the bus belonging to the appellant by its driver, mulcted the liability on the appellant Transport Corporation and passed an award
directing the appellant Transport Corporation to pay a sum of Rs. 37,403/- as compensation to the respondent herein/claimant in M.C.O.P. No.
1319 of 1994 together with an interest for the above said amount at the rate of 12% from the date of claim till realisation and proportionate
litigation cost. The above said award of the Tribunal dated 01.03.1999 passed in M.C.O.P. No. 1319 of 1994 is challenged in this Civil
Miscellaneous Appeal on the question of reasonableness of the quantum alone.
The Court heard the arguments advanced by Mr.D.Sivaraman, learned Counsel for the appellant and by Mr.V.Mahendran, learned Counsel for
the respondent and paid its anxious consideration to the same. The Court has also perused the pleadings, judgments of the Tribunal and other
connected records.
It is a fact not in dispute that the accident in question took place on 03.06.1994 at about 11.30 p.m. in which the bus bearing Registration No.
TN 01 N 0035 on its trip from Madurai to Chennai rammed into the road side shop of the respondent/claimant which was situated on the southern
side of the East-West road near Therkkutheru Village. It is also obvious from the pleadings and evidence that the above said bus involved in the
accident was proceeding in the East-West road from Madurai to Chennai, that is to say, from West to East. Admittedly, the shop of the
respondent/claimant was situated on the southern side of the above said main road. Therefore, it is quite obvious that the bus had gone to the
wrong side and dashed against the road side shop. On an analysis of the pleadings and evidence, the Tribunal has given a finding that the driver of
the bus was at fault and that the accident occurred solely due to the rashness and negligence on the part of the driver of the bus. The said finding of
the Tribunal has not been challenged by the appellant in this appeal. Therefore, it is unnecessary to traverse the evidence concerning the question of
negligence and the finding of the Tribunal in this regard has got to be confirmed.
Admittedly, it is not a case of personal injury leading to permanent disability or loss of earning capacity. The respondent/claimant has preferred
the claim for getting compensation for the damage caused to his shop and to the stock in trade. The respondent herein/claimant, who deposed as
P.W. 2, would state in his evidence that he had spent a sum of Rs. 64,000/- for constructing the shop and putting up the showcase two years prior
to the date of accident and that the shop as well as the showcase were completely damaged in the accident. A certificate issued by an Engineer,
who was examined on the side of the claimant as P.W. 3, has been produced and marked as Ex. A.4. Ex. A.5 is the receipt evidencing payment of
profession tax. Ex. A.6 is the photographs showing the damage caused to the shop with negatives. Ex. A.7 is the receipt evidencing purchase of
provisions by the respondent/claimant for sale in his shop. Ex. A.8 is the bills for the purchase of other items. Ex. A.9 is the document relied on by
the respondent/claimant to show that he was also supplying fertilisers to the Agriculturists. The above said documents alone are the documents
relevant to the claim of the respondent herein/claimant in M.C.O.P. No. 1319 of 1994. Ex. A.1 is the certified copy of the F.I.R. One
Thangaarasu Anbu Chezian, who issued the certificate of valuation of damage marked as Ex. A.4, has been examined as P.W. 3. From his
evidence, it is obvious that the wall of the damaged building of the respondent/claimant was made of clay and lime and the roof was made of tiles.
Only an extent of 97.5 square feet was damaged according to the assessment of P.W. 3. The cost of construction was worked out at the rate of
Rs. 200/- per square feet and the total amount of cost of construction was fixed at Rs. 19,500/-. Out of the above said amount, a depreciation at
the rate of 0.5% for one year, which was arrived at Rs. 97.50, was deducted and the value of the damage caused to the building was fixed at Rs.
19,402.50. In addition to that, the damage caused to the Slump Shed with pillar stones was assessed by him at Rs. 3,000/-. So far as the
assessment made by P.W. 3 regarding the damage caused to the building and the slump shed has not been seriously disputed regarding the
correctness of the assessment made. On the other hand, the learned Counsel for the appellant rightly pointed out that P.W. 3 was not competent to
assess the damage caused to the stock in trade. Ex. A.4 does not contain any date. There is not even an indication regarding the date on which
P.W. 3 inspected the shop and assessed the damage. Under these circumstances, the evidence of P.W. 3 and Ex. A.4 cannot be relied on for the
proof of damage caused to the stocks in trade and other articles. Bills covering a sum of Rs. 2,796.60 + 19.60 + 25,579.50 have been produced
by the respondent/claimant as Exs.A.7 to A.9 to show the purchases made by him for his business in provisions, groceries and fertilisers. The mere
production of the above said documents would not be enough to show that the goods covered by the said documents were in fact available in the
shop at the time of accident. The claimant has not produced any document to show how much was sold from the above said goods purchased
under the Exs.A.7 to A.9 and how much was available in the shop as stock in trade. No reliable evidence has been adduced by the
respondent/claimant to prove it.
The learned Counsel for the appellant taking the Court through the evidence of P.W. 3 and Ex. A.4, the valuation certificate issued by him,
argued that the oral evidence of P.W. 3 as well as Ex. A.4 should be rejected as unreliable. According to him, the very features found in Ex. A.4
will show that the said document was prepared by P.W. 3 in order to help the appellant/claimant to get a large amount as compensation. The
above said features pointed out by the learned Counsel for the appellant are:
1) Ex. A.4 does not bear any date;
2) It does not contain any reference to the date on which P.W. 3 inspected the shop for making an assessment of the damage caused to the shop''
3) P.W. 3 is not a competent person to assess the damage caused to the stock in trade namely, provisions, groceries and fertilisers; and
4) Not even in his evidence P.W. 3 has furnished the date on which the inspection was made by him.
Though P.W. 3 has assessed the age of the building to be one year and allowed the nominal depreciation of 0.5%, there is no evidence to show
how he found out the age of the building. The respondent/claimant himself while deposing as P.W. 2 has stated in his evidence that the building was
constructed two years prior to the date of accident. Under these circumstances, this Court has to accept the contention of the learned Counsel for
the appellant that the assessment of damage caused to the shop (building alone) made by P.W. 3 cannot be accepted to be a correct assessment.
P.W. 3''s assessment of the damage caused to slump shed with pillar stones at Rs. 3,000/- also does not have any basis for the same. P.W. 3
seems to have assessed the damage caused to the building and the shed at Rs. 22,402.50. Salvage value for the materials has not been deducted.
Under these circumstances, this Court is of the considered view that it shall be just and reasonable to deduct 10% from the amount arrived at by
P.W. 3 as the extent of damage caused to the building and slump shed and fix the balance as the compensation payable to the respondent/claimant
for the same. So far as the assessment of damage caused to the stock in trade is concerned, the Tribunal has awarded a sum of Rs. 15,000/-. As
pointed out supra, though P.W. 3 has assessed the damage caused to stock in trade and other articles at Rs. 28,100/-, he is not a competent
person to make an assessment of the same. Reasons assigned by the Tribunal for fixing the compensation for the damage caused to the stock in
trade at Rs. 15,000/- are not sound enough. On the other hand, the Counsel for both parties agreed that the above said amount might be reduced
by one third. Having regard to the above said submission made on both sides, this Court comes to the conclusion that the said proposal seems to
be quite reasonable. Hence, the amount awarded as compensation for the damage caused to the stock in trade is reduced to Rs. 10,000/-. The
compensation for the damage caused to the building and slump shed namely, Rs. 22,402.50 is reduced by 10%. The shop portion of the building
was assessed by P.W. 3 at Rs. 19,500/- (without deducting depreciation). So far as the valuation of the slump shed is concerned, a sum of Rs.
3000/- is quite excessive which can be reduced to Rs. 500/- and the total value of the building including the slump shed can be fixed at Rs.
20,000/-. For depreciation and salvage value of the materials 10% can be deducted, if 10% of the above said amount namely, Rs. 2,000/- is
deducted, then the compensation for the damage caused to the building including slump shed can be reasonably fixed at Rs. 18,000/-. The
compensation for the damage caused to the stock in trade is fixed at Rs. 10,000/- and the total amount of compensation on both the heads shall be
come to Rs. 28,000/- which amount alone shall be the reasonable compensation to which the respondent/claimant shall be entitled.
Therefore, this Court comes to the conclusion that the appellant has made out a case for reduction of the compensation awarded by the Tribunal
from Rs. 37,403/- to Rs. 28,000/-. The appeal shall be allowed in part and the award of the Tribunal has got to be reduced from Rs. 37,403/- to
Rs. 28,000/-. Subject to the above said modification, in all other respects, the award of the Tribunal is liable to be confirmed.
In the result, this Civil Miscellaneous Appeal is partly allowed and the award of the Tribunal is reduced to Rs. 28,000/- from Rs. 37,403/-.
Subject to the above said modification, the award of the Tribunal shall stand confirmed. There shall be no order as to costs.