Kerala High Court
Bharti Axa General Insurance Company … vs Rafeeque C on 1 July, 2025
M.A.C.A.No.38 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 1ST DAY OF JULY 2025 / 10TH ASHADHA, 1947
MACA NO. 38 OF 2020
AGAINST THE AWARD DATED 20.08.2019 IN OPMV NO.863 OF
2016 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
THALASSERY.
APPELLANT/3RD RESPONDENT:
BHARTI AXA GENERAL INSURANCE COMPANY LTD.,
6TH FLOOR, MODAYIL CENTRAL POINT, PALLIMUKKU,
M.G.ROAD, PIN-682 016, REP BY ITS ASSISTANT
MANAGER, BHARTI AXA GENERAL INSURANCE CO.LTD.,
ERNAKULAM.
BY ADV SHRI.P.JACOB MATHEW
RESPONDENTS/CLAIMANTS 1 & 2/ 3RD SUPPLIMENTAL CLAIMANT/1ST
AND 2ND RESPONDENTS & 4TH SUPPLIMENTAL RESPONDENT:
1 RAFEEQUE C.,
S/O. HAMZA,
AGED 53 YEARS, FURSANAS,
NEAR NEERCHAL SCHOOL, KANNUR CITY , P.O
THAYYIL,PINCODE-670003.
2 M.ZEENATH,
AGED 45 YEARS,
D/O. MUHAMMED, FURSANAS,
NEAR NEERCHAL SCHOOL, KANNUR CITY , P.O
THAYYIL,PINCODE-670003
3 MUHAMMED RASHID.M.,
AGED 23 YEARS
S/O. RAFEEQUE.C.,FURZANAS, NEAR NEERCHAL SCHOOL,
KANNUR CITY , P.O THAYYIL, PINCODE-670003
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*4 SHAEJAL.P.V. (DELETED)
NEAR NEERCHAL SCHOOL, KANNUR CITY , P.O.
THAYYIL,PINCODE-670003
*5 SHAMAL (DELETED),
S/O. ABDULMSAMAD, SHIHAD VILLA,
NEERCHAL, NEAR N.N.S.KALYANAMANDAPAM ROAD,
P.O-THAYYIL,PINCODE-670003
*6 NIZAMUDDIN KALATHIL (DELETED),
S/O. HUSSAIN KUNHI.T.K., SHIHA VILLA,
NEERCHAL,KAKKATHODU VAYAL, KANNUR
DISTRICT,PINCODE-670012.
(RESPONDENTS NO.4 TO 6 ARE DELETED FROM THE PARTY
ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER
DATED 27/08/2021 IN IA. NO. 1/2021 IN MACA
38/2020)
BY ADV SHRI.M.V.AMARESAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 01.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.38 of 2020
----------------------------------------------------
Dated this the 1st day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the third
respondent/insurer in O.P.(MV) No.863/2016 on the file of the
Motor Accidents Claims Tribunal, Thalassery (the Tribunal),
aggrieved by the amount of compensation granted by Award
dated 20/08/2019. The respondents herein are the claim
petitioners in the petition. In this appeal, the parties and the
documents will be referred to as described in the original petition.
2. The claim petitioners are the parents and brother
of deceased Muhammed Sinan, aged 6 years. According to the
claim petitioners, on 31/01/2016 while the deceased was walking
through the extreme side of the public road at the place of
accident, scooter bearing registration no.KL-13AB/8201 ridden
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by the second respondent in a rash and negligent manner knocked
him down as a result of which he sustained grievous injuries, to
which he succumbed.
3. The first respondent, the owner of the offending
vehicle remained ex-parte.
4. The second respondent-rider did not enter
appearance despite service of notice. As he was a minor, a court
guardian was appointed who filed written statement denying
negligence on the part of the second respondent.
5. The third respondent-insurer filed written
statement admitting the policy, but denied the liability. It was
contended that the first respondent was not the registered owner
of the vehicle and that the second respondent, a minor was not
having a valid driving license and so the policy condition had
been violated. The amount claimed under various heads was
contended to be exorbitant.
6. Supplemental respondent no.4, who is the
registered owner of the offending vehicle remained ex-parte.
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7. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A7 were marked on the side of
the claim petitioners. Exts.B1 and B2 were marked on the side of
the third respondent.
8. The Tribunal on consideration of the
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent-rider of the
offending motorcycle resulting in the incident and hence awarded
an amount of ₹12,32,000/- together with interest @ 8% per annum
from the date of the petition till realisation along with
proportionate costs. Aggrieved by the Award, the third
respondent/insurer has come up in appeal.
9. The only point that arises for consideration in
this appeal is whether there is any infirmity in the findings of the
Tribunal calling for an interference by this Court.
10. Heard both sides.
11. The award of compensation by the Tribunal
under the following heads is challenged by the third respondent-
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Notional income
It is submitted by the learned senior counsel for the third
respondent/insurer that the notional income fixed at ₹8,000/- is
on the higher side. In support of the submission, he relies on the
dictum in Meena Devi v. Nunu Chand Mahto @ Nemchand
Mahto, (2023) 1 SCC 204. Per contra, it is submitted by the
learned counsel appearing for the claim petitioners that in the light
of the dictum in Branch Manager, United India Insurance
Company Limited, Kozhikode, v. Mujeeb Rahman A.P., 2025
(1) KHC 606, it is the Minimum Wages Act, 1948 in respect of a
skilled worker that needs to be applied while considering a claim
petition under Section 166 of the Act on account of death of a
minor child.
11.1. The deceased in this case was six years old
when the accident occurred on 31/01/2016. There is no appeal or
cross objection filed by the claim petitioners challenging the
income fixed and hence in the appeal filed by the third
respondent/insurer, the notional income fixed by the Tribunal
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cannot be enhanced. The amount of ₹8,000/- that has been taken
by the Tribunal is a reasonable amount in the facts and
circumstances of the case and hence I do not find any reasons for
interference into the same.
Loss of consortium and loss of love and affection
12. The Tribunal granted an amount of ₹1,00,000/-
under the head loss of love and affection and a further amount of
₹80,000/- as filial consortium for the parents. This according to
the learned senior counsel for the third respondent/insurer is
against the settled precedents.
12.1. In the light of the dictums in Magma General
Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram, (2018)
18 SCC 130: 2018 KHC 6697, United India Insurance Co. Ltd.
v. Satinder Kaur @ Satwinder Kaur, AIR 2020 SC 3076: 2023
KHC 760 and New India Assurance Co. Ltd. v. Somwati, 2020
KHC 6530 : (2020) 9 SCC 644, claim petitioners 1 and 2, who
are admittedly the parents of the deceased are entitled to
compensation towards loss of filial consortium at the rate of
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₹40,000/- each, which has already been granted by the Tribunal.
It is well settled that when compensation towards loss of
consortium is granted, a further compensation under loss of love
and affection cannot be granted. However, the third claim
petitioner being the brother is entitled to compensation towards
loss of love and affection. An amount of ₹40,000/- would be a
reasonable amount under this head. Therefore, the amount of
₹1,00,000/- granted by the Tribunal will stand reduced to
₹40,000/-, which is compensation for loss of love and affection to
the third claim petitioner.
13. The impugned Award is modified to the
following extent:
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
Tribunal
(in ₹) (in ₹) (in ₹)
1. Loss of earning 10,00,000/- – Nil
(No modification)
2. Partial loss of – – Nil
earning (No modification)
3. Transport to 50,000/- 2,500/- 2,500/-
hospital (No modification)
4. Damage to 25,000/- 1,500/- 1,500/-
clothing & (No modification)
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articles
5. Medical 50,000/- - Nil
expense (No modification)
6. Funeral expense - 15,000/- 15,000/-
(No modification)
7. Pain and 10,00,000/- 10,000/- 10,000/-
sufferings (No modification)
8. Loss of - 10,08,000/- 10,08,000/-
dependency (No modification)
9. Loss of estate - 15,000/- 15,000/-
(No modification)
10. Loss of love and 10,00,000/- 1,00,000/- 40,000/-
affection
11. Loss of filial - 80,000/- 80,000/-
consortium (No modification)
12. Compensation 5,00,000/- - Nil
for loss of (No modification)
consortium
36,25,000/- 12,32,000/- 11,72,000/-
(limited to
25,00,000/-)
In the result, the appeal is allowed in part by deducting
the compensation awarded by an amount of ₹60,000/- (total
compensation = ₹11,72,000/-, that is, ₹12,32,000/- granted by the
Tribunal minus ₹60,000/- deducted in appeal). The liberty given
to the third respondent/insurer to recover the amount awarded
from the additional fourth respondent, the registered owner cum
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insured of the offending vehicle shall stand confirmed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms