Kerala High Court
Kadeeja Rahman(Minor) vs National Insurance Company Limited on 7 August, 2025
2025:KER:58808
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
MACA NO. 293 OF 2020
AGAINST THE AWARD DATED 24.08.2019 IN OPMV NO.1475 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/3RD RESPONDENT:
NATIONAL INSURANCE COMPANY LIMITED,
BO AMBIKA ARCADE, M.G.ROAD, THRISSUR, KOZHIKODE,
REPRESENTED BY THE DIVISIONAL MANAGER, KOCHI
REGIONAL OFFICE, OMANA BUILDINGS, NEW STREET,
KOCHI - 682 031.
BY ADVS.
SRI.P.G.JAYASHANKAR
SMT.P.K.RESHMA (KALARICKAL)
SMT.REVATHY P. MANOHARAN
SMT.STEFIN THOMAS
SMT.AMRITHA SUBIN
SRI SANIN V.U.
RESPONDENTS/PETITIONERS AND RESPONDENT NOS.1 & 2 IN OPMV:
1 ABDU RAHMAN T.V.M.,
AGED 51, S/O.BEERAN KOYA, NIFRAS NAYIPALAM,
KALLAI P.O., KUNDUNGAL, KOZHIKODE - 673 003.
2 AFRA RAHMAN P.T.,
AGED 21, D/O.ABDU RAHMAN, NIFRAS NAYIPALAM,
KALLAI P.O., KUNDUNGAL, KOZHIKODE - 673 003.
3 NIHAD RAHMAN P.T.,
AGED 17, BEING MINOR, REPRESENTED BY HIS FATHER
AND NEXT FRIEND ABDU RAHMAN, RESIDING AT NIFRAS
NAYIPALAM, KALLAI P.O., KUNDUNGAL,
KOZHIKODE - 673 003.
2025:KER:58808
MACA No.293/2020 and con. cases
2
4 KADEEJA RAHMAN,
AGED 8 BEING MINOR, REPRESENTED BY HER FATHER AND
NEXT FRIEND ABDU RAHMAN, NIFRAS NAYIPALAM, KALLAI
P.O., KUNDUNGAL, KOZHIKODE - 673 003.
5 A.K.KUNJAMMA,
AGED 43, W/O.THANKAPPAN, ESJEE AND CO., SG
SHOPPING MALL, VADAKKE STAND, THRISSUR - 680 022.
6 JESWIN SHAJI,
AGED 43, S/O.SHAJI K.T., MUTTATHUSSERY, CHEMBUKAVU
P.O., THRISSUR - 680 005.
BY ADVS.
SRI.AVM.SALAHUDIN
SRI.ANIL S.RAJ
SMT.K.N.RAJANI
SMT.RADHIKA RAJASEKHARAN P.
SMT.ANILA PETER
SRI.SAJEN THAMPAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 31.07.2025, ALONG WITH MACA.379/2020, 1389/2020
AND CONNECTED CASES, THE COURT ON 07.08.2025 DELIVERED THE
FOLLOWING:
2025:KER:58808
MACA No.293/2020 and con. cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
MACA NO. 379 OF 2020
AGAINST THE AWARD DATED 24.08.2019 IN OPMV NO.1500 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/3RD RESPONDENT IN OPMV:
NATIONAL INSURANCE COMPANY LIMITED
BO AMBIKA ARCADE, M.G ROAD, THRISSUR,KOZHIKODE,
REPRESENTED BY THE DIVISIONAL MANAGER, KOCHI
REGIONAL OFFICE, OMANA BUILDINGS, JEW STREET,
KOCHI-682 031
BY ADVS.
SRI.P.G.JAYASHANKAR
SMT.P.K.RESHMA (KALARICKAL)
SMT.REVATHY P. MANOHARAN
SMT.STEFIN THOMAS
SMT.AMRITHA SUBIN
SRI SANIN V.U.
RESPONDENTS/PETITIONER AND RESPONDENT NOS.1 & 2 IN OPMV:
1 KADEEJA RAHMAN
AGED 8 YEARS
BEING MINOR, REPRESENTED BY HER FATHER AND NEXT
FRIEND ABDU RAHMAN, NIFRAS NAYIPALAM, KALLAI P.O.,
KUNDUNGAL, KOZHIKODE-673 003
2 A.K.KUNJAMMA
W/O. THANKAPPAN,ESJEE AND CO.,SG SHOPPING MALL,
VADAKKE STAND, THRISSUR-680 022
2025:KER:58808
MACA No.293/2020 and con. cases
4
3 JESWIN SHAJI,
S/O. SHAJI K.T., MUTTATHUSSERY, CHEMBUKAVU P.O.,
THRISSUR-680 005
BY ADVS.
SRI.AVM.SALAHUDIN
SRI.ANIL S.RAJ
SMT.K.N.RAJANI
SMT.RADHIKA RAJASEKHARAN P.
SMT.ANILA PETER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 31.07.2025, ALONG WITH MACA.293/2020 AND
CONNECTED CASES, THE COURT ON 07.08.2025 DELIVERED THE
FOLLOWING:
2025:KER:58808
MACA No.293/2020 and con. cases
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
MACA NO. 1389 OF 2020
AGAINST THE AWARD DATED 01.01.2020 IN OPMV NO.1499 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/3RD RESPONDENT IN OPMV:
1 NATIONAL INSURANCE COMPANY LIMITED
BO AMBIKA ARCADE, M.G.ROAD, THRISSUR - 680 001,
REPRESENTED BY ITS ADMINISTRATIVE OFFICER (LEGAL),
KOCHI REGIONAL OFFICE, OMANA BUILDINGS,
JEW STREET, KOCHI - 682031.
BY ADVS.
SRI.P.G.JAYASHANKAR
SMT.P.K.RESHMA (KALARICKAL)
SMT.REVATHY P. MANOHARAN
SMT.STEFIN THOMAS
SMT.AMRITHA SUBIN
SRI SANIN V.U.
RESPONDENTS/PETITIONER AND RESPONDENT NOS.1 & 2 IN OPMV:
1 AFRA RAHMANP.T.
AGED 23, D/O.ABDU RAHMAN, NIFRAS NAYIPALAM,
KALLAI P.O., KUNDUNGAL, KOZHIKODE - 673003.
2 A.K.KUNJAMMA
W/O.THANKAPPAN, ESJEE AND CO., SG SHOPPING MALL,
VADAKKE STAND, THRISSUR -680 022.
2025:KER:58808
MACA No.293/2020 and con. cases
6
3 JESWIN SHAJI
S/O.SHAJI K.T., MUTTATHUSSERY,
CHEMBUKAVU P.O., THRISSUR - 680 005.
BY ADVS.
SRI.AVM.SALAHUDIN
SRI.ANIL S.RAJ
SMT.K.N.RAJANI
SMT.ANILA PETER
SMT.RADHIKA RAJASEKHARAN P.
SMT.A.D.DIVYA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 31.07.2025, ALONG WITH MACA.293/2020 AND
CONNECTED CASES, THE COURT ON 07.08.2025 DELIVERED THE
FOLLOWING:
2025:KER:58808
MACA No.293/2020 and con. cases
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
MACA NO. 2293 OF 2020
AGAINST THE AWARD DATED 24.08.2019 IN OPMV NO.1475 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANTS/PETITIONERS:
1 ABDU RAHMAN T.V.M.,
AGED 51 YEARS
S/O. BEERAN KOYA, RESIDING AT NIFRAS, NAYIPALAM,
KALLAI P.O., KUNDUNGAL, KOZHIKODE-673003.
2 AFRA RAHMAN P.T.,
AGED 21 YEARS
D/O. ABDU RAHMAN, RESIDING AT NIFRAS, NAYIPALAM,
KALLAI P.O., KUNDUNGAL, KOZHIKODE-673003.
3 NIHAD,
S/O. ABDU RAHMAN, RESIDING AT NIFRAS, NAYIPALAM,
KALLAI P.O., KUNDUNGAL, KOZHIKODE-673003.
4 KADEEJA RAHMAN, (MINOR)
AGED 9 YEARS, REPRESENTED BY HER FATHER AND NEXT
FRIEND ABDU RAHMAN, RESIDING AT NIFRAS NAYIPALAM,
KALLAI P.O., KUNDUNGAL, KOZHIKODE-673003.
SRI.AVM.SALAHUDIN
SMT.A.D.DIVYA
RESPONDENTS/RESPONDENTS 3, 1 & 2:
1 NATIONAL INSURANCE COMPANY LIMITED,
BO AMBIKA ARCADE, M.G. ROAD, P.O., THRISSUR-
680001, REPRESENTED BY BRANCH MANAGER.
2025:KER:58808
MACA No.293/2020 and con. cases
8
2 ADDL.R2: A.K.KUNJAMMA (IMPLEADED)
AGE NOT KNOWN, W/0. THANKAPPAN, ESJEE & CO., SG
SHOPPING MALL, VADAKKE STAND, THRISSUR - 680620
3 ADDL.R3: JESWIN SHAJI (IMPLEADED)
AGED 40 YEARS, S/O. SHAJI.K.T., MUTTATHUSSERY,
CHENBUKAVU.P.O., THRISSUR - 680020
(ADDL.R2 & R3 ARE IMPLEADED AS PER ORDER DATED
31/7/25 IN IA 1/21 IN MACA 2293/2020)
BY ADV SRI.P.G.JAYASHANKAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 31.07.2025, ALONG WITH MACA.293/2020 AND
CONNECTED CASES, THE COURT ON 07.08.2025 DELIVERED THE
FOLLOWING:
2025:KER:58808
MACA No.293/2020 and con. cases
9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
MACA NO. 2404 OF 2020
AGAINST THE AWARD DATED 24.08.2019 IN OPMV NO.1500 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
KADEEJA RAHMAN(MINOR)
AGED 9 YEARS, DATE OF BIRTH 20-03-2011,
REPRESENTED BY HER FATHER AND NEXT FRIEND ABDU
RAHMAN, RESIDING AT NIFRAS NAYIPALAM, KALLAI (PO),
KOZHIKODE 673 003
BY ADV SRI.AVM.SALAHUDIN
RESPONDENTS/RESPONDENTS 3, 1 & 2:
1 NATIONAL INSURANCE COMPANY LIMITED
BO AMBIKA ARCADE, M.G ROAD, P.O THRISSUR
PIN 680 001 REPRESENTED BY BRANCH MANAGER
2 ADDL.R2: A.K.KUNJAMMA (IMPLEADED)
AGE NOT KNOWN, W/0. THANKAPPAN, ESJEE & CO., SG
SHOPPING MALL, VADAKKE STAND, THRISSUR - 680620
3 ADDL.R3: JESWIN SHAJI (IMPLEADED)
AGED 40 YEARS, S/O. SHAJI.K.T., MUTTATHUSSERY,
CHENBUKAVU.P.O., THRISSUR - 680020
(ADDL.R2 & R3 ARE IMPLEADED AS PER ORDER DATED
31/7/25 IN IA 1/21 IN MACA 2293/2020)
BY ADV SRI.P.G.JAYASHANKAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 31.07.2025, ALONG WITH MACA.293/2020 AND
CONNECTED CASES, THE COURT ON 07.08.2025 DELIVERED THE
FOLLOWING:
2025:KER:58808
MACA No.293/2020 and con. cases
10
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
MACA NO. 3433 OF 2020
AGAINST THE AWARD DATED 01.01.2020 IN OPMV NO.1499 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
AFRA RAHMAN P. T.
AGED 21 YEARS
D/O. ABDU RAHMAN, RESIDING AT NIFRAS NAYIPALAM,
KALLAI P. O., KUNDUNGAL, KOZHIKODE - 673 003.
SRI.AVM.SALAHUDIN
SMT.A.D.DIVYA
RESPONDENTS/RESPONDENTS 3, 1 & 2:
1 NATIONAL INSURANCE COMPANY LIMITED
BO - AMBIKA ARCADE, M. G. ROAD, P. O. THRISSUR,
PIN - 680 001, REPRESENTED BY BRANCH MANAGER.
2 ADDL.R2: A.K.KUNJAMMA (IMPLEADED)
AGE NOT KNOWN, W/0. THANKAPPAN, ESJEE & CO., SG
SHOPPING MALL, VADAKKE STAND, THRISSUR - 680620
3 ADDL.R3: JESWIN SHAJI (IMPLEADED)
AGED 40 YEARS, S/O. SHAJI.K.T., MUTTATHUSSERY,
CHENBUKAVU.P.O., THRISSUR - 680020
(ADDL.R2 & R3 ARE IMPLEADED AS PER ORDER DATED
31/7/25 IN IA 1/21 IN MACA 2293/2020)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 31.07.2025, ALONG WITH MACA.293/2020 AND
CONNECTED CASES, THE COURT ON 07.08.2025 DELIVERED THE
FOLLOWING:
2025:KER:58808
MACA No.293/2020 and con. cases
11
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A. Nos.293, 379, 1389, 2293, 2404 & 3433 of 2020
----------------------------------------------------
Dated this the 7th day of August 2025
JUDGMENT
MACA Nos.293, 379, 2404 & 2293 of 2020 have been filed
under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the
third respondent/insurer and the claim petitioners respectively in
O.P.(MV) Nos.1475 and 1500 of 2017 on the file of the Motor
Accidents Claims Tribunal, Kozhikode, (the Tribunal), aggrieved
by the common Award dated 24/08/2019. M.A.C.A. Nos.1389 and
3433 of 2020 have been filed by the third respondent/insurer and
the claim petitioner respectively in O.P.(MV)No.1499 of 2017 on
the file of the Motor Accidents Claims Tribunal, Kozhikode,
aggrieved by the Award dated 01/01/2020. In these appeals, the
parties and documents will be referred to as described in the
original petitions.
2025:KER:58808
MACA No.293/2020 and con. cases
12
2. The claim petitioners in OP(MV) No.1475/2017 are the
legal heirs, namely, husband; two daughters and son of deceased
Jamsheena. The claim petitioner in OP(MV) No.1500 of 2017 is the
minor daughter, and the claim petitioner in OP(MV) No.1499 of
2017, the eldest daughter of the deceased. OP(MV) No.1475/2017
and OP(MV) No.1500/2017 were jointly tried and a common award
dated 24/08/2019 passed. OP(MV) No.1499/2017 was separately
tried by the Tribunal and Award dated 01/01/2020 passed.
3. According to the claim petitioners, on 02/04/2016 at
about 08:45 p.m., while the deceased and her daughters were
travelling in scooter bearing registration no.KL-11-AY-2560 from
the place by name South Beach to Kothipalam and when they
reached the western side of the Kannamparamb Jumaath Mosque,
car bearing registration no.KL-08-BA-3999 driven by the second
respondent in a rash and negligent manner dashed against their
scooter, as a result of which they sustained grievous injuries. The
deceased succumbed to the injuries sustained. A sum of
2025:KER:58808
MACA No.293/2020 and con. cases
13
₹40,00,000/- was claimed by the claim petitioners in O.P(MV)
No.1475/2017; a sum of ₹5,00,000/- by the claim petitioner in
O.P(MV) No.1500/2017 and a sum of ₹50,00,000/- by the claim
petitioner in O.P(MV) No.1499/2017 as compensation under
various heads.
4. The first respondent/owner and the second
respondent/driver of the offending vehicle remained ex parte.
5. The third respondent/insurer filed written statement
admitting the existence of a valid policy in respect of the offending
vehicle, but denied liability. It was contended that the accident
occurred due to the negligence of the deceased. The second
respondent has not been chargesheeted for negligence and so the
insurer is not bound to indemnify the insured. The age, occupation
etc. of the deceased and her daughters were disputed. It was also
contended that the compensation claimed was quite excessive.
6. Before the Tribunal, PW1 was examined and Exts.A1 to
A28 and Ext.C1 were marked on the side of the claim petitioner
2025:KER:58808
MACA No.293/2020 and con. cases
14
and Ext.B1 was marked on the side of the third respondent/insurer
in OP(MV) No.1499 of 2017. In OP(MV) Nos.1475 & 1500 of
2017, no oral evidence was adduced by either side. Exts.A1 to A14
were marked on the side of the claim petitioners. No documentary
evidence was adduced by the third respondent/insurer.
7. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent/driver of the
offending vehicle resulting in the incident and hence awarded an
amount of ₹17,02,000/- in OP(MV) No.1475/2017; ₹1,05,000/- in
OP(MV) No.1500/2017 and ₹15,83,000/- in OP(MV)
No.1499/2017 together with interest @ 8% per annum from the
date of the petition till realisation along with proportionate costs.
Aggrieved by the Awards, the claim petitioners and the third
respondent/insurer have come up in appeal.
8. The only point that arises for consideration in these
appeals is whether there is any infirmity in the findings of the
2025:KER:58808
MACA No.293/2020 and con. cases
15
Tribunal calling for an interference by this Court.
9. Heard both sides
M.A.C.A. Nos. 1389 & 3433 of 2020
10. It was submitted by the learned counsel for the third
respondent/insurer that as per Ext.A1 FIR and Ext.A3 final report,
the second respondent/driver committed offences punishable under
Sections 304 and 308 IPC. The car owned by the first respondent
and insured with the third respondent was used by the second
respondent for a purpose not authorized or for committing an illegal
act punishable under Sections 304 and 308 IPC. Therefore, there is
no negligence as such on the part of the second respondent/driver.
As the vehicle was used for an unauthorized purpose or for an
illegal act, there has been a fundamental breach of the policy
condition and therefore the third respondent/insurer cannot be
burdened with the liability to pay compensation for an accident
which occurred by the use of the car for a purpose other than for
what it was meant to be used. If at all this Court finds that the third
2025:KER:58808
MACA No.293/2020 and con. cases
16
respondent/insurer is liable, the right of recovery from the first
respondent/owner and the second respondent/driver may be
granted. In support of the argument, reference was made to the
dictum of a Division Bench of this Court in Krishnan Sreemathy v.
Padmanabhan Gangadharan, 2005 KHC 667.
10.1. Per contra, it was submitted on behalf of the claim
petitioner; the first respondent/owner and the second
respondent/driver that the second respondent/driver has been
acquitted in the Sessions Case which was taken on file for the
offences punishable under Sections 304 and 308 IPC. In the light of
the acquittal, it cannot be held that there was any violation of the
policy condition(s) or a fundamental breach of the policy. Hence,
the third respondent/insurer cannot be exonerated or liberty given to
recover the Award amount from the owner as there was a valid
policy in existence at the time of the accident. In support of the
argument, reference was made to the dictum in Ajeesh v. Vibitha
Varghese, 2024 (6) KHC 115.
2025:KER:58808
MACA No.293/2020 and con. cases
17
10.2. In Krishnan Sreemathy (Supra), the claim petition was
filed by the legal representatives, that is, the widow and minor
children, of one deceased Sivadasan who had been employed as a
lorry attendant by the first respondent therein. In the said case, the
owner of a goods vehicle used his vehicle with the intention of
killing another person. However, it accidentally hit Sivadasan who
was standing by the roadside. The question arose as to who should
pay the compensation. It was noticed that there was a valid
insurance policy and that the driver and cleaner of the lorry were
insured to the extent of workmen compensation payable by the first
respondent. Therefore, the insurance company was directed to
deposit the Award amount before the Tribunal. However, it was
found that there was violation of the permit condition as the first
respondent/insured was not permitted to use the vehicle as a
weapon of offence for murdering a person though it was not
intended against Sivadasan who died in the incident. As the
owner/insured had used the vehicle as a murderous weapon, the
2025:KER:58808
MACA No.293/2020 and con. cases
18
contention of the insurer that there was violation of the policy
condition was upheld and the insurance company was given the
liberty to recover the Award amount from the owner/insured.
10.3. As noticed earlier, OP(MV) No.1499/2020 has been
filed by the eldest daughter of the deceased. As per Ext.A3 final
report, the second respondent/driver who has been arrayed as
accused is alleged to have committed the offences punishable under
Sections 304 and 308 IPC. The learned counsel appearing for the
first respondent/owner and the second respondent/driver during the
course of arguments handed over a copy of the judgment dated
31/01/2020 in S.C.No.719/2017 on the file of the Court of Session,
Kozhikode. The charge framed by the Sessions Court against the
accused, namely, the second respondent/driver herein, was under
Sections 304 and 308 IPC. All the witnesses in the case, including
the eldest daughter of the deceased herein, namely, the claim
petitioner in OP(MV) No.1499/2017, from which MACA No.1389
and 3433 of 2020 have been filed, turned hostile to the prosecution
2025:KER:58808
MACA No.293/2020 and con. cases19
case. It is quite disturbing to note that the eldest daughter of the
deceased examined as PW4 in the Sessions Case failed to identify
the accused and also failed to recall the reason for the accident. As
all the material witnesses turned hostile, the second
respondent/driver was acquitted under Section 232 Cr.P.C.
10.4. As per Ext.A3 charge sheet, the charge is for the
offences punishable under Sections 304 and 308 IPC only and not
under Section 304A or Sections 279, 337 or 338 IPC. Section 304
IPC deals with culpable homicide not amounting to murder and
Section 308 IPC with attempt to commit culpable homicide.
Culpable homicide defined in Section 299 IPC says that if any
person causes death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as is likely
to cause death, commits the offence of culpable homicide. So,
culpable homicide consists of doing an act: (a) with the intention of
causing death; (b) with the intention of causing such bodily injury
as is likely to cause death; (c) with the knowledge that the act is
2025:KER:58808
MACA No.293/2020 and con. cases
20
likely to cause death. “Intent” and “knowledge” as the ingredients
of Section 299 postulate the existence of a positive mental attitude
and this mental attitude is the special mens rea necessary for the
offence (See Jayaraj v. State of Tamil Nadu, AIR 1976 SC 1519).
10.5. Section 304A IPC on the other hand deals with causing
death by negligence. It says that if a person does any rash or
negligent act not amounting to culpable homicide, is liable to be
punished. An offence under Section 304A is committed either by
doing a rash or a negligent act. This Section totally excludes the
ingredients of Section 299 or Section 300 IPC. (See State of Gujarat
v. Haidarali Kalubhai, AIR 1976 SC 1012).
10.6. In the light of the judgment in SC No.719/2017, Ext.A3
final report loses its significance and on the basis of the same, the
accused therein cannot be considered to have committed the
offences punishable stated therein. Even assuming that Ext.A3
final report can be looked into even after acquittal, the same is of no
help to the claim petitioners as the offences alleged are completely
2025:KER:58808
MACA No.293/2020 and con. cases
21
different and distinct offences. In an application under Section 166
of the Act, it is the primary duty of the claim petitioners to establish
negligence.
10.7. Apart from Ext.A3 final report, there is the testimony of
the claim petitioner who was examined before the Tribunal as PW1.
In the claim petition, the allegation reads “…..A car bearing
registration no.KL-08-BA-3999 driven by the second respondent,
with exorbitant speed in rash and negligent manner dashed the
scooter on which the petitioner was travelling….”. In the proof
affidavit filed in lieu of chief examination, PW1 does not
specifically say that it was the second respondent who was the
driver, but only says that the car bearing registration no. KL-08-
BA-3999 driven in great speed and negligently hit the scooter in
which she was travelling. The testimony of PW1 has to be
appreciated in the background of her testimony as PW4 in SC
No.719/2017 wherein she deposed that she was unable to recall the
driver or the cause of the accident. Her testimony in SC
2025:KER:58808
MACA No.293/2020 and con. cases
22
No.719/2017 is seen recorded on 17/12/2019 just a few days after
she testified before the Tribunal on 09/12/2019. Within days she
seems to have forgotten the driver of the offending car or the reason
for the accident. At this juncture, the learned counsel for the third
respondent/insurer drew my attention to Ext.A3 final report which
describes the manner in which the vehicle was being driven by the
second respondent at the relevant time. It is stated that the accused
was driving the vehicle in great speed violating the traffic rules and
in a zig-zag manner resulting in death of deceased and injuries to
the parties involved in the case on hand in addition to two other
persons (CW2 and CW4 in Ext.P3 final report). The road at the
scene is lying in the north-south direction. The deceased is stated to
have been riding her scooter from the north to south and the second
respondent from south to north. When the car collided with the
scooter ridden by the deceased with her two daughters as pillion
riders, due to the impact all three of them including the scooter
were thrown into the air and during the course of the descent down,
2025:KER:58808
MACA No.293/2020 and con. cases
23
the head of the deceased hit on a cement block (കുറ്റി) installed by
the side of the road resulting in grievous injuries to which she
succumbed. Referring to the narration in the charge sheet regarding
the manner in which the accident took place, it was submitted by
the learned counsel for the third respondent/insurer that the police
was justified in charge sheeting the accused for the offences
punishable under Section 304 and 308 IPC rather than Section
304A IPC.
10.8. The description of the accident in the final report is
indeed disturbing which aspect is further exacerbated by the
testimony of the daughter of the deceased who turned hostile to the
prosecution case. Therefore, her testimony as PW1 before the
Tribunal cannot be given much credence.
10.9. Neither Ext.A3 final report nor the testimony of PW1
helps in establishing negligence. In S.C. No.719/2017, nobody had
a case that though the offence under Sections 304 or 308 IPC were
not made out, Section 304A IPC would be attracted. The court
2025:KER:58808
MACA No.293/2020 and con. cases
24
concerned also did not enter into any such finding, but only
acquitted the accused therein, that is, the second respondent herein,
for the offences punishable under Section 304 and 308 IPC under
Section 232 Cr.P.C. Therefore, the final report cannot be of any help
to the claim petitioners. However, the fact that a death was caused
and the claim petitioner sustained injuries as a result of the accident
is not disputed. Being a beneficial legislation, a lenient approach or
a liberal interpretation of the pleadings and evidence is required to
be made. Hence, excluding the final report/charge sheet and the oral
testimony of PW1, let me examine whether there is any other piece
of evidence to show negligence on the part of the second
respondent/driver.
10.10. Here I refer to the scene mahazar, that is, Ext.A5. It is
true that nobody was examined to prove the scene mahazar. It is
also true that mere statements in the mahazar cannot be made a
ground for finding negligence. However, the marking of the scene
mahazar was not objected to by either side before the Tribunal.
2025:KER:58808
MACA No.293/2020 and con. cases
25
Moreover, as held by a Division Bench of this Court in Philippose
Cherian v. T.A.Edward Lobo, 1991 ACJ 634, a scene mahazar is
most often, if not in all cases, prepared by the investigating officer
during investigation of the crime. In motor accident cases, scene
mahazar is prepared by the police officer while investigating into
offences disclosed in the first information report. A police officer is
a public servant and the scene mahazar is a record made in
discharge of his official duties. The entries in such record are
themselves relevant facts under Section 35 of the Indian Evidence
Act. When the certified copy of scene mahazar is marked without
objection, the admissible portions therein can be used by the
Tribunal if none of the parties disputes the correctness thereof. It is
open to the party who disputes the correctness of such entries to
examine anyone connected with the document for showing that the
entries are unreliable. Subject to this and subject to the principles of
natural justice, the Tribunals are legally competent to make use of
the entries in scene mahazar even if no person connected with its
2025:KER:58808
MACA No.293/2020 and con. cases
26
making has been examined as a witness.
10.11. As per the scene mahazar, the road at the place of
occurrence lying in north-south direction has a width of 10 meters.
The deceased was riding her scooter with her daughters as pillion
riders from the north to south and the second respondent was
driving his car from south to north. Therefore, the right side of the
road of the second respondent is the western side and the right side
of the road of the deceased was the eastern side. The scene of
occurrence is at a distance of 7.9 meters from the western tar end
and 2.03 meters from the eastern tar end. This would show that the
second respondent/driver went to the wrong side of the road.
Hence, the finding of the Tribunal regarding negligence by the
second respondent/driver is confirmed though for different reasons.
As there is no evidence regarding commission of offences
punishable under Section 304 and 308 IPC, this Court is unable to
conclude that the vehicle was used for any illegal purpose resulting
in a fundamental breach of the policy conditions exonerating the
2025:KER:58808
MACA No.293/2020 and con. cases
27
third respondent/insurer from the liability. Hence, it can only be
held that the third respondent/insurer is liable to indemnify the
insured/owner.
11. The Award of compensation by the Tribunal under the
following heads is challenged –
Notional income
It is submitted by the learned counsel for the claim petitioner
that though the latter was earning ₹20,000/- per month, the
Tribunal has fixed the monthly income as ₹10,000/- only, which is
quite low going by the dictum in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Co. Ltd, (2011) 13 SCC 236
and hence the same needs to be appropriately enhanced. Per contra,
it is submitted by the learned counsel for the third
respondent/insurer that the amount fixed is reasonable and hence
the same does not call for any interference.
11.1. Ext.A6 is the salary certificate relied on by the claim
petitioner to establish her income. However, during the course of
2025:KER:58808
MACA No.293/2020 and con. cases
28
her cross-examination as PW1, it came out that the salary certificate
had been issued by the Partner in her father’s business. It was also
brought out that she was a full time graduate student doing her
graduation degree at the relevant time. In such circumstances,
fixing the notional income at ₹10,000/- by the Tribunal is just and
reasonable and the same does not call for any interference.
Percentage of permanent disability
12. It is submitted by the learned counsel for the claim
petitioner that though the Medical Board as per Ext.C1 has assesed
the disability as 59.67%, the Tribunal was not justified in scaling
down the percentage of disability to 50%. Actually, the disability
ought to have been 100%. In support of the argument, reference is
made to the dictum in Raj Kumar v. Ajay Kumar, (2011) 1 SCC
343, and Sidram v. The Divisional Manager, United India Insurance
Co. Ltd., 2022 ACJ 2611.
12.1. The Apex Court in Raj Kumar (Supra), followed in
Anthony Swami v. M.D., KSRTC, (2020) 7 SCC 161 has explained
2025:KER:58808
MACA No.293/2020 and con. cases
29
the heads under which compensation is awarded in personal injury
cases as :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment.
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non – pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence
of the injuries.
(v) Loss of amenities (and / or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be
2025:KER:58808
MACA No.293/2020 and con. cases
30
awarded only under heads (i), (ii)(a) and (iv). It is only in serious
cases of injury, where there is specific medical evidence
corroborating the evidence of the claimant, that compensation will
be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating
to loss of future earnings on account of permanent disability, future
medical expenses, loss of amenities (and / or loss of prospects of
marriage) and loss of expectation of life. The Apex Court has
lucidly set out the principles for grant of compensation in cases of
permanent physical functional disability as follows: Where the
claimant suffers a permanent disability as a result of injuries, the
assessment of compensation under the head of loss of future
earnings would depend upon the effect and impact of such
permanent disability on his earning capacity. The Tribunal should
not mechanically apply the percentage of permanent disability as
the percentage of economic loss or loss of earning capacity. In most
of the cases, the percentage of economic loss, that is, the percentage
of loss of earning capacity, arising from a permanent disability will
2025:KER:58808
MACA No.293/2020 and con. cases
31
be different from the percentage of permanent disability. Some
Tribunals wrongly assume that in all cases, a particular extent
(percentage) of permanent disability would result in a
corresponding loss of earning capacity, and consequently, if the
evidence produced show 45% as the permanent disability, will hold
that there is 45% loss of future earning capacity. In most of the
cases, equating the extent (percentage) of loss of earning capacity
to the extent (percentage) of permanent disability will result in
award of either too low or too high a compensation. Ascertainment
of the effect of the permanent disability on the actual earning
capacity involves three steps. The Tribunal has to first ascertain
what activities the claimant could carry on despite the permanent
disability and what he could not do as a result of the permanent
disability (this is also relevant for awarding compensation under the
head of loss of amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the accident, as
also his age. The third step is to find out whether (i) the claimant is
2025:KER:58808
MACA No.293/2020 and con. cases
32
totally disabled from earning any kind of livelihood, or (ii) whether
in spite of the permanent disability, the claimant could still
effectively carry on the activities and functions, which he was
earlier carrying on, or (iii) whether he was prevented or restricted
from discharging his previous activities and functions, but could
carry on some other or lesser scale of activities and functions so
that he continues to earn or can continue to earn his livelihood.
12.2. In Sidram (Supra), it has been held by the Apex Court
that courts should be mindful that a serious injury not only
permanently imposes physical limitations and disabilities but too
often inflicts deep mental and emotional scars upon the victim. The
attendant trauma of the victim’s having to live in a world entirely
different from the one she or he is born into, as an invalid, and with
degrees of dependence on others, robbed of complete personal
choice or autonomy, should forever be in the judge’s mind,
whenever tasked to adjudge compensation claims. Severe
limitations inflicted due to such injuries undermine the dignity
2025:KER:58808
MACA No.293/2020 and con. cases
33
(which is now recognized as an intrinsic component of the right to
life under Article 21) of the individual, thus depriving the person of
the essence of the right to a wholesome life which she or he had
lived, hitherto. From the world of the able bodied, the victim is
thrust into the world of the disabled, itself most discomfiting and
unsettling. If courts nit-pick and award niggardly amounts oblivious
of these circumstances, there is resultant affront to the injured
victim.
12.3. Now the question is, did the Tribunal ” nit-pick and
award niggardly amounts oblivious of the circumstances”? . Let me
examine. Ext.C1 report of the Medical Board reads thus:
“We after careful examination of Smt.Afra Rahman
P.T., 20 years, D/o.Abdu Rahman, Nifras, Nayipalam, P.O.
Kallai, Kundungal, Kozhikode-673003 whose signature is
given above, certify that she is having post RTA sequelae
Traumatic Brain injury, other Mental & Behavioral Disorders
due to brain damage & dysfunction and is physically
handicapped. Her percentage of permanent disability due to
the injury is 59.67% (percentage).
47.92%~48% disability cognitive domain as per
2025:KER:58808
MACA No.293/2020 and con. cases34
neuropsychological listing.
Processing speed, attention, working memory, planning,
verbal+visual learning and memory, difficulty in arithmetic +
visuo-constructive ability
48%.
NS opinion: Traumatic brain injury sequelae-2016
mild difficulty in walking
underwent execution of (not legible) @ hip
…………………………………….
…………………………(not legible)
48 + 25(90-48)/90 = 59.67%
Neuropsychological Assessment Report
Diagnosis: Post Traumatic Brain Injury Sequel (TBI in 2016)
Reason for Referral: Neuropsychological assessment for
quantification of cognitive disability.
Test Administered: NIMHANS Head Injury Battery (Rao
et.al., 2004)
Premorbid Intellectual Functioning: Her premorbid level of
intellectual functioning is estimated to be in the average
range based on her educational qualification and reported
ability to carry out instrumental daily living activities.
Behavioural Observations: Patient was conscious and came
walking to the testing room with her father. She had a broad
based gait and was observed to have co-ordination difficulties
in left lower limb. She was alert and oriented to time, place
and person. Her attention could be aroused and sustained
2025:KER:58808
MACA No.293/2020 and con. cases35
with effort. The rapport could be established easily. She could
easily understand and follow the instructions given to her
indicative of adequate comprehension. She was speaking
relevantly and coherently. Her reaction time was normal and
psychomotor activity was within normal range. Her mood
appeared to be euthymic, reactive with appropriate range;
however instances of anxious affect was observed through the
testing.
Test Findings: The findings from neuropsychological
assessment are discussed below:
Speed: Motor Speed was assessed using Finger Tapping Test.
On this test her motor speed was found to be adequate for
both left and right hand (Right hand PR: 50 th-60th Left hand
PR: 25th-30th). Digit Symbol Test was attempted to assess
mental speed. However in this test she had impaired
performance, (PR:7-10th percentile). Overall through the
testing as well, she was observed to have slower speed of
processing instructions as well as performance of tasks. From
these findings it can be inferred that she has impairment in
mental speed but adequate motor speed.
Attention: On clinical observations, her attention could be
aroused easily and but sustained with encouragement from
time to time. Though she was noted to be distracted at times,
her attention could be brought back to the task in hand.
Focussed attention was assessed using Colour Trails Test – 1
(CT-1). She took 61 seconds to complete CT-1 (Percentile:
2025:KER:58808
MACA No.293/2020 and con. cases36
13th-17th). Sustained attention was assessed using the Digit
Vigilance Test, wherein she took 537 seconds for cancellation
(PR: 13-16th percentile) with 32 errors of omission (PR:7-
10th) overall suggestive of impaired sustained attention.
Overall her performance was suggestive of impaired attention
primarily, the ability to sustain attention.
Executive Functions:
1. Fluency: Phonemic fluency was assessed using Controlled
Oral Words Association Test (COWAT). On three trials of
COWAT, she could generate an Average of 11.33 words
(Percentile: 30th-40th). Category fluency was assessed using
Animals Names Test (ANT). On ANT she generated the
name of 7 animals (Percentile:<5th). The impaired category
fluency with relatively better performance in phonemic
fluency is indicative of impaired search strategies for
conceptual information.
2. Working Memory: Verbal working memory was assessed
using Verbal N Back test. In Verbal 1 back condition, her hit
score and error score both falls well above the cut off (PR: 5-
95th and 100th respectively). On 2 back condition though he
got 08/09 hits, she made 5 errors (PR/(10th) Visuo-spatial
working memory was assessed Spatial Span (WMS-IIIIND).
On this test, she obtained a total score of 16 (Forward=8 and
Backward=8) corresponding to 60th percentile. These finding
indicate towards impairment in verbal working Memory and
adequate visual working memory.
2025:KER:58808
MACA No.293/2020 and con. cases
37
3. Planning: Tower of London test was used to assess her
planning ability. On this test she could solve 05 out of 14
problems with the minimum moves (PR: 50th), she took
longer time to complete the complex problems (5 move trials-
Mean Time PR:<3rd; Mean Move PR: 3rd-6th). The observation
during the test indicates that she could not look ahead and
performed only by achieving the immediate goals. If gone
wrong she had difficulty to modify or change the strategy.
4. Mental Flexibility and Attentional Switching: This was
assessed using Colour Trails Test-2 (CT-2). CT-2 taps mental
flexibility as it requires the subject to switch between two
colours while making the number trail. She completed CT-2
in 142 seconds (PR: 13th-17th). She could scan and switch
between one colour set to another adequately however took a
longer time to do the same, resulting in impaired
performance.
5. Response Inhibition: The Stroop test was attempted to
assess response Inhibition. She was able to adequately inhibit
and respond adequately in the color naming trial
corresponding to an adequate interference score of 134
seconds ( 47 – 50th percentile)
Visual Spatial Abilities: Her visual-spatial abilities were
tested using Bender Gestalt Test, copy of simple 2-D and 3-D
figures as well as the complex figure test copy trial. Her
drawing overall was clumsy, simplified, diminished in size
and 3D figure drawing was lacking depth, suggestive of
2025:KER:58808
MACA No.293/2020 and con. cases
38
impaired visual-spatial abilities.
Learning and Memory: Verbal learning and memory was
assessed with Rey Auditory Verbal Learning Test (AVLT). On
AVLT she could learn 12 words (PR:15th) by the end of 5th
learning trial and thereby her total learning score was 50 (PR:
4th-5th). Fluctuation of attention was also observed in her
learning curve (Trial 4 having the highest score). She could
recall only 8 word (PR:< 5th) immediately after interference
and 10 words on delayed recall trial (PR:10 th) corresponding
to an overall percent retention of 83.33% (PR:10th). She could
correctly recognize all 15 words (PR:>10th) in recognition
trial. Visual memory was assessed using Complex figure test
and Faces Test (WMS-IIIIND). On complex figure test, she
obtained a score of 7 and 4.5 respectively on the immediate
and delayed recall trials respectively (PR:< 5thon both). On
the Faces she scored 25 in immediate recall trial (PR:<5th)
and 24 in delayed recall trial (PR:<5th). The total Percent
retention was calculated to be 96% (PR:30th-40th).
These findings indicate that she has significant difficulty in
encoding both verbal and visual material to be learned as well
as with recall of learnt information.
On Clinical examination there was evidence of
difficulty in arithmetic- she could do simple addition,
subtraction but had difficulty for even simple multiplication
and division. Her drawing was clumsy, simplified,
diminished in size and 3D figure drawing was lacking depth.
2025:KER:58808
MACA No.293/2020 and con. cases39
To the extent tested, no other agnosias, apraxia, body schema
disturbance, reading, writing difficulty, unilateral neglect or
route finding difficulty was observed.
Personality and Emotional Functioning: There is no history
of any significant personality change.
Summary of Test Findings: The neuropsychological
assessment reveals impairments in processing speed,
attention (focused, sustained and divided), category fluency,
verbal working memory, complex planning, verbal and visual
learning and memory, difficulty in complex arithmetic and
visuo-constructive ability.
Thus the patient obtained a total deficit score of 23 out of 48
variables tested, overall indicating 47.92% (Total Deficit
Score (23)/Total Variables (48)*100) cognitive disability.
Impression: The neuropsychological profile indicates towards
Diffused Involvement. Thus on the NIMHANS Head Injury
Battery the patient obtained cognitive disability percentage of
47.92% (Total Deficit Score (23)/Total Variables (48) *100).
Recommendations:
• Feedback to the patient, caregivers and treating team
regarding the test findings.
• Psycho-education to the caregiver regarding the post
traumatic brain injury sequel.
• Cognitive rehabilitation may be helpful in reducing the
cognitive deficits.
2025:KER:58808
MACA No.293/2020 and con. cases40
The claim petitioner when examined as PW1 was able to face
the trial, comprehend all the questions put to her and answer quite
coherently. Therefore, in the light of the dictum in Raj Kumar
(Supra); the nature of injuries and disability sustained, the
functional disability of 50% fixed by the Tribunal is quite justified.
Percentage to be added towards future prospects
13. The disability on the basis of Ext.C1 has been fixed as
50%. The claim petitioner was aged 19 years at the time of the
accident and therefore 40% of the established income is liable to be
added towards future prospects. Hence, the Award shall stand
modified to the said extent.
14. The impugned Award is modified to the following
extent:
Sl. Head of claim Amount Amount Modified in appeal
No. claimed Awarded by (in ₹)
(in ₹) Tribunal
(in ₹)
1. Loss of 25,00,000/- 10,80,000/- 15,12,000/-
earning power [10,000 x12 [(10,000+40%) x12
x18 x 50/100] x 18 x 50/100]
2025:KER:58808
MACA No.293/2020 and con. cases
41
2. Medical bills 20,00,000/- 1,77,000/- 1,77,000/-
(No Modification)
3. Bystander’s 2,00,000/- 39,000/- 39,000/-
expenses (No Modification)
4. Pain & 1,00,000/- 50,000/- 50,000/-
suffering (No Modification)
5. Loss of 1,00,000/- 1,50,000/- 1,50,000/-
amenities and (No Modification)
enjoyment in
life
6. Transport to 3,000/- 25,000/- 25,000/-
hospital (No Modification)
7. Damage to 2,000/- 2,000/- 2,000/-
clothing (No Modification)
8. Extra 2,000/- 10,000/- 10,000/-
nourishment (No Modification)
9. Future 5,00,000/- 50,000/- 50,000/-
treatment (No Modification)
Total limited to 15,83,000/- 20,15,000/-
50,00,000/-
In the result, MACA No.3433/2020 is partly allowed by
enhancing the compensation by a further amount of ₹4,32,000/-
(total compensation = ₹20,15,000/- that is, ₹15,83,000/- granted by
the Tribunal plus ₹4,32,000/- granted in appeal) with interest at the
rate of 8% per annum from the date of petition till date of
realization and proportionate costs. The third respondent/insurer is
2025:KER:58808
MACA No.293/2020 and con. cases
42
directed to deposit the aforesaid amount before the Tribunal within
a period of 60 days from the date of receipt of a copy of the
judgment. On deposit of the amount, the Tribunal shall disburse the
amount to the claim petitioner at the earliest in accordance with law
after making deductions, if any. MACA No.1389/2020 is dismissed.
MACA No.293, 379, 2293 & 2404 of 2020
15. OP(MV) No.1475/2017 was filed by the husband and
three children of the deceased and OP(MV) No.1500/2017 has been
filed by the youngest minor daughter of the deceased. I have
already found in the earlier appeals based on the scene mahazar that
the negligence was on the part of the second respondent/driver. The
accident involved in all these cases is one and the same. Therefore
the arguments advanced by the learned counsel for the third
respondent/insurer which has already been answered and rejected is
not being repeated here.
Notional income in MACA No.2293/2020
16. It is submitted by the learned counsel for the claim
2025:KER:58808
MACA No.293/2020 and con. cases
43
petitioners that the deceased, a saleswoman aged 39 years, was
earning an amount of ₹20,000/- per month. However, the Tribunal
has fixed the notional income at ₹8,000/- only which, going by the
dictum in Ramachandrappa (Supra), is quite low and hence the
same needs to be enhanced. Per contra, it is submitted by the
learned counsel for the third respondent/insurer that in the absence
of satisfactory evidence to establish the claim regarding the income,
the amount that has been fixed by the Tribunal is just and
reasonable and that it does not call for any interference.
16.1. As per the dictum in Ramachandrappa (Supra), the
notional income of even a coolie in the year 2016 is liable to be
fixed at ₹10,500/- per month. That being the position, I find that
fixing the notional income of the deceased at ₹10,500/- per month
would be just and reasonable.
17. The impugned Award is modified to the following
extent:
2025:KER:58808
MACA No.293/2020 and con. cases44
Sl. Head of Amount Amount Modified in
No. claim claimed Awarded by appeal
(in ₹) Tribunal (in ₹)
(in ₹)
1. Loss of 25,00,000/- 15,12,000/- 19,84,500/-
dependency [(8,000+40%) [(10,500+40%) x
x12x15x 3/4)] 12 x 15 x 3/4)]
2. Spousal 2,00,000/- 40,000/- 40,000/-
consortium (No Modification)
3. Parental 2,00,000/- 1,20,000/- 1,20,000/-
consortium (No Modification)
4. Loss of estate 2,00,000/- 15,000/- 15,000/-
(No Modification)
5. Funeral 1,00,000/- 15,000/- 15,000/-
expenses (No Modification)
Total limited to 17,02,000/- 21,74,500/-
40,00,000/-
In the result, MACA No.2293/2020 is allowed by enhancing
the compensation by a further amount of ₹4,72,500/- (total
compensation = ₹21,74,500/- that is, ₹17,02,000/- granted by the
Tribunal plus ₹4,72,500/- granted in appeal) with interest at the rate
of 8% per annum from the date of petition till date of realization
(excluding the period of 186 days delay in filing the appeal) and
2025:KER:58808
MACA No.293/2020 and con. cases
45
proportionate costs. The third respondent/insurer is directed to
deposit the aforesaid amount before the Tribunal within a period of
60 days from the date of receipt of a copy of the judgment. On
deposit of the amount, the Tribunal shall disburse the amount to the
claim petitioners at the earliest in accordance with law after making
deductions, if any.
Transport to hospital, extra nourishment and damage to clothing
and articles in MACA No.2404/2020
18. The claim petitioner herein is the minor 5 year old
daughter of the deceased. It is pointed out by the learned counsel
for the claim petitioner that though reasonable amounts were
claimed towards transport to hospital, extra nourishment and
damage to clothing and articles, no amount was awarded and hence
appropriate amounts may be awarded.
18.1. The materials on record show that the claim petitioner
was hospitalized for a period of 7 days. In the facts and
circumstances of the case, an amount of ₹1,000/- towards transport
2025:KER:58808
MACA No.293/2020 and con. cases
46
to hospital; ₹2,000/- towards extra nourishment and ₹800/- towards
damage to clothing and articles is awarded.
19. The impugned Award is modified to the following
extent:
Sl. Head of Amount Amount Modified in
No. claim claimed Awarded by appeal
(in ₹) Tribunal (in ₹)
(in ₹)
1. Disability 1,00,000/- 1,00,000/- 1,00,000/-
(No Modification)
2. Medical bills 2,50,000/- 1,000/- 1,000/-
(No Modification)
3. Bystander's 50,000/- 4,200/- 4,200/-
expenses (No Modification)
4. Transport to 3,000/- Nil 1,000/-
hospital
5. Extra 2,000/- Nil 2,000/-
nourishment
6. Damage to 2,000/- Nil 800/-
clothing and
articles
Total limited to 1,05,200/- 1,09,000/-
5,00,000/- (Tribunal wrongly
shown the sum as
₹1,05,000/-)
In the result, MACA No.2404/2020 is allowed by enhancing
2025:KER:58808
MACA No.293/2020 and con. cases
47
the compensation by a further amount of ₹3,800/- (total
compensation = ₹1,09,000/- that is, ₹1,05,200/- granted by the
Tribunal plus ₹3,800/- granted in appeal) with interest at the rate of
8% per annum from the date of petition till date of realization
(excluding the period of 187 days delay in filing the appeal) and
proportionate costs. The third respondent/insurer is directed to
deposit the aforesaid amount before the Tribunal within a period of
60 days from the date of receipt of a copy of the judgment. On
deposit of the amount, the Tribunal shall disburse the amount to the
claim petitioner at the earliest in accordance with law after making
deductions, if any. MACA Nos.293/2020 and 379/2020 are
dismissed.
In the result, MACA Nos.293/2020, 379/2020 & 1389/2020
filed by the third respondent/insurer are dismissed; MACA
Nos.2293/2020 and 2404/2020 are allowed and MACA
No.3433/2020 is partly allowed.
2025:KER:58808
MACA No.293/2020 and con. cases
48
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
NP