Kerala High Court
Baburaj @ Baburajan vs The New India Assurance Co. Ltd on 5 June, 2025
2025:KER:39805
MACA NO. 505 OF 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
MACA NO. 505 OF 2020
AGAINST THE AWARD DATED 17.10.2019 IN OP(MV) NO.390 OF
2018 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
KOZHIKODE.
APPELLANTS/PETITIONERS:
1 BABURAJ @ BABURAJAN,
AGED 53 YEARS,
S/O.ANDI, RESIDING AT THAROL HOUSE, PARAKKAL
PARAMBA,.P.O. KAKKODI, KOZHIKODE- 673 611.
(FATHER OF THE DECEASED).
2 ABINANDH,
AGED 18 YEARS,
S/O.BABURAJ @ BABURAJAN, RESIDING AT THAROL HOUSE,
PARAKKAL PARAMBA.P.O, KAKKODI, KOZHIKODE 673 611.
(BROTHER OF THE DECEASED)
BY ADV SHRI.AVM.SALAHUDIN
RESPONDENT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE, DOOR NO.5/86-P, 2ND FLOOR, FAIR
MONT BUILDING, ERANHIPALAM, SUB POST OFFICE,
WAYANAD ROAD, KOZHIKODE-673 006,
REPRESENTED BY BRANCH MANAGER.
BY ADV SMT.JESSY GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 05.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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MACA NO. 505 OF 2020
2
C.S.SUDHA, J.
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M.A.C.A. No.505 of 2020
----------------------------------------------------
Dated this the 5th day of June 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor
Vehicles Act, 1988 (the Act) by the claim petitioners in O.P.(MV)
No.390/2018 on the file of the Motor Accidents Claims Tribunal,
Kozhikode, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 17/10/2019. The sole
respondent herein is the third respondent/insurer in the petition. In
this appeal, the parties and the documents will be referred to as
described in the original petition.
2. According to the claim petitioners, on
10/06/2017 at about 03:30 p.m., the deceased was riding scooter
bearing registration no.KL-11-AT-8207 and when he reached the
Beverages Outlet, Eranhipalam, recovery van bearing registration
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no.KL-11-Y-6192 driven by the second respondent in a rash and
negligent manner knocked him down as a result of which he
sustained grievous injuries. Though the deceased was immediately
taken to the hospital, he succumbed to the injuries sustained. A sum
of ₹30,00,000/- was claimed as compensation under various heads.
3. The first respondent/owner and the second
respondent/driver remained ex parte.
4. The third respondent/insurer filed written
statement admitting the existence of a valid policy in respect of the
offending vehicle but denied negligence on the part of the second
respondent. The injuries sustained, age, occupation and income of
the claim petitioner were disputed. It was also contended that the
compensation claimed was quite excessive.
5. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A8 were marked on the side of
the claim petitioners. No documentary evidence was adduced by the
respondents.
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6. The Tribunal on consideration of the 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 ₹13,39,600/- together
with interest @ 8% per annum from the date of the petition till
realisation along with proportionate costs. Aggrieved by the Award,
claim petitioners have come up in appeal.
7. 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.
8. Heard both sides
9. The award of compensation by the Tribunal under
the following heads are challenged by the claim petitioners -
Notional income
It is submitted by the learned counsel for the claim
petitioners that the deceased aged 18 years was a salesman in
Combas Garments, Mavaoor road, earning a monthly income of
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MACA NO. 505 OF 2020
₹15,000/- per month. The Tribunal fixed the notional income at
₹8,000/- which is on the lower side and hence requires to be
enhanced. It is also pointed out that even going by the dictum in
Ramachandrappa v. Manager, Royal Sundaram Allian. Co.
Ltd, (2011) 13 SCC 236, the notional income of a coolie is liable
to be fixed as ₹11,000/- per month. That being the position, the
notional income that is fixed needs to be appropriately enhanced.
Though the case of the claim petitioners is that the
deceased was working as a salesman, no oral or documentary
evidence was adduced to substantiate the said aspect. However, in
the light of the dictum in Ramachandrappa (Supra), the notional
income can be fixed at ₹11,000/- per month.
Loss of consortium
Admittedly, the claim petitioners are the father and
younger brother respectively of the deceased. The deceased was 18
years at the time of the incident. Therefore, going by the dictums in
Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru
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MACA NO. 505 OF 2020
Ram, (2018) 18 SCC 130: 2018 KHC 6697, United India
Insurance Co. Ltd. vs 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, the first
claim petitioner/father is entitled to filial consortium of ₹40,000/-.
In the light of the dictum in National Insurance Company
Limited v. Pranay Sethi, 2017 (5) KHC 350: (2017) 16 SCC 680,
pronounced on 31/10/2017, he is entitled to enhancement @10%
every three years. The second claim petitioner, though a legal
representative of the deceased, is not entitled to consortium going
by the dictums in Magma General Insurance Co. Ltd. (Supra),
Pranay Sethi (Supra) etc. However, being the younger sibling of
the deceased, I find that an amount of ₹25,000/- towards love and
affection can be granted.
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10. The impugned Award is modified to the following
extent:
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
Tribunal
1. Loss of ₹30,00,000/- ₹12,09,600/- ₹16,63,200/-
dependency [(8,000+40% x [(11,000+40%
1/2)x12x18) x1/2)x12x18)
2. Love and ₹5,00,000/- ₹1,00,000/- Set aside
affection
(1st claim
petitioner)
3. Loss of estate ₹2,00,000/- ₹15,000/- ₹15,000/-
(No
Modification)
4. Funeral ₹1,00,000/- ₹15,000/- ₹15,000/-
expenses (No
Modification)
5. Loss of filial Nil Nil ₹48,400/-
consortium (1st
claim
petitioner)
6. Love and Nil Nil ₹25,000/-
affection
(2nd claim
petitioner)
Total Limited up to ₹13,39,600/- ₹17,66,600/-
₹30,00,000/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹4,27,000/- (total
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compensation ₹17,66,600- that is, ₹13,39,600/- granted by the
Tribunal + ₹4,27,000/- 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 150 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.
Interlocutory applications, if any pending, shall stand
closed.
SD/-
C.S.SUDHA
JUDGE
ak
