Kerala High Court
Cholamandalam Ms General Insurance Co ... vs Jamsheera on 23 June, 2025
2025:KER:44944
M.A.C.A.No.849 of 2020
& Cross Objection No. 135 of 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
MACA NO. 849 OF 2020
AGAINST THE AWARD DATED 06.11.2019 IN OPMV NO.690 OF
2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT/3RD RESPONDENT:
CHOLAMANDALAM MS GENERAL INSURANCE CO LTD.
21/1630 A,NIKAR HILL HOUSE,
PALLURUTHY.P.O, ERNAKULAM-682006,
NOW RESIDING AT ITS DEPUTY MANAGER-CLAIMS,ACEL
ESTATE, IYYATTIL JUNCTION,CHITTOOR ROAD,KOCHI-11.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SMT.PREETHY R. NAIR
RESPONDENTS/PETITIONERS:
1 JAMSHEERA,
W/O AFSAL.P,VAITHUL NOOR HOUSE,
PANANGAD MADAM, CHERUVANOOR.P.O,
KOZHIKODE-673027.
2 MUHAMMED FIDUL SHAN (MINOR)
AGED 14 YEARS
S/O.JAMSHEERA,VAITHUL NOOR HOUSE,
PANANGAD MADAM,CHERUVANOOR.P.O,
KOZHIKODE-673027.
2025:KER:44944
M.A.C.A.No.849 of 2020
& Cross Objection No. 135 of 2022
2
3 FADIL SHAN (MINOR),
AGED 17 YEARS
S/O.JAMSHEERA,VAITHUL NOOR HOUSE, PANANGAD
MADAM,CHERUVANOOR.P.O, KOZHIKODE-673027.
4 NALWA RAIZA(MINOR),
AGED 9 YEARS
D/O.JAMSHEERA, VAITHUL NOOR HOUSE,
PANANGAD MADAM,CHERUVANOOR.P.O,
KOZHIKODE-673027.
5 BEEVI.M.K,
AGED 56 YEARS,
W/O ABDURAHAMAN, PULIKKAL HOUSE,
POTTAYITHODI,PALAYILPADI.P.O,
KARUVANTHIRUTHY,KOZHIKODE-673631. (MINOR
RESPONDENTS 2 TO 4 ARE REPRESENTED BY THEIR
MOTHER 1ST RESPONDENT).
BY ADV SHRI.ANIL KUMAR K.P.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 23.06.2025, ALONG WITH CO.135/2022, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:44944
M.A.C.A.No.849 of 2020
& Cross Objection No. 135 of 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
CO NO. 135 OF 2022
AGAINST THE AWARD DATED 06.11.2019 IN OPMV NO.690 OF
2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.
CROSS OBJECTORS/RESPONDENTS 1 TO 5:
1 JAMSHEERA
AGED 39 YEARS
W/O.AFSAL P., VAITHUL NOOR HOUSE,
PANANGAD MADAM, CHERUVANNOOR P.O.,
KOZHIKODE - 673 027.
2 MUHAMMED FIDUL SHAN,
AGED 16 YEARS
S/O.JAMSHEERA, (MINOR),
REPRESENTED BY MOTHER JAMSHEERA,
VAITHUL NOOR HOUSE,
PANANGAD MADAM, CHERUVANNOOR P.O.,
KOZHIKODE - 673 027.
3 FADIL SHAN
AGED 19 YEARS
S/O.JAMSHEERA, VAITHUL NOOR HOUSE,
PANANGAD MADAM, CHERUVANNOOR P.O.,
KOZHIKODE - 673 027.
4 NALWA RAIZA
AGED 11 YEARS
(MNOR), REPRESENTED BY MOTHER JAMSHEERA,
VAITHUL NOOR HOUSE, PANANGAD MADAM,
CHERUVANNOOR P.O., KOZHIKODE - 673 027.
2025:KER:44944
M.A.C.A.No.849 of 2020
& Cross Objection No. 135 of 2022
4
5 BEEVI M.K.
AGED 58 YEARS
W/O.ABDURAHMAN, PULLIKKAL HOUSE,
POTTAYITHODI, PALAYILPADI P.O.,
KARUYVANTHIRUTHY, KOZHIKODE - 673 631.
BY ADV SRI.K.P.ANIL KUMAR
RESPONDENT/APPELLANT:
CHOLAMANDALAM M.S. GENERAL INSURANCE COMPANY LTD.
21/1630A, NIKAR BILL HOUSE, PALLURUTHY P.O.,
ERNAKULAM - 682 006
NOW REPRESENTED BY ITS DEPUTY MANAGER - CLAIMS,
ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD,
KOCHI - 11.
BY ADV SHRI.P.JACOB MATHEW
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
HEARING ON 23.06.2025, ALONG WITH MACA.849/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:44944
M.A.C.A.No.849 of 2020
& Cross Objection No. 135 of 2022
5
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.849 of 2020
&
Cross Objection No. 135 of 2022
----------------------------------------------------
Dated this the 23rd day of June 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.690/2018 on the file of the
Motor Accidents Claims Tribunal, Kozhikode (the Tribunal),
aggrieved by the Award dated 06/11/2019. The respondents
herein are the claim petitioners who have filed Cross Objection
No.135 of 2022. In this appeal and cross objection, the parties
and the documents will be referred to as described in the original
petition.
2. The claim petitioners are the wife, three minor
children and mother of deceased Afsal. According to the claim
2025:KER:44944
& Cross Objection No. 135 of 2022
petitioners, on 22/09/2017 at about 10:00 p.m., while the
deceased was riding motor cycle bearing registration no.KL-11-
AQ-8847 from Ramanattukara to Pantheerankavu and when he
reached near Merina Motors, Kodalnadakkavu, goods carriage
bearing registration No.KL-33A-1879 driven 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-owner of the offending
vehicle remained ex parte.
4. The second respondent-driver filed written
statement denying negligence on his part. The amount of
compensation claimed was contended to be excessive.
5. The third respondent filed written statement
admitting the policy, but disputing liability. The averments in the
petition regarding age, occupation, income and injuries sustained
to the deceased were disputed. The amount of compensation
2025:KER:44944
& Cross Objection No. 135 of 2022
claimed was contended to be excessive.
6. Before the Tribunal, PW1 was examined and
Exts.A1 to A7 were marked on the side of the claim petitioners.
No oral or documentary evidence was adduced by the
respondents.
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 ₹26,49,200/- 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.
8. 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.
9. Heard both sides
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& Cross Objection No. 135 of 2022
10. The Award of compensation under the
following head is challenged by the third respondent-
Notional income
It is submitted by the learned Senior counsel appearing
for the third respondent that the monthly income of deceased, a
coolie aged 35 years was claimed to be ₹30,000/-. The Tribunal
without any materials fixed the notional income at ₹12,000/-,
which going by the dictum in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Ltd, (2011) 13
SCC 236 is on the higher side and therefore, the same needs to be
brought down in consonance with the dictum in
Ramachandrappa (Supra).
10.1. No materials have been produced to prove the
income of the claim petitioner. That being the position, I find that
the notional income of the claim petitioner can be fixed as per the
dictum in Ramachandrappa (Supra) at ₹11,000/-.
11. Cross Objection has been filed by the claim
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& Cross Objection No. 135 of 2022
petitioners. However, on going through the impugned Award, I
find that just and reasonable compensation has been awarded
under all the other heads and therefore I do not find any grounds
for interference into the same.
12. The impugned Award is modified to the
following extent:
Sl. Compensation Amount Amount allowed Modified in appeal
No. claimed under claimed (in ₹) (in ₹)
different heads (in ₹)
1. Loss of 10,00,000/- 24,19,200/- 22,17,600/-
dependency (11,000 + 40% x ¾
x 12 x 16)
2. Spousal Nil 40,000/- 40,000/-
consortium
3. Parental Nil 1,20,000/- 1,20,000/-
consortium
4. Filial Nil 40,000/- 40,000/-
consortium
5. Loss of estate 5,00,000/- 15,000/- 15,000/-
6. Funeral 50,000/- 15,000/- 15,000/-
expenses
Total Limited to 26,49,200/- 24,47,600/-
50,00,000/-
In the result, the appeal and cross objection are disposed
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& Cross Objection No. 135 of 2022
of as herein above stated, by deducting the compensation awarded
by an amount of ₹2,01,600/- (total compensation is 24,47,600/-,
that is, 26,49,200/- granted by the Tribunal minus ₹2,01,600/-
deducted in appeal).
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
