High Court of KeralaSingle Judge2020-08-20Appeals allowed in part

MACA Nos. 704/2012; 709/2012; 1019/2012 v. Hakkim; Abdul Rahiman; The National Insurance Co. Ltd.

Case / Petition Number:MACA Nos. 704/2012; 709/2012; 1019/2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-08-20
Court Decision / Holding: All three appeals are allowed in part. The court apportions 50% negligence to the minor rider (where applicable) and adjusts the compensation in each MACA case: MACA 709 — pain and suffering increased from Rs.20,000 to Rs.25,000; MACA 704 — pain and suffering increased to Rs.15,000; MACA 1019 — totals under Section 163A with death of a child, resulting in a total enhanced amount of Rs.5,19,106, with the insurer liable to pay 50% of such amounts. Payments to be made within three months with interest at 9%, after deducting already paid or deposited sums; NEFT/RTGS to be used, with relevant identification and court-fee deductions.
Final Disposition: Appeals allowed in part

Parties to the Case

Appellants / Petitioners

C.K. Jasna
Jishad
Ashraf C.K.
Sabira A.K.
Mubashir (Mubashirabava)
Murshid
Mushraf

Respondents

Hakim
Abdul Rahiman
The National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• K. M. Jamaludheen
• Latha Prabhakaran

Counsels for Respondents

• P. Jacob Mathew
• Aggi Joseph
• Rajan P. Kaliyath

Case Synopsis & Summary

These MACA appeals, heard together, arise from a single road accident involving a motorcycle carrying three pillion passengers. The Motor Accidents Claims Tribunal, Manjeri, held the rider primarily responsible with 75% negligence while the van driver bore 25% fault. The appellants challenge both the finding of fault against the rider and the adequacy of compensation. A critical issue is that the rider was a minor and reportedly did not possess a license; the Tribunal also observed pillion passenger loads that could have affected stability. The High Court, relying on Supreme Court authority (Sudhir Kumar Rana v Surinder Singh), notes that negligence must be proved and that the mere fact of a minor driving cannot automatically attract liability against the owner or insurer. The Court re-examines apportionment, concluding that a fair liability framework would assign 50% negligence to the minor rider in the circumstances, given lack of evidence of negligence by the other party. On compensation, the Court partially enhances awards for pain and suffering in MACA 709, and for the other two appeals adjusts awards under the 163A framework for children, adopting the approach in National Insurance Co. Ltd. v Assainar. It directs payment within three months with interest at 9%, with the insurer liable to pay half of the enhanced sums after appropriate deductions and NEFT/RTGS transfer. The appeals are allowed in part and modified accordingly.

Provisions of Law Cited

Section 163A of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Prima facie presumption of negligence

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants challenge the Tribunal's finding of 75% negligence on the bike rider and seek exclusion of liability on the rider by the minor due to lack of license and due to three pillion riders; they rely on Sudhir Kumar Rana v Surinder Singh (SC) to argue that mere minor driving cannot create liability against the owner or insurer; they seek enhancement of compensation for injuries across the three MACAs.

Contentions of Respondents

The respondents contend that the original findings on negligence are sound, citing continued liability to others; They emphasize there is FIR against the van driver but not a charge; The insurer’s liability and the need to maintain the Tribunal’s framework; The court also examines compensation under Section 163A and cites the 2019 Assainar decision for guidance in child-death compensation.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sudhir Kumar Rana v. Surinder Singh	2008(3) KLT 322 (SC)	Positive	Cited to support the proposition that liability cannot be cast merely on the fact that a minor drove the vehicle; negligence must be proved.
National Insurance Co. Ltd. v. Assainar	2019 (4) KLT 39	Positive	Used to justify compensation computation for children under Section 163A, guiding the enhanced awards in MACA 1019.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against MACA Nos. 704/2012; 709/2012; 1019/2012 v. Hakkim; Abdul Rahiman; The National Insurance Co. Ltd. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **MACA.No.704 OF 2012** **AGAINST THE AWARD IN OPMV NO.191/2007 DATED 16-06-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/PETITIONER:** **C.K.JASNA, AGED 15 YEARS, D/O.ABBAS, (MINOR) REPRESENTED BY FATHER AND GUARDIAN C.K.ABBAS, AGED 42 YEARS, CHEMBANKUZHIYIL HOUSE, KOLAPARAMBA P.O., EAST PANDIKKAD, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS:** **1 HAKKIM, S/O.ABDUL JABBAR, NARIKKODU HOUSE, NARIKKODE CHANDRA NAGAR, PANDIKKAD-676521(DRIVER). 2 ABDUL RAHIMAN, S/O.ABDUL KHADER, Y-5, NORTH HOUSING UNIT, SELVAPURAM, COIMBATORE DISTRICT, TAMILNADU-641026(OWNER). 3 THE NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE, COIMBATORE P.O., COIMBATORE-641001 (INSURER). R1, R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2020, ALONG WITH MACA.709/2012 & MACA.1019/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos.704, 709 & 1019 OF 2012 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **MACA.No.709 OF 2012** **AGAINST THE AWARD IN OPMV NO.1552/2006 DATED 16-06-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/PETITIONER:** **JISHAD, AGED 26 YEARS, S/O ABBAS, CHEMBANKUZHIYIL HOUSE, VALLUVANGAD, VETIKKATTIRI P.O, PANDIKKAD VIA, MALAPPURAM DISTRICT** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS:** **1 HAKKIM, S/O ABDUL JABBAR, NARIKKODU HOUSE, NARIKKODE CHANDRA NAGAR, PANDIKKAD 676521 (DRIVER) 2 ABDUL RAHIMAN, S/O.ABDULKHADER Y-5, NORTH HOUSING UNIT, SELVAPURAM, COIMBATORE DISTRICT, TAMILNADU 641026 (OWNER),** **3 THE NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, COIMBATORE P.O, COIMBATORE 641001 (INSURER)** **R1, R3 BY ADV. SRI.AGI JOSEPH R1 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2020, ALONG WITH MACA.704/2012 & MACA.1019/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos.704, 709 & 1019 OF 2012 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** **MACA.No.1019 OF 2012** ## **AGAINST THE AWARD IN OPMV NO.242/2007 DATED 16-06-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANTS/PETITIONERS:** **1 ASHRAF C.K., AGED 40 YEARS, S/O.MUHAMMED.** **2 SABIRA A.K, AGED 32 YEARS, W/O.ASHRAF. 3 MUBASHIR @ MUBASHIRABAVA AGED 15 YEARS, S/O.ASHRAF (MINOR) 4 MURSHID, AGED 13 YEARS, S/O.ASHRAF (MINOR) 5 MUSHRAF, AGED 9 YEARS, S/O.ASHRAF (MINOR)** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS:** **1 HAKKIM, S/O.ABDUL JABBAR , NARIKKODU HOUSE, NARIKKODE CHANDRA NAGAR, PANDIKKAD 676 521 (DRIVER) 2 ABDUL RAHIMAN, S/O.ABDUL KHADER, Y-5, NORTH HOUSING UNIT, SELVAPURAM, COIMBATORE DISTRICT, TAMILNADU 641026 (OWNER)** - **3 THE NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, COIMBATORE P.O., COIMBATORE 641001(INSURER)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2020, ALONG WITH MACA.704/2012, MACA.709/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos.704, 709 & 1019 OF 2012 4 ## **JUDGMENT** **The three cases have to be decided together since it arises from a single accident. The appellant in M.A.C.A. No.709 of 2012, a minor, was riding a bike carrying his mother and two siblings, which met with an accident. As per the version of the claimants, a van, driven rashly and negligently by the van driver, collided with the motor bike. The Tribunal found 75% negligence on the bike rider. The appellants challenge the negligence found on the bike rider as also claims enhanced compensation.** **2. As far as the negligence aspect is concerned, the Tribunal found that the rider of the bike did not have a licence and that he was a minor. In fact there was an affidavit filed by the appellant in M.A.C.A. No.709 of 2012 categorically admitting that he did not have a licence. The** MACA.Nos.704, 709 & 1019 OF 2012 5 **claimants did not even have a case that there was an application made for licence. It is in these circumstances that the Tribunal cast 75% liability on the bike rider. In fact the Tribunal noticed that when the cause of the accident involves two vehicles, the contribution of the individual driver can be found to be 50%. In the present case, though there was an FIR registered against the van driver, there was no charge laid against him. In such circumstances, there could be no** _**prima facie**_ **presumption that the accident was only by reason of the van driver's negligence. As far as the lack of license and the minor riding the vehicle, this Court is to look at the decision of the Hon'ble Supreme Court in** _**Sudhir Kumar Rana Vs. Surinder Singh [2008(3) KLT 322 (SC)]. T**_ **herein it was found that unless there is negligence proved, there cannot be any liability cast on the mere** MACA.Nos.704, 709 & 1019 OF 2012 6 **circumstance of a minor having driven the vehicle.** **3. In the present case, there is definitely the factor of three persons having travelled pillion, with the rider of the bike. This definitely indicates that the bike, which could normally carry two people, would have been unstable and this constitutes the negligence of the rider. However, this Court is of the opinion that only 50% negligence can be cast on the minor riding a bike with three pillion riders, especially when there was no other evidence led as to negligence.** **4. On the aspect of compensation, the appeals have to be considered independently. In M.A.C.A. No.709 of 2012, the appellant suffered fracture of right thigh bone, right forearm elbow and lost two upper teeth and was hospitalised for 12 days. On looking at the compensation awarded, this Court is of the opinion that there is only** MACA.Nos.704, 709 & 1019 OF 2012 7 **scope for enhancement with respect to pain and suffering, which would stand enhanced from Rs.20,000 to Rs.25,000/-. The enhancement in the appeal hence would be Rs.5,000/-.** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount** **after** **enhancement** **in appeal** `| |---|---|---|---| |**1**|**Medical expenses**|**41,540**|**41,540**| |**2**|**Bystander's expenses**|**1,200**|**1,200**| |**3**|**Damage to clothing**|**250**|**250**| |**4**|**Transportation**|**1,500**|**1,500**| |**5**|**Pain and suffering**|**20,000**|**25,000**| ||**Total**|**64,490**|**69490**| **5. In M.A.C.A. No.704 of 2012, the appellant suffered fracture of shaft of right femur** **and a contusion on the right forearm and was subjected to 9 days' hospitalisation. As in the other case, the only enhancement possible is under pain and suffering, which considering the injuries can be enhanced to Rs.15,000/- from Rs.5,000/-.** MACA.Nos.704, 709 & 1019 OF 2012 8 ## **Enhancement hence would be Rs.10,000/- in this** ## **appeal.** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount** **after** **enhancement** **in appeal** `| |---|---|---|---| |**1**|**Medical expenses**|**23,789**|**23,789**| |**2**|**Bystander's expenses**|**900**|**900**| |**3**|**Damage to clothing**|**250**|**250**| |**4**|**Transportation**|**250**|**250**| |**5**|**Pain and suffering**|**5,000**|**15,000**| ||**Total**|**30,189**|**40,189**| **6. As far as M.A.C.A. No.1019 of 2012 is** **concerned, the compensation claimed is for the death of a minor child. The child was aged 4, when he succumbed to the injuries caused in the accident. The appellants claim compensation in accordance with the decision of this Court in** _**National Insurance Co. Ltd. v. Assainar [2019 (4) KLT 39].**_ **This Court, with respect to children below the age of 6, have adopted the compensation payable** MACA.Nos.704, 709 & 1019 OF 2012 9 **at Rs.2,40,000/- under Section 163A as in the year 1995-1996 and has also provided for an increase of Rs.12,000/- every year. Considering the said computation, since the accident occurred in the year 2005, the compensation payable would be Rs.3,60,000/-. The appellants would also be entitled to compensation for loss of filial consortium at Rs.40,000/- each. The enhancement** ## **would be as follows:** |**would**|**be as follows:**||| |---|---|---|---| |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount** **after** **enhancement** **in appeal** `| |**1**|**Medical expenses**|**49,106**|**49,106**| |**2**|**Loss of love and** **affection**|**10,000**|**10,000**| |**3**|**Loss of consortium**|**----**|**80,000** **[40,000*2]**| |**4**|**Loss of estate**|**5,000**|**5,000**| |**5**|**Loss of dependency/** **economic benefits**|**1,00,000**|**3,60,000**| |**6**|**Funeral expenses**|**3,000**|**15,000**| ||**Total**|**1,67,106**|**5,19,106**| MACA.Nos.704, 709 & 1019 OF 2012 10 **It is made clear that the compensation payable by the Insurance Company to each of the persons, as indicated in the tables above would be only 50% of the amounts shown thereunder.** **All appeals are allowed in part. The payment as per the award and the modification made herein shall be made within three months with interest as directed by the Tribunal @ 9%, after deducting the amounts already paid or deposited. The appellant in M.A.C.A. No.704 of 2012 shall not be entitled to interest for 205 days for the amounts enhanced; the appellant in M.A.C.A. No.709 of 2012 shall not be entitled to interest for 190 days for the amounts enhanced and the appellants in M.A.C.A. No.1019 of 2012 shall not be entitled to interest for 205 days for the amounts enhanced; which are the delay occasioned in filing the appeal. The appellants shall produce a copy of a** MACA.Nos.704, 709 & 1019 OF 2012 11 **cancelled cheque of the Bank Account in a Nationalized Bank in their name, with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account, failing which the Tribunal shall proceed with the recovery in accordance with law. The transfer/deposit of the award amount shall be made by the Insurance Company after first satisfying the liability to Court Fee payable by reason of the amounts awarded exceeding that claimed in the application; deducting the same from** **the award.** **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **sp/24/08/2020** **//True Copy// P.A. To Judge**