Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 MACA NO. 881 OF 2013 AGAINST THE AWARD DATED 24.07.2012 IN OPMV 93/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYANAD
APPELLANT/PETITIONER: JERISH AGED 27 YEARS, S/O.RAFI, ELAMAKKARA POST, KOCHI - 26, NOW RESIDING AT ASHIF MANZIL, CHOYEE ROAD, KALPETTA POST BY ADV SMT.CELINE JOSEPH RESPONDENT/RESPONDENT NO.3: THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD. OPP: TVS, N.H.ROAD, KALOOR, ERNAKULAM 682 017. SRI. JOHN JOSEPH VETTIKKADU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.10.2021, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING:
T.R. RAVI, J.
-------------------------------------------- -------------------------------------------- Dated this the 29th day of October, 2021
JUDGMENT
On 31.01.2009, the car in which the appellant was travelling from Belgam to Trivandrum, capsized due to the rash and negligent
driving by the 1st respondent. The appellant suffered serious injuries and was admitted to Hosmat Hospital, Bangalore and discharged on 05.02.2009 with an advise to continue treatment as an outpatient. The appellant had suffered fracture of proximal 1/3 rd shaft of left femur with T Cruis infection of skin over anterior abdomen lower and bilateral medial thigh and minor injuries and pain all over the body. The appellant was an engineering student
aged 25 years at the time of the accident. The District Medical Board, Wayanad in Ext.C1 assessed permanent disability of 5%
under Mc-Bride scale and 16% under the NIOH scale. The certificate shows that the appellant was treated by open reduction and internal fixation with inter locking nailing and he had difficulty in squatting and sitting cross legged as well as climbing stairs. It is also noticed that the implant is still inside. The appellant preferred
a claim for compensation before the Tribunal. The Tribunal awarded a sum of ₹47,500/- with interest at the rate of 7.5% from 27.02.2010. Aggrieved by the award, the appellant has filed this appeal seeking enhancement of the compensation awarded.
2. Heard Smt.Celine Joseph, learned counsel for the appellant and Sri.John Joseph Vettikkad, learned counsel for the respondent.
3. The counsel for the appellant contended that the Tribunal went wrong in fixing the notional income of the appellant
at ₹1,250/- and in not taking 16% as the disability. It is also contended that the amount awarded towards loss of amenities and pain and sufferings is also very less having regard to the nature of the injuries. Reliance is placed on the decision in V. Mekala vs M. Malathi & Anr. reported in [(2014) 11 SCC 178] to submit that in the said case the Hon'ble Supreme Court had fixed a monthly income of ₹10,000/- with 50% future prospects in the case of a student of class 11.
4. Having heard the counsel on either side, I am of the opinion that the contentions raised by the counsel for the appellant are justified and the appellant is entitled to enhanced compensation. I find that there is no justifiable reason for not adopting 16% as the disability, which even according to the Tribunal is a functional disability. The Tribunal had also seen the
appellant who had appeared before the Tribunal and verified the disability and observed that the assessment done by the Medical Board regarding disability appears to be true and correct. However, while calculating the compensation under the head permanent disability, the Tribunal adopted 6% as the disability. I am of the opinion that the Tribunal should have adopted 16% is the disability. So also, the notional income fixed by the Tribunal at ₹1,250/- with regard to an engineering student in the year 2010 is also very meager. Recently in the judgment in M.A.C.A. No.2987/2015, a learned Single Judge of this Court had considered the question of notional monthly income to be adopted in the case of an engineering student. After referring to several judgments, this Court found that ₹16,000/- can be adopted as the monthly income. The above said case was also in which the accident occurred in the
year 2010. It was also found that 40% is to be added towards future prospects. However, that was a case of death and I do not think that it would be just to fix the notional income and future prospects on the above basis. In the light of the judgment in Mekala (supra), I am of the opinion that a sum of ₹10,000/- can be taken as the notional income. Adopting ₹10,000/- and applying the disability of 16%, the compensation for permanent disability
would come to ₹3,26,400/-. After deducting an amount of ₹15,300/-, the additional compensation payable under the head compensation for permanent disability will be ₹3,11,100/-. The Tribunal has granted only ₹5,000/- towards loss of amenities and I am of the opinion that the same is to be increased to ₹15,000/- ie, an addition of ₹10,000/-. I am of the opinion that the compensation granted under the other heads are reasonable and do not require any changes. In the result, the appeal is allowed and the appellant is
awarded an enhanced compensation of ₹3,21,100/- (Rupees Three Lakh Twenty One Thousand only) with 9% interest from the date of filing of the claim petition (27.02.2010) till the date of realisation, with proportionate costs. The respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is
liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law. Sd/- T.R. RAVI JUDGE Pn