Back
2023 Supreme(Online)(KER) 8084
HIGH COURT OF KERALA
SOPHY THOMAS, J
SIVA – Appellant
Versus
KUMAR – Respondent
MACA 2113 2013
ADV SRI.ABRAHAM MATHEW (VETTOOR), ADV. SMT.A.SREEKALA
Compensation in personal injury cases should be assessed based on accurate notional income and medical evaluations, taking into consideration the minor's circumstances.
Headnote:
Compensation - Personal Injury - Motor Vehicle Accident - Section 166 of Motor Vehicles Act - The court assessed the compensation for disability and medical expenses, emphasizing the need for proper evaluation of notional income and considering the nature of injuries sustained.
Fact of the Case:
The appellant, a 17-year-old student, claimed compensation for injuries sustained in an accident involving an auto rickshaw. The Tribunal awarded inadequate compensation, prompting the appeal.
Issues: Whether the compensation awarded for injuries was adequate and whether the notional income and disability percentages were assessed correctly.
Ratio Decidendi: The court held that the assessment of notional income should account for the minor's age and potential earning capacity, ultimately adjusting the compensation figures accordingly.
Final Decision: The appeal was allowed, enhancing the compensation amount to Rs.1,18,934/-.
J U D G M E N T
The appellant, who is the claimant in OP(MV)No.10 of 2010 on the file of the Motor Accidents Claims Tribunal, Pala, is assailing the impugned award on the ground of inadequacy of compensation.
2. The appellant, a 17 year old student, while travelling in KL-7/BL-987 auto rickshaw, sustained fracture of left tibia, as the auto rickshaw overturned, due to the rash and negligent driving by the 1st respondent. He approached the Tribunal claiming compensation of Rs.3,00,000/-. But the Tribunal awarded only Rs.60,400/-. Hence this appeal.
3. The 1st respondent was the Driver, the 2nd Respondent was the owner, and the 3rd respondent was the Insurer of the offending auto rickshaw. Respondents 1 and 2 did not contest the case. The 3rd respondent-Insurer though admitted the policy, contended that the offending vehicle had no valid permit to ply in Idukki District, and the 2nd respondent permitted the 1st respondent to drive the auto rickshaw in violation of the permit and policy conditions.
4. Before the Tribunal, PWs1 and 2 were examined and Exts.A1 to A16 and B1 were marked.
5. The appellant is challenging the impugned award stating that though the Tribunal allowed Ext.A8 series Medical Bills, it was not reflected in the award. The notional income fixed for the appellant was not correct. The amount awarded towards pain and suffering and loss of amenities are too low.
6. Now let us see whether any interference is warranted in the impugned award.
7. Heard Sri.Abraham Mathew, learned counsel appearing for the appellant and Smt.A.Sreekala, learned Standing Counsel appearing for the 3rd respondent.
8. Admittedly the appellant was a 17 year old student at the time of accident i.e., on 15.08.2009. The Tribunal fixed his annual income notionally as Rs.15,000/- and applied multiplier of 16 to award Rs.14,400/- for 6% disability. Exts.A14 and A15 documents will show that he had suffered fracture of both bones of left leg lower one third with compartment syndrome. Ext.A16 Certificate issued by a Consultant Orthopaedic Surgeon certified his disability as 15%. The learned Tribunal without any discussions on the Disability Certificate issued by the Doctor, assessed compensation for 6% disability. According to the appellant, though he was a student, aged 17 years, the Tribunal ought to have fixed his monthly income notionally. He relied on the decision Mekala vs. Malathi M. and Another [2014 KHC 4325], in which the Apex Court fixed notional income of Rs.10,000/- per month for a student of XI standard. But in that case, the injured suffered 70% disability, which was permanent in nature also. In the case on hand the appellant was a 17 year old boy, who suffered 15% disability, as reported by a private Doctor.
9. Learned counsel for the 3rd respondent-Insurer relied on a recent decision of the Apex Court inKurvan Ansari Alias Kurvan Ali and Another vs. Shyam Kishore Murmu and Another [(2022) 1 SCC 317] , in which the Apex Court was pleased to fix notional income of a minor child, aged 7 years, @ Rs.25,000/- per annum. Since the appellant herein is a 17 year old boy, though he was not having any employment, his notional income can be fixed @ Rs.60,000/- per annum.
10. The Disability Certificate was not issued by a Medical Board.
Though the injury suffered was fracture of both bones of left leg with compartment syndrome, since he was a young boy, it may not be of permanent nature, and by efflux of time, the disability, if any, might have reduced. The appellant did not take any steps to assess his disability, if any, through a competent Medical Board. Considering that fact, this Court is inclined to take his disability as 8%. Taking his annual income as Rs.60,000/-, compensation for 8% disability can be assessed applying the multiplier of 18, as he was aged only 17. So compensation for disability could be assessed @ Rs.86,400/- (60,000x18x8/100). Since he was already paid Rs.14,400/- under that head, he is eligible to get the balance amount of Rs.72
