The court adjusted awarded compensation by evaluating the claimant's disability and future earning potential under established legal precedents.

JUDGMENT

This appeal has been filed by the third respondent insurer in OP(MV) No.1279 of 2011 on the files of the Additional Motor Accidents Claims Tribunal-I, Pathanamthitta, challenging the quantum of compensation awarded to the claimant. The first respondent herein was the claimant; and respondents 2 & 3 herein were the respondents 1 & 2 before the tribunal.

2. The case of the claimant was that on 28.07.2011, while the claimant was travelling in a motorcycle bearing Reg.No.KL-27-B- 5213, a jeep bearing Reg.No.KL-03-C-3328 driven by the first respondent in a rash and negligent manner, hit the motorcycle, whereby he sustained serious injuries. He approached the tribunal claiming a total compensation of ₹44,80,000/-.

3. Respondents 1 and 2 are the driver and owner of the offending vehicle respectively. The third respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, PW1 was examined and Exts.A1 to A22 were marked. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the driver of the offending vehicle and awarded a sum of ₹38,52,962/- as compensation under different heads with interest @ 9% per annum from the date of petition till realization against the third respondent being the insurer. The respondent insurer has come up in appeal, alleging that the quantum of compensation awarded by the tribunal is excessive.

4. Heard the learned Standing Counsel for the appellant/respondent insurer and the learned counsel for the first respondent/claimant.

5. The learned Standing Counsel for the appellant mainly challenges the quantum of compensation awarded under the heads, viz., Permanent Disability, Loss of Amenities and Pain & Suffering.

5.1. Permanent Disability - The learned Standing Counsel submits that the tribunal went wrong in adding 50% future prospects to the notional income of 12,000/- fixed for assessing compensation towards permanent disability. As regards the challenge regarding addition of 50% future prospects, I find that the claimant, who was aged 26 years at the time of the accident, was not permanently employed; and hence, as per the judgment in National Insurance Co.Ltd. v.

Pranay Sethi [2017(4) KLT 662(SC)], future prospects to be added to the income is 40% and not 50%. Thus, after adding 40% of the notional income towards future prospects, the income would be ₹16,800/- (12000 + 4800) for assessing compensation towards permanent disability.

5.1.1. The learned Standing Counsel for the insurer further submits that the tribunal erred in fixing the percentage of functional disability at 60%, pointing out that as per Ext.A22 disability certificate, permanent disability sustained by the claimant was assessed at 35%. The learned counsel for the claimant, per contra, submits that the claimant was examined before the tribunal as PW1, and upon being satisfied with the condition of the claimant and the injuries sustained by him, the tribunal assessed the functional disability at 60%. I have perused the deposition of PW1. It is seen that an affidavit was filed by the claimant detailing his difficulties due to the injuries sustained in the accident. However, the insurer failed to cross-examine the claimant. In paragraph No.7 of the impugned award, it is stated as follows:

“Petitioner was examined before Court as PW1. He was observed by the Court also. Now he is unable to mount on large buildings where construction is going on. He cannot stand for long. He can't watch the work and give directions. He has difficulty in breathing. He can't bend. He cannot stretch. He develops severe intermittent abdominal pain. He c