Sruthy.S vs Manoj Kumar

Johnson John, J.

The petitioner in O.P.(MV) No. 774 of 2011 on the file of the Motor Accident Claims Tribunal, Thiruvananthapuram filed this appeal challenging the quantum of compensation awarded by the Tribunal under various heads as inadequate.

According to the petitioner, on 31.5.2011, while he was traveling as pillion rider in a motorcycle ridden by the 1st respondent in a rash and negligent manner and when the vehicle reached the place of occurrence, the rider suddenly turned the vehicle towards left and thereby, the petitioner fell down and sustained serious injuries.

The 1st  respondent is also the owner of the vehicle and 2nd respondent is the insurer.

Before the Tribunal, PW1 examined and Exhibits A1 to A19 were marked from the side of the petitioner and no evidence adduced from the side of the respondents. After trial and hearing both sides, the Tribunal awarded a total compensation of Rs.2,83,900/- to the petitioners.

The learned counsel for the appellant argued that the appellant was a Seventh semester engineering student aged 23 years at the time of the accident and the Tribunal fixed only Rs.7,500/- as his notional income and the same is on the lower side. Exhibit A6 certificate issued by the Principal, J.S.S Academy of Technical Education shows that the petitioner was a student of Seventh semester BE in Information Science & Engineering branch during the academic year 2011-2012.

In Basanti Devi and another v. The New India Insurance Co. Ltd. and others [Live Law 2021 SC 728], the Honourable Supreme Court has fixed the notional income of an engineering graduate at Rs.20,000/- for the occurrence in 2011. In Nanu K. v. National Insurance Company Limited [2024 KHC 7373], this Court fixed the notional income of a final year engineering student aged 23 years in connection with the accident occurred in the year 2015 at Rs.22,000/-.

In Ramakrishnapillai K. and others v. New India Assurance Co. Ltd. (2015 (3) KLJ 750), this Court fixed the monthly income of a B. Tech 4th Semester student who died in an accident on 10.03.2006 as Rs.12,000/-. In Kandasamy v. Linda Briyal [2023 KHC 5361], the Honourable Supreme Court reckoned Rs.25,000/- as the monthly income of an engineering graduate who died in an accident occurred on 28.09.2008.

The learned counsel for the respondent insurance company pointed out that in Basanti Devi (supra) and Kandasamy (supra), the deceased was an engineering graduate and in this case, the appellant was only an engineering student of Seventh semester. Therefore, considering the facts and circumstances and taking note of the fact that the accident occurred in the year 2011, I find that the notional income of the appellant for the purpose of calculating the loss of earning capacity can be fixed as Rs.18,000/-. As per Exhibit A4 disability certificate issued to the appellant from Medical College Hospital, Thiruvananthapuram, permanent disability is 15% as per Mc Bride’s scale. The following difficulties are noted in Exhibit A4:

● Scar on lateral aspect of left knee and leg.

● Tenderness present at fracture site on left leg.

● Partial ankylosis of left knee present with flexion limited to 100 degrees.

● Pain and crepitus present in left knee.

● Fresh x-ray shows post traumatic osteoarthritis of left knee.

● Wasting of left leg cannot be assessed due to chronic oedema.

● Shortening of 1 cm. of left lower limb. Patient walks with limp.

● Sensory dulling present on lateral aspect of left knee. Not able to squat. Not able to walk fast or run. Difficulty in climbing stairs and getting downstairs.

● Difficulty in carrying weight.

In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343], the Honourable Supreme Court summarised the principles for ascertainment of loss of earning capacity due to permanent disability as follows:

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

As noticed earlier, the appellant herein was an engineering final year student and taking note of the problems highlighted in Exhibit A4 disability certificate, I find that 15% occupational disability can be accepted for the purpose of calculating the compensation for loss of earning power. Thus, while re-assessing the compensation for loss of earning power, the amount would come to Rs.5,83,200/- [ 18,000 x 12 x 18 x 15/100]. The Tribunal had already granted Rs.81,000/- under this head and therefore, an additional compensation of Rs.5,02,200/- is granted to the appellant under this head.

The learned counsel for the appellant pointed out that towards pain and sufferings, the Tribunal allowed only Rs.15,000/-. Considering the nature of injuries, period of treatment and disability, an additional compensation of Rs.10,000/- is granted under this head to the appellant. The Tribunal granted Rs.24,300/- towards loss of amenities. Considering the nature of injuries and problems faced by the appellant, I find that the same is on the lower side and therefore, an additional compensation of Rs.10,000/- is granted to the appellant under this head.

Accordingly, the appellant is entitled to the enhanced compensation as given below:

Particulars

Compensation awarded     by     the Tribunal (Rs.)

Additional amount  granted by   this   Court (Rs.)

Compensation    for loss     of earning power

81,000/-

5,02,200/-

Pain and sufferings

15,000/-

10,000/-

Los of amenities

24,300/-

10,000/-

Total enhanced compensation

5,22,200/-

Thus, a total amount of Rs.5,22,200/- (Rupees Five Lakhs Twenty Two Thousand Two Hundred only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 8% per annum from the date of the application till realization. The appellant would also be entitled to proportionate costs in the case. The claimants shall furnish the details of the bank account to the insurance company for transfer of the amount.

The appeal is allowed as above.