Felwin @ Felwin Francis M. v. National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 MACA NO. 3947 OF 2017** **AGAINST THE AWARD IN O.P.(MV) NO.361/2014 DATED 15.07.2017 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA.** **APPELLANT/PETITIONER:** **FELWIN @ FELWIN FRANCIS M., S/O.FRANCIS, MADAN HOUSE, ELAVANTHIKKARA DESOM, MANJAPPRA VILLAGE, ANAPPARA P.O., ALUVA TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/2ND RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD., IRINJALAKUDA, REPRESENTED BY ITS MANAGER-680 121.** **BY ADV. SRI. P. JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON 12.08.2022 DELIVERED THE FOLLOWING:** MACA 3947/2017 2 C.JAYACHANDRAN, J. -----------------------------------MACA No.3947 of 2017 ------------------------------------Dated this the 12[th] day of August, 2022 ## J U D G M E N T 1. A B.D.S student, the injured in an accident which took place on 1.2.2014, and the petitioner in O.P(M.V) No.361/2014 is the appellant herein. He impugns the award dated 15.7.2017 of the Motor Accidents Claims Tribunal, Irinjalakuda on various counts. 2. Heard Sri.A.N.Santhosh, learned counsel for the appellant/petitioner and Sri.Jacob Mathew, learned Counsel appearing for the respondent-insurance company. 3. Learned counsel for the appellant submitted that the notional income of the appellant/claimant was taken at Rs.6,000/- by the Tribunal as against Rs.15,000/- claimed. Learned counsel pointed out that the appellant/claimant was a B.D.S student and that he had suffered 12.29% disability in the accident as certified in Ext.A12. Learned counsel relied upon a MACA 3947/2017 3 Bench decision of this Court in National Insurance Company Ltd. v. Fathimath Zuhara [2016 (3) KLT 459] , wherein the notional income of an engineering student was taken as Rs.12,000/- in the year 2005. In the instant case, the accident is of the year 2014, wherefore, Rs.15,000/- claimed as notional income ought to have been reckoned by the Tribunal. 4. In answer to the same, learned counsel for the respondent/insurance company submitted that the judgment in Fathimath Zuhara (supra) will not apply to the present facts, since that was a case of death and the notional income had to be arrived at on a high degree of guesswork. That apart, the appellant/claimant herein was a B.D.S student at the time of accident, whereas the claimant in Fathimath Zuhara (supra) was an engineering student. 5. Having heard the learned counsel appearing on both sides, this Court is of the opinion that the income reckoned by the Tribunal at Rs.6,000/- is insufficient. As rightly pointed out by the learned counsel, the appellant/claimant was a B.D.S student at the time of accident. He is certified to have 12.29% disability (disability being reckoned by the Tribunal MACA 3947/2017 4 only at 10%, which will be discussed in detail later). Admittedly, the appellant/claimant had no income at the time of accident, since he was a student. However, a notional income is liable to be reckoned in the case, in order to ascertain compensation on account of disability. Although, the notional income taken by the Tribunal is on the lower side, this Court is not in a position to accede to the appellant's demand to reckon the notional income at par with Fathimath Zuhara (supra). The following observations in Fathimath Zuhara (supra) are relevant and extracted herein below:- “6. ….... It is a fact that the question of fixation of compensation arising out of the death of a student who had not started earning, is essentially a puzzling problem, mainly for the reason that none can say with precision as to what he/she would have been, but for the untimely death. In other words, in such circumstances, a high degree of guess work has to be applied while deciding the quantum of compensation to be paid in such cases. But, at the same time, a survey of the authorities on the subject would reveal that the constant and consistent stand of the Hon'ble Apex Court, as revealed from a plethora of decisions, is that while fixing the compensation payable MACA 3947/2017 5 under the head loss of dependency, though the minor concerned had not started earning, the court/the tribunal has to fix the monthly income notionally for the aforesaid purposes. Furthermore, such fixation has to be made with reference to various aspects such as, the educational career graph, future prospects etc. In this case, the two students for whose death claim petitions have been filed by their respective parents, were studying in LBS College of Engineering at Pooval in Kasaragod. Obviously, taking into the fact that the victims were Engineering students, the Tribunal took the monthly income notionally at 12,000/- in both the₹ cases. Despite the persuasive argument of the counsel for the third respondent, we do not find any reason to hold that the notional income fixed by the Tribunal as ₹ 12,000/- is excessive or exorbitant. No doubt, had they been alive and passed out from the Engineering College on employment, they would not have been placed on a scale of pay having a starting which is lesser than 12,000/-.” ₹ 6. It could thus be seen that the Division Bench had exercised a high degree of guesswork to find out the income which would have been earned by the claimant therein, had she been alive and passed out from the MACA 3947/2017 6 engineering college. This factual situation is not available in the present case. Here, the appellant/ claimant is only injured, with a disability of 12.29% assessed. It cannot be said that his future prospects to fetch an employment and to earn income have been spoiled due to accident. What is essentially to be considered in cases of injury is a notional income for the purpose of determining the disability compensation. 7. For the same reasons aforesaid, this Court is not in a position to take stock of the unreported judgment of a learned Single Judge of this Court in M.A.C.A No.1033/2010 dated 17.2.2022 relied upon by the learned counsel for the appellant/claimant. It is true that Fathimath Zuhara (supra) has been taken stock of in paragraph nos.14 & 15 of that judgment. However, the distinction that the case considered was one of injury and not of death, has not been brought to the notice of the learned Single Judge. 8. Having regard to the fact that the appellant/ claimant was a B.D.S student at the time of accident, this Court is of the opinion that it would be just and MACA 3947/2017 7 reasonable to fix the notional monthly income at Rs.10,000/-. It is so done. 9. The second contention raised by the learned counsel for the appellant/claimant is with respect to the disability assessed vide Ext.A12 at 12.29%, against which the Tribunal had reckoned only 10%. In paragraph no.8 of the award, the Tribunal had taken stock of the fact that the fracture had united well as referred to in Ext.A12 certificate and Ext.A-11 X-ray. 4% disability has been assessed towards the scar, which according to the learned Tribunal is not significant. On these counts, the disability assessed has been reduced to 10%, a course which this Court finds it difficult to accept. This Court is of the opinion that assessing medical disability of an injured is an expert's job. The same having been done vide Ext.A12 certificate and the author of Ext.A12 having been examined as PW1, usually, the disability indicated in such medical certificate will have to be taken as such, unless the assessment is put to serious challenge on one premise or another. In the instant case, it could be seen from Ext.A6 that the appellant/claimant is suffering from Traumatic pseudoaneurysm, which stands confirmed in Ext.A7 MRI MACA 3947/2017 8 report. The Tribunal took note of the fact that there is bulging on his tibial bone, besides shortening of the right lower leg compartment to the extent of 1 c.m. In such circumstances, the disability assessed by the expert should have been accepted. Therefore, this Court reckons the disability at 12.29%. 10. Although the learned counsel for the appellant/claimant sought for an enhancement under the head pain and suffering, this Court finds that a reasonable amount of Rs.30,000/- has already been granted by the Tribunal, warranting no interference on that count. However, the loss on account of amenities is seen fixed at Rs.15,000/-, which requires reconsideration. As indicated, the appellant has suffered disability to the extent of 12.29%. He was hospitalised as an inpatient for a period of 24 days. The accident had left him with traumatic pseudoaneurysm. That apart, it has been found in Ext.A12 that the appellant is having functional difficulty to climb up and down, to squat, to stand or sit on right tiptoes, to run, jump etc. In such circumstances, the loss of amenities can be enhanced to Rs.25,000/-. Learned counsel for the respondent/insurance company pointed out that the MACA 3947/2017 9 Tribunal has reckoned loss of earning for a period of five months, which reckoning is illegal and incorrect. As a matter of fact, there is no actual loss of earnings, inasmuch as the appellant/claimant was a student at the relevant time. Therefore, the compensation of Rs.20,000/- granted under that head is liable to be obliterated. 11. In the result, this M.A.C.A is allowed and the amount of compensation payable to the appellant/claimant is re-worked as indicated in the tabular statement shown herein below: |Sl.<br>No.|Head of Claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Total amount<br>after<br>enhancement in<br>appeal (Rs.)| |---|---|---|---| |1|Loss of earnings|20000|Nil| |2|Transportation expenses|2500|2500| |3|Extra nourishment|1000|1000| |4|Damage to clothing|1000|1000| |5|Attendant expenses|7200|7200| |6|Medical expenses|123200|123200| |7|Pain and suffering|30000|30000| |8|Permanent disability|129600|265464| |9|Loss of amenities|15000|25000| ||Total|329500|455364| ||Amount enhanced =Rs.|1,25,864/-(455364-329500)|| MACA 3947/2017 10 12. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimant/s shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. 13 . The appeal is allowed as indicated above. Sd/C.JAYACHANDRAN JUDGE jg