2025:KER:30297 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE EASWARAN S. FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 MACA NO. 2362 OF 2021 AGAINST THE AWARD DATED 22.05.2018 IN OPMV NO.376 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANT/PETITIONER: ARATHY G.S. AGED 29 YEARS D/O. SATHEESAN NAIR, SREE BALAKRISHNA, KRA B-222, KULANGARA LANE, NEAR MARY GIRI SCHOOL, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM. BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH RESPONDENT/ 3RD RESPONDENT : THE MANAGER THE ORIENTAL INSURANCE COMPANY LTD., PADMASREE, NEAR KSRTC BUS STAND, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695 121. BY ADV S.K.AJAYAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.2362/2021 2 2025:KER:30297 EASWARAN S., J ..................................... MACA No.2362 of 2021 ...................................… Dated this the 28th day of March, 2025 JUDGMENT The claimant has approached this Court dissatisfied with the award passed by the Motor Accidents Claims Tribunal, Thiruvanathapuram in OP(MV)No.376/2013. 2. The brief facts necessary for the disposal of the appeal are as follows: On 24.12.2012 at about 5.15 p.m., while the appellant/claimant was riding a scooter bearing Reg.No.KL-01/AX-2639 through Kowdiar – Peroorkada road and when she reached Ambalamukku Junction, a tanker lorry bearing Reg.No.KL-21-E-8322 came in a rash and negligent manner and hit against the appellant’s scooter. The claimant contended that she was a student and was also doing fabric painting and earning an amount of Rs.8,000/- per month. In support of her contention, Exts.A1 to A12 documents were produced and MACA No.2362/2021 3 2025:KER:30297 claimant was examined as PW1. No oral or documentary evidence was adduced on the side of the Insurance Company. The Tribunal, on appreciation of evidence, found that the claimant, though was not able to prove her avocation, still was entitled to have the income fixed at Rs.8,000/-. As regards the permanent disability suffered by the appellant in the accident, the Tribunal after taking note of Ext.A8 Disability Certificate , reduced the percentage of disability to 14% and granted the following compensation: Sl. No. Head of Claim Amount Claimed Amount Awarded Basis/vital detils in a nutshell 1 Loss of earnings for 6 months 48,000 32,000 Considering the nature and gravity of the injuries sustained and the duration of the hospitalisation and treatment 2 Transport to hospital 10,000 3,500 Nominal amount 3 Extra Nourishment 5,000 3,000 Considering the nature and gravity of the injuries sustained and the duration of treatment 4 Damages to clothings and other articles 5,000 500 Reasonable on a rough estimate 5 Medicine-Cum-Treatment 2,00,000 1,63,700 As per admissible medical bills produced 6 Charges for Bystander 5,000/- 3,750 Considering the nature and gravity of the injuries sustained and duration of MACA No.2362/2021 4 2025:KER:30297 hospitalisation 7 Compensation for future treatment 25,000 15,000 Nominal Amount 8 Compensation for pain and sufferings 50,000 20,000 Considering the nature and gravity of the injuries sustained and the duration of hospitalisation and treatment 9 Compensation for continuing or permanent disability, if any 20,000 2,41,920 Rs.8,000x12x18x 14/100 10 Compensation for the loss of earning power 2,50,000 Nil Disallowed 11 Compensation for mental shock, shortened expectations in life, loss of amenities in life, etc. 1,50,000 72,600 Considering the nature and gravity of the injuries sustained on the personal life of the petitioner Total 7,68,000/- (Claim is limited to 7,00,000/- only) 5,55,970 Rs.5,55,970/- with interest 8% per annum from 11.04.2013 till the date of realisation 3. Aggrieved by the insufficiency in the grant of compensation, the appellant has approached this Court. 4. Heard, Sri.R.T.Pradeep – learned counsel appearing for the appellant and Sri.S.K.Ajaykumar – learned counsel appearing for the Insurance Company. 5. On a consideration of the rival submissions raised across the Bar, this Court finds that the appellant is entitled to succeed. MACA No.2362/2021 5 2025:KER:30297 6. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Hon'ble Supreme Court has laid down the principles governing the fixation of notional income. Even going by the said decision, the appellant is entitled to have her income fixed at Rs.8,500/-. However, considering the fact that she being a student and the avocation stood unequivocally proved in the absence of contra-evidence of the Insurance Company, this Court finds that the income of a student cannot be fixed in par with that of a Coolie Worker. 7. It is true that in the application before the Tribunal, the appellant has claimed only Rs.8,000/- as income. However, in Oriental Insurance Company v. Martin Xavier [2024 KHC 7049], this Court held that the averments in the claim petition need not deter the Tribunal from fixing a higher notional income, if warranted in the facts and circumstances. Therefore, this Court is of the opinion that an amount of Rs.10,000/- can be fixed as the notional income. 8. As regards the percentage of permanent disability, this Court finds that the Tribunal has reduced the percentage of MACA No.2362/2021 6 2025:KER:30297 disability without assigning any reason. In Manikantan G. v. K.Janardhanan Nair and Others [2021 (5) KHC 305], a learned Single Bench of this Court held that the Tribunal cannot reduce the percentage of disability without referring the claimant to the Medical Board. Therefore, this Court is of the view that the appellant is entitled to have the percentage of disability restored at 20%. As an upshot of these discussions, the appellant is entitled to succeed. The appeal is thus allowed and the appellant is entitled for enhanced compensation as follows: Heads Amount awarded by the Tribunal Total compensation awarded in appeal Enhanced amount of compensation Notional income of appellant is fixed at Rs.10,000/-. Percentage of permanent disability of the appellant is restored to 20%. Compensation for pain and sufferings 20,000/- 30,000/- 10,000/- [30000-20000] Compensation for continuing or permanent disability, if any 2,41,920/- 4,32,000/- [10000x12x18x20/ 100] 1,90,080/- [432000-241920] Compensation for mental shock, shortened expectations in life, loss of amenities in life etc 72,600/- 1,44,000/- [1/3rd of permanent disability] 71,400/- Total enhanced amount of compensation 2,71,480/- Accordingly, the appellants/claimants are awarded an MACA No.2362/2021 7 2025:KER:30297 additional compensation of Rs.2,71,480/- (Rupees Two lakhs seventy one thousand four hundred eighty only) over and above the compensation awarded by the Tribunal with interest @8% per annum from the date of petition till realization together with proportionate costs. The Insurance Company is directed to deposit the aforesaid amount within a period of two months from the date of receipt of a copy of this judgment. While, calculating interest, it is ordered that the appellants will not be entitled for interest for a period of 583 days, which represents the period of delay in filing the appeal. The appeal is ordered accordingly. Sd/- EASWARAN S. JUDGE ACR