RANCHI, India, Nov. 28 -- Jharkhand High Court issued the following order on Oct. 30:

1. The claimant is in appeal for enhancement of compensation awarded in Motor Accident Claim Case No. 31/2016, whereby and whereunder, a compensation of Rs.4,35,000/- has been awarded but in which 75% of the amount was deducted due to contributory negligence. Final award in favour of the claimant under Section 166 of M.V. Act came to Rs. 1,10,000/-.

2. As per the case of the claimant, he was aged about 18 years at the time of the accident. The accident took place while, he was going along with Ashok Kumar on the motorcycle bearing Registration No. JH 01M 2506 which met with an accident involving a Tempo APE Piaggio, Chassis No. MBX0000ZFTG121464 and Engine No. SSG8444827. The accident is attributed to rash and negligent driving by the driver of the said Tempo as a result of which, the claimant sustained severe injury and 30% temporary disablement on account of fracture of his leg.

3. Learned Tribunal recorded a finding that at the time of accident, the claimant was 16 to 17 years old and that the claim of him earning Rs.9000/- as a vegetable vender was false assertion. Considering the ratio laid down by the Hon'ble Apex Court in Master Mallikarjun Vs. National Insurance 2013 (3) KLJ 815, assessment of compensation was made by the learned Tribunal:

Table omitted, can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=A9S7c5LDIsB6RXaCf816x2WhGQQZb1eJEy5BLcYoekPJFllf9%2F3PgQY0tYMaCxWj&caseno=MA/198/2025&cCode=1&cino=JHHC010186372025&state_code=7&appFlag=)

4. It is argued by learned counsel for the appellant that learned Tribunal fell in error in deducting 75% toward contributory negligence only on the ground that he was not wearing helmet at the time of accident. It is argued that non-wearing of helmet was not a proximate cause of accident and at best, it could have amounted to violation of traffic rules. This cannot be the basis for holding that the appellant had contributed to the accident by not wearing helmet. Further, it is argued that 6% per annum interest has been awarded from the date of filing of the compensation application and not 7.5% as held by the Hon'ble Apex Court in Dharampal and others Versus U.P. State Road Transport Corporation {(2008) 12 SCC 208}.

5. Mr. Ashutosh Anand, learned counsel for the Insurance Company submits that it is wrong to contend that the finding of contributory negligence has been recorded only because the claimant was not wearing a helmet. Learned Tribunal has specifically referred in para-12 (b) of the judgment that the claimant had deposed that he was driving the motorcycle, but again he recanted, and stated that the motorcycle was driven by Ashok. He was not even having a driving licence at the time of accident and was aged about 14 to 15 years. With regard to the disability suffered, it is submitted that the claimant had not sustained any permanent disability and, therefore, he was not entitled to compensation under the head on which he has been awarded compensation for loss of earning capacity due to 30% temporary disablement. The doctor has specifically noted that there was only traumatic stiffness of right knee.

6. Having considered the arguments advanced on behalf of both sides and the materials on record, it is apparent that claimant is a minor boy who sustained temporary disability, and not permanent disability in the accident. Doctor has specifically noted that there was some stiffness in his right Knee. In order to assess functional disability resulting in loss of income, or future loss of income, the injury should partake the nature of some permanency. Unless there is some permanent disability, it cannot be said that the accident resulted in loss of income. In such cases the claimant shall be entitled to compensation for medical expenses and other heads, but not under the head of functional disability.

7. Here in the present case, the claimant has been already awarded compensation for loss of income due to functional disability caused by a temporary disablement. Claimant was a minor, therefore how did the temporary stiffness of joint result in loss of income is rather baffling. Be that as it may, but since the Insurance Company has not preferred any appeal against the award, I leave the matter there.

8. It is a moot point whether there was a contributory negligence or not, as the award of compensation has already been made much more than it could have been allowed.

Under the circumstances, Misc. Appeal stands dismissed.

Pending I.A., if any, stands disposed of.

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