Suresh Krishnan vs National Insurance Company Ltd
2023 Latest Caselaw 2450 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
     THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA,
                             1944
                 MACA NO. 3327 OF 2018
AGAINST THE AWARD IN OPMV 2101/2012 DATED 30.07.2014 OF
    III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,
                       ERNAKULAM
APPELLANT/PETITIONER:

         SURESH KRISHNAN,
         AGED 35 YEARS
         S/O P.KRISHNAN NAIR, VILLA NO.35, IMPERIAL
         GARDENS EROOR SOUTH P.O THRIPUNITHURA ERNAKULAM
         DISTRICT.
         BY ADV A.N.SANTHOSH


RESPONDENT/3RD RESPONDENT:

         NATIONAL INSURANCE COMPANY LTD.
         COCHIN DIVISIONAL OFFICE AJAY VIHAR KOCHIN-
         682016.
         BY ADVS.
         SRI.P.G.JAYASHANKAR
         SHEBA RIVY SIMON
         SMT.LINTA VARGHESE
         SRI.C.JAYAKIRAN
         SMT.T.S.LIKHITHA



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 24.02.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA NO.3327 of 2018

                                    2



                             JUDGMENT

The sole controversy in this appeal, filed by the claimant

in OP(MV) No.2101/2012 on the files of the Motor Accidents

Claims Tribunal, Ernakulam ('Tribunal' for short), is as regards

the notional income adopted by the Tribunal.

2. Sri.A.N.Santhosh - learned counsel appearing for

the appellant, pointed out that his client was injured in a road

accident, while he was walking on the Foreshore Road,

Ernakulam, being knocked down by the offending bus driven

in a rash and negligent manner. He submitted that his client,

therefore, filed a claim before the Tribunal, seeking

compensation to an extent of Rs.14,99,000/; but which was

awarded to a mere Rs.3,21,264/-, thus constraining him to

approach this Court.

3. Sri.A.N.Santhosh pointed out that, even going by

the admitted evidence and facts on record, his client earned

more than Rs.40,000/- in a month, which is evident from

Ext.A8 - Income Tax Returns for the assessment years 2011-

2012, 2012-2013 and 2013-2014; while the accident

occurred, as said above, on 13.07.2012. He argued that,

therefore, the Tribunal should have adopted that figure as the MACA NO.3327 of 2018

income of his client and ought to have then granted

compensation for disability, as also for 'Loss of Earning', on

such basis. He argued that the Tribunal, in having failed to do

so, has committed a grave error.

4. Sri.P.G.Jayashankar - learned Standing Counsel for

the Insurance Company, on the other hand, submitted that

Ext.A18 does not prove the actual income of the appellant;

and therefore, that the Tribunal could have only gone by an

estimation, which it has thus done correctly. He thus prayed

that this appeal be dismissed.

5. I have considered the afore submissions and have

also gone through the evidence on record - copies of which

have been handed over across the Bar by the learned counsel

for the parties, with the express consent that it can be acted

upon by this Court without dispute.

6. On the question of reckoning of the notional

income of the appellant, I must say that there is some force

in the afore submissions of Sri.A.N.Santhosh. This is because,

Ext.A18 is the statutory Income Tax Returns of the appellant

and it has not been disputed by the Insurance Company in

any manner, whatsoever. The said certificate shows the

taxable income of the appellant, for the assessment years MACA NO.3327 of 2018

2011-2012, 2012-2013 and 2013-2014, to be an average of

Rs.30,000/- per month. Therefore, going by even a very

rough estimate and after all deductions as are possibly liable,

I am of the view that this Court will be justified in adopting a

notional income of Rs.20,000/- per month in favour of the

claimant. I am persuaded to this view also because, even

going by Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd. : [(2011) 13 SCC

236], in the case of a person with unascertainable income in

the year 2016 - when the accident occurred - the Honourable

Supreme Court has postulated that a minimum of Rs.10,500/-

ought to be taken; and in this case, the Tribunal has taken as

mere Rs.4,000/-, which, in my view, is very exiguous.

7. That said, when it comes to the question of

compensation for 'Loss of Earnings', I find force in the

submission of Sri.P.G.Jayashankar - learned Standing Counsel

for the Insurance Company, that merely because Ext.A18 had

been produced, it would not show that there had been any

loss of income to the appellant during the time when he

underwent treatment for the injury. His argument was that

since the appellant was self employed, as a 'Real Estate

Agent' among others, any loss of income had to be pleaded MACA NO.3327 of 2018

and established by him cogently. He pointed out that this has

not been done and therefore, that no enhancement be

ordered on this ground.

8. I must say that I find approval with the afore

submissions because, the Tribunal has awarded Rs.20,000/-

towards compensation for 'Loss of Earnings' on a rough

estimate, which I do not think requires to be now modified,

particularly because, as correctly argued by

Sri.P.G.Jayashankar, there is no evidence to show what

exactly was 'Loss of Earnings', that the petitioner suffered on

account of the accident.

In the afore circumstances, this appeal is partly allowed,

solely to the extent of enhancing the compensation towards

disability to Rs.4,99,200/-, from Rs.99,840/- presently

awarded by the Tribunal, reckoning the notional income of the

appellant to be Rs.20,000/- per month and accepting his

permanent disability to be 16%, as has been correctly found

by the Tribunal. In all other heads, the compensation

awarded by the Tribunal will remain unaltered.

Needless to say, the appellant will be entitled to recover

the compensation, as enhanced by this Court, from the

Insurance Company, along with interest at the rate of 8% per MACA NO.3327 of 2018

annum (modifying the rate of interest of 9% as awarded by

the Tribunal, taking into account the escalation ordered by

this Court), from the date of claim until it is realised. The

appellant will also be entitled to proportionate costs as

awarded by the Tribunal on the enhanced amounts.

Sd/-DEVAN RAMACHANDRAN, JUDGE lsn