Suresh P.B v. Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944`** ``` MACA NO. 1353 OF 2017 ``` ``` AGAINST THE AWARD DATED 27.08.2016 IN OP(MV) NO.476/2016 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THALIPARAMBA ``` ## **`APPELLANT:`** ``` SURESH P.B, AGED 33 YEARS, S/O. BALAN, PANDARA PURAYIL HOUSE,MAILAMPETTI, PATHANPARA P.O, VELLAD AMSOM, NADUVIL DESOM, TALIPARAMBA KANNUR DISTRICT,PIN - 670 571. ``` ``` BY ADV SMT.M.R.JAYALATHA ``` ## **`RESPONDENT:`** ``` ORIENTAL INSURANCE CO. LTD. DO2, CANNANORE, KOK RAILTO, THANA P.O KANNUR, KANNUE DISTRICT, PIN - 670012 POLICY NO. 442500/31/2015/6559 (INSURER OF BUS KL-11-W 9351) ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT. K.S. SANTHI – SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1353/17 2 ## **`JUDGMENT`** The appellant was injured in a road accident on 03.09.2015, when the motorcycle on which he was travelling was hit by the offending bus driven in a rash and negligent manner. He had to be treated for some time and thereupon, filed OP(MV)No.476/2016 before the Motor Accidents Claims Tribunal, Thaliparamba (‘Tribunal’ for short), seeking a compensation of Rs.10,00,000/-, but which has been allowed only to the extent of Rs.6,53,400/-. He consequently questions the Award as being insufficient and inadequate. 2. Smt.M.R.Jayalatha – learned counsel for the appellant, pointed out that the evidence on record would show that her client was working as a Business Development Officer and Land Surveyor in a private entity and earning Rs.20,000/- and that, this has been proved through PW1 - who affirmed that Ext.X2 Muster Roll was genuine. She argued that, therefore, this amount should have been adopted as the income of the appellant and the insurer thus made him liable for much higher compensation under the head MACA 1353/17 3 ‘Permanent Disability’ and ‘Loss of Earnings’. She thus prayed that this appeal be allowed. 3. Smt.K.S.Santhi – learned Standing Counsel for the Insurance Company, on the other hand, submitted that, in the absence of any reliable evidence to prove the income of the appellant, the learned Tribunal could have adopted a notional one, which has been done correctly by it. She thus prayed that this appeal be dismissed. 4. I have considered the afore rival submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. 5. It is evident from the afore narrative of facts that, the primary contest in this case is regarding the notional income of the appellant. While he claimed to be earning Rs.20,000/- per month and produced Ext.A8 - Salary Certificate and fortified it by examining PW1, through whom Ext.X2 Muster Roll was marked, the learned Tribunal held that, in the absence of any evidence to MACA 1353/17 4 show the actual payment of salary, only a notional income could be adopted. In arriving at such a conclusion, the Tribunal has further held that PW1 had deposed that the Basic Salary of the appellant is Rs.9,000/- and that the further amounts mentioned in Ext.X2 – Original Muster Roll are allowances and commission. It thus took the view that, unless this payment was actually established, receipt of the same by the appellant cannot be presumed. 6. I must say that there is great force in the findings and observations of the learned Tribunal because, it was not merely sufficient for the appellant to have produced documents to show that he was earning allowances and commission in addition to his basic salary. It is common knowledge that allowances and commission are not static and are varying and obviously, therefore, there was an obligation to prove it in a cogent manner. The evidence of PW1 also is to the effect that the basic salary of the appellant was Rs.9,000/- and that other payments vary, being allowances and commission, as said above. As also rightly held by the learned Tribunal, when the appellant and PW1 agreed that MACA 1353/17 5 there was an Acquittance Register showing disbursement of salary, the failure or refusal to produce the same would lead to an adverse inference that his claim may not be fully accurate. 7. That being said, in such an instance, the postulations in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] ought to have guided the Tribunal in fixing the notional income of the appellant. In the said judgment, even in the case of a person with an unascertainable income, or who is a ‘Coolie’, the minimum notional figure to be reckoned is Rs.10,000/- per month. Further, in Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012 (SC)], the Honourable Supreme Court has taken a view that in the case of a person who is engaged in a technical avocation, a more robust view has to be taken. The factum of the appellant working as a Development Officer-cum-Land Surveyor being not disputed, it will be safe for me to assume that it is a technical avocation and consequently to add some more to the figure as authorised by Ramachandrappa (supra). I thus propose the notional income of the appellant to be Rs.11,500/-, which is a mere Rs.1,500/- more than MACA 1353/17 6 ## what is permitted by Ramachandrappa (supra). 8. That being said, Ext.A2 – Wound Certificate establishes that the appellant had sustained fracture of his right hip, along with extra peritonical haematoma. He was in the hospital for nearly 18 days and must have gone through great trauma and pain. The learned Tribunal, of course, have granted him very generously both under the heads ‘Pain and Suffering’ and ‘Amenities’, but the question is whether he is entitled to be granted 10% future prospects also to his income. 9. In this regard, Sathish E. v. New India Assurance Company Ltd. & Others , a judgment of the Honourable Supreme Court in Civil Appeal No.8059-8060/2022 will have great bearing because, in the case of a person with 24% disability, 25% future prospects was added. Similarly, in the case of Lalan D alias Lal and Another v. Oriental Insurance Company Ltd [AER 2020 SC 4508] and Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735], disability recorded in favour of the appellants therein varied from 35% to 85% and future prospects were added to their incomes. MACA 1353/17 7 10. Obviously, therefore, the Honourable Supreme Court has taken the view that the question of grant of future prospects depends upon the injury suffered by the person. 11. In the case at hand, apart from lacerations and other wounds, the appellant suffered fracture of his right hip and this has led the competent Board to issue Disability Certificate finding him to have 30% disability. The injury is not very trivial and its is rather grave because, on account of the dislocation, he has been incapacitated to an extent of 30%. To add to this, Ext.A5 series of Medical Bills specifically talk about an implant, which has been removed. It is thus obvious that surgical procedures were done to correct the fracture of hip. I, therefore, propose to grant him 10% future prospects. In the afore circumstances, this Appeal is partly allowed with the following directions: a) The compensation under the head ‘Permanent Disability’ is enhanced to Rs.6,96,960/-, from Rs.3,45,600/- granted by the Tribunal, reckoning the notional income of the appellant to be Rs.11,000/-, with 10% future prospects added to it and his MACA 1353/17 8 percentage of disability reckoned as 30%, as rightly found by the learned Tribunal. b) As a corollary, the compensation under the head ‘Loss of Earnings’ is enhanced to Rs.55,000/-, instead of Rs.30,000/-. Consequently, the appellant will be at liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ``` ACR/RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```