Fathima Rehana.T. V. The New India Assurance Company Limited

MACA/220/2023

AI Insights

The case involves an appeal by Fathima Rehana.T., who contested the compensation awarded by the Additional Motor Accidents Claims Tribunal-I, Kozhikode, following a road accident where she suffered significant injuries. The Tribunal had awarded her a total compensation of Rs.2,96,208, which she found inadequate compared to her claim of Rs.21,30,000. The primary contention in the appeal was the Tribunal's assessment of her notional income at Rs.12,100 per month, which was challenged based on her actual income evidenced in her Income Tax Returns. The Insurance Company defended the Tribunal's decision, citing adherence to the documented income. The High Court, after reviewing the evidence, adjusted the compensation amounts under various heads but upheld the Tribunal's decision on other aspects.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 798377 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 28-02-2023
• Assessment Year: misc
• Other Referred Cases: Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: LAL JOSEPH
• Assessee Lawyers: K M JAMALUDHEEN
• Keywords: Compensation; Insurance; Notional income; Permanent disability; Motor Accident Claims

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28TH DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 MACA NO. 220 OF 2023 AGAINST THE ORDER/JUDGMENT OPMV 903/2020 OF ADDITIONAL DISTRICT COURT, KOZHIKODE / I ADDITIONAL MACT, KOZHIKODE APPELLANT/PETITIONER IN O.P.(M.V): FATHIMA REHANA.T. AGED 52 YEARS, D/O HASSAN KUTTY, HIGHWAY APARTMENT, C17, AYSHAS, KANNANCHERI P.O., KALLAI, KOZHIKODE-673003. BY ADV K.M.JAMALUDHEEN RESPONDENT/3RD RESPONDENT IN O.P.(M.V): THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G.ROAD, KOZHIKODE - 673004 REPRESENTED BY ITS DIVISIONAL OFFICER SRI.LAL K. JOSEPH - SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.220 of 2023 : 2 : DEVAN RAMACHANDRAN, J. ========================= M.A.C.A.No. 220 of 2023 ========================== Dated this the 28th day of February, 2023 JUDGMENT The appellant impugns the Award of the Additional Motor Accidents Claims Tribunal-I, Kozhikode (‘Tribunal’ for short) in O.P(MV)No.903 of 2020, specifically on the ground that it has granted compensation under the head ‘Permanent Disability’ to a mere sum of Rs.1,51,008/-, wrongly reckoning her notional income to be Rs.12,100/-, though the evidence on record would show that it is much higher. 2. Sri.K.M.Jamaludheen – learned counsel for the appellant, pointed out that his client was involved in a road accident on 02.11.2019, while she was walking on the side of a road, being knocked down by the offending vehicle driven by its driver in a rash and negligent manner. He says that she suffered fracture of both bones of her right leg and had to go through extensive treatment; constraining her to file the aforesaid Original Petition before the Tribunal, seeking compensation to an extent of Rs.21,30,000/- limited to Rs.7,00,000/-, but which has been allowed only a sum of Rs.2,96,208/-. He thus prayed that the impugned Award of the Tribunal be enhanced as prayed for. M.A.C.A.No.220 of 2023 : 3 : 3. In response, Sri.Lal K.Joseph – learned Standing Counsel appearing for the Insurance Company, submitted that the Tribunal has correctly gone by Ext.A9 – Income Tax Returns produced by the appellant herself, to arrive at the notional income and, therefore, that the computations adopted by it are not in error. He thus prayed that this appeal be dismissed. 4. I have evaluated the afore submissions, on the touchstone of various materials and 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 they can be acted upon by this Court without dispute. 5. As rightly argued by Sri.K.M.Jamaludheen, the learned Tribunal has adopted the notional income of the appellant to be Rs.12,100/-, and for this purpose, it relied upon her income Tax Return for the Assessment Year 2018-19, which had been produced and marked as part of Ext.A9 series. However, the learned Tribunal erred in not noticing that the accident occurred on 02.11.2019 and, therefore, that the Income Tax Assessment relevant to that date, would be the one for the Assessment Year 2020-21. This has also been produced by the appellant as part of Ext.A9 series, which show that her gross income was Rs.2,51,810/-. Going by that standard, the monthly income would be about Rs.21,000/-. However, it is also on record that the appellant was not M.A.C.A.No.220 of 2023 : 4 : a salaried person, but one engaged as an agent in the insurance business, and the income for the other assessment years, which are also reflected in the Income Tax Returns as part of Ext.A9 series, would establish that it fluctuated from year to year. 6. That being said, in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Hon'ble Supreme Court has postulated that, even in the case of a person with an unascertainable income in the year 2019, the yardstick to be adopted is Rs.12,000/- per month. Taking note of the fact that the appellant was working as an insurance agent with an average income of more than Rs.15,000/- for all the assessment years – to establish which, documents have been placed on record as Ext.A9 – I am of the view that this Court will be justified in adopting that figure, to be her notional income. 7. I also notice that there is a case for the appellant that the Tribunal ought to have adopted this percentile of disability to be 14%, as certified in Ext.C1 – Disability Certificate. However, I cannot find favour with this because, the Tribunal has reduced the disability to 8% taking note of the fact that, even though there may be a Whole Body disability of 14%, on account of the injury to one leg functionally, the appellant has not been able to lead any evidence to show that same caused her any incapacitation to continue with her avocation as an insurance agent. I do not, M.A.C.A.No.220 of 2023 : 5 : therefore, intend to disturb that finding of the learned Tribunal. 8. So found, however, I think that the compensation given by the Tribunal under the head “pain and suffering” was too low, particularly because the claimant was 50 years old at the time of the accident and had suffered fractures of both bones in her right leg. I propose that same be enhanced to Rs.40,000/-. Resultantly, this appeal is partly allowed in the following manner: (a) The compensation under the head “permanent disability” is revised to Rs.1,87,200/-, from Rs.1,51,008/- as awarded by the Tribunal, reckoning her notional income to be Rs.15,000/- per month. (b) The compensation under the head “loss of earning”, would stand revised to Rs.60,000/-, instead of Rs.48,400/- awarded by the Tribunal, reckoning the notional income to be Rs.15,000/- per month. (c) The compensation under the head “shock, pain and sufferings” is enhanced to Rs.40,000/- from Rs.25,000/- as now awarded by the Tribunal. (d) In all other heads, the compensation awarded by the Tribunal will remain unaltered. Needless to say, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance M.A.C.A.No.220 of 2023 : 6 : Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. She will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. Sd/- DEVAN RAMACHANDRAN JUDGE anm "