BY AD vs R.T.PRADEEP

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

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 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 Compensation for continuing or permanent disability, if any Compensation for mental shock, shortened expectations in life, loss of amenities in life etc 20,000/- 30,000/- 2,41,920/- 72,600/- 4,32,000/- [10000x12x18x20/ 100] 1,44,000/- [1/3rd of permanent disability] 10,000/- [30000-20000] 1,90,080/- [432000-241920] 71,400/- Total enhanced amount of compensation 2,71,480/- Accordingly, the appellants/claimants are awarded an MACA No.2362/2021 7 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