The court upheld the Tribunal's finding of negligence and modified the compensation based on a reasonable assessment of notional income for the deceased.

JUDGMENT :

1. This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the 3^rd respondent/insurer in O.P. (MV) No.793/2018 on the file of the Motor Accidents Claims Tribunal, Kozhikode, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 02/09/2019. The respondents herein are the claimants. In this appeal, the parties and the documents will be referred to as described in the original petition.

2. The claim petitioners are the wife, three children and the mother of deceased Sudheesh. According to the claim petitioners, on 16/07/2017 between 06:00 p.m. and 07:00 p.m. while deceased Sudheesh was walking through the side of Thondayad-Ramanattukara bypass road, car bearing registration no.KL-56-Q-8737 driven by 1^st respondent in a rash and negligent manner and in high speed knocked him down causing grievous injuries to which he succumbed.

3. The first respondent, the driver of the offending car remained ex-parte.

4. The second respondent/owner of the car filed written statement admitting the ownership of the car. He contended that there was no negligence on the part of the first respondent. On the other hand, the accident occurred due to negligence of the deceased. Compensation claimed was contended to be exorbitant.

5. The third respondent/insurer filed written statement admitting the policy in respect of the car, but disputed the liability. There was no negligence on the part of 1^st respondent. The accident occurred due to the negligence on the part of deceased. Compensation claimed was contended to be exorbitant. Averments in the petition regarding age, occupation, income and injuries sustained were disputed.

6. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A7 were marked on the side of the claim petitioners. No documentary evidence was produced by the respondents.

7. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the 1^st respondent-driver of the offending vehicle resulting in the incident and hence awarded an amount of Rs. 25,92,500/- together with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the Award, the 3^rd respondent/insurer has come up in appeal.

8. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.

9. Heard both sides.

10. The award of compensation by the Tribunal under the following heads are challenged by the third respondent/insurer:-

Notional Income

It is submitted by the learned counsel for the third respondent/insurer that the claim petitioner claimed that the deceased, a painting contractor, was getting an income of Rs. 50,000/- per month. The Tribunal fixed the notional income at Rs. 15,000/- per month. This according to the learned counsel is on the higher side in the light of the dictum in Ramachandrappa v. Manager, Royal Sundaram Allian Co. Ltd., (2011) 13 SCC 236 as per which the notional income was liable to be fixed at only Rs. 11,000/- per month. Per contra, it is submitted by the learned counsel for the claim petitioners that the notional income fixed is reasonable and just and so no interference is called for.

The fact that the deceased was a painting contractor is not seen disputed. The incident in this case took place on 16/07/2017. Going by the dictum in Ramachandrappa (Supra), the notional income of a coolie is liable to be fixed at Rs. 11,000/- in the year 2017. That being the position, I find that fixing an amount of Rs. 12,000/- as notional income of the deceased, a painting contractor would be just and reasonable.

11. The impugned Award is modified to the following extent: