The absence of documentary evidence does not preclude the determination of notional income in compensation claims, especially when the deceased's employment is established.

JUDGMENT:

1. Heard Mr Vaman Kurtikar, learned counsel for the appellant and Mr Jatin Ramaiya learned Amicus Curiae. hough duly served, the respondents did not bother to appear in this appeal.

2. First Appeal No.40 of 2023, arising out of Claim Petition No.148/2014, has been instituted by the dependents of the late Mr Sebastiao Fernandes. Mr Sebastiao was riding a Honda Activa scooter bearing registration number GA-08-B-9208 on the Mungul Bridge, heading from Margao towards Benaulim, when the bus bearing registration No. KA-05-AB-24, being driven by Respondent No. 1 in a rash and negligent manner at a very high speed, dashed the said Activa scooter while overtaking it, causing the deceased to sustain injuries resulting in his death.

3. he learned tribunal has recorded a inding that the accident was caused due to the rash and negligent driving of the bus bearing registration number KA-05-AB-24 by Respondent No. 1 after considering inter alia the evidence given by AW7, AW2 and AW5.

4. he Appellants/claimants are Lourdina Fernandes (widow), and Savio Fernandes (son) of the deceased, Sebastiao Fernandes, who was 64 years old at the time of the accident on 03.11.2013. he tribunal saw it it to grant 1,00,000/-as compensation after having recorded a inding that the Appellants had failed to prove any loss of dependency. Of which, 55,000/- was to be paid to Appellant No. 1, and 45,000/- to be paid to Appellant No. 2, along with 26,744/- in the form of costs of the petition, to be apportioned proportionally between Appellants No. 1 and 2.

5. Mr Kurtikar, learned counsel for the Appellants, submitted that though the tribunal had rightly held that the accident was caused by the rash and negligent driving of respondent number one, it had erroneously, after over-emphasising the absence of the deceased’s income tax returns and the balance sheet of the Restaurant run by the deceased held that the Appellants/ claimants had failed to prove the income earned by the deceased and as a consequence also failed to prove the loss of dependency. Mr Kurtikar submitted that the approach adopted by the tribunal to come to such a determination was perverse and not in consonance with the law laid down by the Honourable Supreme Court in Kubrabibi & Ors. v. Oriental Insurance Co. Ltd. & Ors.- 2023 Live Law (SC) 697.

6. Mr Kurtikar further submitted that it had been proved that the deceased was operating the restaurant and that once it had so been proved, the necessary corollary was that he would be earning an income and that, therefore, the tribunal was incorrect in insisting upon some documentary evidence to prove the same. Mr Kurtikar relied upon Sidram v. United India Insurance Co. Ltd., - (2023) 3 SCC 439, to sustain the above proposition.

7. Finally, Mr Kurtikar submitted that the amount determined by the tribunal under the heads of loss of consortium, loss of love and afection, funeral expenses and loss of estate were inadequate and subject to interference by this court. He relied upon Rajwati v. United India Insurance Co. Ltd.,- 2022 SCC OnLine SC 1699.

8. Mr Ramaiya, the learned Amicus Curiae, adopted the arguments put forth by the counsel for the appellants and also submitted that the tribunal had erred by not considering the social status of the deceased and, at the very least, accepting a notional income for the deceased.

9. Mr Ramaiya also submitted that, even if it were to be assumed that it was Appellant No. 1 who owned and operated the restaurant, the tribunal could not have avoided determining notional income. Mr Ramaiya submitted that in the case of a homemaker, the law mandates the determination of notional income based on the facts and circumstances of the case and that in the case of a housewife, it would be no less than Rs.5,000/-. Mr Ramaiya relied upon Kirti v. Oriental Insurance Co. Ltd.,- (2021) 2 SCC 166 and Bajaj Allianz General Insurance Company Ltd. v. Bhimrao,- 2018 SCC OnLine Bom 20838.

10. Before proceeding with the determination of the c