IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 22^ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946 MACA NO. 3953 OF 2023 AGAINST THE AWARD DATED 02.02.2023 IN O.P(MV) NO.91 OF 2022 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,WAYANDA, KALPETTA APPELLANT/3RD RESPONDENT:

THE ORIENTAL INSURANCE CO.LTD.

DIVISIONAL OFFICE NO.1, DOOR NO.19/2076-D8, KOTTAKKAL, OPP.

JAYALAKSHMI SILKS, KALLAI ROAD, KOZHIKODE-2 , REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI, PIN – 682 018.

BY ADVS.

GEORGE A.CHERIAN SOUMYA FRANCIS GEORGE CHERIAN (SR.)

RESPONDENTS/PETITIONERS:

1 BENNY. M.T. @THOMAS, AGED 56 YEARS S/O THOMAS, MOONGANANIKKAL HOUSE , SETTUKKUNNU, ACHOORANAM POST, VYTHIRI TALUK, WAYANAD DISTRICT., PIN – 673 575.

2 MARY. T., AGED 49 YEARS W/O BENNY, MOONGANANIKKAL HOUSE, SETTUKKUNNU, ACHOORANAM POST, VYTHIRI TALUK, WAYANAD DISTRICT., PIN – 673 575.

3 TINU. M.T. @ TINU BENNY, AGED 20 YEARS S/O BENNY, MOONGANANIKKAL HOUSE, SETTUKKUNNU, ACHOORANAM POST, VYTHIRI TALUK, WAYANAD DISTRICT, PIN – 673 575.

BY ADV MATHEW kURIAKOSE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

20.01.2025, THE COURT ON 22.01.2025 DELIVERED THE FOLLOWING:

JOHNSON JOHN, J.

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M.A.C.A No.3953 of 2023 & I.A. No. 1 of 2025 --------------------------------------------------------

Dated this the 22nd day of January, 2025.

JUDGMENT

This appeal is filed by the 3^rd respondent insurance company in O.P.(MV) No. 91 of 2022 of the Motor Accident Claims Tribunal, Wayanad challenging the quantum of compensation fixed by the Tribunal under various heads as exorbitant.

2. The claim petitioners are the legal heirs of the deceased, who died in a motor vehicle accident on 01.06.2021. According to the claim petitioners, while the deceased was riding motorcycle, lorry driven by the 1^st respondent in a rash and negligent manner caused to hit an electric post and the electric line of the collapsed electric post fell on the neck of the deceased and thereby, the deceased fell down from the motorcycle and sustained serious injuries and subsequently, succumbed to his injuries while undergoing treatment.

3. The 2^nd respondent is the owner of the lorry and 3^rd respondent is the insurer.

4. Before the Tribunal, Exhibits A1 to A9 were marked from the side of the petitioners and no evidence adduced from the side of the respondents.

5. After trial and hearing both sides, the Tribunal awarded a total compensation of Rs.31,87,000/- to the petitioners.

6. Heard both sides and perused the records.

7. The learned counsel for the appellant insurance company argued that the Tribunal, without any evidence, fixed a notional income of Rs.20,000/- for the deceased on the ground that the deceased was an engineering student. It is true that no document was produced before the Tribunal to show that the deceased was an engineering student at the time of the accident.

8. But, the learned counsel for the respondents pointed out that the averment in the claim petition that the deceased was an engineering student is not specifically denied in the written statement of the insurance company.

9. Respondents filed I.A. No. 1 of 2025 under Order XLI Rule 27 of CPC to receive Annexure R1(a) certificate issued by Cochin College of Engineering and Technology stating that the deceased was a student B Tech Electronics & Communication Engineering during 2015-2019 batch. In the affidavit filed in support of the petition, it is stated that the petitioners were able to trace out the same only after a thorough search from the records left behind by the deceased only recently and therefore, they were not able to produce the same before the Tribunal. The genuineness of Annexure R1(a) is not disputed by the appellants and therefore, considering the circumstances stated in the affidavit, petition is allowed and the document produced as Annexure R1(a) is marked as Exhibit A10.

10. In Ramakrishnapillai K. and others v. New India A