MACA Nos.2518 & 2520 of 2009 (United India Insurance Co. Ltd. v. Praveen @ Prabhakaran, Sebastian @ Joseph, Mohanan)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 8TH DAY OF DECEMBER 2017 / 17TH AGRAHAYANA, 1939** **MACA.NO. 2518 OF 2009** **--------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.2057/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 21-04-2009** **---------------------------** ## **APPELLANT(S)/2ND RESPONDENT :** **---------------------------** **1. UNITED INDIA INSURANCE CO.LTD VAIKOM.** **BY ADV.SRI.P.V.JYOTHI PRASAD** ## **RESPONDENT(S)/PETITIONER & RESPONDENTS 1 & 3:** **-------------------------------------------** **1. PRAVEEN @ PRABHAKARAN, PRAVEEN NIVAS, KOTHAVARA KARA, THALAYAZHAM VILLAGE, VAIKOM.** **2. SEBASTIAN @ JOSEPH, KALATHIL HOUSE, PUTHENCRUZ,ERNAKULAM.** ## **3. MOHANAN,MATTAMCHEL HOUSE,** - **CHEMMANATHUKARA,VAIKOM.** **R1 BY ADV. SRI.B.PRAMOD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-12-2017 ALONG WITH M.A.C.A. NO.2520 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. Nos.2518 & 2520 of 2009 ---------------------------------Dated this the 8[th] day of December, 2017** ## **J U D G M E N T** These appeals are preferred against the award in O.P.(M.V.) No.2057 of 2004 and O.P.(M.V.) No.23 of 2005 of the Motor Accidents Claims Tribunal, Kottayam by the insurer of the vehicle. M.A.C.A. No.2518 of 2009 was preferred against the award in O.P.(M.V.) No.2057 of 2004 and M.A.C.A. No.2520 of 2009 was preferred against the award in O.P.(M.V.) No.23 of 2005. The rider and pillion rider in a motorcycle sustained injuries in a motor accident on 02.05.2004 at 4.00 p.m., and the learned tribunal awarded an amount of Rs.49,992/- in O.P.(M.V.) No.2057 of 2004 and an amount of Rs.35,726/in O.P.(M.V.) No.23 of 2005 and the appellant was directed to satisfy the award. Being aggrieved by that, the insurer preferred this appeal. 2. The case in the lower court is that on 02.05.2004 at 4.00 p.m., the petitioner in O.P.(M.V.) No.2057 of 2004 and the petitioner in O.P.(M.V.) No.23 of ## M.A.C.A. Nos.2518 & 2520 of 2009 2 2005 were travelling in a motorcycle KL-7/AM8253 and when they reached at Thekkemuri Kara, another motorcycle KL-7/F-4196 ridden in a rash and negligent manner hit against their vehicle as a result, the riders and pillion riders of both vehicles sustained serious injuries. Immediately they were removed to hospital. The rider of the offending vehicle succumbed to the injuries while undergoing treatment. The rider and owner of the vehicle disputed the accident. The insurer admitted the insurance of the vehicles. There are five petitions preferred in the above incident. O.P.(M.V.) Nos.2149/2004, 2274/2004, 2057/2004, 23/2005 and 752/2005 were tried together. In O.P.(M.V.) No.752 of 2005 exhibits were marked as Exts.A1 to A8. The evidences in other cases were recorded in O.P.(M.V.) No.2057 of 2004. The evidence consists of documentary evidence of Exts.A1 to A13 and the respondents evidence consists of Exts.B1 to B4. 3. Learned counsel appearing for the appellant contended that the offending vehicle KL-7/F-4196 was ## M.A.C.A. Nos.2518 & 2520 of 2009 3 carrying two pillion riders and there is contributory negligence from the rider. Hence the 1[st] respondent in both the appeals are entitled to get half of the amount alone. 4. It is clear from the evidence that the rider of KL-7/F-4196 was riding the vehicle in a rash and negligent manner with two pillion riders on the date of accident. The injured in these appeals were travelling in KL-7/AM8253 and carrying only one pillion rider. The insurer took a contention that the accident occurred due to the contributory negligence of the deceased rider who was carrying three persons in a motorcycle. There is violation of the benevolent provisions of the Motor Vehicles Act (for short, M.V. Act). The learned tribunal rejected plea of the insurer for fixing contributory negligence at the extent of 50% and awarded the claim petition. It is an admitted fact that in the charge sheet, the driver of KL-7/F-4196 was rash and negligent for the accident. If three persons were travelling on a motorcycle much against the seating capacity of the vehicle which resulted in the accident, it is a M.A.C.A. Nos.2518 & 2520 of 2009 4 violation of the terms and conditions of the insurance policy issued to the vehicle KL-7/F-4196 alone. 5. The safety measures for drivers and pillion riders are provided under Sec.128 of the Motor Vehicles Act, which reads as follows: 128. Safety measures for drivers and pillion riders.(1) No driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motorcycle behind the drivers seat with appropriate safety measures. (2) In addition to the safety measures mentioned in subsection (1), the Central Government may, prescribe other safety measures for the drivers of two wheeled motor cycles and pillion riders thereon. The riding on running board and top of the vehicle or on the bonet of the motor vehicle are mentioned under Section 123 of the Motor Vehicles Act. Carrying three persons on a two wheeler certainly make the ride unstable, which will contribute to the accident. This position has been considered by the High Court of Delhi in **Ved Kumari & another Vs. Shri. Kishan Lal and Others [1999 ACJ** ## M.A.C.A. Nos.2518 & 2520 of 2009 5 ## **1391]** which held as follows : 15. The admitted facts, therefore, on the above basis which will emerge are that the motor cycle was being used by three persons including the driver and that was not within the permissible limit as laid down by Section 85 of the Motor Vehicles Act, 1939 which is also incorporated in Section 128 of the 1988 Act. The carrying of more persons on a vehicle will certainly make the ride somewhat unstable which may contribute to the accident. Moreover the Tribunal has considered the other evidence on record also to arrive at a conclusion that there was some contributory negligence on the pat of the driver of the motor cycle and I am not inclined to reverse that finding in the facts and circumstances of the present case. The same is accordingly affirmed. 6. The High Court of Madras in **Managing Director, Tamil Nadu State Transport Corporation, (Coimbatore Division-I) Ltd. Vs. Abdul Salam, Jameela, Laila, Sainabha, Minor. Kabeer, Minor. Meharaj and P. Selvaraj [2004 ACJ 1827** held in para 11 that; “ Apart from that, when three persons are travelling in a motor cycle, two as pillion riders, any unusual movement of the pillion riders would make the rider of the motor cycle to loose his control over the vehicle. Even though such travelling of three persons in a motor cycle is contrary to the statue, still M.A.C.A. Nos.2518 & 2520 of 2009 6 the enforcement wing do not care to take note of the same and failed to take action against their illegal action. Virtually because of the failure on the part of the enforcement wing, such travelling of three persons in the two wheelers has become a regular sight. Even though the highway patrolling is available but it is a rare sight to see a highway patrolling vehicle. The travelling of three persons has become rampant in the mofussils and in the City; especially among the youngsters like the college students. When that be the case, the enforcing authority is expected to enforce the statue with some strictness to avoid any untoward incident. There is no purpose in conducting the Road Safety Week without infusing the road sense in compliance of the Rules and Regulations of the statue in the minds of those who are using the vehicles. 7. The learned counsel for the appellant relied on the decision reported in **Pournami v. Sandhya Sudheer 2008 (4) KLT 817** . A Division Bench of this Court in **Pournami** v. **Sandhya Sudheer [ 2008 (4) KLT 817]** held that contributory negligence is a defence available to the respondents in a claim petition if the rider of the bike takes more than one person as pillion rider in violation of Section 128 of the M.V. Act. In para 4 it held that; “ Contributory negligence is a defence available to the respondent in a claim petition filed under S.166 of the M.V. Act. However, it is for the respondents to prove contributory M.A.C.A. Nos.2518 & 2520 of 2009 7 negligence if the claim petition has to be successfully resisted. S.128 of the M.V. Act prohibits the rider of a motor bike from taking more than one pillion rider on it.” No doubt three persons travelling on a motor cycle amounts to violation of section 128 of the Act, but no evidence has been adduced by the insurer to establish that the rider in KL-7/AM8253 had violated the statutory provision which was the cause for the accident to attribute contributory negligence. Mere taking of a defence in the written statement would not be sufficient to establish the contributory negligence, it has to be supported by direct and corroborative evidence, which is missing in the present case. The evidence in this case shows that the insurer has not made any attempt to adduce evidence to establish contributory negligence on the part of the appellants. 8. It is well established principle that the insurer has to avoid its liability only when the breach of the policy condition must be proved which brings the contract to an end. The burden of proof rests on the shoulder of the insurer to establish breach of the policy condition, which is M.A.C.A. Nos.2518 & 2520 of 2009 8 fundamental principle. That was not done by the insurer in this case and no contributory negligence can be attributed on the part of the rider of KL-7/AM8253. On the other hand, the police records show that the rider of KL-7/F-4196 was negligent for the accident. This material evidence has been ignored and suppressed by the appellant and attributed contributory negligence against the rider of the other vehicle. When there is no violation of the statutory provisions of the M.V. Act by the injured in these two appeals and their vehicle carried only one pillion rider, it is found that they never violated any of the statutory provisions of Sec.128 of the M.V. Act. In the circumstance, the argument advanced by the appellant insurer is rejected and the finding of the tribunal awarding compensation is confirmed. There is no merit in these appeals and are dismissed accordingly. ## Sd/- NS **P.D. RAJAN, JUDGE** / True Copy/ P.A. To Judge