Prasanth v. Kesavan, P.V. Appukutttan & The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** ## **THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931** ## **MACA.No. 1889 of 2009()** ## **----------------------OPMV.1011/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM** **....................** ## **APPELLANT(S): PETITIONER:** **---------------------------------------------** **PRASANTH, AGED 26 YEARS, S/O.KOCHANIYAN, PALAKKADE HOUSE, CHATHAKUDAM, THRISSUR.** **BY ADV.MR.SHEJI P.ABRAHAM** ## **RESPONDENT(S): RESPONDENTS:** **-----------------------------------------------------** ## **1. KESAVAN,** **S/O.VELAYUDHAN, KUNDUPARAMBIL HOUSE, ELANADU, THRISSUR.** **2. P.V.APPUKUTTAN, SREE SAILEM, MANAPADAM PO, PALAKKAD DISTRICT.** **3. THE ORIENTAL INSURANCE CO.LTD BRANCH OFFICE P.B.NO.8, JYOTHI SUPER BAZAR, THODUPUZHA. (CERTIFICATE NO.2296637, P.B.NO.13465 VALID FROM** **29/11/2005 TO 28/11/2006)** ## **R1 BY ADV.MR.JIJO PAUL** **R3 BY MR.MATHEWS JACOB, SENIOR ADVOCATE, BY ADV.MR.P.JACOB MATHEW.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Kss** ## **M.N. KRISHNAN, J.** ........................................... M.A.C.A.No.1889 OF 2009 ............................................. Dated this the 14[th] day of January, 2010 ## **J U D G M E N T** This is an appeal preferred against the award of the Claims Tribunal, Ottapalam in O.P.(MV).No.1011/2006. The claimant was a pillion rider of a motor bike which met with an accident when it collided with another auto rickshaw resulting in injuries to him. The Tribunal on consideration of the materials found that the claimant had also contributed 25% to the accident, fixed a compensation of Rs.14,000/= and awarded him an amount of Rs.10,500/=. It is against that decision, the claimant has come up in appeal. 2. Heard the learned counsel for all sides. The learned counsel for the appellant contends before me that the finding on the question of contributory negligence is to be interfered with. He would argue for the position that just because three persons are travelling in a motor bike, it does not ipso facto amount to negligence and therefore the finding requires interference. The accident had taken place in a road having a width of 3.80 meters. The accident had taken place almost on the middle of the road. The charge is filed against the auto rickshaw driver. So, at M.A.C.A.No.1889 OF 2009 **==> picture [7 x 9] intentionally omitted <==** the outset I may like to point out that when there is collision between two vehicles like an auto rickshaw and a motor cycle and an accident takes place almost on the middle of the road, then as laid down by the Supreme Court in very many decisions, it amounts to a case of composite negligence and in this case as far as the drivers are concerned it is a contributory negligence. In this case the claimant being a rider, it is a contributory negligence that has to be looked into. 3. The learned trial judge referred to the decision of a Division Bench of this Court in **Pournami v. Sandhya Sudheer** (2008 (4) KLT 817). It was held in that case that contributory negligence is a defence available to the respondent in a claim petition filed under Section 166 of the Motor Vehicles Act. The question of contributory negligence of the rider as such was not considered by the Division Bench. The Division Bench very strongly had taken the view that there is violation of the Rules and two wheelers taking more than one pillion rider, at the maximum a small baby, should be booked for violation of Section 128 or in M.A.C.A.No.1889 OF 2009 3 other words when more than permitted persons are carried in a motor vehicle it is a statutory violation committed by the party. When these type of persons travelled in a motor cycle exceeding the number came up for consideration before a Division Bench of the Madras High Court in the decision reported in **Tamil Nadu State Transport Corporation v. Abdul Salam** (2003 KHC 1409), it had been considered in extenso. The learned Judges of the Madras High Court had considered the question and held that when more than permitted capacity travels in a motor bike, unusual movement of the pillion riders would make the rider of the motor cycle to loose his control over the vehicle. The court also held that it is an awful sight when we come across three persons travelling in a motor cycle. When they are sitting in such a cramped manner, the rider of the motor cycle almost sitting on the patrol tank or on the front edge of the seat. When he was sitting in such a position, because of the restricted movement of his legs, he cannot have complete control over the bike. Movement of his hands also are restricted. When that be so, this Court is 4 M.A.C.A.No.1889 OF 2009 of the opinion that definitely the rider of the two wheeler cannot have full control over the vehicle. I respectfully agree with each and every statement made in the judgment and travelling of three persons in a two wheeler is a practice to be stopped and should be prevented. So, relying upon the said decision, I hold that the theory of contributory negligence is applicable to the facts of this case over and above the fact that the accident had taken place almost on the middle of the road. The Tribunal has only fixed the negligence at 25% on the rider which cannot be said to be on the higher side. So, that finding cannot be interfered with. 5. Now the next question is regarding the quantum. A perusal of the award at paras -19 to 21 would reveal that the claimant, a 26 year old worker in gold was admitted in Elite Mission Hospital, Trichur for two days with crush injury on the upper third left ear and multiple abrasions, injuries and contusions on various parts of the body. Even wound debridement and suturing had to be done under local anesthesia. 5 M.A.C.A.No.1889 OF 2009 6. Taking note of the entire situation, I feel that the Tribunal should have awarded more compensation for pain and sufferings, loss of amenities and loss of earnings. I increase pain and sufferings compensation by Rs.3,000/=, loss of amenities by Rs.3,000/= and loss of earnings by Rs.1,500/= thereby entitling the claimant to have a total compensation of Rs.21,500/=. When 25% is deducted for the contributory negligence, the amount would come to Rs.16,125/= of which the Tribunal has awarded Rs.10,500/= thereby entitling the claimant to have an additional compensation of Rs.5,625/=. 7. In the result, the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.5,625/= with 8% interest from the date of the petition till realisation and the third respondent insurance company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. Disposed of accordingly. ## **M.N. KRISHNAN, JUDGE** 6 M.A.C.A.No.1889 OF 2009 ## **cl** : 7 :