IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 MACA.No. 934 of 2005 ------------------------------- OP(MV).NO.1163/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA. .................... APPELLANT/ PETITIONER: -------------------------------------- NOUSHAD P.M., S/O. MUHAMMED, PAZHOOPARAMBIL HOUSE, P.O. AZHIKODE BEACH, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH (SR.), ADV. SRI.SREEKANTH.K.R RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. P.T. MUSTHAFA, PADIKKATHADAI HOUSE, DOUN HALL, MALAPPURAM. 2. SHAKKER K.K., S/O. KUNJU MOIDEEN, KALATHIL HOUSE, AZHIKODE, THRISSUR DISTRICT. 3. THE MANAGER, ORIENTAL INSURANCE CO. LTD., KODUNGALLUR. R1 BY ADV. SRI.SAJU.S.A. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 934 OF 2005 = = = = = = = = = = = = = = = Dated this the 18th day of November, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV)1163/99. The claimant was pillion rider in a motor bike which met with an accident when it hit on a pedestrian and sustainment of injuries to the petitioner who was a pillion rider. The Tribunal apportioned 25% contributory negligence on the pillion rider and awarded a compensation of Rs.14,723/- deducted 25% and directed the insurance company to pay the amount. It is against that decision the claimant has come in appeal. 2. Heard the counsel appearing for the appellant as well as the owner. A perusal of the award would show that the Tribunal has arrived at a finding on contributory negligence of the pillion rider on the basis that he could have directed the rider to drive slowly and he should have got down from the vehicle when it was not so. I am afraid such M.A.C.A. NO. 934 OF 2005 -:2:- a conclusion is totally fallacious and erroneous. A pillion rider can be attributed negligence only when it is found on account of his action there was an accident. Here there is no such case. The vehicle hit on a person who was crossing the road and therefore the finding of contributory negligence is set aside. I find that the rider of the motor bike alone was responsible for the accident. 3. So far as the compensation is concerned I had perused the award and the main injury is one relating to the knee. The Tribunal has only awarded an amount of Rs.3,000/- towards loss of amenities and under all other heads the Tribunal has awarded a reasonable compensation. It is true that no permanent disability certificate is produced but there would have been some difficulty for the person on account of knee injury. Therefore I enhance the loss of amenities compensation by Rs.2,000/- thereby making the total compensation to Rs.16,723/- from which no reduction need to be done in the light of the finding that there is no contributory negligence by the claimant. M.A.C.A. NO. 934 OF 2005 -:3:- 4. The next question is, though there is a case of non coverage of pillion rider it is not seen seriously pressed before the Tribunal or considered by it. So I am not inclined to consider that question here, in a claimant's appeal. The Tribunal had also the opportunity to see the policy and so that also cannot go against the claimant. In the result a modified award is passed whereby the claimant is awarded a total compensation of Rs.16,723/- with 6% interest on the said sum from the date of petition till realisation and the 3rd respondent, insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-