IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 MACA.No. 2300 of 2009() ----------------------- OPMV.1061/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S)/PETITIONERS :- ------------------------------------------- 1. O.P.MOHAMMED KASIM,S/O.LATE KUNJAPPAN, RESIDING AT ONAPARAMBIL LANE, POOLAKUNDU,OTTAPPALAM,PALAKKAD DISTRICT. 2. SAINABA M.KASIM,W/O.MOHAMMED KASIM, ONAPARAMBIL LANE, POOLAKUNDU, OTTAPPALAM, PALAKKAD DISTRICT. 3. SHOUKATH ALI.H.,S/O.HAMSA, MULLAVALAPPIL HOUSE, VENNAKARA, PALAKKAD. BY ADV. SMT.M.A.ZOHRA RESPONDENT(S)/RESPONDENTS IN OPMV :- ----------------------------------------------------------- 1. ABDUL SHUCKOOR, S/O.M.KASIM, ONAPARAMBIL LANE, POOLAKUNDU, OTTAPPALAM, PALAKKAD DISTRICT, (R.C.OWNER OF HERO HONDA SPLENDER KL-9 G-4317) 2. NATIONAL INSURANCE CO.,LTD EAST FORT COMPLEX, FORT MAIDAN, PALAKKAD (INSURER OF HERO HONDA SPLENDER KL9/G-4317) ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------- M.A.C.A. No.2300 of 2009 ----------------------------------- Dated this the 6th day of December 2010 J U D G M E N T A 22 year old young lady met with a tragic and gruesome accident while she was travelling on a two wheeler as a pillion rider along with her husband. It is on record that the young lady fell down from the two wheeler and sustained fatal injuries on her head. The parents and husband of the deceased young lady preferred an application under Section 166 of the Motor Vehicles Act before the Tribunal claiming a sum of Rs.6,50,000/- towards compensation from the owner and insurer of the two wheeler. 2. The husband of the young lady was examined before the Tribunal as PW1. Exts.A1 to A8 were also marked on the side of the claimants. After considering the M.A.C.A. No.2300 of 2009 -: 2 :- oral and documentary evidence available on record, the Tribunal held that the claimants were not entitled to get any compensation under Section 166 of the Act. However, the Tribunal passed an award under Section 140 of the Act and directed the insurance company to pay a sum of Rs.50,000/- as compensation on the principle of no fault liability. The above award is impugned by the claimants in this appeal. 3. It is contended by the learned counsel for the appellants that the Tribunal committed serious illegality in adopting a highly irrational and pedantic view while dealing with the crucial issue involved in this case. It is pointed out by the learned counsel that the vehicle was admittedly covered under a valid Package Policy. She submits that in view of the clarification issued by the Insurance Regularity Development Authority, a pillion rider is also covered under a Package Policy. 4. Sri.Mathews Jacob, learned Senior Counsel who appears for the insurance company submits that the pillion M.A.C.A. No.2300 of 2009 -: 3 :- rider is ofcourse covered under the policy issued in this case. But according to him the accident occurred only due to the negligence on the part of the deceased herself. He contends that neither the owner nor the rider of the two wheeler was negligent and therefore, the insurance company cannot be held liable to indemnify the owner. In this context learned senior counsel points out that, in the claim petition it was stated by the claimants that the deceased lady had fallen down from the two wheeler while she was trying to adjust or put her saree in place. It is contended by the learned senior counsel that the said averment in the claim petition itself will show that there was no negligence on the part of the rider and the unfortunate accident had occurred only because of the negligence on the part of the deceased lady herself. 5. It may be true that the lady might have tried to put her saree in its place while she was travelling on the pillion and it is also probable that she might have lost M.A.C.A. No.2300 of 2009 -: 4 :- balance and in the process she might have fallen down from the vehicle. It will be cruel to say that while trying to put her saree in its place the young lady had committed any negligent act. If such a pedantic view is adopted, the very laudable purpose of the legislation itself will be defeated. 6. It must be remembered that the legislature brought in this enactment as a welfare measure to wipe off the tears of the victims of road traffic accidents. The Courts must take a more realistic and pragmatic view while dealing with claim petitions filed on behalf of the unfortunate victims rather than adopting a highly dogmatic and unrealistic view. 7. There is nothing on record to show that the unfortunate lady was in any way responsible for the mishap, even assuming the solitary statement made by the claimants in the claim petition is to be accepted. It has come out on record that she was unconscious through out, till her death. She was unable to utter even a word about the cruel M.A.C.A. No.2300 of 2009 -: 5 :- accident that took away her life. Therefore, the version in the claim petition that she fell down while trying to adjust her saree by itself can be treated only as hearsay to say the least. There was no witness to the incident. It is true that her husband was riding the two wheeler and he could not have seen the accident as such or the manner in which his wife fell down from the two wheeler. Keeping in view all the above facts and circumstances, we have no hesitation to hold that the findings entered by the Tribunal is manifestly erroneous and illegal. Therefore, the impugned award is set aside. 8. It is brought to our notice that the Tribunal had passed an award under Section 140 of the Act. Necessarily the said award shall also stand set aside. We record the submission made by the learned counsel for the appellants that even though such an award had been passed, the claimants have not withdraw any amount from the court. 9. The Tribunal shall consider the matter afresh and M.A.C.A. No.2300 of 2009 -: 6 :- pass a revised award in accordance with law. The Tribunal shall allow the prayer if any that made by the claimants to amend the claim petition appropriately. It will be open to both sides to adduce further evidence in the matter, if so advised. The appeal is allowed. The appellants shall appear before the Tribunal on January 10, 2011. A.K. BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. Jvt