IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 MACA.No. 1608 of 2004(B) ----------------------------------- OPMV.1432/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .............................................. APPELLANT(S): PETITIONER ------------------------------------------ SUJATHA, W/O. NANDANAN, KADUVANGASSERY HOUSE, P.O.PERINJANAM WEST, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS ----------------------------------------------- 1. K.S.SUDEER, S/O. SADANANDAN, KAYANAPARAMBIL HOUSE, NATTIKA BEACH, THRISSUR DISTRICT. 2. NANDANAN K.P., S/O. K.V.PADMANABHAN, KADUVANGASSERY HOUSE, PERINJANAM WEST P.O., THRISSUR DISTRICT. 3. THE MANAGER, THE NEW INDIA INSURANCE CO.LTD., THRIPRAYAR, NATTIKA P.O. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.1608 OF 2004 ............................................. Dated this the 16th day of September, 2009 J U D G M E N T Notice to R2 dispensed with. This is an appeal preferred against the award of the Claims Tribunal, Irinjalakuda in O.P.(MV)No.1432/1998. The claimant was a pillion rider of a two wheeler driven by her husband. The accident took place on account of the negligence of the husband and the claimant sustained severe injuries. The Tribunal found that the claimant had also attributed contribution to certain extent on the basis that she did not give advice to her husband to drive slowly. The Tribunal deducted 50% of the contribution attributing contributory negligence on the wife. The Tribunal later fixed the compensation at 19,200/= and deducted 50% and awarded a compensation of Rs.9,600/=. 2. Now the learned counsel for the insurance company with all force contends before me that the wife was only a pillion rider and the vehicle was covered by an act only policy and therefore she may not be entitled to be : 2 : M.A.C.A.NO.1608 OF 2004 compensated by the insurance company. The learned counsel for the appellant would submit before me that the finding of contributory negligence is absolutely unwarranted. So far as the contention of the insurance company is concerned, the accident took place in the year 1997 and the appeal is being heard in the year 2009. The insurance company has never taken any contention in the written statement that the policy does not cover the risk of a pillion rider. In the absence of such a pleading at the belated stage of 12 years, I do not propose to entertain that argument. 3. So far as the question of contributory negligence is concerned, I am afraid that the learned Tribunal has misdirected itself in arriving at the decision. It is the usual practice that wives and children used to travel with their husbands or fathers as the case may be and when the vehicle overturns or meet with an accident, one cannot say that wife or the child should have told the person who was riding the vehicle, please go slowly. Every prudent man is expected to drive the vehicle very cautiously and he will : 3 : M.A.C.A.NO.1608 OF 2004 always be more vigilant when his kith and kin are sitting in the back of the vehicle. So, the finding of contributory negligence does not stand to reason and therefore it is vacated. The learned counsel for the appellant wants to raise so many contentions but I am not inclined to entertain the same for the reason that reasonable compensation has been awarded namely Rs.19,200/=. 4. In the result, the appeal is partly allowed and the claimant is awarded a total compensation of Rs.19,200/= with 6% interest on the said amount from the date of the petition till realisation with proportionate costs. The third respondent insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. If already any portion of the award amount is deposited, the insurance company need deposit the balance amount. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 4 : M.A.C.A.NO.1608 OF 2004 : 5 : M.A.C.A.NO.1608 OF 2004