IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 MACA.No. 2184 of 2006() ---------------------------------- OPMV.916/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ------------------- P.K.KUMARAN, S/O. AYYAPPAN, RESIDING AT PARAVETTIKARA HOUSE, MANGALATHUNADA, N.MAZHUVANNOOR VILLAGE. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENTS: RESPONDENTS ------------------------- 1. T.G.CHANDRASEKHARAN, S/O. GOPALAN NAIR, ANJIPPILLY HOUSE, MALAYIDOMTHURUTHU P.O., KIZHAKKAMBALAM. 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., MARKET P.O., MUVATTUPUZHA. BY ADV. SRI.MATHEWS JACOB (SR.) - R2 SRI.P.JACOB MATHEW - R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2184 OF 2006 = = = = = = = = = = = = = = = Dated this the 11th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)916/03 whereby it dismissed the case of the claimant holding that the accident did not take place on account of the negligence of the rider of the bike in which he was travelling as a pillion rider. The facts of the case would reveal that the claimant and the rider were close friends. They were proceeding to a place and at that time a lamb crossed the road, the motorcyclist hit on the lamb, capsized and pillion rider namely the claimant who was already having a fracture on his hand got it aggravated. The police registered a case and ultimately referred it on the ground that there is no criminal negligence because of the crossing of the lamb. M.A.C.A. 2184 OF 2006 -:2:- 2. So far as the civil case is concerned the Court has to consider whether there was negligence or not. One can attribute negligence when a person who is expected to do some thing is not doing the same and also when that person who is not expected to do some thing does that thing, then the element of negligence will come and when such negligence is proved the vicarious liability arises and it is in those types of cases damages are being awarded by courts. Admittedly the rider of the bike was proceeding with a handicapped man as a pillion rider and the vehicle was going at a high speed, a lamb crossed, accident took place. Can you say that the rider was not negligent at all, especially when you were taking a handicapped person in your vehicle. In road accident cases most of the accidents occur due to inadvertent or reckless crossing of roads by pedestrians, animals etc. when attempts are made to save those persons and the vehicles are swerved, it results in, some times in, M.A.C.A. 2184 OF 2006 -:3:- major casualties. So a driver who is moving along a road is expected to take reasonable notice of this situation which may happen and has to drive the vehicle so that he may be in a position to stop the vehicle if he is able to see the animal or the pedestrian attempting to cross from a considerable length of distance. Here, evidence is there to show and statements are also made that the motorcyclist was going at a high speed. I agree with the Tribunal that speed alone is not a ground for reckless driving. But necessary precaution one has to take and unless taken it amounts to negligence. Therefore, if a reasonable care was taken and the speed of the vehicle was reduced on seeing the lamb certainly the accident could have been averted. Therefore I hold that the finding of the Tribunal so far as it relates to negligence is incorrect and it is liable to be interfered with. Further, the rider has not been examined to prove his innocence or his non-negligence. That also is a point that has to be stated M.A.C.A. 2184 OF 2006 -:4:- especially when the claimant has appeared before the Tribunal and had given evidence about the negligence. Therefore the said finding is set aside. 3. So far as it relates to the quantum of compensation, the Tribunal has applied its mind and fixed the compensation and therefore I do not want to disturb that finding. Or in other words the claimant is entitled to a compensation of Rs.29,768/- which I round as Rs.29,770/- 4. The next point is regarding the liability of the insurance company. It is true that in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh (2006 (4) SCC 404)] it has been held that a pillion rider will also have a status of a gratuitous passenger and unless there is a specific coverage he cannot be compensated by the insurance company. To arrive at such a finding there must be a plea by the insurance company that it is not liable to indemnify on account of the lack of coverage. Such pleading M.A.C.A. 2184 OF 2006 -:5:- is not there in this case and therefore at this distance of time it cannot be entertained. 5. Therefore the award passed by the Tribunal is set aside and the claim petition is allowed and the claimant is awarded a compensation of Rs.29,770/- with 7% interest on the said sum from the date of petition till realisation and the 2nd 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/-