IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 MACA.No. 819 of 2004 ------------------------------------ OPMV.221/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANTS/PETIIONERS: ------------------------------------------- 1. VISHNU (MINOR) NADUVILEDATHU HOUSE, KARUKACHAL, REPRESENTED BY NEXT FRIEND GRAND FATHER RAGHAVAN, NADUVILEDATHU HOUSE, KARUKACHAL. 2. RAGHAVAN, S/O.RAMAN, NADUVILEDATHU HOUSE, KARUKACHAL P.O. 3. DEVAKI, W/O.RAGHAVAN, NADUVILEDATHU HOUSE, KARUKACHAL P.O. BY ADV. SRI.K.G.ANIL BABU RESPONDENT / RESPONDENTS --------------------------------------------------- 1. SRI.HARILAL.K.P., S/O.PRABHAKARAN, KALLARACKAL HOUSE, PALA. 2. THE DIVISION MANAGER, NEW INDIA INSURANCE CO.LTD., KOTTAYAM. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.819 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of June 2010 JUDGMENT Basheer, J. An young lady with a baby in her arms was travelling as a pillion rider in the two wheeler being driven by her husband. It is on record that the two wheeler fell in one of those gutters for which our roads are infamous. The lady and the baby fell down from the two wheeler because of the sudden jerk. Unfortunately, the lady sustained some fatal injuries in the fall. The baby, it appears, escaped. 2. The claim petition filed on behalf of the minor child through the grand parents was resisted by the insurance company contending inter alia that the lady had also contributed to the accident. The Tribunal accepted the above plea and held that the deceased lady had contributed to the accident to the extent of 60%. After reckoning the total compensation payable by the owner of the vehicle and the insurance company at Rs.1,92,250/-, the claimants were awarded a sum of Rs.1,15,350 being 60% of the total amount of compensation quantified by the Tribunal. The above award is impugned in this appeal by the claimants. 3. The learned Judge while accepting the plea of the insurance company has proceeded to observe that as soon as the two wheeler fell in the gutter the young lady ought to have asked her husband to stop the vehicle. Since she failed to do so, the Tribunal held that she was also guilty of contributory negligence. The above finding entered by the learned Judge is preposterous, to say the least. M.A.C.A.No.819 OF 2004 :: 2 :: We refrain from making any further comment on this aspect. We have no hesitation to hold that the finding of the learned Judge is wholly unsustainable. 4. Therefore, the impugned award to the extent it fixes the liability on the young deceased lady as 40% is set aside. It is held that the claimants shall be entitled to get the whole amount of compensation as awarded by the Tribunal. The appeal is allowed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes