IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 MACA.No. 2589 of 2010() ----------------------------------- OPMV.683/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER ------------------------------------------ LILLY RAJU,W/O.RAJU,PALLITHAZHATHU HOUSE KURINJI,PARIYARAM KARA,IKKARANADU,KOLENCHERY, ERNAKULAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT(S): RESPONDENTS -------------------------------------------------- 1. RAJU,S/O.ALIAS,PALLITHAZHATHU HOUSE, KURINJI,PARIYARAM KARA, IKKARANADU, SOUTH VILLAGE, KOLENCHERY, ERNAKULAM DISTRICT 682 311. 2. MONCY,S/O.KURIAN,PEREMBILLIL HOUSE, VELOOR,PUTHENCRUZ,ERNAKULAM DISTRICT 682308. 3. UNITED INDIA INSURANCE COMPANY LTD., CHITTOOR ROAD, ERNAKULAM 682 016. R1 BY ADV. SMT.AMBILY PREMKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2589 OF 2010 = = = = = = = = = = = = = = = Dated this the 8th day of February, 2011. 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)683/05. The claimant, while travelling along with her husband as a pillion rider along with the child sustained injuries when the vehicle overturned when the husband applied sudden break. The Tribunal found that the claimant should have been more careful and that she should have sat properly in correct position so as to avoid a fall. It is also stated that there were two pillion riders and therefore negligence cannot be attributed on the rider. The Division Bench of the Madras High Court in the decision reported in Managing M.A.C.A. 2589 OF 2010 -:2:- Director, Tamil Nadu State Transport Corporation Ltd. v. Abdul Salam (2004 ACJ 1827) had considered the question of contributory negligence when a two wheeler is plied with more than one pillion rider. The learned Judges held that “when three persons travel on motorcycle which is meant for two persons, this Court is of the view, the conduct of persons who travel in such a manner is liable for contributory negligence; especially when their action is contrary to the statute.” But the learned Judges had also considered the impact of this case in the Indian society and ultimately held that “While we lay down the law in respect of contributory negligence M.A.C.A. 2589 OF 2010 -:3:- by the unauthorised travelling of three persons on a motorcycle, we make it clear that it will not be applicable to a case where a family consisting of husband, wife and children are travelling. Even in such cases, if more than one child aged above 10 to 12 years is being taken, then we make it clear that the principle of contributory negligence will be applicable in respect of any accident.” If a couple had travelled with a small child or that child is aged below 10 years, then applying the dictum laid down in the above said case contributory negligence cannot be attributed. Therefore the finding of the Tribunal on that aspect and further the finding that the wife had not sat properly are all on conjectures and surmises which has to be set aside and send M.A.C.A. 2589 OF 2010 -:4:- back. Further I had seen from the copy of the policy produced that it is a package policy and by virtue of the clarificatory circular dated 16.11.2009 issued by the Insurance Regulatory and Development Authority the persons carried in a private vehicle and persons carried in a two wheeler are covered under the terms and conditions of Standard Motor Package Policy. Therefore I set aside the award passed by the Tribunal and remit the case back to the Tribunal with a direction to all concerned to produce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Since the necessary parties are not appearing before this Court and as their junction is necessary I direct the appellant herein to take M.A.C.A. 2589 OF 2010 -:5:- out notice to all respondents on appearance before the trial court. The appellant is directed to appear before the Tribunal on 14.3.2011. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge.