IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 MACA.No. 882 of 2004 ------------------------------------- OPMV.314/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANTPETITIONER: ---------------------------------- ANIL ZACHARIAH, AGED 30 YEARS, SON OF M.L.ZACHARIAH, MALAYIL HOUSE, MONDROTHURUTHU KARA, PERINGALAM VILLAGE, ARINALLOOR, KOLLAM DISTRICT. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.K.R.SUNIL SMT.NITHYA.K. RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. ZACHARIA S/O. P.A.MUHAMMED, PANATTIL HOUSE, ELAMBRA, NELLIKKUZHI, KOTHAMANGALAM. 2. SAVAD S/O. KOCHUPILLAI, MADAVANAKUDY HOUS, ADIVADU KARA, POTHANICADU VILLAGE. 3. THE BRANCH MANAGER, THE NATIONAL INSURANCE CO.LTD., KOLENCHERRY. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.A.C.A. NO. 882 OF 2004 C --------------------------------------------------- Dated this the 1st June, 2009 JUDGMENT Joseph, J. The claimant in an Application for compensation filed under Section 166 of the Motor Vehicles Act, is the appellant. The appellant was travelling as a pillion rider. The motor cycle was driven by late Shri Manoj. A bus which came from the opposite direction, driven by the second respondent, caused the accident, was the appellant's case. The rider of the two wheeler succumbed to the injuries and he died. According to the appellant, he sustained injuries. He laid a claim for Rs.5 Lakhs as compensation. The Tribunal found that the rider of the two wheeler was negligent. However, it was treated as a petition under Section 163A and compensation was awarded under Section 163A, to the legal representatives of the deceased rider of the two wheeler. Treating the appellant as the pillion rider MACA 882/04 C 2 and on the basis of the finding, as already noted, that the negligence was on the part of the rider of the two wheeler, no compensation was awarded to the appellant and his claim petition was dismissed. It is against the same that this Appeal is filed. 2. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the third respondent Insurance Company. There is no dispute regarding certain facts. Against the decision of the Tribunal treating the case which was filed under Section 166 as falling under Section 163A, MACA No.1087/04 was filed by the third respondent Insurance Company. So also, the legal representatives of the deceased had filed Appeal as MACA No.1055/07 against the Award. A Division Bench of this Court by Judgment dated 27.6.2007 proceeded to find that there was negligence on the part of the second respondent also, but there was contributory negligence MACA 882/04 C 3 on the part of the deceased driver of the two wheeler and fixed the compensation in the said case on the basis that there was fifty per cent contribution to the accident by the deceased Manoj. In the light of this finding, we feel that the same findings can be adopted in the facts of this case. Accordingly, we find that there was negligence on the part of the second respondent driver of the bus. But, we feel that the liability of the second respondent can be fixed only as fifty per cent as done in the other two Appeals and it must be held that the driver of the two wheeler on which the appellant was the pillion rider contributed in an extent of fifty per cent. We record the said finding in this case also. However, we notice that the question relating to the actual compensation under the various heads in regard to the appellant and the amount has to be assessed by the tribunal. In such circumstances, we allow the Appeal in part and on the basis of the findings which we have already rendered, we remit the matter back to the tribunal so that the question of MACA 882/04 C 4 compensation payable to the appellant can be decided in accordance with law. We also make it clear that it is open to the appellant to seek to apply before the tribunal for adducing additional evidence and it is for the tribunal to take a decision thereon in accordance with law. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge