IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 MACA.No. 415 of 2005() ---------------------- OPMV.503/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/4TH RESPONDENT: -------------------------------------------------- MAHENDRAN K.S., S/O.SREEDHARAN, K.S., KOLLITHODI HOUSE, PERUMUDIYOOR POST, PATTAMBI, PALAKKAD DISTRICT (RIDER CUM OWNER OF KL 9 L 1271 MOTOR CYCLE, DRIVING LICENCE NO.1232/2002, M.P.N.A. VALIM FROM 29-06-2002 TO 15-05-2019). BY ADVS. MR.R.VENUGOPAL, MR.R.SREEHARI, MR.RANJIT SREENIVAS. RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 3 & 5: ------------------------------------------------------------------------------------------- 1. JANARDHANAN, S/O.UNNIKRISHNAN, THEKKEPPURAKKAL HOUSE, POST CHERPULASSERY, PALAKKAD DISTRICT. 2. RAMACHANDRAN, S/O.RAMAN NAIR, KANNAPARAMBIL HOUSE, POST CHERPULASSERY, PALAKKAD DISTRICT. (DRIVER KL 9J 7470 LORRY). 3. A.SHERIFF, S/O.ABDUL RAHIMAN, ALIKKAL HOUSE, OTTAPPALAM ROAD, CHERPULASSERY, PALAKKAD DISTRICT. (OWNER OF KL 9J 7470 LORRY). 4. THE ORIENTAL INSURANCE COMPANY LIMITED, D/O.NO.II, CHEROOTTY ROAD, CALICUT - 1, KOZHIKODE DISTRICT. (INSURER OF KL 9 7470 LORRY- POLICY NO. 4914/2003 VALID FROM 31-08-2002 TO 30-08-2003). 5. THE NEW INDIA ASSURANCE COMPANY LTD., DIVISION OFFICE, PALAKKAD, P.O.C. BANK BUILDING, H.P.O.ROAD, SULTHANPET POST, PALAKKAD. (INSURER OF KL 9L 1271, MOTOR CYCLE, POLICY NO,. 161100/31/02/ 04126-VALID FROM 11-10-2002 TO 10-10-2003) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2009 ALONG WITH MACA NO. 78 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM,JJ. ------------------------------- MACA.NOs.415/2005 & 78/2007 --------------------------------- Dated this the 5th day of February, 2009 JUDGMENT Ramachandran Nair,J. In these connected cases the challenge is against the award of the MACT finding contributory negligence on the rider of the bike who was one of the claimants before it. We heard counsel for the Insurance Company and counsel for the common claimant who has also filed appeal against the same decision. The accident is a collision between a motor bike and a truck. The rider as well as the pillion rider filed claim petitions. While in pillion rider's case the MACT found 50% contributory negligence on the rider of the bike, strangely in the claim petition filed by the rider, the MACT found contributory negligence by the rider only at 30%. Therefore appeal is filed by the Insurance Company for enhancing the contributory negligence by the claimant up to 50% as in the case of the pillion rider. Even though counsel for the rider/claimant opposed enhancement, we feel the award of the MACT has to be modified because in the MACA.Nos. 415/05 & 78/07 2 connected case pertaining to the same accident the MACT found contributory negligence at 50%. It is also to be seen that the accident happened after the front portion of the lorry moved forward and thereafter the claimant's motor cycle hit the rear side of the truck while it was negotiating a curve. The hitting of the bike in the rear side of the truck clearly shows that the rider lost control of the bike whether it would be on account of the speed or otherwise. Considering the findings of the MACT we feel contributory negligence was rightly fixed at 50% in the case of the pillion rider and necessarily the same percentage of contributory negligence should be found against the rider as well. Therefore, the appeal filed by the Insurance Company is allowed in part directing reduction of 50% on account of contributory negligence by the rider as in the case of the pillion rider and consequently we reject the appeal filed by the claimant. C.N.RAMACHANDRAN NAIR,JUDGE C.K.ABDUL REHIM,JUDGE pmn/ MACA.Nos. 415/05 & 78/07 3