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 WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 MACA.No. 41 of 2009() --------------------- OPMV.1240/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): -------------- 1. MRS.RANI VARGHESE @ RANI BABU, W/O.LATE P.V.VARGHESE @ BABU. 2. TEENA MARY VARGHESE,D/O.LATE P.V. VARGHESE @ BABU, BOTH ARE R/AT.PERUMARATHINKAL HOUSE, CHENGAROOR PO., PATHANAMTHITTA. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S): --------------- 1. KURIAN VARGHESE, R/AT.PUTHUPARAMBU HOUSE VEROOR PO., CHEANGANACHERRY. 2. RAJAN @ JOSE, R/AT.KARAMBINTHARAYIL HOUSE, ENNACKACHIRA BHAGOM, SACHIVOTHAMAPURAM PO., KOTTAYAM. 3. UNITED INDIA INSURANCE COM.LTD. KOTTAYAM. ADV. SRI.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ALONG WITH MACA 44/2009 ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... M.A.C.A. Nos.41 &44 of 2009 .................................................................... Dated this the 14th day of January, 2009. JUDGMENT Ramachandran Nair, J. Heard counsel for the appellants and Senior Standing Counsel Sri.Mathews Jacob appearing for the Insurance Company. The main grievance of the appellants in both the appeals is against reduction of 30% of the compensation awarded towards contributory negligence. Counsel for the appellants submitted that the driver of the offending vehicle was solely responsible for the accident and so much so, there was no justification for reducing 30% towards contributory negligence. Standing Counsel for the Insurance Company on the other hand contended that accident occurred in the night and the vehicle coming from behind overtook the motorbike driven by the deceased and the motorbike in fact hit in the rear of the car. Of course an overtaking vehicle should not have come to the track of the bike immediately in front of it which probably would have caused the accident. However, if the deceased had reduced the speed, probably he could have avoided 2 the accident, that too, in the night. Besides this, the rider and the pillion rider who sustained injury were not wearing helmet which is mandatory under Section 129 of the Motor Vehicles Act. Therefore, contributory negligence is certainly there on the part of the rider of the bike who is no more. However, we feel fixation of contributory negligence at 30% may be on the high side because the offending car overtaking the motorbike came in front of it within short distance and therefore, his negligence is much more than the negligence of the rider of the bike. We, therefore, estimate the contributory negligence of the rider of the motorbike at 15%. There is no scope for interfering with the award on any other ground. The appeals are accordingly disposed of by reducing the reduction towards contributory negligence from 30% to 15% which actually means entitlement of 85% of the total compensation awarded to the appellants in both cases with interest at the rate mentioned in the award. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms