IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 MACA.No. 1270 of 2005() ----------------------- OPMV.758/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/CLAIMANT: --------------------------------- SUNIL. S. KUMAR, S/O. V. SUKUMARAN, THULASIMANIDRAM, MALAKKAL P.O., KILIMANOOR VILLAGE. BY ADV. MR.P.K.MUHAMMED RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. V.S. SURESH BABU, S/O. VASUDEVAN UNNITHAN, RESMI SEEMANTHAURAM, NIARAYIKONAM P.O., MADAVOOR, KILIMANOOR. 2. SASANKAN, S/O. GOVINDA PILLAI, VILAYIL VEEDU, KRISHNANKANNA, MADAVOOR P.O. 3. THE MANAGER, ORIENTAL INSURANCE CO., DIVISIONAL OFFICE, P.B.NO.288, L.I.C. BUILDING, 3RD FLOOR, RESIDENCY ROAD, CHINNAKKADA, KOLLAM. R1 BY ADV. MR.P.A.AHAMMED R3 BY ADV.MR.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1270 OF 2005 = = = = = = = = = = = = = = = Dated this the 12th day of January, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Attingal in O.P.(MV)758/98. The claimant, according to the Tribunal was a rider of a motorbike and he sustained injuries when the motorcycle collided with an auto rickshaw. It has to be remembered that the contention of the claimant is that he was a pillion rider. The Tribunal I think was in utter confusion. The petition was filed u/s 166 of the M.V.Act. The Tribunal finds that both the riders had contributed to the accident and thereafter holds that the petition u/s 166 is not maintainable and it should be u/s 163A. It is also further stated as there is no permanent disablement, compensation u/s 163 A is not awardable and therefore dismissed the petition. I am afraid the Tribunal has lost track of the law on the subject. M.A.C.A. 1270 OF 2005 -:2:- The questions to be answered in this case were (1) Whether the claimant was a rider of the motorcycle or a pillion rider. (2) Whether the accident had taken place on account of the negligence of the rider of the motorbike and the driver of the auto rickshaw or on account of the negligence of one of them alone. (3) Suppose the accident had taken place totally on account of the negligence of the motorcyclist and that the claimant was the rider of the motorcycle then he may not be entitled to any compensation u/s 166 of the M.V.Act. Suppose the accident had taken place on account of the negligence of the rider of the motorbike as well as the driver of the auto rickshaw then it is a case of contributory negligence if the claimant was riding the vehicle. Even if the status of the claimant is that of a pillion rider if the negligence is on the part of the motorcyclist alone then also the claimant may not be entitled to any compensation for the reason he has not claimed any compensation against the rider or the insurer of the motorcycle but unfortunately the whole thing had been M.A.C.A. 1270 OF 2005 -:3:- approached in a very different angle which requires correction and reconsideration at the hands of the court below. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal with a direction to proceed with the matter in accordance with the directions mentioned in the previous paragraphs and for the purpose the parties be permitted 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. I have dispensed with notice to R2 in the appeal with a specific direction that it can be ordered by the court below after the appellant enters appearance before that Court, for a proper disposal of the matter. Parties are directed to appear before the court below on 22.2.2010. M.N. KRISHNAN, JUDGE. ul/-