IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 MACA.No. 115 of 2003 ------------------------------------ OPMV.1335/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/SECOND RESPONDENT: M/S.UNITED INDIA INSURANCE COMPANY LTD., MALAPPURAM. BY ADV. SMT.P.A.REZIYA RESPONDENTS/PETITIONERS & R1,3 4 & 5: 1. KALATHINGAL MOHAMMED S/O. ALAVI, 53 YEARS (DIED). 2. KADEEJA W/O. MOHAMMED, 45 YEARS, 3. ABDUL MAJEED S/O. MOHAMMED, 32 YEARS, 4. SULAKHA D/O. MOHAMMED, 29 YEARS, 5. ASHRAF S/O. MOHAMMED, 26 YEARS, 6. NOUSHAD S/O. MOHAMMED, 20 YEARS, 7. NAJEEB S/O. MOHAMMED 19 YEARS, 8. NAJBUDHEEN, S/O. MOHAMMED, 18 YEARS, 9. KARUVANNI MOHAMMEDALI, S/O. KOYAMU, PARAKKANNI, OORAKAM (DRIVER) 10. K.FAISAL S/O. KASIM, LUBNA MANOR, KOTTUKKARA, KONDOTTY (OWNER) 11. ORIENTAL INSURANCE CO.LTD., KOZHIKODE. 12. K.P.SACHIDANANDAN, S/O. APPU, KERALA SOAPS AND OILS LTD., CALICUT. ADV. SRI.K.P.MUJEEB FOR R2,3,4,8 SRI.BABU S. NAIR FOR R10 SRI.M.JACOB MURICKAN FOR R11 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/10/2008 ALONG WITH MACA NO.195 OF 2003 AND MACA NO.223 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.Nos.115, 195 & 223 of 2003 --------------------------------- JUDGMENT Koshy, J. These three appeals are filed by the Insurance Company against the common award passed by the Motor Accidents Claims Tribunal, Manjeri. It is alleged that a Jeep bearing Reg.No.KL-10/A 2725 owned and driven by the first respondent and insured by the appellant (second respondent before the Tribunal) hit on the Motor Cycle bearing Reg. No.KEZ 3329 owned by the third respondent and insured by the fourth respondent. The rider of the motor cycle died in the accident. O.P.(MV)No. 1335/96 was filed by the legal heirs of the deceased rider. The petitioner in O.P.(MV)No. 1336/96 was a pedestrian on the road, according to the claimants. The petitioner in O.P.(MV)No.1337/96 was a pillion rider. 2. No oral evidence was adduced. The rider of the motor cycle was originally charge sheeted. But MACA 115/03 & con. cases 2 due to his death it has become abated. Exhibit A1 is the copy of FIR. Exhibit B1 is the charge sheet and Exhibit B2 is the insurance policy. It is true that the jeep was covered by a valid insurance policy. From the charge sheet it is clear that the claimant in O.P.(MV)No.1336/96 was also a pillion rider. As per the FIR also, the deceased rider and two others were travelling in the motor cycle. Therefore, notwithstanding the claim, there were two pillion riders in the motor cycle. The claimant in O.P.(MV)No.1335/96 was not a pedestrian, but one of the pillion riders. In spite of the specific averments in the written statement and the allegations in the charge sheet, he did not depose by entering the box to prove that he was not a pillion rider. Carrying two pillion riders in a two wheeler is against the Motor Vehicle Rules as well as against the permit conditions and policy conditions. Further, according to the Insurance Company, the rider of the motor cycle was not having a valid driving licence at the time of the MACA 115/03 & con. cases 3 accident. Appellant filed a petition for permission to produce the driving licence either by the RTO or by the claimants. Claimants did not produce the same, as they were not having the documents as the deceased, driver-cum-owner of the motor cycle, was keeping the same. Appellant is the insurer of the jeep and driver of the jeep was having a valid driving licence. If the driver of the jeep is negligent, appellant is liable to pay compensation (third party liability). 3. The Tribunal did not look into the aspect of negligence on the basis of the decision of the Honourable Supreme court in Rylands v. Fletcher (1861-73 All ER (Reprint) 1). The claim was filed under Section 166 of the M.V. Act and not under Section 163-A. The claim is based on tortious liability. Therefore, negligence has to be established to fasten liability on the respondents. The charge sheet and the FIR show that the motor cycle was driven with two pillion riders. Of course, the F.I. Statement was given by the jeep MACA 115/03 & con. cases 4 driver and therefore, only his version is mentioned in the charges. Therefore, on the basis of the charge sheet alone, we cannot find out who was negligent or more negligent. But, no oral evidence was adduced to prove the nature of accident. Even though scene mahazar is not produced, considering the width of the road, as found in the charge sheet, if both drivers were vigilant, accident could have been avoided. The accident occurred in a high way. In such cases, as held by the Apex Court in Bijoy Kumar Dugar v. Bidyadhar Dutta (AIR 2006 SC 1255) both drivers can be presumed to be negligent. In the absence of evidence, we are of the view that only 50% of the amount awarded can be deposited by the Insurance Company, which insured the jeep. Therefore, the award amount is reduced by 50%. Since 50% negligence is awarded to the rider of the motor cycle due to his contributory negligence, his dependents are not entitled to get balance compensation as the motor cycle was driven by the rider with two pillion riders. There is no MACA 115/03 & con. cases 5 evidence to show that gratuitous passengers are covered by the insurance policy. Exhibit B2 policy will not cover pillion riders. Therefore, the fourth respondent Insurance Company, which insured the motor cycle, is not liable to pay compensation to the pillion riders also. They are also negligent as only one pillion rider is allowed to travel in a two wheeler. The appellant Insurance Company is directed to deposit only 50% of the compensation awarded with proportionate interest as awarded by the Tribunal. The appeals are allowed. (J.B.Koshy, Judge) 16th October, 2008 (K.P.Balachandran, Judge) tkv