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 MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 MACA.No. 1122 of 2005() ----------------------- OPMV.344/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/CLAIMANT: -------------------------------- ALBI MATHEW, S/O.MATHU, MALIAKKAL CHENIYARA HOUSE, PUTHENCHIRA EAST, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): RESPONDENTS: ------------------------- 1. BONY, S/O.PAUL, MALIKKAL KOONAN HOUSE, PUTHENCHIRA EAS,PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. 2. SHAJU PAULOSE, S/O.PAULSOE, MALIAKKAL HOSUE, PUTHENCHIRA EAST, DO.DO. 3. THE MANAGER, NEW INDIA ASSURANCE CO.LTD. IRINJALAKUDA BANCH, IRINJALAKUDA P.O. ADV. SRI.P.G.GANAPPAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ----------------------------------- M.A.C.A. No.1122 of 2005 -------------------------------------- Dated this the 27th day of July, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. The claimant before the Tribunal is the appellant herein. The accident occurred while he was travelling on the pillion of a Motor Cycle which fell into a Gutter and overturned. Due to the impact the petitioner was thrown out and fell on the road. He sustained very serious injuries. While considering the aspect of negligence the Tribunal found that fully knowing that there was a chance of accident the claimant had opted to travel in a motor cycle as a pillion rider and he being a gratuitous passenger is not entitled for full compensation. The Tribunal observed that the claimant could have requested the rider to drive the vehicle observing the traffic rules and if the rider was not observing, he could have requested to stop the vehicle and refused to travel any further. Therefore finding that there is contributory negligence the Tribunal held that the claimant is entitled only for 50% of the total compensation awarded. 2. The specific case borne out from the evidence is that the accident occurred when the Motor Cycle fell into a Gutter on MACA.1122 /05-D 2 the road. There was no allegation that the rider was driving the Motor Cycle in any uncontrollable speed. Therefore we could not agree with the view taken by the Tribunal that there is any failure on the part of the pillion rider/claimant in permitting the rider to drive the Motor Cycle in a rash and negligent manner. Hence the finding of the Tribunal regarding contributory negligence need be reversed. In the result, the appeal is allowed in part modifying the award to the extent of holding that the appellant is entitled to receive the total compensation of Rs.36,264/- fixed by the Tribunal. The amount will carry interest as per terms of the award of the Tribunal. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb