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 3RD JUNE 2009 / 13TH JYAISHTA 1931 MACA.No. 806 of 2006(T) ----------------------- OPMV.3014/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/2ND RESPONDENT -------------------------------------- THE ORIENTAL INSURANCE CO. LTD., KOCHI-35, REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/CLAIMANT&1ST RESPONDENT: ----------------------- 1. V.X.IGNATIOUS, S/O.XAVIER, VELIKKAKATH HOUSE, OPPOSITE UDAYA ROAD, THYKOODAM, VYTTILA.P.O, COCHIN-19. 2. M.A.RAPHAEL, MADIRAPPILLY HOUSE, MULAVUKAD.P.O, COCHIN-31. ADV. SRI.R.SUDHISH FOR R1 SMT.M.MANJU FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2009, ALONG WITH MACA NO.1911 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... M.A.C.A. Nos.806 & 1911 of 2006 .................................................................... Dated this the 3rd day of June, 2009. JUDGMENT Ramachandran Nair, J. The connected appeals arise from very same accident. While the case of the claimant is that he was the pillion rider and accident is on account of negligence of the rider, the case of the Insurance Company is that the claimant was the rider of the bike and the two wheeler he was riding hit against a standing electric post. Since accident is caused by the claimant himself, he is not entitled to compensation is the specific case of the Insurance Company. Counsel for the Insurance Company pointed out that the first hospital in which the claimant was admitted, recorded in the wound certificate that he was driving the vehicle and that he was smelling alcohol. However, MACT on going through the wound certificate noticed that the claimant was stated as sitting in the pillion of the two wheeler when the accident happened. 2. On going through records and after hearing counsel appearing for both sides, we do not find any evidence to conclude that the 2 claimant was riding the bike. However, since he was smelling alcohol, we feel 40% disallowance on account of contributory negligence is quite justified. So far as the claim of enhancement is concerned, we find the award is quite reasonable. Consequently the appeal filed by the claimant and the appeal filed by the Insurance Company are dismissed. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms