IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 MFA.No. 1523 of 2001() --------------------------------- OPMV.169/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT - PETITIONER: ----------------------------------- K.J. SURESH, S/O. JOSEPH, KOLENCHERY HOUSE, NEAR C.S.A. AUDITORIUM, ANGAMALY .O. BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR) RESPONDENTS - RESPONDENTS: --------------------------------------------- 1. THOMAS P.GEORGE, STATE BANK OF INDIA, CHALAKUDY P.O., THRISSUR DISTRICT. 2. MARTIN, S/O. ALIA, INCHIPARAMBIL HOUSE, KOTHAKULANGARA, ANGAMALY. 3. ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, SOUTH JUNCTION, CHALAKUDY. BY ADV. SRI.JOSE THETTAYIL SRI.M.JACOB MURICKAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10.1.2008, THE COURT ON 31/01/2008 DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.F.A. NO.1523 OF 2001 = = = = = = = = = = = = = = = = = = = Dated this the 31st day of January, 2008 J U D G M E N T -------------------- Petitioner in O.P(MV) No.169 of 1998 on the file of the Motor Accidents Claims Tribunal, North Paravur, is the appellant. On 4.5.1997 at about 5.30 p.m., petitioner was pillion riding on a motor cycle bearing Reg. No.KDE-4028 ridden by the second respondent through Paravur- Vadakkumpuram road from south to north. When the vehicle reached at Manakkodam, it hit on the rear side of a hand cart. Petitioner was thrown away on the road and sustained injuries. He filed the Original petition claiming compensation impleading the owner, rider and Insurer of the vehicle. It was alleged that the accident occurred due to the rash or negligent driving the vehicle by the second respondent. Petitioner claimed Rs.70,000/- as compensation. Though the owner and rider of motor cycle were served with notice, they did not appear and contest. Third respondent, Insurer, alone filed written statement and contested the case. The Insurer admitted existence of a valid policy, but contended that the M.F.A. NO.1523 OF 2001 -: 2 :- policy issued was only an Act only policy and a pillion rider was not covered by the said policy. It was also contended that the owner of the vehicle did not inform the Insurer about the accident. The averment that the rider was driving the vehicle in a rash or negligent manner was denied. It was specifically contended that the petitioner was pillion riding on the motor cycle under the influence of alcohol and was sitting on the motor cycle with an unsteady gait so as to disturb the control of the rider. It was contended that the petitioner sustained only minor injuries. Quantum of compensation claimed was denied. 2. The Tribunal found that the petitioner had consumed liquor and he also contributed for the accident and fixed the liability at 50:50. Tribunal found that the petitioner was entitled to get Rs.22,250/- as compensation, but awarded Rs.11,125/-. Tribunal further found that the Insurer did not produce the policy and did not establish the contention of violation of policy conditions. Tribunal directed the Insurer to pay the amount of Rs.11,125/- with interest. Complaining inadequacy of the quantum of compensation M.F.A. NO.1523 OF 2001 -: 3 :- awarded by the Tribunal, petitioner himself had filed this appeal. 3. Learned counsel appearing for the appellant has argued that the finding of the Tribunal that the appellant also contributed for the accident is illegal and without any evidence. It is argued that the Tribunal failed to note that the appellant was only a pillion rider and hence the finding of the Tribunal that he was guilty of contributory negligence is not correct. It is argued that the injuries sustained by the appellant show that the appellant sustained very serious injuries and the quantum of compensation awarded is meagre. 4. Learned counsel appearing for the Insurer has argued that the Tribunal went wrong in directing the Insurer to indemnify the insured. It is argued that the reason stated by the Tribunal was that the company did not produce the copy of the insurance policy. It is argued that the Insurer produced the policy on 14.9.2000 and the Tribunal had in fact found that it was an Act only policy. It is argued that Exhibit B1 is only an Act only policy and as such the Insurer is not liable to indemnify the insured as it was a case of pillion rider M.F.A. NO.1523 OF 2001 -: 4 :- sustaining injuries. It is argued that the finding of the Tribunal that the appellant had also contributed to the accident is based on evidence and is not at all liable to be interfered with. It is argued that the compensation awarded is reasonable considering the nature of the injuries sustained. It is argued that the appeal is only to be dismissed. 5. I shall first consider whether the Insurer can be allowed to raise a contention that it is not liable to indemnify the insured. It is true that the Insurer had produced the policy on 14.9.2000 and the same was marked on consent as Exhibit B1 on 17.8.2001. So the finding of the Tribunal that copy of the policy was not produced is not correct. But that finding has become final and conclusive as the Insurer has not filed any appeal or cross appeal against that part of the award by which the Insurer was directed to indemnify the insured. It is not a case of adverse finding alone, but a case in which the award was passed against the Insurer. In such a case the Insurer cannot be allowed to challenge that part of the award without filing an appeal or cross appeal in this appeal. Counsel appearing the Insurer has argued that even assuming M.F.A. NO.1523 OF 2001 -: 5 :- that the award passed by the Tribunal is not liable to be interfered with, no further liability may be fastened on the Insurer. It is argued that even if this Court finds that appellant is entitled to any additional compensation, the Insurer may not be directed to indemnify the insured as Exhibit B1 policy was only an Act only policy. It is argued that in view of the Full Bench decision of this Court by which pillion rider was treated as third party Insurer did not file any appeal. It is argued that subsequently, the Apex Court had held that a pillion rider on a motor cycle is not entitled to get compensation from the Insurer unless it is shown that additional premium was paid. I do not find any merit in the arguments of counsel for the Insurer. Even if the decision of the Tribunal was wrong, the same will operate as res judicata in this case so far as the Insurer is concerned. The remedy available to the Insurer was to challenge the same by filing an appeal or cross appeal in the appeal filed by the insured. Merely because the Supreme Court had declared the law subsequently is not a ground to hold that the Insurer is not liable to satisfy the award if this Court finds that the M.F.A. NO.1523 OF 2001 -: 6 :- petitioner/appellant is entitled to get additional compensation. Tribunal found that the Insurer is liable to indemnify the insured. It is trite law that even a wrong decision will operate as res judicata. So the Insurer is not entitled to raise a contention that it is not liable to indemnify the insured in this case. 6. Now I shall consider whether the finding of the Tribunal that the appellant also guilty of contributory negligence is correct. It is admitted that the appellant was pillion riding on a motor cycle which was ridden by the second respondent. They were travelling through a public road from south to north. At the place of accident road lies north-south and the tarred portion was having a width of 4.12 metres. Place of accident is 1.7 metres east from the western tar end. Admittedly the accident occurred when the motor cycle ridden by the second respondent hit on the rear side of a hand cart. The specific case pleaded by the Insurer was that the appellant was guilty of contributory negligence. It was contended that the appellant was pillion riding on the motor cycle after consuming liquor and he was sitting with an M.F.A. NO.1523 OF 2001 -: 7 :- unsteady gait and because of that fact, the balance of the rider was disturbed. He lost his control over the vehicle and it hit against the hand cart. Appellant was examined as P.W.1. It is admitted by him that the motor cycle hit on the rear side of a hand cart. Though in the Original Petition at column No.28 there is an averment to the effect that the accident occurred due to the negligence of the second respondent, there is absolutely no such statement while he gave evidence as P.W.1. He had only deposed that he was pillion riding on a motor cycle and when the motor cycle hit on a hand cart he fell down and sustained injuries. So there is absolutely no evidence to show that the accident occurred due to the sole negligence of the second respondent. P.W.1 had admitted, during cross examination, that before pillion riding he had consumed alcohol. He had also admitted that he used to consume liquor. He had further admitted that he had consumed liquor from Angamaly and started pillion riding on the motor cycle from Angamaly. Evidence on record shows that before covering a long distance the accident occurred. So the evidence of P.W.1 is sufficient to show that the M.F.A. NO.1523 OF 2001 -: 8 :- suggestion of the Insurer that on account of the unbalanced sitting of the appellant on the rear seat after consuming liquor, the rider lost his control over the vehicle seems to be correct. It is to be noted that the vehicle hit on the rear side of the hand cart. So I accept the contention of the Insurer that the appellant was pillion riding on the motor cycle after consuming liquor, the rider lost his control and caused the accident. So the finding of the Tribunal that the appellant had also contributed to the accident and he is equally liable for the accident is correct and does not call for any interference. 7. Considering the nature of the injuries sustained by the appellant and the duration of the treatment the appellant had undergone, I am of the view that the compensation awarded by the Tribunal is reasonable. I do not find any reason to interfere with the same also. The appeal is without any merit and the same is only to be dismissed. In the result, appeal is dismissed. K. PADMANABHAN NAIR, JUDGE. vsv M.F.A. NO.1523 OF 2001 -: 9 :- K. PADMANABHAN NAIR, J. ===================== M.F.A. NO.1523 OF 2001 ===================== J U D G M E N T ------------------------------------------- 31ST JANUARY, 2008