IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 MACA.No. 1525 of 2008() ------------------------------------ OPMV.511/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): 2ND RESPONDENT IN O.P.M.V. ------------------------- THE NEW INDIA ASSURANCE CO.LTD., KOTTAYAM, REPRESENTED BY ITS MANAGER. BY ADVS. MR. KM.SHERIF MR.A.A.ZIYAD RAHMAN RESPONDENT(S): ------------------------- 1. G.THULASIDAS, PANACKAL HOUSE, CHAMPAKARA P.O., KARUKACHAL. 2. ROBIN MATHEW, KUNNATHUMAKKEL, KANIYAMKAVAYAL, PERUVANTHANAM (VIA) IDUKKI. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1818/2008 IN MACA NO. 1525/2008 DISMISSED 07/12/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... M.A.C.A.No.1525 OF 2008 ............................................. Dated this the 7th day of December, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Kottayam in OP(MV)No.511/2004. The claimant was riding a motor bike and at the place of accident, it collided with a jeep resulting in injuries to him. The Tribunal found the driver of the jeep negligent and awarded him a compensation of Rs.75,300/= and it is challenging the question of negligence, the insurer has come up in appeal, The insurer has already taken permission to contest the case under Section 170 of the Motor Vehicles Act. 2. The learned counsel for the appellant very persuasively and strongly contends before me that when three persons travelled in a motor bike, which is designed and intended to carry only two persons and on account of lack of space, driving itself become a very difficult job and one may not be get absolute control as one wants to have it. Therefore, he contends that it will amount to at least : 2 : M.A.C.A.No.1525 OF 2008 contributory negligence. In support of the said contention, he had cited the decision of the Madras High Court reported in Tamil Nadu State Transport Corporation v. Abdul Salam (2003 KHC 1409). It was a case where three persons travelled in a motor bike and it pushed against a bus of the KSRTC and the Division Bench of the Madras High Court held that “the liability in respect of contributory negligence by unauthorised travelling of 3 persons in a motor cycle, we make it clear that it will not be applicable to a case where a family consisting of husband, wife and children are travelling. Even in such cases, if more than one child aged above 10 to 12 years is being taken, then we make it clear that principle of contributory negligence will be applicable in respect of any accident”. The learned counsel also had invited my attention to a Division Bench Rulings of this Court in Pournami v. Sandhya Sudheer (2008 (4) KLT 817) wherein this Court held that contributory negligence is a defense available to the respondent in a claim petition and it also held that under no circumstances more than two persons travelling in a bike involved in an : 3 : M.A.C.A.No.1525 OF 2008 accident are entitled to compensation. It has to be stated that violation of rules coupled with nature of the accident are the matters that will decide the question of negligence. As held by the Madras High Court when three persons travelled in a congesting manner in a two wheeler designed for two persons necessarily and naturally the rider will not have sufficient space to sit and control the vehicle. It always could result in danger. Referring to this case, though the width of the road is not seen from the charge sheet, the charge sheet reveals that the accident had taken place 5 meters and 4 cms south of the northern tar end. The motor bike was proceeding from south to west and its correct side was northern side. The jeep was coming from the opposite direction and its correct side was southern side. Considering the fact that the accident had taken place about 5 meters and 4 cms of the south of the northern tar end it can be said that the motor cycle was not totally on its correct side at the time of the accident. The total width of the road is not available in the charge sheet and scene mahazer is not produced in the case as well. The fact that the vehicle was : 4 : M.A.C.A.No.1525 OF 2008 travelling through the middle of the road and that there were three persons in the vehicle at the time of accident, without any fear of contradiction it can be stated that the rider of the motor vehicle should have also attributed to the accident. It is true that the charge sheet is laid only against the driver of the jeep. Taking into consideration that factum as well, I fix the negligence at 25% on the rider of the bike and 75% on the driver of the jeep. When it is so, the compensation has to be reduced by 25% which means Rs.56,475/= instead of Rs.75,300/=. 3. In the result, the award passed by the Tribunal is modified and the claimant is awarded a compensation of Rs.56,475/= with 7% interest on the said sum from the date of the petition ie., 5.4.2004 till realisation and also the cost fixed at Rs.3,000/=. Remaining part of the award regarding production of cheque etc as passed by the Tribunal will remain in force. Disposed of accordingly. M.N. KRISHNAN, JUDGE : 5 : M.A.C.A.No.1525 OF 2008 cl