1. The above appeal is directed against the judgment and award dated 7.2.2009, passed in MVC No. 1473/1998 on the file of XVIII Additional Judge, Court of Small Causes, Member, MACT-4, Metropolitan Area, (SCCH No.4) Bangalore.

2. The brief facts of the case are that on 26.10.1995 at about 12.45 p.m. when the son of the claimants by name Kutubuddin was traveling as a pillion rider on a motor cycle bearing No. MYA-5842 on 2nd main road, Vyalikaval, Bangalore from north to south, near 2nd road, rider of the scooter bearing registration No. CKN-6841 came from opposite direction in a rash manner and dashed against the motor cycle of which Kutubuddin was a pillion rider and caused the accident. In the said accident, the pillion rider suffered grievous injuries and he succumbed to the same.

3. In the circumstances, the claimants, who were parents of the said pillion rider preferred MVC No.1473/1998 seeking compensation of Rs.4,50,000/- under Section 163(A) of the Motor Vehicles Act, 1988 which was contested by the insurance company and subsequently on conclusion of the evidence and also after hearing the arguments of both Counsel, the Tribunal deemed it fit to award a sum of Rs.1,50,000/- vide its judgment and award, dated 20.2.2004.

4. Aggrieved by the said judgment and award, the respondent/insurance company preferred MFA No.5007/2004 and the same was disposed off vide order, dated 31.10.2007 and the matter was remanded to the Tribunal for disposal afresh after permitting the claimant to implead the owner and the insurer of the motor cycle bearing registration No. MYQ 5842 i.e., the motor cycle of which the victim was the pillion rider. In the said order, further direction was also issued to the Tribunal to find out the contributory negligence on the part of the rider of the said motor cycle. On such remission, the Tribunal by permitting the claimants to implead the owner and the insurer of the said motor cycle recorded the evidence and on conclusion of the said evidence, the tribunal gave a finding that the rider of both vehicles are equally responsible in causing the accident and thus the contributory negligence in particular on the rider of the vehicle of which the victim was a pillion rider, was fixed at 50%.

5. Despite fixing of such liability, the Tribunal deemed it fit to fasten the liability on all the three respondents holding them jointly and severally liable.

6. In this regard, the learned Counsel appearing for the insurer of the scooter bearing Reg.No. CKN 6841 contended that though the operative portion of the judgment and award passed by the Tribunal reads as insurance company is jointly and severally liable, as the contributory negligence on the part of the rider of the motor cycle on which the victim was a pillion rider, was assessed at 50% and the said owner of the motor cycle is to be compensated only at 50% and not the complete liability. He also contended that the said direction is given while disposing of the earlier MFA, only to find out the liability, if any, by the rider of the motor cycle of which the victim was a pillion rider and to find out whether such liability can be jointly fixed on the owner of the said motor cycle also and not to exclude the owner of other vehicle viz., the scooter by apportioning the liability to pay the compensation at 50% and as such, the operative portion of the impugned judgment and award holding all the 3 respondent jointly and severally liable is proper.

7. In this regard, it is to be noted that the above claim petition is filed under Section 163A of the Motor Vehicles Act, 1988 wherein the cause of accident is not at all the question to be decided and mere involvement of the vehicle is sufficient to entitle a person claiming compensation to seek the same. In the circumstances, though a finding is given with regard to the contributory negligence on the part of the rider of the motor bike of which the victim was a pillion rider, that by itself, will not exonerate the insure