JUDGMENT

Dated this the 4th day of March 2021 The appellant is the claimant in O.P (MV)

No.2288/2003 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injury sustained by him in a motor accident.

2. The case of the appellant is that, the appellant was traveling as pillion rider on a motor cycle bearing Registration No.KL-7/AJ-6465 from south to north direction through the Angamaly-Chalakudy NH road on

6.11.2003 at about 6.30pm and when he reached at the place of occurrence a tempo bearing Registration No.KL- 7/K-8784 driven by the 1 st respondent came in a rash and negligent manner from behind and tried to overtake the motor cycle and in the process of that the 1 st respondent driver without taking due care and caution swerved the tempo to the left side and applied sudden brake and as a result of the same the left back side of the tempo hit against the appellant and he sustained grievous injuries. According to the appellant the accident occurred solely due to the rash and negligent driving of the tempo by the 1 st respondent. The 2 nd respondent is the owner of the said tempo and the 3 rd respondent is the insurer of the offending tempo. The 4 th respondent is the registered owner of the motor cycle in which the appellant was pillion rider, and the 5 th respondent is the insurer of the motor cycle. Hence, the appellant contended that, all the respondents are jointly and severally liable to pay compensation to him. (Hereinafter the parties are mentioned in accordance to their rank before the tribunal).

3. To substantiate the case, the appellant had produced Exts.A1 to A10. Three witnesses were examined on side of the appellant as PW1 to PW3 .

4. After going through the pleadings and documents, the Tribunal found that the appellant is entitled a total compensation of Rs.1,44,060/- with 7% interest per annum from the date of petition till

30.6.2007, and thereafter at 7.5% p.a till realisation from the respondents 1 to 4 jointly and severally. The tribunal found that there is contributory negligence on the part of the rider of the motorcycle, hence, the 4 th respondent was directed to pay 25% of the compensation to the appellant. Since, the policy issued to the motorcycle was an act only policy, as per the decision of the Hon'ble Supreme Court reported in United India Insurance Co. Ltd. Vs. Tilak Singh

[2006 (2) KLT 884] , the pillion riders traveling on two wheelers can only be treated as a gratuitous passengers and since no additional amount premium was collected for the pillion riders, the tribunal found that the appellant is not entitled to get remaining 25% from the insurance company. Aggrieved by the quantum of compensation and also aggrieved by the finding that there is contributory negligence on the part of the motorcycle rider, this appeal is filed.

5. Heard the learned counsel for the appellant and the learned counsel for the respondents.

6. The main contention of the appellant is that there is no contributory negligence. The counsel submitted that a criminal case was registered against the driver of the tempo bearing registration No.KL-7/K-

8784. The counsel submitted that Ext.A6 is the final report. In the light of Ext.A6 the tribunal erred in relying Ext.A2 scene mahazer and fixing contributory negligence on the part of the rider of the motorcycle. There is some force in the above argument. The finding of the tribunal in this regard is like this:-

“Ext.A1 is the copy of F.I.R. and F.I. statement which was registered on 10.11.2003 against the driver of KL-7/K- 8784 tempo. Ext.A2 is the certified copy of scene mahazar stating that the spot of accident is 1.96 meters