A mere violation of passenger limits on a motorcycle does not imply contributory negligence without evidence linking it to the accident.

JUDGMENT

Dated this the 5th day of March 2021 These three appeals are filed by the New India Assurance Company Limited. The insurance company is the 3rd respondent in OP(MV).No.266/2005, OP(MV). No.268/2005 and OP(MV).No.269/2005 on the file of the Motor Accidents Claim Tribunal, North Paravur. In MACA No. 1076/2010 and MACA No. 1054/2010 a cross objection is also filed by the claimants for enhancement of compensation. Since all these cases are connected, I am disposing these appeals by a common judgment. (Hereinafter the parties are mentioned in accordance to their rank before the tribunal).

2. The short facts are like this:-

On 05.03.2005 all the claimants were traveling in a motorcycle bearing registration No. KL7/AC-4067 along the Kodungallur Paravur road. Two of them were pillion riders and the other one was the rider of the motorcycle. When they reached at Moothakunnam Junction, the motorcycle after giving signal turned to Maliankara road. While so, a van negligently driven by the 1st respondent, came from the opposite direction and hit on the motor cycle and thereby claimants sustained injuries. Three separate claim petitions were filed under Section 166 of the Motor Vehicles Act, claiming compensation from the respondents.

3. To substantiate the case, Exts. A1 to A9 were marked on the side of claimants. After going through the documents and pleadings the tribunal passed separate award by which the claimants were given compensation. Aggrieved by the award the insurance company filed the above three appeals and in two appeals, the claimants filed the cross objection.

4. Heard the learned counsel for the appellant and the learned counsel appearing for the claimants/cross objectioners.

5. The main contentions of the learned counsel for the insurance company is that, the claimants were traveling in a motor cycle. A petty case is registered against the rider of the motor cycle because there was overload in the motor cycle. The learned counsel relied the judgment of this Court in Pournami V. Sandhya Sudheer ( 2008 (4) KLT 817 ) in which it is stated that, if two persons are traveling in a motor cycle, no insurance coverage need to be given for the rider of the motor cycle.

6. The learned counsel for the claimants/cross objectioner submitted that, in the light of the judgment of the Apex Court inMohammed Siddique and Another V. National Insurance Company Ltd and Others (AIR 2020 SC 520), the judgment of this Court in Pournami's case (Supra) will not stand. The learned counsel submitted that, the Apex Court observed that merely because victim was one among the two persons on the pillion, will not make him guilty of contributory negligence.

7. The learned counsel also argued based on the cross objection filed in MACA No. 1076/2010 and MACA No. 1054/2010. The learned counsel submitted that the compensation awarded by the tribunal is too high.

8. After hearing both sides, I am not in a position to accept the argument of the learned counsel for the insurance company that, there is a contributory negligence on the part of rider of the motor cycle. Absolutely, no evidence is adduced by the 3rd respondent-insurance company, in all these cases to prove that there is contributory negligence. Simply because there are two pillion riders in the motor cycle, there is no presumption that there is contributory negligence. The Apex Court considered this point in detail in Muhammed Siddique's Case (Supra). The relevant paragraph is extracted hereunder:-

“11. As could be seen from the above narration, the High Court interfered with the award of the Tribunal, on 3 counts, namely (i) contributory negligence; (ii) monthly income of the deceased and (iii) the multiplier to be applied. Therefore, let us see whether the High Court was right in respect of each of these counts.

12. It is seen from the material on record that the accident occurred at about 2:00 a.m. on 5.09.2008. Therefore, there was no possibility of heavy traffic on the road. The finding of f