LILLY RAJU Vs. RAJU

JUDGEMENT

(1.) THIS appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)683/05. The claimant, while travelling along with her husband as a pillion rider along with the child sustained injuries when the vehicle overturned when the husband applied sudden break. The Tribunal found that the claimant should have been more careful and that she should have sat properly in correct position so as to avoid a fall. It is also stated that there were two pillion riders and therefore negligence cannot be attributed on the rider. The Division Bench of the Madras High Court in the decision reported in Managing Director, Tamil Nadu State Transport Corporation Ltd. v. Abdul Salam (2004 ACJ 1827) had considered the question of contributory negligence when a two wheeler is plied with more than one pillion rider. The learned Judges held that

(2.) IF a couple had travelled with a small child or that child is aged below 10 years, then applying the dictum laid down in the above said case contributory negligence cannot be attributed. Therefore the finding of the Tribunal on that aspect and further the finding that the wife had not sat properly are all on conjectures and surmises which has to be set aside and send back. Further I had seen from the copy of the policy produced that it is a package policy and by virtue of the clarificatory circular dated 16.11.2009 issued by the Insurance Regulatory and Development Authority the persons carried in a private vehicle and persons carried in a two wheeler are covered under the terms and conditions of Standard Motor Package Policy. Therefore I set aside the award passed by the Tribunal and remit the case back to the Tribunal with a direction to all concerned to produce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Since the necessary parties are not appearing before this Court and as their junction is necessary I direct the appellant herein to take out notice to all respondents on appearance before the trial court. The appellant is directed to appear before the Tribunal on 14.3.2011.