POURNAMI Vs. SANDHYA SUDHEER

JUDGEMENT

(1.) The Director General of Police, Thiruvananthapuram and the Transport Commissioner, Thiruvananthapuram are impleaded as additional respondents in these appeals. Government Pleader takes notice for additional respondents.

(2.) The appellants are husband and wife who while travelling along with their two children aged four years and two years on a motor bike met with an accident on 12.4.2002 causing injury to three of them. The bike in which the appellants were travelling from Perumbavoor towards east in the Munnar Road was knocked down by a car. While both the appellants and one child sustained injuries, the other child escaped unhurt. Since injury to the child was minor in nature, the Insurance Company offered compensation and settled the liability. However, when the appellants filed separate claim petitions, the same was resisted by the Insurance Company of the offending vehicle, among other things, on the ground that accident is on account of contributory negligence of the rider of the bike by taking more than one pillion rider on the motor bike. Learned Motor Accident Claims Tribunal though determined compensation of Rs. 2,06,500 to the appellant in M.A.C.A. No. 613 of 2006 and Rs. 29,500 to the appellant in M.A.C.A. No. 612 of 2006, it exonerated the owner and insurer of the offending vehicle on the ground that the accident was on account of contributory negligence on the part of the rider of the bike, in taking more than one pillion rider in violation of Section 128 of the Motor Vehicles Act, 1988. The appeals are filed against the order of the Tribunal dismissing the claim petitions. We have heard Counsel appearing for the appellants, Standing Counsel for Insurance Company and Counsel appearing for the registered owner of the car.

(3.) Counsel for the appellant contended that the order of the Tribunal is not tenable because the accident was caused on account of the negligence of the driver of the car which is evident from the criminal case charged against the driver of the car under Section 279 read with Sections 337 and 338, Indian Penal Code. It is also conceded that the driver of the car pleaded guilty to the charges levelled against him, remitted fine and escaped. The Tribunal relied on the Division Bench judgments of Madras High Court in Managing Director, Tamil Nadu State Trans. Corpn. v. Abdul Salam, 2004 ACJ 1827 and that of Karnataka High Court in P.S. Somaiah v. Director, Bangalore Dairy, 2003 3 ACC 201 and held that the accident is on account of contributory negligence by the rider of motor bike and so much so, compensation is not payable by the insurer or insured of the offending vehicle.