Allowed

P.G.Shibu v. Kurian Jose

Kerala HC11 Jun 2014MACA/2232/2013

Case brief

AI extract

What is this about?

The Kerala High Court allowed this motor accident appeal, setting aside the Motor Accidents Claims Tribunal's finding of contributory negligence against the pillion rider. The court held that necle was absent from the checkmate, but the headnote is misleading. The second respondent's claim was dismissed due to the presence of alcohol on the pillion rider's wound. The court concluded that the amoun

What did the court decide?

The finding of contributory negligence against the appellant is set aside; the third respondent ordered to pay Rs. 39,195/- with 9% interest.

P.G.Shibu Vs Kurian Jose — Contract and Commercial Disputes | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936

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MACA.No. 2232 of 2013 ()

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OPMV 737/2004 of ADD MACT,EKM

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APPELLANT/PETITIONER:

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P.G.SHIBU AGED 34 YEARS S/O. SRI. GOVINDAN, PUTHENVEETTIL HOUSE, CHITTOOR.P.O. CHERANALLOOR VILLAGE, KANAYANNUR TALUK ERNAKULAM DISTRICT.

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BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.ANILA PETER SRI.G.ARUN GOPAN SRI.J.VIVEK GEORGE SMT.C.PRABITHA

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RESPONDENTS:

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KURIAN JOSE EDASSERY HOUSE, BANERJI ROAD, ERNAKULAM KOCHI-682031.

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JINISHLAL S/O. BAHILAL, THOTTATHISSERY HOUSE, TOLL GATE ROAD VADUTHALA, COCHIN-682023.

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NATIONAL INSURANCE COMPANY LIMITED, JANATHA JUNCTION, PALARIVATTOM, COCHIN-682025.

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R3 BY ADV. SRI.RAJESH THOMAS R3 BY S.C., SRI.M.A.GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA J.

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M.A.C.A. No.2232 of 2013

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Dated this the 11^th day of June, 2014

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JUDGMENT

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Dissatisfied with the award passed by the Motor Accidents

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Claims Tribunal, Ernakulam in O.P.(M.V.) No.737 of 2004, the petitioner has come up in appeal. O.P.(M.V.) No.873 of 2004 and

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O.P.(M.V.) No.737 of 2004 were disposed of by the Tribunal

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through the impugned common award dated 29.2.2012.

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The petitioner in O.P.(M.V.) No.873 of 2004 was the rider

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and the petitioner in O.P. (M.V.) No.737 of 2004 was the pillion

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rider of the motor bike. While they were proceeding through the road, they were knocked down by a Maruti van coming from the opposite direction, which was being driven by the second respondent, in a rash and negligent manner so as to endanger human life, thereby both the rider and the pillion rider got injured.

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M.A.C.A. No.2232 of 2013

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It seems that the Tribunal, after appreciating the evidence, found that the rider of the motor bike, who is the claimant in O.P. (M.V.) No.873 of 2004 was not negligent in riding the motor bike. An amount of `3,61,679/- was awarded in O.P.(M.V.) No.873 of 2004 to the rider, as compensation with interest, at the rate of 9% per annum. At the same time, strangely enough, it seems that the Tribunal has gone to the extent of finding that the pillion rider, who is the appellant herein, contributed to the accident thereby his compensation has been reduced to 50%.

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Heard the learned counsel for the appellant and the learned counsel for the third respondent. Learned counsel for the appellant has pointed out that the Tribunal has found contributory negligence on the part of the pillion rider merely because of the reason that his wound certificate revealed that there was smell of alcohol. It seems that the insurer has no complaint of any contributory negligence on the part of the rider of the motor bike.

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M.A.C.A. No.2232 of 2013

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The award in O.P.(M.V.) No. 873 of 2004 has not been challenged by the insurer and the same has become final. Especially, when the

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Tribunal has not found that the rider had in any away contributed to the accident, it is meaningless to say that the pillion rider had contributed to the accident.

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The finding of contributory negligence on the part of the appellant is per se erroneous and is liable to be set aside. It seems that the Tribunal has arrived at an amount of 39,195/-, as compensation, to the appellant. On going through the facts of the case, this court is of the view that the amount arrived at by the Tribunal as compensation to the appellant is not liable to be interfered with. At the same time, the third respondent has to be ordered to pay the said amount of 39,195/- with interest at the rate of 9% per annum, from the date of petition till the date of payment, to the appellant.

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In the result, this appeal is allowed and the finding of the

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M.A.C.A. No.2232 of 2013

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contributory negligence as against the appellant, is set aside. The third respondent is ordered to pay the entire amount of `39,195/with interest at the rate of 9% per annum, from the date of petition till the date of payment, to the appellant, within two months. There

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is no order as to costs.

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Sd/-

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B.KEMAL PASHA , JUDGE

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// TRUE COPY //

P.G.Shibu v. Kurian Jose

Case brief

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P.G.Shibu v. Kurian Jose

Case brief

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