National Insurance Co. Vs Kadeeja Musaliyar (2021) Motor Accident Compensation Can't Be Reduced Saying Pillion Rider Didn't Wear Helmet, It Does Not Amount To Contributory Negligence


Court :
High Court Of Kerala

Brief :
Motor Accident Compensation Can't Be Reduced Saying Pillion Rider Didn't Wear Helmet, Not Contributory Negligence

Citation :
MACA.No.1433 OF 2010 & 1952 of 2010

CRUX - National insurance Co. vs Kadeeja Musaliyar - Motor Accident Compensation Can't Be Reduced Saying Pillion Rider Didn't Wear Helmet, it does not amount to Contributory Negligence.

DATE OF JUDGEMENT - 16 MARCH 2021

CORUM - HONOURABLE MR. JUSTICE P.V. KUNHIKRISHNAN

COUNSEL - Advocate KM Sathyanatha Menon for Kadeeja and others, Senior Advocate Mathews Jacob, and Advocate P Jacob Mathew for insurance company.

ISSUE - Whether the compensation awarded in cases of motor accidents reduced if the victim was not wearing helmet.

SUMMARY - Kerela High court states that Motor Accident Compensation Can't Be Reduced Saying Pillion Rider Didn't Wear Helmet

IMPORTANT PROVISIONS

OVERVIEW

  • In this case, the question before the Kerala High Court was a question of law. When deciding an appeal against an order delivered by the motor accidents claim tribunal. The question that the court faced was whether the tribunal has the power to reduce the compensation payable on a motorcycle accident if the deceased pillion rider was not wearing helmet.
  • The tribunal was facing a case in which a family was trying to claim compensation for a person who died in a motorcycle accident. The tribunal in this case reduced the compensation stating the reason that the deceased was not wearing a helmet and therefore the principle of contributory negligence was applicable in this case.
  • The family of the deceased appealed before The High Court questioning that whether the principle of contributory negligence can be applied to this case. Talking about Section 129 of the motor vehicles act, according to which not wearing a helmet in a two-wheeler is an offence, the court held that there is a need to establish a connection between violation of the above-mentioned helmet provision and the accident or consequences of the accident to make sure that the principle of contributory negligence can be applied.

ANALYSIS OF THE JUDGEMENT

  1. The court, while delivering the judgement also referred to the case of Mohammed Siddique vs National insurance Company ltd. In which the decision was made in the context of an accident involving violation of section 128 of the motor vehicles act. The court in that case ruled that just because there is a violation of section 129 of motor vehicles act by the victim in an accident there shall be no presumption of contributory negligence on the person’s part who was not wearing the helmet and the question of negligence has to be decided according to the facts and circumstances of each case.
  2. The court also refer to the judgement of PJ Jose vs Vanchankal Niyas and others in which the Kerala High Court had observed that it was also necessary to confirm whether the individual contributor to the accident that happened. The court also said that to constitute contributory negligence some other additional evidence is also necessary. It is however true that if the deceased person were wearing a helmet, probably his life could have been saved and the severity of injury would not have been this much to have caused the death of the person. But not wearing the helmet was not the reason for knocking down the rider of the motorcycle by vehicle in question.
  3. Paragraph 17 of the judgement is quoted below - "As far as the loss of consortium is concerned, the widow and minor children are entitled to Rs.40,000/- each in the light of the decision of the Apex Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram (2018 (18) SCC 130). If that is the case, the total amount entitled for loss of consortium will be Rs.1,20,000/-. From this, the amount (Rs.20,000/-) already granted by the Tribunal is to be deducted. Then the balance amount will be Rs.1,00,000/-. Towards, funeral expenses, the appellants are entitled altogether an amount of Rs.15,000/- in the light of Pranay Sethi's case(supra). The Tribunal only awarded an amount of Rs.5,000/- and therefore, the appellant is entitled another amount of Rs.10,000/- under this head also. For loss of estate, the appellant is entitled to an amount of Rs.15,000/- also. Therefore, the total compensation entitled by the petitioners after modification can be summarised like this."
  4. However, in the end, the court also cautioned against using its decision as a licence to ride a motorcycle without wearing helmets. The bench said that it is to be made very clear that this is not a licence to drive motorcycles without helmet. The concerned authorities shall look into the matter that section 129 of the motor vehicles act is followed in its letter and spirit. Accordingly, the compensation awarded by the tribunal was modified.

CONCLUSION

This case was brought forward when the family of a diseased person appealed before the high court for the compensation that they received as per the order given by the tribunal. The motor accident claims tribunal had reduced the amount of compensation to be given to the family of the accused on the basis that the accused was not wearing a helmet while riding a motorcycle which was violative of section 129 of motor vehicles act hence resulting to contributory negligence.

The court while delivering the judgement referred to various other judgements of the past and held that mere non wearing of a helmet cannot be the sole reason for reduction in compensation given to the family and to setup the principle of contributory negligence more conclusive evidence is required and there shall be involvement of the diseased person in the accident. The code also said that this can vary from case to case depending upon the facts and circumstances of each case. The court also warned not to take this as an excuse for not wearing helmet while riding motorcycles.

Click here to download the original copy of the judgement

 

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Ishaan
on 21 April 2021
Published in Others
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