The Kerala High Court was recently faced with an interesting question of law when deciding appeals against a Motor Accidents Claims Tribunal Order – whether the Tribunal could reduce the compensation payable on a motorcycle accident if the deceased pillion rider rode without a helmet.
The family of the deceased moved the High Court and the Court was required to decide whether the principle of contributory negligence could be applied to such cases. Referring to Section 129 of the Motor Vehicles Act that made the non-wearing of a helmet an offence, the Court underscored the need for a connection between the violation of the helmet rule and the accident or consequences of the accident for the principle of contributory negligence to apply.
"Simply because there is a violation of Section 129 of the Motor Vehicles Act 1988 by a victim in an accident, there is no presumption that there is contributory negligence on the part of the person who was not wearing the helmet. It is to be decided in the facts and circumstances of each case." referring from the case Mohammed Siddique v. National Insurance Company Ltd.
''To attribute contributory negligence, some other additional evidence is necessary", the Court again said.
"It is true that had the deceased be wearing a helmet, probably his life could have been saved and the gravity of the injury would not have been this much severe to have resulted in the death of the deceased. But the consequence because of the non-wearing of the helmet was not the reason for knocking down the rider of the motorcycle by the offending vehicle", the judgment quoted a precedent.
However, the Court cautioned against using its decision as a licence to ride without a helmet. "I make it clear that this is not a licence to drive motorcycles without wearing a helmet. The authorities concerned shall see that Section 129 of the Motor Vehicles Act is complied in its letter and spirit," the Court underscored. Accordingly, the compensation allowed by the Tribunal was modified.
CASE: Kadeeja Musaliyar and Ors. v. Riyas Manakadavan and Ors., National insurance Co. v. Kadeeja Musaliyar
COUNSEL: Advocate KM Sathyanatha Menon foor Kadeeja and others, Senior Advocate Mathews Jacob and Advocate P Jacob Mathew for the Insurance Company.