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Decrease in Accident Compensation for not wearing Helmet, not Tenable: Kerala High Court

Monday,26 Apr 2021 09:38 PM IST

Prasad Nair

Mumbai. April 26

Road accidents are extremely commonplace in India, more in cities with heavy traffic. Often this happens due to over speeding, reckless and negligent driving, not following traffic rules, drunk driving, and drivers who are not properly trained taking out vehicles on streets. Many times stray animals moving on the road also lead to accidents.

Well when one is on road then anything can happen, while driving one has to be extremely careful. In India, the Motor Vehicles Act, 1988 regulates all aspects of road transport including traffic regulations, insurances, liabilities, penalties, and so on. Any violations of traffic rules are governed by the provisions of this act.

Kerala High Court in a recent case of motor accident compensation in National Insurance Co. Ltd. vs. Kadeeja Musliyar & Ors. was examining the judgment passed by the state tribunal. The primary issue was whether a pillion rider of a motorcycle who was not wearing a helmet and died in an accident was entitled to full compensation in a claim petition filed before a claims tribunal and whether the tribunal can attribute contributory negligence on the part of the deceased in such cases.

Section 129 of Motor Vehicles Act specifies:

Wearing of protective headgear.— Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear 1[protective headgear conforming to the standards of Bureau of Indian Standards]: Provided that the provision of this sections shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban: Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit. Explanation.—”Protective headgear” means a helmet which,—

(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and

(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear.

In this case the high court was presented with an interesting question of law, i.e. when deciding appeals in a Motor Accidents Claims Tribunal Order – whether the Tribunal could reduce the compensation payable on a motorcycle accident if the deceased pillion rode without a helmet? The tribunal had while allowing the family of a person in motor accident claim compensation had simultaneously reduced the quantum of compensation ruling that the deceased didn’t wear a helmet. By applying the principle of contributory negligence, the tribunal had decreased the compensation awarded to the victim’s family.

Not satisfied with the orders of the tribunal the deceased’s family had move the high court for justice.

P.V. Kunhikrishnan, J. in his judgment observed that for attracting contributory negligence, there should be either a causal connection between violation and accident or a causal connection between violation and impacts of the accident upon the victim. The court drew parallel with an earlier case Mohammed Siddique v. National Insurance Company Ltd.  wherein it had ruled:

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.

The court also cited PJ Jose v. Vanchankal Niyas & Ors. in which it was laid down that to attribute contributory negligence, some other additional evidence is necessary. 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.

Quoting this as a precedent the judge allowed the appeals ruling that the claimants are entitled to a total compensation of Rs.25,66,093 with interest at the rate of 7.5% from the date of application till realization.

Justice Kunhikrishnan while handing out the judgment also made it clear that the judgment was not a license to drive motorcycles without wearing a helmet. The authorities concerned shall see that Section 129 of the Motor Vehicles Act is complied in letter and spirit.

The opinions expressed here do not reflect those of Media Eye. Legal action under the IT Act will be taken against those making derogatory and obscene statements.....

 

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