The violation of Section 129 of the Motor Vehicles Act does not automatically imply contributory negligence. Additional evidence is necessary to attribute contributory negligence.

JUDGMENT :

When a pillion rider of a motorcycle, who was not wearing a helmet, died in an accident is 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 is the short point to be decided in these appeals.

2. These appeals are filed by the third respondent and the petitioners in O.P.(MV) No. 28/2008 on the file of Motor Accident Claims Tribunal, Tirur. The above claim petition was disposed of by the Tribunal along with O.P. (MV) No.29/2008. (Hereinafter, the parties are referred as per their rank before the Tribunal).

3. The petitioners are the legal heirs of the deceased Mohammedkutty Vaidyakkaran. Their case, in brief, is like this:-

On 08.08.2007 at about 10.30 a.m. while the petitioner in O.P.(MV) No. 29/2008 was riding his Motor Cycle bearing Registration No. KL-10-S-6298 from Mattathur towards Tirurangadi carrying his father Mohammedkutty Vaidyakkaran in a moderate speed with due care and caution reached Kunnath in Oorakam and then a Tata sumo bearing Registration No. KL-14-E-1401 driven by the 1st respondent came in a rash and negligent manner with uncontrollable speed from the opposite direction through the wrong side and dashed against the Motor Cycle. Due to the heavy impact of hitting, Mohammedkutty Vaidyakkaran was thrown out from the Motor Cycle. Both the rider and the pillion rider sustained very serious injuries. The pillion rider, who is Mohammedkutty Vaidyakkaran succumbed to his injuries. Hence two claim petitions were filed for compensation before the Tribunal by the legal heirs of Mohammedkutty Vaidyakkaran and also the injured rider of the Motorcycle.

4. To substantiate the case, Exts. A1 to A29 were marked on the side of the petitioners. After going through the evidence and documents, the Tribunal found that since Mohammedkutty Vaidyakkaran was not wearing the protective headgear conforming to the Bureau of Standards at the time of the accident, 20% of the compensation has to be reduced attributing contributory negligence on the part of Mohammedkutty Vaidyakkaran. Total compensation of Rs.33,03,700/-was awarded by the Tribunal. From the above amount 20% was deducted because there is contributory negligence on the part of the deceased. Accordingly, the reduced compensation of Rs.26,42,960/-was awarded by the Tribunal with interest at the rate of 6% per annum. Aggrieved by the quantum of compensation awarded, by the Tribunal, the third respondent Insurance Company filed M.A.C.A. No.1433/2010. Aggrieved by the finding of the Tribunal to the effect that there is contributory negligence on the part of the deceased and also contending that there is insufficient compensation, the claimants filed M.A.C.A.No.1952/2010. Since both these appeals are connected I dispose of these two appeals by a common judgment.

5. The first point to be decided in this case is whether the Tribunal is justified in fixing contributory negligence on the part of the deceased for the simple reason that the deceased was not wearing a helmet. No oral evidence is adduced by the parties in this case. Section 129 of the Motor Vehicles Act(for short Act) as on the date of the accident, in this case, reads like this:

“129. 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 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 helmet which,—

(a)