Point of Law: While evaluating and adjudging contributory negligence, in such scenario, is only whether accident occurred on account of any negligence on part of deceased.

JUDGMENT :

A very interesting contention is impelled by the appellant, which is an Insurance Company, that since the deceased was not wearing a helmet while riding his two wheeler, he should be deemed to have contributed to the accident.

2. I must upfront say that this Court is not enamoured with the afore contention and will presently state the reasons for saying so, after the most essential facts are recorded.

3. This appeal, by the Reliance General Insurance Company Ltd., has been filed against the Award of the Motor Accidents Claims Tribunal, Thrissur (‘Tribunal’ for short) in O.P(MV)No.180 of 2018.

4. Going by the constitutive facts involved, late Biju was riding his motor cycle along the Wadakanchery – Trissur Road, when he was knocked down by the offending car driven in a rash and negligent manner. Biju unfortunately died, succumbing to the injuries; and his legal heirs -the respondents herein -filed the afore Original Petition, seeking compensation to an extent of Rs.48,87,800/-, which has been awarded by the Tribunal to a sum of Rs.38,60,000/- .

5. The appellant -Insurance Company alleges that the compensation awarded by the learned Tribunal under the head ‘Loss of Dependency’ and for ‘Pain and Sufferings’ is improper and excessive; and thus pleads that this Court reduce the quantum.

6. Sri.George A.Cheriyan – learned Counsel appearing for the appellant, argued that the compensation of Rs.38,60,000/-awarded by the Tribunal, ought to have been reduced by at least 50%, since late Biju was riding his motor cycle without wearing a helmet; and therefore, liable to have been found 50% contributorily negligent for the accident. He then submitted that, as per United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780], no amount under the head ‘Pain and Suffering’ was eligible to be granted.

7. Sri.A.R.Nimod – learned counsel appearing for the respondents, on the other hand, submitted that the afore submissions are completely untenable because no one can ever have a case that the accident occurred on account of the factum of non wearing of the helmet by late Biju. He submitted that when contributory negligence is computed, it is always after assessment whether there was any negligence on the part of the deceased in having caused the accident; and that for this, the non wearing of helmet would have no bearing whatsoever. He submitted that this has been well settled by various judgments and therefore, that the attempt of the Insurance Company to wriggle out of their legitimate obligation, is unfortunate and uncharitable. On the question of ‘Pain and Sufferings’ he submitted that since Biju died sometime after he sustained injuries, same is also fully eligible.

8. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute.

9. I must say that the contention of the Insurance Company, that late Biju ought to have been found contributorily negligent for the accident is not merely untenable but extremely unreasonable. This is because, the focal question to be considered is whether the accident occurred because late Biju did not use a helmet; though a collateral argument can certainly be taken that, had he used it, perhaps, his injuries would have been lesser and may be, he would have survived. However, while evaluating and adjudging contributory negligence, if any, this would be wholly irrelevant because, what is germane, in such scenario, is only whether the accident occurred on account of any negligence on the part of the deceased.

10. It is without requirement to expatiate that the deceased could have been contributorily negligent for the accident only if any action of his was the proximate cause for the same. There is no such case for anyone, as far as the admitted facts travel; and one can never fath