Contributory negligence impacts compensation, but helmet laws do not automatically reduce liability without clear evidence linking negligence to accident severity.

J U D G M E N T

P.R.Ramachandra Menon, J.

This appeal was heard and disposed of on 25.11.2009. But subsequently it was found that some arithmetical errors have crept in the calculation. Hence it is posted today for 'to be spoken to' and heard accordingly.

2. The appellant before this Court sustained grievous injuries on

18.04.2003 when the motor cycle ridden by him was knocked down on the road by a KSRTC Super Fast bus bearing No. KL 15-4838 owned by the first respondent, driven by the second respondent and insured by the 3rd respondent, also causing the death of the pillion rider; which led to separate claims; tried jointly.

3. The evidence consists of the oral testimony of PW1 to 3 and the documents produced and marked as Exts.A1 to A21 on the side of the claimants; besides the deposition of the driver of the bus, who was examined as RW1 on the side of the respondents. The claim preferred by the appellant herein, who was an MBBS student and the rider of the motor cycle, was sought to be resisted from the part of the respondents, stating that the accident was solely because of the negligence on the part of the claimant himself, who was riding the motor cycle without valid driving licence and also without wearing 'helmet'. The claimant sought to establish negligence on the part of the driver of the bus, mainly relying on the oral testimony of PW2, who was the driver of an autorikshaw in which the injured was taken to the hospital.

4. After discussing the evidence, the Tribunal held that the version put forth by PW2 could not be swallowed without a pinch of salt. With regard to the riding of the motor cycle without valid driving licence, it was observed by the Tribunal that, eventhough no driving licence was produced, it was deposed by the claimant/rider who was examined as PW1, that he had obtained driving licence three months prior to the date of accident and further that absence of valid driving licence was not mentioned in Ext.A1 charge sheet prepared and filed by the Police. However, taking note of the contents of the scene mahazar and other incidental aspects, the Tribunal held that the claimant/rider had also contributed to the accident to an extent of '40%' with regard to the claim preferred by the legal heirs of the pillion rider in OP(MV) 1323/2003 (where the rider of the motor cycle who is appellant herein was also included in the party array as the 4th respondent).

5. However, coming to the fixation of negligence in the instant case, the Tribunal held that, over and above the said extent of contributory negligence, the claimant/rider was found to be negligent further (in respect of the injuries sustained by him), in view of the fact he was riding the motor cycle without wearing 'helmet', contrary to the mandate under Section 139 of MV Act. Reliance was also placed on Section 8 of the Kerala Torts & Miscellaneous Provisions Act, 1977 to fix a portion of negligence in this regard on the rider of the motor cycle as well and accordingly, a further extent of 10% was added to the extent of negligence already fixed on the rider, in the claim preferred by the rider of the motor cycle. Thus, it was held by the Tribunal that the injuries sustained were because of the contributory negligence to an extent of 50% on the part of the rider of the motor cycle. The evidence on record, as analysed and appreciated by the Tribunal, clearly reveals that the appellant/claimant was also negligent in causing the accident and fixation of the same, at least to the extent of 40% as done in the connected case, i.e., OP(MV) No. 1323/2003 (which is not challenged), is perfectly in order.

6. Learned counsel for the appellant submits that the Tribunal was not at all correct or justified in having discarded the version of PW2 (who was cited as an occurrence witness) simply stating that he could not have been relied on, for having not been able to say the width of the road at the spot of occurrence. Learned counsel further submits that, undue reliance has