IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 MACA.No. 1644 of 2004 ----------------------- OPMV.740/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT : PETITIONER ---------------------------- SIBY PAUL, S/O.PAUL, AGED 36, PERUMAYAN HOUSE, SREEMOOLANAGARAM P.O. BY ADV. SRI.JOHNSON MANAYANI RESPONDENTS:RESPONDENTS ---------------------------------- 1. PRAVEEN KUMAR G.N., SEETHA BHAVAN, KAKKAD, MANIMALA P.O., THIRUVANIYOOR VIA. 2. VIJAYAN, S/O.PADMANABHA PILLAI, NEDUMPALLY HOUSE, KANJIRAMATOM KARA, AMBALLOOR VILLAGE, ERNAKULAM DISTRICT. 3. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, PERUMBAVOOR. 4. ORIENTAL INSURANCE CO LTD., P.M.A. BUILDING, BANK JUNCTION, ALUVA. R3 BY ADV. SRI.LAL GEORGE R4 BY ADV. SRI.P.V.JYOTHI PRASAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & V.K.MOHANAN, JJ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1644 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of September, 2008 JUDGMENT RAMACHANDRAN NAIR,J Appeal is filed for enhancement of compensation awarded by the MACT for the injury sustained by the appellant in a motor accident. The appellant while riding a two wheeler was knocked out by a tempo van coming in the opposite direction. The MACT held that the accident was caused on account of the negligence of the driver of the van and the insurer has to pay the compensation. Aggrieved by the amount of compensation, the appellant has filed this appeal for enhancement of the same. 2. We have heard counsel appearing for the appellant and the Standing Counsel appearing for the insurance company. 3. The appellant admittedly suffered fracture of the right leg and head injury which has resulted in minor loss of vision. He was in the hospital for a total period of little over three months in three spells for surgery, removal of fixtures in the bone for eye treatment etc. The main grievance of the appellant is that his income fixed at Rs.1,500/- per month is very low and the same lead to award of low amount of MACA No. 1644/04 -:2:- compensation. Counsel for the insurance company however submitted that there is no proof that the appellant is disabled on account of the accident and the total compensation of Rs.3,05,450/- awarded under various heads is quite reasonable. Even though the appellant has not produced any proof of income, we feel that the income fixed at Rs.1,500/- is too low because the appellant was an able bodied man of 30 years of age and would have been able to earn at least Rs.2,000/- per month. We therefore increase the monthly earnings to Rs.2,000/- for the purpose of fixation of compensation. Consequently, compensation for loss of earning power is increased from Rs.64,800/- to Rs.86,400/-. We feel compensation for loss of employment for four months is inadequate because appellant was in the hospital for three months and he would have taken another three months to recover for resuming his work. We therefore grant compensation for loss of pay for six months. In view of this modification of the income, the appellant will be entitled for an additional compensation of Rs.2,000/- besides the amount of Rs.6,000/- granted for further three months (total addition Rs.8,000/-). Besides this, we increase the compensation for pain MACA No. 1644/04 -:3:- and suffering by another Rs.10,000/-. The insurance company will deposit the additional compensation with interest at 7.5% per month from the date of application till date of deposit. 4. Before parting with this matter, we feel obliged to take note of the conduct of the petitioner which led to the head injury for him and the consequent disability at a very young age. Section 129 of the Motor Vehicles Act 1988 provides for wearing of protective head gear by those riding two wheelers. Under explanation to the said Section protective head gear is ‘helmet’, the use of which has proved it's capacity to protect the rider from head injury in the event of accident. The Section specifically states that every driver and pillion rider of a motor cycle of any class or description shall wear a protective head gear. The Supreme Court has in the case of Ajay Canu v. Union of India[(1988) 4 SCC 156] held that wearing of crash helmet is mandatory for drivers of two wheelers. The violation of mandatory provision of the Act and Rules attract penal provisions. But so long as the riders are not caught, they will escape from punishment. However, apart from punishment, if a rider gets into an accident and suffers head injury, we feel defence will be available to MACA No. 1644/04 -:4:- the insurance company to plead that there is contributory negligence, in as much as the use of helmet would have reduced the impact of the accident which has resulted in head injury for the rider. When protection that a helmet provides to a rider is statutorily recognized and when it is mandatory under statute for the riders and drivers of two wheelers to wear the same, we feel it is a matter to be considered by the Motor Accidents Claims Tribunal as to whether the injured in a motor bike accident had suffered head injury and if so, whether at the time of accident the driver or pillion rider, as the case may be, who claims compensation for head injury was wearing a helmet. If the protective head gear, namely, helmet, the use of which is mandatory under Section 129 of the Act, was not worn by the drivers or pillion riders who sustained head injury, then contributory negligence can be assumed, if not for causing the accident but for sustaining injury which could have been prevented or the impact of which could have been reduced through compliance of the statutory provision by wearing a helmet. In fact the want of helmet for the rider may not be contributory to the accident. However, the use of helmet would prevent head injury or at least reduce the impact of the injury MACA No. 1644/04 -:5:- in the event of accident for the driver and pillion rider of the bike or two wheeler. Therefore, in our opinion, it is for the Tribunal to consider whether in case of claim of compensation for death or injury of drivers or pillion riders of two wheelers they were wearing helmet at the time of accident and if not whether wearing of helmet would have prevented the death or injury or reduced the impact of the injury and if the same should be reckoned as an aspect of contributory negligence for reducing the compensation amount. Any claim made by riders about wearing of helmet at the time of accident should be critically examined and if found bogus the same should be rejected. Besides this, we feel in addition of the other conditions in the insurance policy such as the driver of the vehicle should have a valid driving licence, the insurance company can impose a condition in the policy making helmet compulsory for the riders of two wheelers to claim compensation for head injury and consequent disability or death. The 3rd respondent-insurance company, will take up this matter with the head quarters for considering incorporation of the condition of requirement of helmet for riders of two wheelers for claiming benefit under policy. The MACA is disposed of with the MACA No. 1644/04 -:6:- above observation. In view of our above findings, the question whether the driver or rider of the motor bike had helmet at the time of accident is a matter to be incorporated in the police report pertaining to two wheeler accidents. There will be a direction to the Director General of Police to issue a circular to all police authorities for making note of this in all cases of bike accidents. Registry shall forward a copy of this judgment to all the MACTs in the State and to the Director General of Police, for compliance. C.N.RAMACHANDRAN NAIR, JUDGE V.K. MOHANAN, JUDGE ttb