Mere Fact Of Carrying More Than One Pillion Rider Can’t By Itself Give Rise To Presumption Of Contributory Negligence: Kerala High Court

The petitioner had approached the High Court seeking enhancement of the compensation awarded by the Tribunal on account of the injuries sustained by him in a motor accident.

The Single Bench of Justice Jobin Sebastian held, “Evidently, the motorcycle was carrying two pillion riders at the time of the accident. The mere fact of carrying more than one pillion rider, though a violation of the provisions of the Motor Vehicles Act, cannot, by itself, give rise to a presumption of contributory negligence. For contributory negligence to be fastened, it must be established by reliable and cogent evidence that the act of carrying two pillion riders had a direct and proximate cause connection with the accident, such as impairing the control, balance, or manoeuvrability of the vehicle. The burden of proving such contributory negligence lies on the insurer or the respondent. In the absence of any material showing that the presence of two pillion riders contributed to or caused the accident, no deduction on the ground of contributory negligence can be made, and compensation cannot be reduced on a mechanical or hypothetical basis.”

Advocate A.R.Nimod represented the Petitioner, while Advocate P.K. Manojkumar represented the Respondent.

Factual Background

The incident dates back to the year 2011 when the petitioner/appellant was riding a motorcycle along the Sakthan Thampuran–Kattukkaran public road, with two passengers on the pillion. A jeep, allegedly being driven by the second respondent in a rash and negligent manner, hit the motorcycle. Due to the impact, the petitioner as well as the pillion riders were thrown onto the road and sustained serious injuries. The owner and driver of the jeep were arrayed as the respondents, whereas the insurer was arrayed as the third respondent. After the trial, the Tribunal concluded that the accident occurred mainly due to the rash and negligent driving of the jeep by the second respondent, and being the insurer, the third respondent was held liable to pay compensation.

The Tribunal found that by carrying two pillion riders on the motorcycle, the petitioner was guilty of contributory negligence to the extent of 20%. The total compensation was quantified at Rs.1,84,800 with interest. Aggrieved thereby, the petitioner approached the High Court.

Reasoning

Considering that the appeal related to the adequacy of the compensation awarded by the Tribunal, the Bench noted that the Tribunal assessed the monthly income of the petitioner at Rs 4,500 for the purpose of calculating compensation under the heads of permanent disability and loss of earnings. It was noticed that though the petitioner claimed that he was working as a welder earning Rs.7,500 per month, no documentary or oral evidence was produced to substantiate the said claim. Considering that the accident occurred in the year 2011 and in the light of the decision of the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011), the Bench held that the Tribunal ought to have assessed the notional monthly income of the petitioner at Rs 8,000.

The Bench was of the view that the assessment of 13% permanent disability was reasonable as the medical records revealed that the petitioner suffered a fracture of both bones in the right leg, along with multiple abrasions and lacerated wounds. “The petitioner was aged 22 years at the time of the accident, and as per the decision in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)], the appropriate multiplier is 18. Accordingly, the petitioner is entitled to Rs.2,24,640/- [Rs.8,000 × 12 × 18 × 13/100] under the head of permanent disability. Since the Tribunal has already awarded Rs.91,800/- under this head, the petitioner is entitled to an additional amount of Rs.1,32,840/-”, it further held.

Considering the nature of the injuries and the pain and suffering endured by the petitioner, the Bench awarded an additional compensation of Rs 35,000 to be awarded under the head of pain and suffering. The Bench added an amount of Rs.2,39,840 to the total compensation awarded by the Tribunal.

The Bench next dealt with the issue of whether the Tribunal was justified in deducting 20% of the compensation on the ground of contributory negligence solely because the petitioner was carrying two pillion riders. The Bench referred to the judgment of the Division Bench in Binoj Antony v. New India Assurance Company Ltd. (2014) wherein it was held that the mere fact that a motorcycle was carrying two pillion riders could not ipso facto give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident.

The Bench noted that no evidence was adduced to show that the presence of two pillion riders affected the control or balance of the motorcycle or contributed to the accident. “The burden of proving contributory negligence lay on the insurer, which has not been discharged”, it added.

Thus, allowing the appeal, the Bench enhanced the compensation by Rs 2,39,840 with interest at the rate of 7.5% per annum from the date of the claim petition till the date of deposit, excluding interest for 304 days, being the period of delay in filing the appeal.

Cause Title: Bineesh v. Mathew Joseph (Neutral Citation: 2026:KER:1981)

Appearance

Petitioner: Advocates A.R.Nimod, M.A.Augustine

Respondent: Advocate P.K. Manojkumar

Click here to read/download Order