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This article is written by Sakshi Singh from the University of Petroleum and Energy Studies, Dehradun. Through this article, an effort has been made to understand the scope of contributory negligence in the Motor Accidents case, in the light of a recent judgment given by the High Court of Kerala.


We all know how often accidents happen these days. Whether it’s our fault or not, we have to deal with it daily. We owe a duty of care towards others while driving, and if we fail to exercise that duty, it can amount to negligence. Negligence means a breach of duty of care or a failure to exercise a standard of care which a reasonable man should have exercised in a particular situation. It results in giving compensation to the plaintiff for their damages. But the question is, what if both the parties are at fault? Would both the parties give compensation to each other? Through this article, we will understand what is contributory negligence, what amounts to contributory negligence, how the law perceives it, and what effect it has on compensation.

Contributory negligence and how law perceives it 

Contributory Negligence is where both the parties are at fault, but where the plaintiff is partly at fault for contributing to the damage caused by the negligence of the defendant and would be liable for his contribution to the damage. A claimant ‘contributes’ to his injury when his behaviour falls below what is required by the reasonable person standard, which assesses what a reasonable person would have done to protect themselves from injury. If a person is driving rashly and meets with an accident with a person driving on the wrong side, they will be liable for contributory negligence. It is a defence available to the negligent party which restricts the plaintiff to get compensation.

Instances of contributory negligence

  • A driver causes an accident to a pedestrian because he neglected to use his seat belt while driving recklessly.
  • An accident is caused by a worker not wearing the required safety equipment while working on a construction site.

Principles of Contributory Negligence

Two main principles apply to contributory negligence and they are as follows:

  • If the plaintiff has caused the accident by not using the equipment of appropriate safety, then the plaintiff is not required to obtain compensation for the damages he has suffered. 
  • The defendant will not be able to sue the plaintiff if both parties have taken sufficient precautions to avoid the accident that occurred.

Essentials of Contributory Negligence

There are certain essential elements that must be fulfilled for negligence to be contributory. Otherwise, any individual could complain of contributory negligence and it would create a slippage in the legal system. The essentials are as follows:

  • There should have been an unforeseeable risk that had occurred to the individual, which any prudent person could have acted upon and taken precautions against.
  • Evidence must be shown that the available safety device works in nature and is not damaged, and if the person acted reasonably, he could have avoided the accident by using this device.
  • Evidence must be shown that the individual could access this safety equipment. However, in this case, the individual did not use it.
  • Proof must be shown that the injury was caused by the negligence of the person not using the specific safety equipment.

The burden of proving contributory negligence

  • The burden of proving contributory negligence is on the defendant. To avail the defence of contributory negligence, the defendant has to prove that the plaintiff was negligent too, ignored the due diligence, and contributed to his damage.
  • After it has been proved that the plaintiff has also contributed to the negligence, that is, there is contributory negligence, the court has to decide if the compensation will be given to the plaintiff or not. And if it is given, then how much. Judges have more discretion in determining how much damages should be reduced for the defence of contributory negligence, depending on the facts and circumstances of the case.

Rules in India

  • In India, there is no central legislation corresponding to Law Reform (Contributory Negligence) Act, 1945. The Law Reform Act, British legislation, intended to dispense liability for compensatory damages as it was considered very fair and equitable between a wrongdoer and an injured party.
  • Numerous such cases have been brought before various High Courts of India. The courts have relied on the ‘doctrine of apportionment of damages’ of the Law Reform Act to decide compensation in contributory negligence.
  • Section 8 of the Kerala Tort (Miscellaneous Provisions) Act, 1976 also talks about the apportionment of liability in the case of contributory negligence.
  • There has been a lot of discussion about how the compensation should be calculated in contributory negligence especially in the case of motor vehicle accidents

Analyzing the case of Kadeeja Musaliyar and Ors. v. Riyas Manakadavan 

Facts of the case

In the case of Kadeeja Musaliyar and Ors. v. Riyas Manakadavan (2021), the petitioner was riding his motorcycle carrying his father Mohammedkutty Vaidyakkaran at a moderate speed with due care and caution, and then a Tata Sumo driven by the defendant came in a rash and negligent manner with uncontrollable speed from the opposite direction through the wrong side and collided with the motorcycle. The collision was so strong that Mohammedkutty Vaidyakkaran, the pillion driver was thrown out from the motorcycle. Both the rider and the pillion rider got very serious injuries. The pillion rider, Mohammedkutty Vaidyakkaran passed away as a result of his injuries. Hence, the two claim petitions were filed for compensation before the Tribunal by the legal heirs of Mohammedkutty Vaidyakkaran and the motorcycle’s injured rider. 

After going through all the evidence and documents, the tribunal concluded that since the pillion rider that is Mohmmedkutty Vaidyakkaran was not wearing a helmet, he has contributed to his injury as he violated Section 129 of the Motor Vehicles Act,1988, and therefore 20% of the compensation shall be reduced.  Aggrieved by the amount of compensation awarded by the tribunal, the third party insurance company and claimants filed a petition before HC. 

Issues before the High Court

  • Whether or not the Tribunal was justified in fixing contributory negligence on the part of the deceased for not wearing a helmet.
  • Whether or not the compensation awarded by the Tribunal was just and fair.

The contention of parties 

The learned counsel appearing for the insurance company contended that the consequence of not wearing a helmet could not be taken as a ground to fix contributory negligence. The Tribunal, in the award, said that non-wearing of the helmet resulted in the death of the deceased. No other aspect was discussed by the Tribunal in the award. In other words, the consequence following the accident is not a circumstance to be taken into consideration for fixing negligence in causing the accident. Just because the rider was not wearing a helmet is not the reason for knocking him down, so negligence cannot be fixed upon the shoulder of the rider merely for not wearing the helmet.

In the case of Ajay Canu v. Union of India (1988), it was held by the court, if the protective headgear, that is a helmet, which is mandatory under Section 129 of the Motor Vehicle Act, was not worn by the drivers or pillion riders who suffered a head injury, then contributory negligence can be assumed but not for causing the accident but for suffering injury which could have been prevented or the impact of which could have been reduced if the person was wearing a helmet and complying with the statutory provision. 

Findings of the court

  • The High Court held that simply because there is a violation of Section 129 of the Motor Act 1988 by a victim in an accident, we cannot presume that there is contributory negligence on the part of the victim who was not wearing the helmet. It must be decided based on the facts and circumstances of each case. So, there is no contributory negligence on the part of the deceased. 
  • The court relied on the decision made in the case of Mohammed Siddique v. National Insurance Company Ltd. (2020). Which dealt with the same scenario of an accident involving a violation of Section 128 of the Motor Vehicles Act. What happened in the case of Mohammed Siddique v. National Insurance Company, the motorcycle in which the deceased was travelling, was hit by the car from behind as the car driver was driving rashly and negligently but the deceased was travelling with 2 others which is a violation of Section 128 of the Motor Vehicle Act. 
  • It was stated that because the 3 people were on a motorcycle, it added to the imbalance which contributed to their damage. The fact that the deceased was riding a motorcycle with 2 others, cannot make him guilty of contributory negligence. This would make him only guilty of being part of the violation of S.128 of the Motor Vehicle Act, 1988 which restricts the driver of a two-wheeled motorcycle not to carry more than one person on the motorcycle.
  • Therefore, the court stated that riding a motorcycle with 2 others may be a violation of law but such violation by itself cannot be a ground of fixing contributory negligence. There must either be a connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. So, in the absence of any evidence demonstrating that the wrongful act of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim cannot be held guilty of contributory negligence. The same principle applied in the present case, and the court held that there is no contributory negligence on the part of the deceased and therefore, reduction of 20% compensation was unjustified and the same has to be set aside. 

Judgement of the court

The claimants are entitled to total compensation of Rs.25,66,093/ with interest at the rate of 7.5%. Court added that it is necessary to ensure that the individual has contributed to the accident that occurred, and while referring to the judgment in the case of PJ Jose v. Vanchankal Niyas & Ors (2016)., It stated that to attribute contributory negligence, further additional evidence is required.


From the above discussion, we understand that contributory negligence is the failure of the plaintiff to exercise due diligence for his or her safety. It’s a defence available to the defendant. To obtain the defence of contributory negligence, the defendant must prove that the plaintiff contributed to his damage, and ignore the due diligence which could have avoided such consequences arising from the negligence of the defendant. Through this case, we understand that to prove contributory negligence, there must be some evidence to show that the wrongful act on the part of the defendant contributed either to the accident or to the nature of the injuries he has suffered. There’s a difference between violating a law and contributing to negligence, as it depends on facts and circumstances.  And therefore, the compensation cannot be reduced if the helmet is not worn, it won’t amount to contributory negligence.


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