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Tuesday, May 10, 2011

since the person riding the motorcycle at the time of accident was a minor, the responsibility for paying the compensation awarded fell on the owner of the motorcycle.


                                                     REPORTABLE





                       IN THE SUPREME COURT OF INDIA



                         CIVIL APPELLATE JURISDICTION



           SPECIAL LEAVE PETITION (C) NO. 8660 OF 2009





JAWAHAR SINGH                                             ...   PETITIONER



                  Vs.



BALA JAIN & ORS.                                          ...   RESPONDENTS





                  WITH S.L.P.(C)NOS.864-865 OF 2010





                             J U D G M E N T





ALTAMAS KABIR, J.




1.         Notice was issued in the Special Leave Petition



(Civil) No.8660 of 2009 on 2nd April, 2009, confined



to         the         question         regarding         the         Petitioner's



liability   by   way   of   contributory   negligence   in   the



accident   which   occurred   on   18th                               July,   2004.


                                                                                 2





Special   Leave   Petition   (Civil)   Nos.864-865   of   2010



were   also   filed   by   the   Petitioner   against   National



Insurance   Company   Ltd.,   Jatin   and   the   heirs   of



Mukesh   Jain,   deceased.     A   brief   background   of   the



facts will help us to understand and appreciate the



case   of   the   Petitioner   better.   For   the   sake   of



convenience, the facts have been taken from Special



Leave Petition (Civil) No.8660 of 2009.





2.    On      18th  July,   2004,   at   about   1.20   p.m.   the



deceased,   Mukesh   Jain,   was   riding   his   two-wheeler



scooter   No.DAI   1835,   with   his   son,   Shashank   Jain,



as   pillion   rider.     According   to   the   prosecution



story,   when   they   had   reached   the   SDM's   Office,



Geeta         Colony,         Delhi,         a         motorcycle,         bearing



registration   No.   DL-7S-G-3282,   being   driven   in   a



very   rash   and   negligent   manner,   tried   to   overtake



the  scooter  and  in  that  process  struck  against  the



scooter   with   great   force,   as   a   result   whereof   the



deceased and his son were thrown on to the road and


                                                                     3





the   deceased   succumbed   to   the   fatal   injuries



sustained by him.





3.    A   claim   was   filed   by   the   widow,   two   daughters



and   one   son   of   the   deceased   before   the   Motor



Accident   Claims   Tribunal,   Karkardooma   Courts,



Delhi,   on   17th  August,   2004,   being   Suit   No.209   of



2004.  Suit  No.210  of  2005,  was  separately  filed  on



behalf   of   Master   Shashank   Jain,   son   of   the



deceased,   making   a   separate   claim   to   compensation



on   account   of   the   death   of   his   late   father   Mukesh



Jain.     Both   the   matters   were   taken   up   together   by



the  learned  Tribunal  which  disposed  of  the  same  by



a   common   Award   dated   12th  September,   2007.     By   the



said   Award,   the   Tribunal   awarded   a   sum   of        



8,35,067/- in favour of the claimants together with



interest   @7%   from   the   date   of   institution   of   the



petition,   namely,   17th  August,   2004,   till   the   date



of   realisation.   Certain   directions   were   also   given



in   the   Award   for   disbursement   of   the   said   amount.


                                                                     4





The   claim   of   the   Petitioner   No.3   was   settled   at



24,900/-.   The   insurer   was   held   liable   to   satisfy



the Award and to recover the amount from the owner



of the motorcycle.





4.    The said Award was challenged before the Delhi



High   Court   in   MAC   APP   No.697   of   2007,   which



disposed   of   the   same   on   10th  December,   2007,   by



upholding the judgment of the Motor Accident Claims



Tribunal.





5.    The   Delhi   High   Court   held   that   Jatin   was   a



minor   on   the   date   of   the   accident   and   was   riding



the   motorcycle   in   violation   of   the   provisions   of



the  Motor  Vehicles  Act,  1988,  and  the  Rules  framed



thereunder.     The   High   Court   also   relied   on   the



evidence   of   PW.8,   who   has   deposed   in   clear   and   in



no   uncertain   terms   that   the   accident   had   occurred



due   to   the   rash   and   negligent   driving   of   the



motorcycle   by   Jatin.     No   suggestion   was   given   to



the   said   witness   (PW.8)   that   the   accident   did   not


                                                               5





take place on account of rash and negligent driving



on   the   part   of   Jatin.        Such   deposition   went



unchallenged   and   became   final.   It   is   against   the



said order of the learned Single Judge of the Delhi



High Court and the order dated 26th  September, 2008



dismissing   Review   Application   No.333   of   2008,   that



the present Special Leave Petition has been filed.





6.    The   main   thrust   of   the   submissions   made   on



behalf   of   the   Petitioner   was   that   the   deceased,



Mukesh   Jain,   who   was   riding   the   two-wheeler



scooter,   was,   in   fact,   solely   responsible   for   the



accident.     Mr.   Rajesh   Tyagi,   learned   counsel   for



the   Petitioner,   contended   that   the   manner   in   which



the   accident   had   taken   place   would   indicate   that



the   deceased   had   contributed   to   a   large   extent   to



the   accident   and   such   fact   had   not   been   properly



appreciated   either   by   the   Motor   Accident   Claims



Tribunal or the High Court.   It was submitted that



too   much   of   importance   had   been   given   to   the


                                                                 6





evidence of PW.8, Head Constable Devender Singh. On



the   other   hand,   the   Tribunal   wrongly   discarded   the



testimony   of   R1W1   and   R1W2   as   they   were   minors.



Mr.   Tyagi   submitted   that   the   High   Court   had



proceeded on the basis that it had not been denied



on   behalf   of   the   Petitioner   herein   that   Jatin   was



driving   the   motorcycle   in   a   rash   and   negligent



manner and, hence, there was no reason to interfere



with the Award of the Tribunal.





7.    Mr.   Tyagi   submitted   that   the   Petitioner,



Jawahar   Singh,   had   no   liability   in   regard   to   the



incident,   as   would   be   evident   from   his   deposition



as R1W4, in which he admitted that he was the owner



of the motorcycle in question and that on 18th July,



2004   at   1.00   p.m.,   while   he   was   at   his   residence,



he   received   a   telephonic   message   indicating   that



his   nephew,   Jatin,   had   met   with   an   accident.     In



his   deposition,   he   stated   that   the   key   of   the



motorcycle was on the dining table of his house and


                                                                 7





without   his   knowledge   and   consent,   Jatin   took   the



keys   of   the   motorcycle   and   was,   thereafter,



involved   in   the   accident.     It   was   submitted   that



despite   the   same,   the   Motor   Accident   Claims



Tribunal   also   held   him   to   be   responsible   for   the



death of the victim in the accident and while a sum



of      8,35,067/-   with   interest   @7%   from   the   date   of



institution   of   the   petition   till   the   date   of



realisation was awarded in favour of the Claimants,



the   Insurance   Company,   which   was   directed   to   pay



the   said   amount   in   the   first   instance,   was   given



the  right  to  recover  the  same  from  the  Petitioner.



He   submitted   that   it   was   in   view   of   such   wrong



approach to the problem that the judgment and order



of   the   High   Court   impugned   in   the   Special   Leave



Petition was liable to be set aside.





8.      On   the   other   hand,   it   was   urged   by   learned



counsel for the Respondents, that the orders of the



Tribunal   and   the   High   Court   did   not   call   for   any


                                                                                        8





interference,   since   the   factum   of   rash   and



negligent   driving   by   Jatin   had   been   duly   proved



from the evidence of PW.8 and there was nothing at



all   to   show   that   the   deceased   had   in   any   way



contributed   to   the   accident   by   his   negligence   or



that the petitioner had taken sufficient precaution



to   see   that   his   motorcycle   was   not   misused   by   any



third party.





9.    On         behalf            of         Respondent         No.6,         National



Insurance   Company   Ltd.,   it   was   sought   to   be   urged



that   at   the   time   of   the   accident,   the   motorcycle



was   being   driven   in   breach   of   the   terms   and



conditions              of          the            Insurance          Policy         and,



accordingly,   the   Insurance   Company   could   not   be



held   liable   for   making   payment   of   the   compensation



awarded   by   the   Motor   Accident   Claims   Tribunal.



Apart from the fact that Jatin, who was riding the



motorcycle,   did   not   have   a   valid   driving   licence,



it had also been established that he was a minor at


                                                                   9





the   time   of   the   accident   and   consequently   the



Insurance   Company   had   been   rightly   relieved   of   the



liability   of   payment   of   compensation   to   the



Claimants   and   such   liability   had   been   correctly



fixed   on   the   owner   of   the   motorcycle,   Jawahar



Singh.   It has been well settled that if it is not



possible for an awardee to recover the compensation



awarded   against   the   driver   of   the   vehicle,   the



liability   to   make   payment   of   the   compensation



awarded   fell   on   the   owner   of   the   vehicle.     It   was



submitted that in this case since the person riding



the motorcycle at the time of accident was a minor,



the   responsibility   for   paying   the   compensation



awarded   fell   on   the   owner   of   the   motorcycle.     In



fact,   in   the   case   of  Ishwar   Chandra  Vs.  Oriental



Insurance   Co.   Ltd.  [(2007)   3   AD   (SC)   753],   it   was



held   by   this   Court   that   in   case   the   driver   of   the



vehicle   did   not   have   a   licence   at   all,   the



liability   to   make   payment   of   compensation   fell   on



the   owner   since   it   was   his   obligation   to   take


                                                                        10





adequate   care   to   see   that   the   driver   had   an



appropriate   licence   to   drive   the   vehicle.   Before



the   Tribunal   reliance   was   also   placed   on   the



decision in the case of National Insurance Co. Ltd.



Vs.  G.   Mohd.   Vani   &   Ors.  [2004   ACJ   1424]   and



National   Insurance   Co.   Ltd.  Vs.  Candingeddawa   &



Ors. [2005 ACJ 40], wherein it was held that if the



driver   of   the   offending   vehicle   did   not   have   a



valid   driving   licence,   then   the   Insurance   Company



after   paying   the   compensation   amount   would   be



entitled to recover the same from the owner of the



vehicle.  It was submitted that no interference was



called for with the judgment and order of the High



Court impugned in the Special Leave Petition.





10.    Having heard learned counsel for the respective



parties,   we   are   inclined   to   agree   with   the



Respondents      that      this      is      not      a      case      for



interference   in   view   of   the   fact   that   admittedly



the   motorcycle   belonging   to   the   Petitioner   was


                                                                    11





being driven by Jatin, who had no licence to drive



the   same   and   was,   in   fact,   a   minor   on   the   date   of



the   accident.     While   issuing   notice   on   2nd  April,



2009,   we   had   limited   the   same   to   the   question



regarding   liability   to   pay   compensation   on   account



of   contributory   negligence   by   the   deceased   who   was



riding   a   scooter,   in   causing   the   accident   to



happen.





11.    We cannot shut our eyes to the fact that it was



Jatin,   who   came   from   behind   on   the   motorcycle   and



hit   the   scooter   of   the   deceased   from   behind.     The



responsibility   in   causing   the   accident   was,



therefore,   found   to   be   solely   that   of   Jatin.



However,   since   Jatin   was   a   minor   and   it   was   the



responsibility of the Petitioner to ensure that his



motorcycle was not misused and that too by a minor



who   had   no   licence   to   drive   the   same,   the   Motor



Accident   Claims   Tribunal   quite   rightly   saddled   the



liability   for   payment   of   compensation   on   the


                                                                         12





Petitioner and, accordingly, directed the Insurance



Company   to   pay   the   awarded   amount   to   the   awardees



and,   thereafter,   to   recover   the   same   from   the



Petitioner. The said  question                has         been         duly



considered   by   the   Tribunal   and   was   correctly



decided.     The   High   Court   rightly   chose   not   to



interfere with the same.





12.    Without   going   into   the   merits   of   the   case,   we



are of the view that the story of Jatin, who was a



minor, walking into the house of the Petitioner and



taking   the   keys   of   the   motorcycle   without   any



intimation   to   the   Petitioner,   appears   to   be   highly



improbable   and   far-fetched.   It   is   difficult   to



accept  the  defence  of  the  Petitioner  that  the  keys



of   the   motorcycle   were   taken   by   Jatin   without   his



knowledge.     Having   regard   to   the   aforesaid   facts,



we   are   not   inclined   to   accept   the   case   of



contributory   negligence   on   the   part   of   the



deceased, attempted to be made out on behalf of the


                                                             13





Petitioner.     Accordingly,   since   the   notice   on   the



Special Leave Petition was confined to the question



of  contributory  negligence,  if  any,  on  the  part  of



the   deceased,   we   see   no   reason   to   interfere   with



the Award of the Motor Accident Claims Tribunal, as



confirmed   by   the   High   Court.     The   Special   Leave



Petitions   are,   accordingly,   dismissed,   but   without



any order as to costs.





                                         ................................................J.

                                             (ALTAMAS KABIR)





                                         ................................................J.

                                             (CYRIAC JOSEPH)

NEW DELHI

DATED:09.05.2011