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Tuesday, May 8, 2018

where the accident occurs without any fault of the owner of the vehicle or the fault of the other vehicle, the liability to pay compensation, at best, must be determined in terms of Section 140 of the Act as has been held in A. Sridhar (supra). It is true that the High Court in the present case has overturned the finding recorded by the Tribunal that the motorcycle was driven by appellant No.2 at the relevant time when the accident occurred and, instead, concluded that the motorcycle was, in fact, driven by deceased Krishna Kumar. In that sense, the accident occurred neither due to the fault of the owner of the vehicle (appellant No.1) who, admittedly, was not present 9 or travelling on the motorcycle at the relevant time nor due to the fault of any other vehicle. However, on a deeper scrutiny of the materials on record, we are of the opinion that the High Court committed manifest error, an error apparent on the face of the record, in reversing the finding recorded by the Tribunal that the motorcycle was being driven by appellant No.2 (son of appellant No.1 – owner of the motorcycle) and had caused accident due to rash and negligent driving

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8411 OF  2015
MOHAR SAI AND ANR.      …..Appellant(s)
:Versus:
GAYATRI DEVI AND ORS.     ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This   appeal,   by   special   leave,   emanates   from   the
judgment and order dated 1st April, 2015 passed by the High
Court of Chhattisgarh at Bilaspur in Misc. Appeal (C) No.1100
of 2011, partly allowing the appeal filed by the appellants
herein (owner and driver of the offending vehicle) against the
award passed by the Motor Accident Claims Tribunal, Koriya,
Baikunthpur,   Chhatisgarh   (hereinafter   referred   to   as   “the
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Tribunal”), in Claim Case No.22/2008 dated 21st September,
2011,   on   the   finding   that   the   deceased   was   liable   for
contributory negligence to the extent of 50% and as such, after
deducting   50%   of   the   compensation   amount,   the
respondents/claimants   would   be   entitled   to   a   sum   of
Rs.3,86,500/­   along   with   interest   at   the   rate   of   7.5%   per
annum from the date of filing of the claim petition till the date
of realization.
2.   Briefly stated, the respondents claiming to be the heirs
and legal representatives of the deceased Krishna Kumar Sahu
alias Tipu Sahu, son of Dashrath Sahu, filed a claim petition
before the Tribunal under Section 166 of the Motor Vehicles
Act, 1988 (for short “the Act”) for compensation, amounting to
Rs.20,21,000/­ on account of the death of Krishna Kumar
Sahu in a motor accident which occurred on 14th November,
2006.   Respondent No.1 is the widow of deceased Krishna
Kumar Sahu.  Respondent Nos.2 to 4 are the minor children of
the deceased and respondent Nos. 5 & 6 are the parents of the
deceased. They asserted that when Krishna Kumar was in his
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Pan Shop near the bus stand of Village Kathghor, appellant
No.2 Prem Lal Rajawade came to his shop  on his motorcycle
bearing registration No. CG 16C/5171 with a friend, Narendra
Panika, at around 1.00 P.M. and cajoled Krishna Kumar to
accompany him to Village Belia. All the three left for Village
Belia   on   the   motorcycle.   While   returning   back   from   Belia,
when they reached Khaad Naala, the motorcycle skidded due
to high speed as the driver lost control over it.  Consequently,
all the three persons travelling on the motorcycle were injured.
The motorcycle was driven by Prem Lal all along. They were
given   first   aid   at   Government   Hospital,   Sonhat   and   then
referred to Charcha Regional Hospital for further treatment.
Krishna Kumar died en­route to Charcha Hospital. In this
background, the claim petition was filed, which was resisted
by the appellants.
3. Admittedly, appellant No.1 is the owner of the offending
vehicle and appellant No.2 is the son of appellant No.1 who
went along with the deceased on the offending motorcycle on
the date of accident. According to the appellants, however, the
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motorcycle   was   being   driven   by   Krishna   Kumar   and   not
appellant   No.2,   as   alleged,   when   the   accident   took   place.
Appellant No.2 was sitting in the middle and Narendra Panika
was sitting at the back, as pillion riders.  Krishna Kumar was
driving the motorcycle rashly and at a high speed. He was told
to slow down but he did not pay any heed to it and eventually
the accident was caused. In other words, the deceased Krishna
Kumar was himself responsible for the accident. 
4. In   light   of   the   competing   claims   of   the   parties,   the
Tribunal framed four issues and finally answered the claim
petition in favour of the claimants. The Tribunal accepted the
plea of the claimants that the offending vehicle (motorcycle)
was driven by Prem Lal (appellant No.2) at the relevant time
and   had   caused   the   accident   due   to   rash   and   negligent
driving.     The   Tribunal   then   determined   the   quantum   of
compensation amount on the basis of monthly income of the
deceased estimated at Rs.3,000/­ and applied multiplier of 15.
Besides,   the   Tribunal   awarded   lump   sum   amount   of
Rs.25,000/­   towards   funeral   expenses,   loss   of   love   and
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affection   due   to   the   death   of   the   deceased.   The   Tribunal
determined the compensation amount at Rs.3,85,000/­ to be
paid with interest at the rate of 7.5% per annum from the date
of   filing   of   the   claim   petition   until   its   realization.   The
appellants assailed the said decision of the Tribunal by way of
First   Appeal   before   the   High   Court   of   Chhattisgarh   at
Bilaspur.
5. The High Court reversed the finding of fact recorded by
the Tribunal that the offending vehicle (motorcycle) was driven
by Prem Lal (appellant No.2) at the relevant time and instead
found that the deceased himself was driving the motorcycle
and had caused the accident.  On that finding, the High Court
proceeded to hold that being a case of contributory negligence,
the   claimants   would   be   entitled   to   only   50%   of   the
compensation amount to be determined by it.  With regard to
the quantum of compensation amount, the High Court opined
that the Tribunal failed to provide for addition of 50% to the
actual income of the deceased towards future prospects and
also   deduction   of   1/4th  of   the   income,   instead   of   1/3rd
.
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Further, the amount awarded towards funeral expenses and
loss of consortium for the wife and loss of love and affection
towards   the   children   and   parents,   was   enhanced   to
Rs.50,000/­.  On that basis, the High Court opined that the
total   compensation   amount   payable   would   have   been
Rs.7,73,000/­,  but  after  deduction  of  50%  of  that   amount
towards contributory negligence, the amount actually payable
to   the   respondents   –   claimants   would   work   out   to
Rs.3,86,500/­ with interest at the rate of 7.5% per annum
from the date of filing of the claim petition till the date of
realization. This decision is the subject matter of the present
appeal at the instance of the appellants (owner/driver of the
motorcycle).
6. The foremost contention in this appeal is that the High
Court having concluded that appellant No.2 was not driving
the   motorcycle   at   the   relevant   time   and   applying   the
exposition   in   the   case   of  A.   Sridhar   Vs.   United   India
Insurance   Company   Limited   and   Anr.,
1
  the claimants at
1
 (2011) 14 SCC 719
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best would be entitled to compensation on ‘no fault liability
principle’ under Section 140 of the Act, for it was a case of
accident   not   because     of   fault   of   owner   of   the   vehicle   or
because of the fault of any other vehicle. It is urged that no
liability can be fastened on the appellants for the negligence of
the deceased, much less on the pillion riders. It is also urged
that the appellants come from a very humble background and
are engaged in ordinary agricultural labour work. They will not
be in a position to pay any compensation amount, if awarded.
It is also contended that there was no relationship of master
and servant, principal/employer and employee between the
deceased and the appellants which alone could have been the
basis for awarding compensation, much less fasten liability on
the   appellants   to   pay   such   amount   on   the   principle   of
vicarious liability. It is submitted by the appellants that the
High   Court’s   decision   of   fastening   the   liability   on   the
appellants of Rs.3,86,500/­, with interest at the rate of 7.5%
per annum, deserves to be set aside and the appellants ought
to be absolved from any liability. Alternatively, it is submitted
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that the compensation amount be determined under Section
140 of the Act and not under Section 166 of the Act.
7. Although notice has been served on the respondents, no
appearance has been entered on their behalf.  As a result, the
hearing of this appeal had to proceed ex­parte against them.
We have heard Ms. Sumita Hazarika, learned counsel for the
appellants, at length.
8. The appellants may be right in contending that in cases
where the accident occurs without any fault of the owner of
the vehicle or the fault of the other vehicle, the liability to pay
compensation, at best, must be determined in terms of Section
140 of the Act as has been held in  A. Sridhar (supra). It is
true that the High Court in the present case has overturned
the finding recorded by the Tribunal that the motorcycle was
driven   by   appellant   No.2   at   the   relevant   time   when   the
accident occurred and, instead, concluded that the motorcycle
was, in fact, driven by deceased Krishna Kumar. In that sense,
the accident occurred neither due to the fault of the owner of
the vehicle (appellant No.1) who, admittedly, was not present
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or travelling on the motorcycle at the relevant time nor due to
the fault of any other vehicle. However, on a deeper scrutiny of
the materials on record, we are of the opinion that the High
Court committed manifest error, an error apparent on the face
of the record, in reversing the finding recorded by the Tribunal
that the motorcycle was being driven by appellant No.2 (son of
appellant No.1 – owner of the motorcycle) and had caused
accident due to rash and negligent driving.  We are conscious
of the fact that the respondents – claimants have neither come
up in cross appeal against the reduction of the compensation
amount on the finding of contributory negligence nor have
they filed any cross objection regarding reversing of the crucial
finding of fact by the High Court. However, it is well settled
that  in motor accident claim cases, the Court cannot adopt a
hyper­technical   approach   but   has   to   discharge   the   role   of
parens patriae. This appeal being continuation of the claim
petition  albeit  at   the   instance   of   the   owner   (appellant
No.1)/alleged   driver   of   the   vehicle   (appellant   No.2),   we
consider it appropriate to examine the approach of the High
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Court in reversing the finding of fact recorded by the Tribunal
on   the   factum   of   motorcycle   being   driven   by   Prem   Lal
(appellant No.2, son of appellant No.1 owner of the motorcycle)
at the relevant time and also that he had caused the accident
due to rash and negligent driving. We are inclined to do so as
it is open to the respondents to support the decree whilst
urging that the finding against them recorded by the High
Court on the matter in issue ought to have been in their
favour as has been held by the Tribunal. 
9. The   respondents,   in   support   of   their   claim   that   the
deceased Krishna Kumar travelled as pillion rider and was
sitting in the middle, between the two other persons who were
travelling together on the motorcycle, had examined witnesses
who spoke about the fact that Prem Lal along with Narendra
Panika came to the Pan Shop of deceased Krishna Kumar and
cajoled   him   to   accompany   them   to   Village   Belia.   Krishna
Kumar agreed to go with Prem Lal and when he left his Pan
shop, the vehicle was being driven by Prem Lal (appellant
No.2). The witnesses have also unambiguously mentioned that
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when they reached Village Belia and left from that Village,
Prem Lal was driving the motorcycle and Krishna Kumar was
sitting in the middle and Narendra Panika behind him. The
witness Jawahar Lal (AW­5),  has also stated that while he was
going to Sonhat from Baikunthpur in a jeep, he saw Krishna
Kumar going with his friends on a motorcycle and sitting in
the middle.   Few minutes thereafter, the accident occurred.
The   respondents,   through   their   witnesses,   have   also
established that the motorcycle was owned by appellant No.1
and appellant No.2 used to drive that motorcycle himself. The
appellants did not even produce any tittle of evidence, except
the bare words of the appellants and their witnesses Narendra
Panika   (DW­2)   and   Jai   Prakash   (DW­3)   who   are   obviously
interested witnesses. Taking the entirety of the evidence on
record, the Tribunal in paragraphs 17 and 18 of its judgment
observed thus: 
“17.   Examining   the   witnesses   Gayagtri  (AW­1),   Rajkumar
(AW­2), Sanjay Pratap Singh (AW­3), Bhagwat Prasad (AW­4),
Jawahar   Lal   (AW­5),   Sandeep   Kuma   (AW­6)   and   the
documents exhibited it was found that on 14.11.2006 near
the Khad Naala near village Kailashpur motorcycle no.CG
16C/5171   met   with   an   accident,   and   the   riders   of   the
motorcycle Premlal, Narendra Panika, and Krishna Kumar
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were   injured.   Krishna   Kumar   was   seriously   injured   and
therefore, he died while being taken to Charcha hospital.
18. From  the statement  of applicant  no.1  Smt.  Gayatri
Devi and the Criminal Complaint no.39/08 before the Chief
Judicial Magistrate, Baikunthpur, prima facie case against
Premlal Rajwade under section 279, 304A of IPC has been
registered on the basis of the witnesses and documents and
the matter is pending before the court. These facts have
stood the test of cross­examination.”
10. Again, in paragraphs 22­24, the Tribunal negatived the
plea   of   the   appellants   being   far­fetched   and   accepted   the
version of the respondents – claimants that the motorcycle at
the relevant time was being driven by Prem Lal (appellant
No.2)   and   he   had   caused   the   accident   due   to   rash   and
negligent driving.  Paragraphs 22­24 read thus:
“22. On the basis of the above mentioned statements of the
Defendant Premlal (DW­1), Witness Narendra Panika (DW­2),
and Jayprakash (DW­3) the claim of applicants that Krishna
Kumar died in a motorcycle accident is proved.
23. The defence of the defendants is that on the said date
the   motorcycle   was   being   driven   by   deceased   Krishna
Kumar. Defendant witness Premlal (DW­1), Narendra Kumar
(DW­2), and Jayprakash (DW­3) in their chief examination
have stated that while going back from Kailashpur the said
vehicle was being driven by Krishna Kumar. Krishna Kumar
was   driving   the   motorcycle   in   high   speed   and   negligent
manner, due to which he was not able to control the vehicle
and   accident   was   caused.   Witness   Premlal   (DW­1)   has
refuted the claim of the applicants in his cross examination
and has stated that deceased Krishna Kumar knew how to
drive all kinds of vehicles. But he has conceded of not having
any   knowledge   whether   Krishna   Kumar   had   any   driving
licence or not. This witness has stated that the deceased had
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scooter for himself. However, the defendants have not been
able to produce any reliable evidence as to the ownership of
the said scooter and neither any valid licence to prove that
Krishna Kumar had a license to drive to vehicles. Narendra
Panika (SW­2) has also not produced any documents relating
to the vehicle of the deceased neither relating to the driving
license   of   the   deceased.   Witness   Jayprakash   (DW­3)   has
admitted that he did not see the accident happening. In this
situation, the burden of proof is on the defendants to prove
that deceased had a valid driving licence and that he was the
one who was driving the motorcycle. The defendants have
failed to produce any reliable evidence in this regard. The
vehicle   involved   in   accident   CG­16/C5171   is   owned   by
Mohar Sai and it was regularly driven by Premlal (Defendant
no.2), if he or his father (defendant no.2 and 1) had allowed
deceased   Krishna   Kumar,   so   both   of   them   are   definitely
liable for the accident, because without finding out whether
the   deceased   had   a   valid   driving   license,   the   defendants
allowed him to drive the motorcycle.
24. Therefore,   on   the   basis   of   the  above   evidence   it   is
decided that on question no.1 and 2 the applicants have
been able to successfully prove against the defendants. On
the other had the defendants have not been able to prove
their case on question no.2. Therefore, the question no.1 is
adjudicated as Yes and question no.2 is adjudicated as No.”
11. The view so taken by the Tribunal, it appears to us, was
not only a possible view but also in conformity with the scale
to be applied for appreciation of evidence in motor accident
cases namely preponderance of probabilities. Nevertheless, the
High   Court   reversed   this   well   considered   finding   of   fact
recorded by the Tribunal by merely observing thus:
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“11. After evaluating the evidence of witnesses, it would
reveal   that   the   Applicant   had   examined   the   eye   witness
Sanjay Pratap Singh as A.W.3, but he has stated in cross
examination that he has not seen the incident and reached
the spot after the accident had happened. Similarly, witness
Bhagwat Prasad only says about the fact that before the
occurrence of accident, the vehicle was driven by Premlal.
Another   witness   Jawharlal   Sahu   has   stated   in   his   cross
examination that he has not seen the incident. Therefore,
taking into statements of witnesses  alongwith  FIR wherein
it is stated that at the relevant time, the vehicle was being
driven by the deceased himself appears to be more plausible.
Ex.D­4 is a document of MLC of two persons, which is an
intimation sent by Doctor Ex.D­4 purports that the doctor
intimated   the   police   about   the   injured   persons   and   it
contains the statement that 3 persons were travelling in the
motorcycle and the driver of the motorcycle had died.  This
was sent on 14.11.2006 at about 11.45 p.m., that is the date
of accident and immediately after the incident happened.
Reading it alongwith the statements of pillion riders who
were also travelling on the motorcycle would clearly go to
show that that at the relevant time, the vehicle was being
driven by the deceased Krishna Kumar Rajwade itself.
12. So taking into account the facts which have emerged
from evidence and documents on record, I am of the opinion
that the finding of the learned Claims Tribunal that at the
relevant   time   the   vehicle   was   being   driven   by   Premlal
Rajwade  appears to be  not  sustainable  and  is set  aside.
Accordingly,   it   is   held   that   deceased   was   also   liable   for
contributory negligence for the accident.”
12. The entirety of evidence has not been analysed by the
High Court, including the material evidence of witnesses who
had seen Prem Lal (appellant No.2) driving the motorcycle and
deceased Krishna Kumar sitting behind him as pillion rider,
whilst leaving his Pan shop and when they reached Village
Belia and again, when they left that village, including having
15
been seen by Jawahar Lal (AW­5) on the way just before the
occurrence of the accident.  The High Court has not discarded
the version of the claimants’ witnesses as untruthful. Besides
the oral evidence adduced by the claimants, the Tribunal also
took   note   of   the   police   papers   in   respect   of   the   Criminal
Complaint No.39/08 filed before the Chief Judicial Magistrate,
Baikunthpur, for offence punishable under Sections 279 and
304A   of   the   Indian   Penal   Code   and   the   statement   of   the
witnesses   referred   to   therein.   The   High   Court,   however,
selectively   relied   on   the   statements   of   interested   witnesses
examined on behalf of the appellants and Exh. D­4 and Exh.
D­5.   Exh. D­4 is a document of MLC of Narendra Panika who
presumably gave intimation that Krishna Kumar was seriously
injured and that he succumbed to injuries before he could be
shifted to the hospital. The version given to the doctor by
appellant no.2 and Narendra Panika was unilateral and not
verified from independent eye witnesses before recording the
same. Exh.D­5 was similarly founded on the intimation given
by the two injured persons who obviously did not reveal the
16
correct position for reasons best known to them. Notably, the
eye witnesses examined by the claimants have neither been
discarded as untruthful nor has the High Court found any
contradiction   in   the   version   given   by   them.   Their   version
remained unshaken during the cross­examination. As such,
the   High   Court   committed   manifest   error   in   reversing   the
finding of fact recorded by the Tribunal by solely relying on the
version of interested witnesses examined by the appellants in
defence. On the other hand, the analysis of the totality of
evidence by the Tribunal is consistent with the principle of
preponderance of probabilities.
13.    Once this finding of the High Court becomes doubtful,
the principal argument of the appellants must fail, in which
case the question of applying Section 140 of the Act does not
arise. For the same reason, the exposition in the case of  A.
Sridhar (supra), will be of no avail to the appellants. In other
words, we find no infirmity in the finding recorded by the
Tribunal   that   the   motorcycle   was   driven   by   Prem   Lal
(appellant   No.2)   at   the   relevant   time   and   had   caused   the
17
accident due to rash and negligent driving resulting in injuries
to all the three persons travelling on the motorcycle, including
the deceased Krishna Kumar who succumbed to the injuries
before   being   admitted   in   Charcha   Hospital.   No   serious
argument has been made about the quantum of compensation
determined by the High Court providing for future prospects
and   deducting   1/4th  towards   personal   expenses,   including
applying the multiplier of 16.   Even if any argument in that
behalf is available to the appellants, as the amount involved is
insignificant   and   the   difference   between   the   quantum
determined by the Tribunal and the quantum determined by
the   High   Court   is   only   marginal   (the   Tribunal   determined
Rs.3,85,000/­ and the High Court determined Rs.3,86,500/­),
we decline to interfere in exercise of our jurisdiction under
Article 136 of the Constitution. At the same time, we must
clarify that we have not examined the justness of the finding of
the High Court regarding contributory negligence against the
deceased and providing for deduction of 50% compensation
18
amount therefor. For, the respondents have not assailed that
part of the finding of the High Court.
14.   Taking overall view of the matter, we have no hesitation
in   concluding   that   in   the   facts   and   circumstances   of   the
present   case,   no   interference   under   Article   136   of   the
Constitution  is  warranted.  Hence,  this  appeal  is  dismissed
with no order as to costs. 
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
        (A.M. Khanwilkar)
New Delhi;
April  27, 2018.

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