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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
