Jawahar Singh vs Bala Jain & Ors

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

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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.

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

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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