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.

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

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