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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

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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

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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

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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

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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.