JAWAHAR SINGHversusBALA JAIN & ORS.

                     [2011] 6 S.C.R. 347


                      JAWAHAR SINGH                               A
                               v.
                     BALA JAIN & ORS.
                 (SLP (C) No. 8660 of 2009)
                        MAY 09, 2011
                                                                  B
      [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

      Motor Vehicles Act, 1988 - Contributory negligence -
 Liability of the owner of the vehicle, when minor involved in
 an accident - Motorcycle driven by minor in a very rash and      C
 negligent manner struck against the scooter driven by the
 deceased, as a result deceased and his son thrown on the
.road and deceased succumbed to fatal injuries sustained by
 him - Claim petition - Tribunal awarded Rs. 8 lakhs in favour
 of claimants with interest @ 7%, holding insurer liable to       D
 satisfy the award and to recover the amount from the owner of
 the motorcycle - Order upheld by High Court - Interference
 with - Held: Not called for - Minor came on a motor cycle and
 hit the scooter of the deceased from behind - Thus,
 responsibility in causing the accident was found to be solely    E
 of a minor - However, since the driver was a minor, it was the
 responsibility of the owner to ensure that his motorcycle was
 not misused and .that too by a minor who did not have a
 licence to drive the same - Thus, Tribunal rightly held the
 owner of the motorcycle liable to pay compensation.              F
     An accident took place when a motor cycle driven by
'J'- a minor, in a very rash and negligent manner struck
against a scooter driven by 'M'. As a result 'M' and his
son were thrown on to the road and 'M' succumbed to the
fatal injuries sustained by him. The legal heirs of the G
deceased filed claim petitions. The· Tribunal awarded a
sum of Rs. 8,35,067/- in favour of the claimants together
with interest @7% from the date of institution of the

                             347                                  H
    348      SUPREME COURT REPORTS             [2011] 6 S.C.R.

A   petition till the date of realisation. The insurer was held
    liable to satisfy the Award and to recover the amount
    from the petitioner-owner of the motorcycle. The High
    Court upheld the award passed by the Tribunal. The
    Review Application was also dismissed. Therefore, the
    petitioner filed the instant Special Leave Petitions.
8
          Dismissing the Special Leave Petitions, the Court

         HELD: 1.1. This is not a case for interference in view
    of the fact that admittedly the motorcycle belonging to
c   the petitioner was being driven by 'J', who had no licence
    to drive the same and was, in fact, a minor on the date of
    the accident. While issuing notice the same was limited
    to the question regarding liability to pay compensation
    on account of contributory negligence by the deceased
D   who was riding a scooter, in causing the accident to
    happen. It was 'J' who Cdme from behind on the
    motorcycle and hit the scooter of the deceased from
    behind. Therefore, the responsibility in causing the
    accident was found to be solely that of 'J'. However, since
E   'J' 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
F   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 was duly considered by the Tribunal
    and was correctly decided. The High Court rightly chose
    not to interfere with the same. [Paras 10 and 11] [353-G-
G   H; 354-A-D]

      1.2. The story of 'J' who was a minor, walklng into 1
  the house of the Petitioner and taking the keys of the ·
  motorcycle without any intimation to the petitioner,
H appears to be highly improbable and far-fetched. It is
      JAWAHAR SINGH v. BALA JAIN & ORS.                    349

difficult to accept the defence of the petitioner that the A
keys of the motorcycle were taken by 'J' without his
knowledge. Having regard to the said facts, the case of
contributory negligence on the part of the deceased,
attempted to be made out on behalf of the petitioner
cannot be accepted. Since the notice on the Special B
Leave Petition was confined to the question of
contributory negligence, if any, on the part of the
deceased, there is no reason to interfere with the Award
of the Motor Accident Claims Tribunal, as upheld by the
High Court. [Para 12) [354-E-G]                            c
    lshwar Chandra vs. Oriental Insurance Co. Ltd. (2007) 3
AD (SC) 753; National Insurance Co, Ltd. vs. G. Mohd. Vani
and Ors. 2004 ACJ 1424; National Insurance Co. Ltd. vs.
Candingeddawa and Ors. 2005 ACJ 40 - referred to.
                                                                 D
                    Case Law Reference:
    (2007) 3 AD (SC) 753     Referred to.          Para 9
    2004 ACJ 1424            Referred to.          Para 9
                                                                 E
    2005 ACJ 40              Referred to.          Para 9
     CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 8660
of 2011.

    From the Judgment & Order dated 26.9.2008 of the High F
Court of Delhi at New Delhi in RA. No. 333 of 2008.

                           WITH

SLP (C) No. 864-865 of 2010.
                                                                 G
    Rajesh Tyagi and Atishi Dipankar for the Petitioner.

    Nikun Dayal, Pramod Dayal and Manjeet Chawla for the
Respondents.
    The Judgment of the Court was delivered by                   H
    350       SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A      ALTAMAS KABIR, J. 1. Notice was issued in the s·pecial
  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
B 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
c 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,
D 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 the deceased
E 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
F 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
G Award, the Tribunal awarded a sum of Rs. 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. The claim of the Petitioner
H No.3 was settled at Rs. 24,900/-. The insurer was held liable
       JAWAHAR SINGH v. BALA JAIN & ORS.                    351
              [ALTAMAS KABIR, J.]
to satisfy the Award and to recover the amount from the owner      A
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          B
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      C
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 take place
on account of rash and negligent driving on the part of Jatin.     D
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.                     E

      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 F
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 evidence of PW.8, Head G
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 H
    352     SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A 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
8
   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
C 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
D @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
E 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
F the Respondents, that the orders of the Tribunal and the High
  Court did not call for any 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
G 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
H and conditions of the Insurance Policy and, accordingly, the
        JAWAHAR SINGH v. BALA JAIN & ORS.                      353
               [ALTAMAS KABIR, J.]
  Insurance Company could not be held liable for making A
  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 the time of the accident
  and consequently the Insurance Company had been rightly B
  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         c
  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 lshwar
                                                                       0
   Chandra Vs. Orientfjl 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 adequate care to see that the driver had an
   appropriate licence to drive the vehicle. Before the Tribunal E
   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 F
   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.                  G
      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 vi~w of the fact that admittedly
 the motorcycle belonging to the Petitioner was being driven by       H
 Jatin. who had no li~nce to drive the same and was, in fact, a
    354      SUPREME COURT REPORTS                  [2011] 6 S.C.R.

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.
B       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
C 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 Petitioner and, accordingly,
  directed the Insurance Company to pay the awarded amount
D 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
E 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
F 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 Petitioner. Accordingly, since
  the notice on the Special Leave Petition was confined to the
G 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.
H N.J.                         Special Leave Petition dismissed.