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 9 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

1

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

2

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

3

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

4

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

5

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

.

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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:

14

“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

15

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

16

correct position for reasons best known to themNotably, 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

17

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

18

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.