IMPORTANT POINT
Accident by minor not having driving licence – owner is responsible.

JUDGMENT

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 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. 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 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 evidence of PW.8, Head Constable Devender Singh. On the other hand, the Tribunal wrongly discarded the testimony of R1W1 and