STATE OF UTTAR PRADESH THROUGH PRINICIPAL SECRETARY & ORS versus ALL U.P. CONSUMER PROTECTION BAR ASSOCIATION on 18 May 2018

STATE OF UTTAR PRADESH THROUGHPRINCIPAL SECRETARY & ORS.

ALL U.P. CONSUMER PROTECTION BAR ASSOCIATION

(Civil Appeal No. 2740 of 2007)

MAY 18, 2018

[DIPAK MISRA, CJI, DR. D.Y. CHANDRACHUDAND INDU MALHOTRA, JJ.]

Consumer Protection Act, 1986:

ss.10(3), 16(2) and 30 – Paucity of Infrastructure in theConsumer Fora – As per direction of Supreme Court, Union of Indiaframed Model Rules prescribing objective norms for implementingprovisions of ss. 10(1)(b), 16(1)(b) and 20(1)(b) with regard toappointment of members respectively of District Fora, StateCommissions and National Commission – State Governments agreedto adopt the Model Rules by framing appropriate rules in exerciseof the rule making power u/s. 30 – Direction to State Governmentsto frame appropriate rules in exercise of rule-making power u/s. 30in accordance with final Draft Model Rules – Directions to Unionof India to consider requirement of National Commission forsanctioning additional posts and to consider request of NationalCommission to make additional space available – Status reportregarding draft Consumer Protection (Amendment) Rules, 1987(which have been referred to the Ministry of Finance for itsconcurrence) to be apprised to this Court and also compliance ofother direction to be apprised to the Court – Matters adjourned –Consumer Protection Rules, 1987 – r.11.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2740of 2007.

From the Judgment and Order dated 08.10.1998 of the High Courtof Judicature at Allahabad in CMWP No.968/1997

WITH

Writ Petition(Civil) No.164/2002.

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A Maninder Singh, ASG (NP), P.S. Patwalia, Sr. Adv., Meru SagarSamantray, K. Luikang Michael, Ankur Prakash, Tushar Bakshi, RanjanMukherjee, Daniel Stone Lyngdoh, K.V. Kharlyngdoh, V.N. Raghupathy,R. Balasubramanian, Wasim A. Quadri, Prabhas Bajaj, AkshayAmritanshu, Ms. Aarti Sharma, Ms. Niranjana Singh, Shekhar Vyas,Arun Pathak, M.K. Maroria, Raj Bahadur, Rachana Srivastava,BA.K. Sharma, Krishnanand Pandeya, Ms. K. Enatoli Sema, EdwardBelho, Amit Kumar Singh, Leishangthem Roshmani Kh., Ms. MaibamBabina, Sibo Sankar Mishra, Ms. Hemantika Wahi, Ms. Jesal Wahi,Ms. Vishakha, Ms. Shodhika Sharma, Ms. Aruna Mathur, AvneeshArputham, Ms. Anuradha Arputham, Ms. Simran Jeet, M/s ArputhamCAruna and Co., Ms Prachi Mishra, Arjun Garg, Chaitanya, Suneet Padhi,Atul Jha, Sandeep Jha, Rajesh Srivastava, Gopal Singh, Kumar Milind,Manish Kumar, T. N. Rama Rao, Hitesh Kumar Sharma, T. Veera Reddy,T.V. George, K.N. Madhuroodhanan, R. Sathish, Shuvodeep Roy, SayoojMohandas M., Rituraj Biswas, S. S. Shamshery, Amit Sharma, SandeepSingh, Ankit Raj, Ms. Indira Bhakar, Milind Kumar, V. G. Pragasam,DS. Prabu Ramasubramanian, S. Manuraj, Ms. Ranjeeta Rohtagi,Mrs. D. Bharathi Reddy, Ms. C.K. Sucharita, S. Srinivasan, M/sCorporate Law Group, Anil Shrivastav, G. Prakash, B.S. Banthia,Ms.Sumita Hazarika, R. Gopalakrishnan, Radha Shyam Jena, KuldipSingh, Tara Chandra Sharma, Jatinder Kumar Bhatia, Ms. A. Subhashini,EMs. Kamini Jaiswal, Mrs. Anil Katiyar, M/s V. Maheshwari & Co.,B. Balaji, Ashok K. Srivastava, Ashok Mathur, Rajeev Sharma,K.R. Sasiprabhu, Mrs. Revathy Raghavan, Ms. Kaveeta Wadia,T. Mahipal, T. V. Ratnam, Advs for the appearing parties.

The Judgment of the Court was delivered byFINDU MALHOTRA, J. 1. The issue which arises forconsideration in the present civil appeal and writ petition pertains to thepaucity of infrastructure in the Consumer Fora all over the country.

2. This Court vide order dated 14[th] January, 2016 constituted athree-member committee presided over by Justice Arijit PasayatG[Retired] to examine various aspects as enumerated in the Order. Thesaid committee was requested to forward its deliberations to the variousState Governments.

3. By Order dated 21[st] November, 2016 this Court issued directionsto the Union Government to frame Model Rules for the purpose ofH

ensuring uniformity by the State Governments in the exercise of therule-making power under Sections 10(3) and 16(2) of the ConsumerProtection Act, 1986. The directions issued by this Court are reproducedhereunder:

“(i) The Union Government shall for the purpose of ensuringUniformity in the exercise of the rule making power under Section10(3) and Section 16(2) of the Consumer Protection Act, 1986frame model rules for adoption by the State Governments. Themodel rules shall be framed within four months and shall besubmitted to this Court for its approval;

(ii) The Union Government shall also frame within four monthsmodel rules prescribing objective norms for implementing theprovisions of Section 10(1)(b), Section 16(1)(b) and Section20(1)(b) in regard to the appointment of members respectively ofthe District fora, State Commissions and National Commission;

(iii) The Union government shall while framing the model ruleshave due regard to the formulation of objective norms for theassessment of the ability, knowledge and experience required tobe possessed by the members of the respective fora in the domainareas referred to in the statutory provisions mentioned above.The model rules shall provide for the payment of salary, allowancesand for the conditions of service of the members of the consumerfora commensurate with the nature of adjudicatory duties and theneed to attract suitable talent to the adjudicating bodies. Theserules shall be finalized upon due consultation with the President ofthe National Consumer Disputes Redressal Commission, withinthe period stipulated above;

(iv) Upon the approval of the model rules by this Court, the Stategovernments shall proceed to adopt the model rules by framingappropriate rules in the exercise of the rule making powers underSection 30 of the Consumer Protection Act, 1986.

(v) The National Consumer Disputes Redressal Commission isrequested to formulate regulations under Section 30A with theprevious approval of the Central Government within a period ofthree months form today in order to effectuate the power ofadministrative control vested in the National Commission over A

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Athe State Commissions under Section 24(B)(1)(iii) and in respectof the administrative control of the State Commissions over theDistrict fora in terms of Section 24(B)(2) as explained in thisJudgment to effectively implement the objects and purposes ofthe Consumer Protection Act, 1986.”

B4. On 4[th] March, 2017, the three-member committee submitted adetailed report to the Court.

5. The Union of India framed draft rules and regulations whichwere placed for consideration before this Court. During the course ofhearing on 07[th] March, 2017 a need for certain modifications to theCModel Rules was expressed by the learned Counsel representing variousparties.

6. The Union of India filed an affidavit on 22[nd] March, 2017wherein the Final Draft Model Rules were framed and annexed asAnnexure-II.

D7. In compliance with the directions issued by this Court on 21November 2016 and 15 December 2017, an affidavit has been filed bythe Union of India in April 2018. Paragraphs 9 and 10 of the affidavit areextracted below :

“9. It is respectfully submitted that there are two possible ways atEthis juncture of the Central Government in this behalf. One methodis that the Rules, which have been framed by the CentralGovernment (in compliance with Direction 18(iv) of the judgmentdated 21.11.16 that this Court would approve the rules) and whichhave been filed alongwith the earlier affidavit dated 22.3.17, willbe adopted by the State Governments by framing appropriate rulesFin exercise of the rule making power under Section 30 of theConsumer Protection Act 1986 upon approval by this Court.

10. That the other method would be that the Central Government,with the approval of this Court awaits the completion of the legislativeexercise regarding the proposed consumer bill pending before theGParliament and upon its completion, frames the rules and notifies thesame, which would automatically be applicable for all State Commissionsand District Forums under the Consumer Protection Laws. TheGovernment is open and willing to adopt any of the above mentionedtwo methods which may be approved by this Court.”H

During the course of the hearing on 27 April 2018, a consensushas emerged that the course suggested in paragraph 9 of the aboveaffidavit should be accepted. Counsel for the Union of India has noobjection since it is in line with the suggestion contained in paragraph9.The State Governments shall complete the exercise within a period ofthree months. The Registrar (Judicial) is directed to forward a copy ofthis order to the Chief Secretaries of all the States/Union Territories forensuring compliance.

Infrastructure : National Consumer Disputes Redressal Commission:

(i) Posts : Out of 204 additional posts required to be createdaccording to the norms recommended by the Staff Inspection Unit, 51posts have been created leaving a balance of 153 posts.

We request the Union of India to consider the requirement of theNCDRC for sanctioning additional posts in the right perspective so thatthe efficacy of its work is enhanced. This Court shall be apprised on thenext date of hearing of the action taken by the Union government in thatregard;

(ii) Space: The affidavit filed on behalf of the NCDRC indicatesthe dire necessity of procuring additional space. The filing of cases hasgone up by nearly 300 per cent, be it consumer complaints, first appealsor revision petitions. This Court has been apprised of the fact that thereis no space available for storing the files of fresh cases, which are lyingin the corridors. The record room of NCDRC is packed to its capacity.An apprehension has been expressed that unless the Union Governmentintervenes in the matter on a pro-active basis, a stage will be reachedwhere due to space constraints, it will not be possible to trace out files ofcases to be heard by the Benches. Further, due to the increased filing,there is a need to constitute additional Benches. In the existinginfrastructure, there is little space for Court halls, Chambers and for thesupporting staff. NCDRC has addressed communications on 20 January2018 and 5 April 2018 to the Secretary, Ministry of Consumer Affairs,Government of India placing a request for the allotment of additionalspace to the extent of 37,249 sq. ft. We are sure that the Union of Indiawill respond to the request of the NCDRC in the right perspective andwill make additional space available. The dearth of space is seriouslyhampering the functioning of the NCDRC. We commend to the Secretary AB

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Ain the Ministry of Consumer Affairs the urgent necessity of taking steps,in that regard. We expect that this Court would be apprised of the decisionof the Union government by the next date of hearing;

(iii) Salaries, honorarium and other allowances of the Presidentand Members of the NCDRC:

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NCDRC has proposed an amendment to Rule 11 of the ConsumerProtection Rules 1987. The Court has been apprised, in the affidavitdated 22 March 2017, that in compliance with the order dated 21November 2016, draft Consumer Protection (Amendment) Rules 1987have been prepared in consultation with the NCDRC and have beenCreferred to the Ministry of Finance for its concurrence.

This Court shall be apprised of the status of the matter by thenext date of hearing. A status report indicating compliance with the abovedirections shall be filed by the next date of hearing.

8. On 27[th] April, 2018 this Court heard all the parties, including theDCounsel appearing for all the States. The said Model Rules were acceptedby the Counsel representing all the parties before the Court. Therefore,it is directed that the State Governments shall frame appropriate rules inexercise of the rule-making power under Section 30 of the Consumerprotection Act, 1986 in accordance with the Final Draft Model RulesEsubmitted by the Union of India.

9. List on 28 August 2018.

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Kalpana K. Tripathy

Directions issued.

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[2018] 4 S.C.R. 509

MOHAR SAI AND ANR.

v.

GAYATRI DEVI AND ORS.

(Civil Appeal No. 8411 of 2015)

APRIL 27, 2018

[DIPAK MISRA, CJI AND A.M. KHANWILKAR, J.]

Motor Vehicles Act, 1988 – s.140 – When not applicable –Person died in a motor accident – Claim petition by respondents-heirs of the deceased – Tribunal decided the petition in favour ofthe respondents holding that the motorcycle at the relevant time wasbeing driven by appellant No.2 and he had caused the accidentdue to rash and negligent driving and granted compensation – HighCourt reversed the said finding recorded by Tribunal, however,maintained the liability fastened on appellants as regards thecompensation – Plea of appellants that in view of finding of HighCourt that it was a case of contributory negligence as the deceasedhimself was driving the motorcycle, at the most respondents wouldbe entitled to compensation on ‘no fault liability principle’ u/s.140– Held: High Court committed manifest error in reversing the findingrecorded by the Tribunal – Respondents through their witnessesestablished that the motorcycle was owned by appellant No.1(father of appellant No.2) and on the day when the accident tookplace the motorcycle was driven by appellant no.2 while the deceasedwas sitting in the middle and DW-2 was behind him – High Courtdid not discard the said version as untruthful, however, selectivelyrelied on the statements of interested witnesses examined on behalfof the appellants – No infirmity in the finding recorded by theTribunal – Once the finding of High Court that the motorcycle was,in fact, driven by deceased becomes doubtful, the question ofapplying s.140 of the Act does not arise – In the facts andcircumstances of the present case, no interference is warranted –Constitution of India – Art.136.

Motor Vehicles Act, 1988 – Motor accident claim under –Role of Court – Discussed.

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510SUPREME COURT REPORTS

[2018] 4 S.C.R.

ADismissing the appeal, the CourtHELD : 1.1 In cases where the accident occurs withoutany fault of the owner of the vehicle or the fault of t8411he othervehicle, the liability to pay compensation, at best, must bedetermined in terms of Section 140 of the Motor Vehicles Act,B1988. The High Court in the present case overturned the findingrecorded by the Tribunal that the motorcycle was driven byappellant No.2 at the relevant time when the accident occurredand, instead, concluded that the motorcycle was, in fact, drivenby deceased. In that sense, the accident occurred neither due toCthe fault of the owner of the vehicle (appellant No.1) who,admittedly, was not present or travelling on the motorcycle atthe relevant time nor due to the fault of any other vehicle.However, on a deeper scrutiny it is found that the High Courtcommitted manifest error, an error apparent on the face of therecord, in reversing the finding recorded by the Tribunal that theDmotorcycle was being driven by appellant No.2 (son of appellantNo.1 – owner of the motorcycle) and had caused accident due torash and negligent driving. Though, the respondents–claimantshave neither come up in cross appeal against the reduction ofthe compensation amount on the finding of contributoryEnegligence nor have they filed any cross objection regardingreversing of the crucial finding of fact by the High Court.However, it is well settled that in motor accident claim cases, theCourt cannot adopt a hyper-technical approach but has todischarge the role of parens patriae. [Para 8][515-C-G]F1.2 The respondents, through their witnesses establishedthat the motorcycle was owned by appellant No.1 and appellantNo.2 used to drive that motorcycle himself. The appellants didnot even produce any title of evidence, except the bare words ofthe appellants and their witnesses (DW-2) and (DW-3) who wereGobviously interested witnesses. The view taken by the Tribunalwas not only a possible view but also in conformity with the scaleto be applied for appreciation of evidence in motor accident casesnamely preponderance of probabilities. [Paras 9, 11][516-E-F;518-D]

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1.3 The entirety of evidence was not analysed by the HighCourt, including the material evidence of witnesses who had seenappellant No.2 driving the motorcycle and deceased sitting behindhim as pillion rider. The High Court, however, selectively reliedon the statements of interested witnesses examined on behalf ofthe appellants. The eye witnesses examined by the claimants wereneither discarded as untruthful nor did the High Court found anycontradiction in the version given by them. Their versionremained unshaken during the cross-examination. As such, theHigh Court committed manifest error in reversing the finding offact recorded by the Tribunal by solely relying on the version ofinterested witnesses examined by the appellants in defence. Onthe other hand, the analysis of the totality of evidence by theTribunal is consistent with the principle of preponderance ofprobabilities. [Para 12][519-C, E, G-H; 520-A]

1.4 Once this finding of the High Court becomes doubtful,the principal argument of the appellants fail, in which case thequestion of applying Section 140 of the Act does not arise. Thereis no infirmity in the finding recorded by the Tribunal that themotorcycle was driven by appellant No.2 at the relevant time andhad caused the accident due to rash and negligent drivingresulting in injuries to all the three persons travelling on themotorcycle, including the deceased who succumbed to theinjuries before being admitted in the Hospital. No seriousargument was made about the quantum of compensationdetermined by the High Court providing for future prospects anddeducting 1/4[th] towards personal expenses, including applyingthe multiplier of 16. Even if any argument in that behalf wasavailable to the appellants, as the amount involved isinsignificant and the difference between the quantum determinedby the Tribunal and the quantum determined by the High Courtis only marginal (the Tribunal determined Rs.3,85,000/- and theHigh Court determined Rs.3,86,500/-), interference in exerciseof jurisdiction under Article 136 of the Constitution is declined.At the same time, it is clarified that the justness of the finding ofthe High Court regarding contributory negligence against thedeceased and providing for deduction of 50% compensationamount therefor, has not been examined as the respondents did AB

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Anot assail that part of the finding of the High Court. [Para 13][520-B-F]

1.5 In the facts and circumstances of the present case, nointerference under Article 136 of the Constitution is warranted.[Para 14][520-G]

A. Sridhar v. United India Insurance Company Limitedand Anr. (2011) 14 SCC 719 : [2011] 11 SCR 386 –

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Case Law Reference

[2011] 11 SCR 386held inapplicablePara 6

CCIVIL APPELLATE JURISDICTION : Civil Appeal No. 8411of 2015.

From the Judgment and Order dated 01.04.2015 of the High Courtof Chhattisgarh at Bilaspur in Misc. Appeal (C) No. 1100 of 2011.

Ms. Sumita Hazarika, Adv. for the Appellants.

DThe Judgment of the Court was delivered by A.M. KHANWILKAR, J. 1. This appeal, by special leave,emanates from the judgment and order dated 1[st] April, 2015 passed bythe High Court of Chhattisgarh at Bilaspur in Misc. Appeal (C) No.1100of 2011, partly allowing the appeal filed by the appellants herein (ownerEand driver of the offending vehicle) against the award passed by theMotor Accident Claims Tribunal, Koriya, Baikunthpur, Chhatisgarh(hereinafter referred to as “the Tribunal”), in Claim Case No.22/2008dated 21[st] September, 2011, on the finding that the deceased was liablefor contributory negligence to the extent of 50% and as such, afterdeducting 50% of the compensation amount, the respondents/claimantsFwould be entitled to a sum of Rs.3,86,500/- along with interest at the rateof 7.5% per annum from the date of filing of the claim petition till thedate of realization.

2. Briefly stated, the respondents claiming to be the heirs andlegal representatives of the deceased Krishna Kumar Sahu alias TipuGSahu, son of Dashrath Sahu, filed a claim petition before the Tribunalunder Section 166 of the Motor Vehicles Act, 1988 (for short “the Act”)for compensation, amounting to Rs.20,21,000/- on account of the deathof Krishna Kumar Sahu in a motor accident which occurred on 14[th]November, 2006. Respondent No.1 is the widow of deceased KrishnaKumar Sahu. Respondent Nos.2 to 4 are the minor children of theH

deceased and respondent Nos. 5 & 6 are the parents of the deceased.They asserted that when Krishna Kumar was in his Pan Shop near thebus stand of Village Kathghor, appellant No.2 Prem Lal Rajawade cameto his shop on his motorcycle bearing registration No. CG 16C/5171with a friend, Narendra Panika, at around 1.00 P.M. and cajoled KrishnaKumar to accompany him to Village Belia. All the three left for VillageBelia on the motorcycle. While returning back from Belia, when theyreached Khaad Naala, the motorcycle skidded due to high speed as thedriver lost control over it. Consequently, all the three persons travellingon the motorcycle were injured. The motorcycle was driven by PremLal all along. They were given first aid at Government Hospital, Sonhatand then referred to Charcha Regional Hospital for further treatment.Krishna Kumar died en-route 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 offendingvehicle and appellant No.2 is the son of appellant No.1 who went alongwith the deceased on the offending motorcycle on the date of accident.According to the appellants, however, the motorcycle was being drivenby Krishna Kumar and not appellant No.2, as alleged, when the accidenttook place. Appellant No.2 was sitting in the middle and Narendra Panikawas sitting at the back, as pillion riders. Krishna Kumar was driving themotorcycle rashly and at a high speed. He was told to slow down but hedid not pay any heed to it and eventually the accident was caused. Inother words, the deceased Krishna Kumar was himself responsible forthe accident.

4. In light of the competing claims of the parties, the Tribunal framedfour issues and finally answered the claim petition in favour of theclaimants. The Tribunal accepted the plea of the claimants that theoffending vehicle (motorcycle) was driven by Prem Lal (appellant No.2)at the relevant time and had caused the accident due to rash andnegligent driving. The Tribunal then determined the quantum ofcompensation amount on the basis of monthly income of the deceasedestimated at Rs.3,000/- and applied multiplier of 15. Besides, the Tribunalawarded lump sum amount of Rs.25,000/- towards funeral expenses,loss of love and affection due to the death of the deceased. The Tribunaldetermined the compensation amount at Rs.3,85,000/- to be paid withinterest at the rate of 7.5% per annum from the date of filing of theclaim petition until its realization. The appellants assailed the said decision AB

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Aof the Tribunal by way of First Appeal before the High Court ofChhattisgarh at Bilaspur.

5. The High Court reversed the finding of fact recorded by theTribunal that the offending vehicle (motorcycle) was driven by PremLal (appellant No.2) at the relevant time and instead found that theBdeceased himself was driving the motorcycle and had caused the accident.On that finding, the High Court proceeded to hold that being a case ofcontributory negligence, the claimants would be entitled to only 50% ofthe compensation amount to be determined by it. With regard to thequantum of compensation amount, the High Court opined that the Tribunalfailed to provide for addition of 50% to the actual income of the deceasedCtowards future prospects and also deduction of 1/4[th] of the income,instead of 1/3[rd]. Further, the amount awarded towards funeral expensesand loss of consortium for the wife and loss of love and affectiontowards the children and parents, was enhanced to Rs.50,000/-. Onthat basis, the High Court opined that the total compensation amountDpayable would have been Rs.7,73,000/-, but after deduction of 50% ofthat amount towards contributory negligence, the amount actuallypayable 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 theclaim petition till the date of realization. This decision is the subjectmatter of the present appeal at the instance of the appellantsE(owner/driver of the motorcycle).

6. The foremost contention in this appeal is that the High Courthaving concluded that appellant No.2 was not driving the motorcycle atthe relevant time and applying the exposition in the case of A. SridharVs. United India Insurance Company Limited and Anr.,[1] the claimantsFat 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 becauseof fault of owner of the vehicle or because of the fault of any othervehicle. It is urged that no liability can be fastened on the appellants forthe negligence of the deceased, much less on the pillion riders. It is alsoGurged that the appellants come from a very humble background and areengaged in ordinary agricultural labour work. They will not be in a positionto pay any compensation amount, if awarded. It is also contended thatthere was no relationship of master and servant, principal/employer andemployee between the deceased and the appellants which alone could H1(2011) 14 SCC 719

have been the basis for awarding compensation, much less fasten liabilityon 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 fasteningthe liability on the appellants of Rs.3,86,500/-, with interest at the rate of7.5% per annum, deserves to be set aside and the appellants ought to beabsolved from any liability. Alternatively, it is submitted that thecompensation amount be determined under Section 140 of the Act andnot under Section 166 of the Act.

7. Although notice has been served on the respondents, noappearance has been entered on their behalf. As a result, the hearing ofthis appeal had to proceed ex-parte against them. We have heardMs. Sumita Hazarika, learned counsel for the appellants, at length.

8. The appellants may be right in contending that in cases wherethe accident occurs without any fault of the owner of the vehicle or thefault of the other vehicle, the liability to pay compensation, at best, mustbe 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 hasoverturned the finding recorded by the Tribunal that the motorcycle wasdriven by appellant No.2 at the relevant time when the accidentoccurred and, instead, concluded that the motorcycle was, in fact, drivenby deceased Krishna Kumar. In that sense, the accident occurredneither due to the fault of the owner of the vehicle (appellant No.1) who,admittedly, was not present or travelling on the motorcycle at therelevant time nor due to the fault of any other vehicle. However, on adeeper scrutiny of the materials on record, we are of the opinion that theHigh Court committed manifest error, an error apparent on the face ofthe record, in reversing the finding recorded by the Tribunal that themotorcycle was being driven by appellant No.2 (son of appellant No.1 –owner of the motorcycle) and had caused accident due to rash andnegligent driving. We are conscious of the fact that the respondents –claimants have neither come up in cross appeal against the reduction ofthe compensation amount on the finding of contributory negligence norhave they filed any cross objection regarding reversing of the crucialfinding of fact by the High Court. However, it is well settled that inmotor accident claim cases, the Court cannot adopt a hyper-technicalapproach but has to discharge the role of parens patriae. This appealbeing continuation of the claim petition albeit at the instance of the owner AB

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A(appellant No.1)/alleged driver of the vehicle (appellant No.2), weconsider it appropriate to examine the approach of the High Court inreversing the finding of fact recorded by the Tribunal on the factum ofmotorcycle being driven by Prem Lal (appellant No.2, son of appellantNo.1 owner of the motorcycle) at the relevant time and also that he hadcaused the accident due to rash and negligent driving. We are inclined toBdo so as it is open to the respondents to support the decree whilst urgingthat the finding against them recorded by the High Court on the matterin issue ought to have been in their favour as has been held by theTribunal.

9. The respondents, in support of their claim that the deceasedCKrishna Kumar travelled as pillion rider and was sitting in the middle,between the two other persons who were travelling together on themotorcycle, had examined witnesses who spoke about the fact that PremLal along with Narendra Panika came to the Pan Shop of deceasedKrishna Kumar and cajoled him to accompany them to Village Belia.DKrishna Kumar agreed to go with Prem Lal and when he left his Panshop, the vehicle was being driven by Prem Lal (appellant No.2). Thewitnesses have also unambiguously mentioned that when they reachedVillage Belia and left from that Village, Prem Lal was driving themotorcycle and Krishna Kumar was sitting in the middle and NarendraPanika behind him. The witness Jawahar Lal (AW-5), has also statedEthat while he was going to Sonhat from Baikunthpur in a jeep, he sawKrishna Kumar going with his friends on a motorcycle and sitting in themiddle. Few minutes thereafter, the accident occurred. The respondents,through their witnesses, have also established that the motorcycle wasowned by appellant No.1 and appellant No.2 used to drive that motorcycleFhimself. The appellants did not even produce any tittle of evidence, exceptthe bare words of the appellants and their witnesses Narendra Panika(DW-2) and Jai Prakash (DW-3) who are obviously interested witnesses.Taking the entirety of the evidence on record, the Tribunal in paragraphs17 and 18 of its judgment observed thus:

G“17. Examining the witnesses Gayagtri (AW-1), Rajkumar (AW-2),Sanjay Pratap Singh (AW-3), Bhagwat Prasad (AW-4), JawaharLal (AW-5), Sandeep Kuma (AW-6) and the documents exhibitedit was found that on 14.11.2006 near the Khad Naala near villageKailashpur motorcycle no.CG 16C/5171 met with an accident,and the riders of the motorcycle Premlal, Narendra Panika, andH

Krishna Kumar were injured. Krishna Kumar was seriously injuredand therefore, he died while being taken to Charcha hospital.

18. From the statement of applicant no.1 Smt. Gayatri Devi andthe Criminal Complaint no.39/08 before the Chief JudicialMagistrate, Baikunthpur, prima facie case against Premlal Rajwadeunder section 279, 304A of IPC has been registered on the basisof the witnesses and documents and the matter is pending beforethe court. These facts have stood the test of cross-examination.”

10. Again, in paragraphs 22-24, the Tribunal negatived the plea ofthe appellants being far-fetched and accepted the version of therespondents – claimants that the motorcycle at the relevant time wasbeing driven by Prem Lal (appellant No.2) and he had caused the accidentdue to rash and negligent driving. Paragraphs 22-24 read thus:

“22. On the basis of the above mentioned statements of theDefendant Premlal (DW-1), Witness Narendra Panika (DW-2),and Jayprakash (DW-3) the claim of applicants that Krishna Kumardied in a motorcycle accident is proved.

23. The defence of the defendants is that on the said date themotorcycle was being driven by deceased Krishna Kumar.Defendant witness Premlal (DW-1), Narendra Kumar (DW-2),and Jayprakash (DW-3) in their chief examination have statedthat while going back from Kailashpur the said vehicle was beingdriven by Krishna Kumar. Krishna Kumar was driving themotorcycle in high speed and negligent manner, due to which hewas not able to control the vehicle and accident was caused.Witness Premlal (DW-1) has refuted the claim of the applicantsin his cross examination and has stated that deceased KrishnaKumar knew how to drive all kinds of vehicles. But he hasconceded of not having any knowledge whether Krishna Kumarhad any driving licence or not. This witness has stated that thedeceased had scooter for himself. However, the defendants havenot been able to produce any reliable evidence as to the ownershipof the said scooter and neither any valid licence to prove thatKrishna Kumar had a license to drive to vehicles. Narendra Panika(SW-2) has also not produced any documents relating to the vehicleof the deceased neither relating to the driving license of thedeceased. Witness Jayprakash (DW-3) has admitted that he did A

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not see the accident happening. In this situation, the burden ofproof is on the defendants to prove that deceased had a validdriving licence and that he was the one who was driving themotorcycle. The defendants have failed to produce any reliableevidence in this regard. The vehicle involved in accident CG-16/C5171 is owned by Mohar Sai and it was regularly driven byPremlal (Defendant no.2), if he or his father (defendant no.2 and1) had allowed deceased Krishna Kumar, so both of them aredefinitely liable for the accident, because without finding outwhether the deceased had a valid driving license, the defendantsallowed him to drive the motorcycle.

B

C

24. Therefore, on the basis of the above evidence it is decidedthat on question no.1 and 2 the applicants have been able tosuccessfully prove against the defendants. On the other had thedefendants have not been able to prove their case on questionno.2. Therefore, the question no.1 is adjudicated as Yes andquestion no.2 is adjudicated as No.”

D

11. The view so taken by the Tribunal, it appears to us, was notonly a possible view but also in conformity with the scale to be appliedfor appreciation of evidence in motor accident cases namelypreponderance of probabilities. Nevertheless, the High Court reversedEthis well considered finding of fact recorded by the Tribunal by merelyobserving thus:

“11. After evaluating the evidence of witnesses, it would revealthat the Applicant had examined the eye witness Sanjay PratapSingh as A.W.3, but he has stated in cross examination that hehas not seen the incident and reached the spot after the accidenthad happened. Similarly, witness Bhagwat Prasad only says aboutthe fact that before the occurrence of accident, the vehicle wasdriven by Premlal. Another witness Jawharlal Sahu has stated inhis cross examination that he has not seen the incident. Therefore,taking into statements of witnesses alongwith FIR wherein it isstated that at the relevant time, the vehicle was being driven bythe deceased himself appears to be more plausible. Ex.D-4 is adocument of MLC of two persons, which is an intimation sent byDoctor Ex.D-4 purports that the doctor intimated the police aboutthe injured persons and it contains the statement that 3 personswere travelling in the motorcycle and the driver of the motorcycle F

G

H

F

G

H

had died. This was sent on 14.11.2006 at about 11.45 p.m., that isthe date of accident and immediately after the incident happened.Reading it alongwith the statements of pillion riders who werealso travelling on the motorcycle would clearly go to show thatthat at the relevant time, the vehicle was being driven by thedeceased Krishna Kumar Rajwade itself.

12. So taking into account the facts which have emerged fromevidence and documents on record, I am of the opinion that thefinding of the learned Claims Tribunal that at the relevant time thevehicle was being driven by Premlal Rajwade appears to be notsustainable and is set aside. Accordingly, it is held that deceasedwas also liable for contributory negligence for the accident.”

12. The entirety of evidence has not been analysed by the HighCourt, including the material evidence of witnesses who had seen PremLal (appellant No.2) driving the motorcycle and deceased Krishna Kumarsitting behind him as pillion rider, whilst leaving his Pan shop and whenthey reached Village Belia and again, when they left that village, includinghaving been seen by Jawahar Lal (AW-5) on the way just before theoccurrence of the accident. The High Court has not discarded theversion of the claimants’ witnesses as untruthful. Besides the oralevidence adduced by the claimants, the Tribunal also took note of thepolice papers in respect of the Criminal Complaint No.39/08 filed beforethe Chief Judicial Magistrate, Baikunthpur, for offence punishable underSections 279 and 304A of the Indian Penal Code and the statement ofthe witnesses referred to therein. The High Court, however, selectivelyrelied on the statements of interested witnesses examined on behalf ofthe appellants and Exh. D-4 and Exh. D-5. Exh. D-4 is a document ofMLC of Narendra Panika who presumably gave intimation that KrishnaKumar was seriously injured and that he succumbed to injuries beforehe could be shifted to the hospital. The version given to the doctor byappellant no.2 and Narendra Panika was unilateral and not verified fromindependent eye witnesses before recording the same. Exh.D-5 wassimilarly founded on the intimation given by the two injured persons whoobviously did not reveal the correct position for reasons best known tothem. Notably, the eye witnesses examined by the claimants have neitherbeen discarded as untruthful nor has the High Court found anycontradiction in the version given by them. Their version remainedunshaken during the cross-examination. As such, the High Court A

B

C

D

E

F

G

H

Acommitted manifest error in reversing the finding of fact recorded bythe Tribunal by solely relying on the version of interested witnessesexamined by the appellants in defence. On the other hand, the analysisof the totality of evidence by the Tribunal is consistent with the principleof preponderance of probabilities.B13. Once this finding of the High Court becomes doubtful, the

B13. Once this finding of the High Court becomes doubtful, theprincipal argument of the appellants must fail, in which case the questionof 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 theappellants. In other words, we find no infirmity in the finding recordedby the Tribunal that the motorcycle was driven by Prem Lal (appellantCNo.2) at the relevant time and had caused the accident due to rash andnegligent driving resulting in injuries to all the three persons travelling onthe motorcycle, including the deceased Krishna Kumar who succumbedto the injuries before being admitted in Charcha Hospital. No seriousargument has been made about the quantum of compensationDdetermined by the High Court providing for future prospects anddeducting 1/4[th] towards personal expenses, including applying themultiplier of 16. Even if any argument in that behalf is available to theappellants, as the amount involved is insignificant and the differencebetween the quantum determined by the Tribunal and the quantumdetermined by the High Court is only marginal (the Tribunal determinedERs.3,85,000/- and the High Court determined Rs.3,86,500/-), we declineto interfere in exercise of our jurisdiction under Article 136 of theConstitution. At the same time, we must clarify that we have notexamined the justness of the finding of the High Court regardingcontributory negligence against the deceased and providing forFdeduction of 50% compensation amount therefor. For, the respondentshave not assailed that part of the finding of the High Court.

14. Taking overall view of the matter, we have no hesitation inconcluding that in the facts and circumstances of the present case, nointerference under Article 136 of the Constitution is warranted. Hence,Gthis appeal is dismissed with no order as to costs.

Divya Pandey

Appeal dismissed.

H