STATE OF UTTAR PRADESH THROUGH PRINICIPAL SECRETARY & ORS versus ALL U.P. CONSUMER PROTECTION BAR ASSOCIATION
[2018] 4 S.C.R. 503, Supreme Court of India, 2018
Outcome: Directions issued
Segment: Body
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STATE OF UTTAR PRADESH THROUGH
PRINCIPAL SECRETARY & ORS.
v.
 ALL U.P. CONSUMER PROTECTION BAR ASSOCIATION
(Civil Appeal No. 2740 of 2007)
MAY 18, 2018
[DIPAK MISRA, CJI, DR. D.Y. CHANDRACHUD
AND INDU MALHOTRA, JJ.]
Consumer Protection Act, 1986:
ss.10(3), 16(2) and 30 – Paucity of Infrastructure in the
Consumer Fora – As per direction of Supreme Court, Union of India
framed Model Rules prescribing objective norms for implementing
provisions of ss. 10(1)(b), 16(1)(b) and 20(1)(b) with regard to
appointment of members respectively of District Fora, State
Commissions and National Commission – State Governments agreed
to adopt the Model Rules by framing appropriate rules in exercise
of the rule making power u/s. 30 – Direction to State Governments
to frame appropriate rules in exercise of rule-making power u/s. 30
in accordance with final Draft Model Rules – Directions to Union
of India to consider requirement of National Commission for
sanctioning additional posts and to consider request of National
Commission to make additional space available – Status report
regarding draft Consumer Protection (Amendment) Rules, 1987
(which have been referred to the Ministry of Finance for its
concurrence) to be apprised to this Court and also compliance of
other direction to be apprised to the Court – Matters adjourned –
Consumer Protection Rules, 1987 – r.11.
CIVIL APPELLATE JURISDICTION :  Civil Appeal No. 2740
of 2007.
From the Judgment and Order dated 08.10.1998 of
the High Court
of Judicature at Allahabad in CMWP No.968/1997
WITH
Writ Petition(Civil) No.164/2002.
  [2018] 4 S.C.R. 503
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  Maninder Singh, ASG (NP), P.S. Patwalia, Sr. Adv., Meru Sagar
Samantray,   K. Luikang Michael, Ankur Prakash, Tushar Bakshi, Ranjan
Mukherjee, Daniel Stone Lyngdoh, K.V. Kharlyngdoh, V.N. Raghupathy,
R. Balasubramanian, Wasim A. Quadri, Prabhas Bajaj, Akshay
Amritanshu, Ms. Aarti Sharma,  Ms. Niranjana Singh, Shekhar Vyas,
Arun Pathak, M.K. Maroria, Raj Bahadur, Rachana Srivastava,
A.K. Sharma, Krishnanand Pandeya, Ms. K. Enatoli Sema, Edward
Belho, Amit Kumar Singh, Leishangthem Roshmani Kh., Ms. Maibam
Babina, Sibo Sankar Mishra,  Ms. Hemantika Wahi,  Ms. Jesal Wahi,
Ms. Vishakha, Ms. Shodhika Sharma, Ms. Aruna Mathur,  Avneesh
Arputham, Ms. Anuradha Arputham, Ms. Simran Jeet, M/s Arputham
Aruna 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,  Sayooj
Mohandas M., Rituraj Biswas,   S. S. Shamshery, Amit Sharma, Sandeep
Singh, Ankit Raj, Ms. Indira Bhakar,   Milind   Kumar,   V. G. Pragasam,
S. Prabu   Ramasubramanian,  S. Manuraj, Ms. Ranjeeta Rohtagi,
Mrs. D. Bharathi Reddy, Ms. C.K. Sucharita, S. Srinivasan, M/s
Corporate Law Group, Anil Shrivastav, G. Prakash, B.S. Banthia,
Ms.Sumita Hazarika, R. Gopalakrishnan, Radha Shyam Jena, Kuldip
Singh, Tara Chandra Sharma, Jatinder Kumar Bhatia, Ms. A.
Subhashini,
Ms. 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 by
INDU MALHOTRA, J. 1. The issue which arises for
consideration in the present civil appeal and writ petition pertains to the
paucity of infrastructure in the Consumer Fora all over the country.
2. This Court vide order dated 14th January, 2016 constituted a
three-member committee presided over by Justice Arijit Pasayat
[Retired] to examine various aspects as enumerated in the Order. The
said committee was requested to forward its deliberations to the various
State Governments.
3.  By Order dated 21st November, 2016 this Court issued directions
to the Union Government to frame Model Rules  for the purpose of
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ensuring uniformity by the State Governments in the exercise of the
rule-making power under Sections 10(3) and 16(2) of the Consumer
Protection Act, 1986. The directions issued by this Court are reproduced
hereunder:
“(i) The Union Government shall for the purpose of ensuring
Uniformity in the exercise of the rule making power under Section
10(3) and Section 16(2) of the Consumer Protection Act, 1986
frame model rules for adoption by the State Governments. The
model rules shall be framed within four months and shall be
submitted to this Court for its approval;
(ii) The Union Government shall also frame within four months
model rules prescribing objective norms for implementing the
provisions of Section 10(1)(b), Section 16(1)(b) and Section
20(1)(b) in regard to the appointment of members respectively of
the District fora, State Commissions and National Commission;
(iii) The Union government shall while framing the model rules
have due regard to the formulation of objective norms for the
assessment of the ability, knowledge and experience required to
be possessed by the members of the respective fora in the domain
areas referred to in the statutory provisions mentioned above.
The model rules shall provide for the payment of salary, allowances
and for the conditions of service of the members of the consumer
fora commensurate with the nature of adjudicatory duties and the
need to attract suitable talent to the adjudicating bodies.  These
rules shall be
finalized upon due consultation with the President of
the National Consumer Disputes Redressal Commission, within
the period stipulated above;
(iv)  Upon the approval of the model rules by this Court, the State
governments shall proceed to adopt the model rules by framing
appropriate rules in the exercise of the rule making powers under
Section 30 of the Consumer Protection Act, 1986.
(v) The National Consumer Disputes Redressal Commission is
requested to formulate regulations under Section 30A with the
previous approval of the Central Government within a period of
three months form today in order to effectuate the power of
administrative control vested in the National Commission over
STATE OF U.P. & ORS.  v.  ALL U.P. CONSUMER
PROTECTION BAR ASSOCIATION [INDU MALHOTRA, J.]
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the State Commissions under Section 24(B)(1)(iii) and in respect
of the administrative control of the State Commissions over the
District fora in terms of Section 24(B)(2) as explained in this
Judgment to effectively implement the objects and purposes of
the Consumer Protection Act, 1986.”
4. On 4th March, 2017, the three-member committee submitted  a
detailed report to the Court.
5. The Union of India framed draft rules and regulations which
were placed for consideration before this Court.  During the course of
hearing on 07th March, 2017 a need for certain modifications to the
Model Rules was expressed by the learned Counsel representing various
parties.
6. The Union of India filed an affidavit on 22nd March, 2017
wherein the Final Draft Model Rules were framed and annexed as
Annexure-II.
7. In compliance with the directions issued by this Court on 21
November 2016 and 15 December 2017, an affidavit has been filed by
the Union of India in April 2018. Paragraphs 9 and 10 of the affidavit are
extracted below :
“9. It is respectfully submitted that there are two possible ways at
this juncture of the Central Government in this behalf. One method
is that the Rules, which have been framed by the Central
Government (in compliance with Direction 18(iv) of the judgment
dated 21.11.16 that this Court would approve the rules) and which
have been filed alongwith the earlier affidavit dated 22.3.17, will
be adopted by the State
Governments by framing appropriate rules
in exercise of the rule making power under Section 30 of the
Consumer 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 legislative
exercise regarding the proposed consumer bill pending before the
Parliament and upon its completion, frames the rules and notifies the
same, which would automatically be applicable for all State Commissions
and District Forums under the Consumer Protection Laws. The
Government is open and willing to adopt any of the above mentioned
two methods which may be approved by this Court.”
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During the course of the hearing on 27 April 2018, a consensus
has emerged that the course suggested in paragraph 9 of the above
affidavit should be accepted. Counsel for the Union of India has no
objection since it is in line with the suggestion contained in paragraph
9.The State Governments shall complete the exercise within a period of
three months. The Registrar (Judicial) is directed to forward a copy of
this order to the Chief Secretaries of all the States/Union Territories for
ensuring compliance.
 Infrastructure :  National    Consumer     Disputes    Redressal
 Commission:
(i) Posts : Out of 204 additional posts required to be created
according to the norms recommended by the Staff Inspection Unit, 51
posts have been created leaving a balance of 153 posts.
We request the Union of India to consider the requirement of the
NCDRC for sanctioning additional posts in the right perspective so that
the efficacy of its work is enhanced. This Court shall be apprised on the
next date of hearing of the action taken by the Union government in that
regard;
(ii) Space: The affidavit filed on behalf of the NCDRC indicates
the dire necessity of procuring additional space. The filing of cases has
gone up by nearly 300 per cent, be it consumer complaints, first appeals
or revision petitions. This Court has been apprised of the fact that there
is no space available for storing the files of fresh cases, which are lying
in the corridors. The record room of NCDRC is
packed to its capacity.
An apprehension has been expressed that unless the Union Government
intervenes in the matter on a pro-active basis, a stage will be reached
where due to space constraints, it will not be possible to trace out files of
cases to be heard by the Benches. Further, due to the increased filing,
there is a need to constitute additional Benches. In the existing
infrastructure, there is little space for Court halls, Chambers and for the
supporting staff. NCDRC has addressed communications on 20 January
2018 and 5 April 2018 to the Secretary, Ministry of Consumer Affairs,
Government of India placing a request for the allotment of additional
space to the extent of 37,249 sq. ft. We are sure that the Union of India
will respond to the request of the NCDRC in the right perspective and
will make additional space available. The dearth of space is seriously
hampering the functioning of the NCDRC. We commend to the Secretary
STATE OF U.P. & ORS.  v.  ALL U.P. CONSUMER
PROTECTION BAR ASSOCIATION [INDU MALHOTRA, J.]
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in the Ministry of Consumer Affairs the urgent necessity of taking steps,
in that regard. We expect that this Court would be apprised of the decision
of the Union government by the next date of hearing;
(iii) Salaries, honorarium and other allowances of the President
and Members of the NCDRC:
NCDRC has proposed an amendment to Rule 11 of the Consumer
Protection Rules 1987. The Court has been apprised, in the affidavit
dated 22 March 2017, that in compliance with the order dated 21
November 2016, draft Consumer Protection (Amendment) Rules 1987
have been prepared in consultation with the NCDRC and have been
referred to the Ministry of Finance for its concurrence.
This Court shall be apprised of the status of the matter by the
next date of hearing. A status report indicating compliance with the above
directions shall be filed by the next date of hearing.
8. On 27th April, 2018 this Court heard all the parties, including the
Counsel appearing for all the States. The said Model Rules were accepted
by the Counsel representing all the parties before the Court. Therefore,
it is directed that the State Governments shall frame appropriate rules in
exercise of the rule-making power under Section 30 of the Consumer
protection Act, 1986 in accordance with the Final Draft Model Rules
submitted by the Union of India.
9. List on 28 August 2018.
Kalpana K. Tripathy
                              Directions issued.
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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 of
the respondents holding that the motorcycle at the relevant time was
being driven by appellant No.2 and he had caused the accident
due to rash and negligent driving and granted compensation – High
Court reversed the said finding recorded by Tribunal, however,
maintained the liability fastened on appellants as regards the
compensation – Plea of appellants that in view of finding of High
Court that it was a case of contributory negligence as the deceased
himself was driving the motorcycle, at the most respondents would
be entitled to compensation on ‘no fault liability principle’ u/s.140
– Held: High Court committed manifest error in reversing the finding
recorded by the Tribunal – Respondents through their witnesses
established that the motorcycle was owned by appellant No.1
(father of appellant No.2) and on the day when the accident took
place the motorcycle was driven by appellant no.2 while the deceased
was sitting in the middle and DW-2 was behind him – High Court
did not discard the said version as untruthful, however, selectively
relied on the statements of interested witnesses examined on behalf
of the appellants – No infirmity in
the finding recorded by the
Tribunal – Once the finding of High Court that the motorcycle was,
in fact, driven by deceased becomes doubtful, the question of
applying s.140 of the Act does not arise – In the facts and
circumstances 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.
  [2018] 4 S.C.R. 509
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Dismissing the appeal, the Court
HELD : 1.1 In cases where the accident occurs without
any fault of the owner of the vehicle or the fault of t8411he other
vehicle, the liability to pay compensation, at best, must be
determined in terms of Section 140 of the Motor Vehicles Act,
1988. The High Court in the present case 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. 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 or travelling on the motorcycle at
the relevant time nor due to the fault of any other vehicle.
However, on a deeper scrutiny it is found 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.  Though, 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 hyper-technical approach but has to
discharge the role of parens patriae.  [Para 8][515-C-G]
1.2  The respondents, through their witnesses 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 title of evidence, except the bare words of
the appellants and their witnesses (DW-2) and (DW-3) who were
obviously interested witnesses. The view taken by the Tribunal
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. [Paras 9, 11][516-E-F;
518-D]
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1.3  The entirety of evidence was not analysed by the High
Court, including the material evidence of witnesses who had seen
appellant No.2 driving the motorcycle and deceased sitting behind
him as pillion rider. The High Court, however, selectively relied
on the statements of interested witnesses examined on behalf of
the appellants. The eye witnesses examined by the claimants were
neither discarded as untruthful nor did the High Court found any
contradiction in the version given by them. Their version
remained unshaken during the cross-examination. 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.  [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 the
question of applying Section 140 of the Act does not arise. There
is no infirmity in the finding recorded by the Tribunal that the
motorcycle was driven by appellant No.2 at the relevant time and
had caused the accident due to rash and negligent driving
resulting in injuries to all the three persons travelling on the
motorcycle, including the deceased who succumbed to the
injuries before being admitted in the
Hospital. No serious
argument was 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 was
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/-), interference in exercise
of jurisdiction under Article 136 of the Constitution is declined.
At the same time, it is clarified that the justness of the finding of
the High Court regarding contributory negligence against the
deceased and providing for deduction of 50% compensation
amount therefor, has not been examined  as the respondents did
MOHAR SAI AND ANR. v. GAYATRI DEVI AND ORS.
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not 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, no
interference under Article 136 of the Constitution is warranted.
[Para 14][520-G]
A. Sridhar v. United India Insurance Company Limited
and Anr. (2011) 14 SCC 719 : [2011] 11 SCR 386 –
held inapplicable.
Case Law Reference
[2011] 11 SCR 386
held inapplicable
Para 6
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8411
of 2015.
From the Judgment and Order dated 01.04.2015 of the High Court
of Chhattisgarh at Bilaspur in Misc. Appeal (C) No. 1100 of 2011.
Ms. Sumita Hazarika, Adv. for the Appellants.
The Judgment of the Court was delivered by
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 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
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deceased and respondent Nos. 5 & 6 are the parents of the deceased.
They asserted that when Krishna Kumar was in his 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 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 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 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 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
MOHAR SAI AND ANR. v. GAYATRI DEVI AND ORS.
[A.M. KHANWILKAR, J.]
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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. 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 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
1(2011) 14 SCC 719
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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 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 ex-parte 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 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  hyper-technical
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
MOHAR SAI AND ANR. v. GAYATRI DEVI AND ORS.
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(appellant No.1)/alleged driver of the vehicle (appellant No.2), we
consider it appropriate to examine the approach of the High 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 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 (AW-5),
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
(DW-2) and Jai Prakash (DW-3) 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 (AW-1), Rajkumar (AW-2),
Sanjay Pratap Singh (AW-3), Bhagwat Prasad (AW-4), Jawahar
Lal (AW-5), Sandeep Kuma (AW-6) 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
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Krishna Kumar 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 cross-examination.”
10. Again, in paragraphs 22-24, the Tribunal negatived the plea of
the appellants being far-fetched 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 22-24 read thus:
“22. On the basis of the above mentioned statements of the
Defendant Premlal (DW-1), Witness Narendra Panika (DW-2),
and Jayprakash (DW-3) 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 (DW-1), Narendra Kumar (DW-2),
and Jayprakash (DW-3) 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 (DW-1) 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 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
(SW-2) has also not produced any documents relating to the vehicle
of the deceased neither relating to the driving license of the
deceased. Witness Jayprakash (DW-3) has admitted that he did
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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 CG-16/
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:
“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.D-4 is a
document of MLC of two persons, which is an intimation sent by
Doctor Ex.D-4 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
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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 been seen by Jawahar Lal (AW-5) 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. D-4 and Exh. D-5.   Exh. D-4 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.D-5 was
similarly founded on the intimation given by the two injured persons who
obviously did not reveal the 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 cross-examination. As such, the High Court
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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 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 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.
Divya Pandey
              Appeal dismissed.