Delhi High Court
Reliance General Insurance ... vs Smt. Bilkish & Ors. on 14 December, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th December, 2012
+ MAC.APP. 334/2011
RELIANCE GENERAL INSURANCE COMPANY LTD...... Appellant
Through: Mr. Sameer Nandwani, Adv.
versus
SMT. BILKISH & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Adv. for R-1 & R-2.
Mr. D.K. Pandey, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This Appeal is directed against a judgment dated 30.11.2010 passed by
the Motor Accident Claims Tribunal (the Claims Tribunal) whereby a
compensation of `3,75,000/- was awarded for the death of Shahrukh, a
minor aged 17 years in a motor vehicle accident which occurred on
22.06.2010.
2. The quantum of compensation awarded is not challenged by Respondents
No.1 and 2 who were the Claimants before the Claims Tribunal.
3. The only ground of challenge raised in the instant Appeal is that the
deceased Shahrukh was riding on a two wheeler along with two other
persons. Thus, he himself was negligent in causing the accident or in any
case, there was contributory negligence on the part of the deceased.
4. The Claims Tribunal dealt with the issue of negligence and the fact that
the deceased was a minor and did not possess a driving licence in Paras 9
to 13 of the impugned judgment which are extracted hereunder:-
"9. To determine the negligence, I am being guided by the
judgment of Hon'ble High Court of Delhi in 2009 ACJ 287,
National Insurance Company Limited Vs. Pushpa Rana wherein in
the Hon'ble High Court held that in case the petitioner files the
certified copy of the criminal record or the criminal record
showing the completion of the investigation by the police or the
issuance of charge sheet under section 279/304 A IPC or the
certified copy of the FIR or in addition the recovery memo on the
mechanical inspection report of the offending vehicle, these
documents are sufficient proof to reach to the conclusion that the
driver was negligent. It was further held that the proceedings
under the Motor Vehicles Act are not akin to the proceedings in a
civil suit and hence strict rules of evidence are not required to be
followed in this regard. Further, in Kaushnumma Begum and
Others v/s New India Assurance Company Limited, 2001 ACJ 421
SC the issue of wrongful act or omission on the part of driver of
the motor vehicle involved in the accident has been left to a
secondary importance and mere use or involvement of motor
vehicle in causing bodily injuries or death to a human being or
damage to property would made the petition maintainable under
section 166 and 140 of the Act. It is also settled law that the term
rashness and negligence has to be construed lightly while making
a decision on a petition for claim for the same as compared to the
word rashness and negligence as finds mention in the Indian Penal
Code. This is because the chapter in the Motor Vehicle Act dealing
with compensation is a benevolent legislation and not a penal one.
10. During the course of arguments, the learned counsel for
the Insurance Company had taken a plea that the deceased also
contributed to the negligence as he was driving the motorcycle
without driving licence. It was stated by the counsel for the
Insurance Company that in the petition itself it has been mentioned
that the deceased was aged around 17 years, the age on which he
is not entitled to be issued with a driving licence, he was driving
the motorcycle. The Insurance Company requested that the
deceased must also be held liable for the contributory negligence
in the accident.
11. The learned counsel for the petitioners rebutted the said
arguments by saying that merely because the deceased was driving
the motorcycle without driving licence it does not ipso facto lead to
the conclusion that he contributed to the very cause of accident.
12. I have heard the parties at length. The Hon'ble Supreme
Court of India in a judgment in Sudhir Kumar Rana Case v.
Surinder Singh, Civil Appeal No.332/08 decided on 06.05.2008
(2008) 12 SCC 436 have categorically laid down the law in Para
No.9, which is reproduced as under:
"9. If a person drives a vehicle without a licence, he
commits an offence. The same, by itself, in our opinion, may
not lead to a finding of negligence as regards the accident.
It has been held by the courts below that it was the driver of
the mini truck who was driving rashly and negligently. It is
one thing to say that the appellant was not possessing any
licence but no finding of fact has been arrived at that he was
driving the two-wheeler rashly and negligently. If he was not
driving rashly and negligently which contributed to the
accident, we fail to see as to how, only because he was not
having a licence, he would be held to be guilty of
contributory negligence."
13. In view of the judgment of Hon'ble Supreme Court of
India, I do not find any force advanced by the learned counsel for
the Insurance Company in his plea regarding the contributory
negligence of the deceased and hence the same stands rejected."
5. The deceased Shahrukh was not so small that he could not handle a two
wheeler at all. Of course, as per the law driving licence to drive a two
wheeler with gear could be issued to a person who is not less than 18
years of age, but unless some evidence was produced by the Appellant
Insurance Company to say that there was some negligence on the part of
deceased Shahrukh, it could not be said that there was contributory
negligence.
6. The driver of the offending tractor bearing No.HR-13E-1823 did not
come forward to rebut the evidence produced by the Claimants. In this
view of matter, it cannot be said that there was any negligence on the part
of deceased Shahrukh or that he contributed to the accident.
7. The Appeal, therefore has to fail; the same is accordingly dismissed.
8. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
9. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 14, 2012
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