Alok Kumar Asthana & Anr. vs Jai Pal & Ors.
2012 Latest Caselaw 356 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Decided on: 18th January, 2012
+       MAC.APP. 206/2011

        ALOK KUMAR ASTHANA & ANR.      ..... Appellants
                    Through: Mr. S.N. Parashar, Adv.

                    versus

        JAI PAL & ORS.                   ..... Respondents

                             Through:   Mr. J.S. Lohat, Adv. with
                                        Mr. Manoj Lohat, Adv. for R-1.
                                        Ms. Shantha Devi Raman Adv.
                                        for R-2.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL
                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellants challenge the judgment dated 03.01.2011 whereby the Motor Accident Claims Tribunal (the Tribunal) while holding that a compensation of Rs. 3,75,000/- was payable to the claimants, restricted the same to Rs. 1,87,500/- on the ground that there was contributory negligence on the part of the deceased who was a minor aged only 12 to 13 years.

2. Learned counsel for the Appellants relies on a judgment of the Supreme Court in Sudhir Kumar Rana v. Surinder Singh & Ors., 2008 (12) SCC 436 and submits that there is no presumption in law that a minor would be negligent or that a

person who drives a vehicle without licence would always be negligent. There is no dispute with the proposition of law laid down in Sudhir Kumar Rana.

3. In Sudhir Kumar Rana (Supra), a vehicle i.e. the two wheeler scooter was being driven by a boy who was aged 17½ years. In this case on the basis of the ration card, the age of the deceased came to be ten years and by giving the benefit of 2-3 years and also taking into consideration the age of the deceased's elder brother Nitish, the Claims Tribunal opined that the age of the deceased could be 12 or 13 years. Relevant portion of the finding is extracted hereunder:-

"Admittedly, the deceased was a minor at the time of accident though there is a dispute about his exact age. PW-2 admitted in his cross examination that he as well as deceased were not wearing any helmet. The motorcycle was a geared motorcycle and the minor can not drive the same. PW-1 has not brought on record any driving license of the deceased nor has alleged that he knew driving the same or earlier also driving the motor cycle. PW-1 admitted in his cross examination that he had allowed the deceased to drive his motorcycle who was not having any driving license. PW-2 admitted in his statement that there was fog on the day of accident.

The ration card brought on record by the petitioner shows that the birth year of the deceased is 1997 which means that on the date of accident the deceased was aged about 10 years only. The version of PW-1 that it is a typing mistake and the birth year of his son could be either 1992 or 1993

is not fully correct because the ration card further shows that in the year 1993 another son Nitish was born who is admittedly elder to the deceased. PW- 1 did not try to get this alleged typing mistake rectified so far. Thus, from this fact, it can be said that the deceased was maximum aged about 12 or 13 years at the time of accident even if it is presumed that deceased was born in the year 1994 after the birth of NItish in the year 1993. Non production of any school certificate to shows exact age of deceased also drawn an adverse inference against petitioner and it can be said that deceased was not 16 years of age as alleged in petition. The driving of a geared motorcycle by a minor aged about 12 or 13 years without any license and without wearing any helmet in the early morning hours when admitted there was some fog leads to the conclusion that there was some contributory negligence on the part of the deceased even if it is held that respondent no.1 was driving the van in the rash and negligent manner also."

4. It was admitted by PW-2 that there was fog at the time of the accident. Driving of a two wheeler by a minor aged about 12 years without a helmet, with a person elder to him on the pillion obviously without licence speaks volumes about his own negligence.

5. The Tribunal's finding that the deceased himself facilitated and contributed to the accident and accordingly reducing the compensation payable to 50%, cannot be faulted.

6. The Appeal is devoid of any merit; the same is accordingly dismissed. No costs.

7. Pending applications also stand disposed of.

(G.P. MITTAL) JUDGE JANUARY 18, 2012 vk