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CASE NO.: Appeal (civil)  3321 of 2008

PETITIONER: Sudhir Kumar Rana

RESPONDENT: Surinder Singh & Ors

DATE OF JUDGMENT: 06/05/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T  REPORTABLE

CIVIL APPEAL NO.    3321              OF 2008 [Arising out of SLP (Civil) No. 8262 of 2007]

S.B. SINHA, J :          1.      Leave granted. 2.      Appellant was driving a two-wheeler bearing registration No. DL-45  AQ 0731 on 30.10.2003.  He was aged about 17 = years.  He met with an  accident, as allegedly respondent No.1 was driving a mini-truck rashly and  negligently.  He suffered the following injuries in the said accident:

"1.     Crush injury over right root. 2.      Fracture fifth M.T. bone and joint. 3.      Fracture P.P. little toe. (Total 3 fractures) 4.      Abrasions over left side trunk, right-foot,   right-leg, right-hand and left-knee 5.      Profusely Bleeding. 6.      Abrasions and blunt injuries all over body."

3.      Appellant filed a claim petition under Section 166 of the Motor  Vehicles Act, 1988 (for short "the Act").  The Tribunal opined that as the  appellant did not possess a driving licence, he must be held to have  contributed to the accident.  Although a sum of Rs. 30,000/- was awarded by  way of compensation, in view of the finding that he was guilty of  contributory negligence on his part, found to be entitled to a sum of Rs.  12,000/- only.  The High Court by reason of the impugned judgment has  dismissed the appeal preferred by him under Section 173 of the Act.

4.      The question which arises for consideration is as to whether the  appellant can be said to have guilty of contributory negligence.   Ordinarily, the doctrine of contributory negligence is not applicable in  case of children with the same force as in the case of adults.   

5.      We do not intend to lay down a law that a child can never be guilty of  contributory negligence but ordinarily the same is a question of fact.  [See  Muthuswamy and another v. S.A.R. Annamalai and others [1990 ACJ 974] 6.      A contributory negligence may be defined as negligence in not  avoiding the consequences arising from the negligence of some other person,  when means and opportunity are afforded to do so.  The question of  contributory negligence would arise only when both parties are found to be  negligent.    

7.      The question is, negligence for what?  If the complainant must be  guilty of an act or omission which materially contributed to the accident and  resulted in injury and damage, the concept of contributory negligence would  apply.  [See New India Assurance Company Ltd. v. Avinash 1988 ACJ 322

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(Raj.)]

       In T.O. Anthony v. Kavarnan & Ors. [(2008) 3 SCC 748, it was held  

"6. ’Composite negligence’ refers to the negligence  on the part of two or more persons. Where a  person is injured as a result of negligence on the  part of two or more wrong doers, it is said that the  person was injured on account of the composite  negligence of those wrong-doers. In such a case,  each wrong doer, is jointly and severally liable to  the injured for payment of the entire damages and  the injured person has the choice of proceeding  against all or any of them. In such a case, the  injured need not establish the extent of  responsibility of each wrong-doer separately, nor  is it necessary for the court to determine the extent  of liability of each wrong-doer separately. On the  other hand where a person suffers injury, partly  due to the negligence on the part of another person  or persons, and partly as a result of his own  negligence, then the negligence of the part of the  injured which contributed to the accident is  referred to as his contributory negligence. Where  the injured is guilty of some negligence, his claim  for damages is not defeated merely by reason of  the negligence on his part but the damages  recoverable by him in respect of the injuries stands  reduced in proportion to his contributory  negligence. 7. Therefore, when two vehicles are involved in an  accident, and one of the drivers claims  compensation from the other driver alleging  negligence, and the other driver denies negligence  or claims that the injured claimant himself was  negligent, then it becomes necessary to consider  whether the injured claimant was negligent and if  so, whether he was solely or partly responsible for  the accident and the extent of his responsibility,  that is his contributory negligence. Therefore  where the injured is himself partly liable, the  principle of ’composite negligence’ will not apply  nor can there be an automatic inference that the  negligence was 50:50 as has been assumed in this  case. The Tribunal ought to have examined the  extent of contributory negligence of the appellant  and thereby avoided confusion between composite  negligence and contributory negligence. The High  Court has failed to correct the said error."

8.      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 which was being driven 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.

9.      The matter might have been different if by reason of his rash and  negligent driving, the accident had taken place.  

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10.     We, therefore, are of the opinion that the impugned judgment cannot  be sustained which is set aside accordingly.  Appellant is entitled to the said  sum of Rs. 30,000/- by way of compensation with interest at the rate of 7=%  per annum from the date of the award till making of the payment.  Even  otherwise there is no reason as to why in view of the nature of the injuries he  has suffered, he should be deprived of even the petty sum of Rs.30,000/- by  way of compensation.  The appeal is allowed with the aforementioned  direction.  No costs.