IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  _______OF 2009 (Arising out of S.L.P.(Civil) NO.9944 of 2006)

Krishan Gopal & Anr.       ...   Appellants

Vs.

Sandhya Devi & Ors.    ...   Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The respondents herein are the parents of one Jitender Sharma, who died in an accident on 21st

December,  1998.   The  respondents  filed  a  claim

petition, being No.39 of 1999, which was dismissed

by the Motor Accidents Claims Tribunal, Kullu, on

1st December,  2001.  Against  the  said  order  of

dismissal of their claim, the respondents preferred

an appeal, being FAO No.46 of 2002, in the High

Court  of  Himachal  Pradesh  at  Shimla,  which  was

allowed in favour of the respondent nos.1 and 2

herein on 29th November, 2005.  By virtue of the

said decision, the High Court held that Jitender

Sharma  had  died  due  to  the  rash  and  negligent

driving  of  Jitender  Thakur,  the  Appellant  No.2

herein, while he was driving the scooter owned by

the Appellant No.1 (father of Appellant No.2) and

that both of them were jointly and severally liable

to pay compensation of Rs.2 lakhs, together with

interest at the rate of 9 per cent per annum w.e.f.

6th October,  1999,  till  deposit  of  the  amount.

They were also directed to pay the costs of the

appeal to the respondents assessed at Rs.3,000/-.   

3. The appellants have filed the instant appeal

against the said decision of the High Court.    

4. In  order  to  appreciate  the  circumstances  in

which the Tribunal dismissed the claim petition and

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the High Court allowed the same, it is necessary to

briefly set out the facts leading to the filing of

the  claim  before  the  Motor  Accidents  Claims

Tribunal.   

5. On  21st December,  1998,  while  the  Appellant

No.2 herein was riding a scooter belonging to the

Appellant No.1, Krishan Gopal Thakur, there was an

accident in which the said scooter and a Himachal

Road Transport Corporation bus which was proceeding

from Kullu towards Manali, were said to have been

involved.  According to the claimants, the accident

had  occurred  on  account  of  rash  and  negligent

driving of the driver of the bus as well as the

driver of the scooter.  As far as the owner and

driver of the bus are concerned, it was their case

that no collusion had at all taken place between

the scooter and the bus.   However, as far as the

appellants are concerned, it is their case that the

scooter was being driven by the deceased himself

and the Appellant No.2 was the pillion rider on the

scooter. According to them, the accident had taken

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place  due  to  rash  and  negligent  driving  of  the

driver of the bus in question.  On the materials

before it the Motor Accidents Claims Tribunal came

to the conclusion that the claimants had failed to

prove  that  the  accident  had  occurred  due  to

negligence  of  the  bus  driver  and  dismissed  the

claim petition accordingly.  

6. In  appeal,  it  was  observed  that  the  main

question which arose in the appeal was as to who

was  driving  the  scooter  at  the  time  of  the

accident. In the FIR (FIR No.255 of 1998) it has

been  shown  that  the  same  was  recorded  at  the

instance of Jitender Thakur son of Krishan Kumar,

who  is  the  Appellant  No.2  herein.   The  FIR

indicates that the complainant, Jitender Thakur and

deceased Jitender Sharma, had gone to Haripur and

were,  thereafter,  coming  on  his  scooter  which

skidded on some sand lying on the road.  At the

same time, one HRTC bus came from the opposite side

which, however, did not hit the scooter and they

had  suffered  the  injuries  even  before  the  bus

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reached them. The accident was, however, witnessed

by one Rewati Devi, who was examined as PW.5 and

deposed  that  while  she  was  drinking  tea  in  the

Dhaba  of  Milap  Chand,  she  saw  Jitender  Thakur

driving the scooter with Jitender Sharma sitting as

the pillion rider.   At the same time, a bus was

coming from the opposite side and collided with the

scooter due to the fault of both the bus driver as

also the driver of the scooter.  She also deposed

that Jitender Sharma who was sitting at the pillion

of the scooter, died as the handle of the scooter

pierced his stomach. She categorically stated that

the scooter did not skid on the spot as had been

indicated in the First Information Report.   

7. From what has been mentioned hereinabove, there

appears to be two versions of the accident in which

Jitender Sharma died.  The version of the claimant

is that the scooter in question was being driven by

Jitender  Thakur,  the  Appellant  No.2  herein,  and

that the deceased was the pillion rider.  Jitender

Thakur, who was also the complainant, had, at the

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initial stage while lodging the First Information

Report, stated that the scooter had slipped on a

patch of sand and that the bus was not involved in

the accident and that injuries to the deceased had

already occurred before the bus reached the scene

of the accident.  Subsequently, however, he changed

his  tune  and  contended  that  the  accident  had

occurred  on  account  of  the  rash  driving  and

negligence of the bus driver.

8. Apart from the said two conflicting versions of

the incident, as depicted by the Appellant No.2,

there is another dispute as to who was actually

driving  the  scooter  belonging  to  the  Appellant

No.1.  While it has been claimed by the Appellant

No.2 that it was the deceased who was driving the

scooter and that he was the pillion rider and was

not, therefore, responsible for the accident, his

version has been contradicted by P.W.5 Rewati Devi,

who has categorically stated that she had witnessed

the accident and that it was the Appellant No.2 who

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was driving the scooter and that the deceased was a

pillion rider.

9. The trial court accepted the version of the

Appellant No.2 that he was the pillion rider while

the  deceased  was  driving  the  scooter  and

consequently came to a finding that the complainant

had not been able to prove that the Appellant No.2

was responsible for the accident in which Jitender

Sharma  died  and,  therefore,  rejected  the  claim

petition of the respondents herein.

10. The High Court, however, in appeal accepted the

version of the accident as narrated by P.W.5 Rewati

Devi and has come to a definite finding that it was

not the deceased, but the Appellant No.2 who was,

in  fact,  driving  the  scooter.   The  High  Court,

therefore,  disagreed  with  the  finding  of  the

Tribunal that the deceased was himself responsible

for the accident and held the Appellant No.2 to be

the only person responsible for the accident and

that since the Appellant No.1 was the owner of the

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scooter,  he  too  was  liable  for  payment  of

compensation  to  the  claimants,  who  are  the

respondents herein.   

11. From  the  facts  as  narrated  hereinabove,  the

view  taken  by  the  High  Court,  relying  on  the

evidence  of  P.W.5,  does  not  appear  to  be

improbable.  Apart from the fact that P.W.5 was the

only eye-witness to the actual accident, the High

Court has also disbelieved the version projected on

behalf  of  the  appellants  on  account  of  the

different stands taken by the Appellant No.2 as to

how the accident actually occurred.  While at the

very initial stage it had been contended by the

Appellant No.2 that the accident had occurred even

before the bus had arrived at the scene, at a later

stage it was contended that it was the bus driver’s

negligence which had caused the accident.  The High

Court also took note of the fact that the Appellant

No.2 had not come forward to be examined as to how

the accident had actually taken place.   

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12. The reversal of the Award of the Motor Accident

Claims Tribunal by the High Court cannot be said to

be  perverse or without any basis  and we see no

reason to interfere with the same.  The appeal is,

accordingly,  dismissed,  with  costs  assessed  at

Rs.20,000/-.

________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 18.2.2009

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