“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                OF 2010 (Arising out of SLP (C) No. 24891 of 2009)

Saroj & Ors. … Appellants

Versus

Het Lal & Ors.  …Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.   

2. In this appeal, the judgment of the High Court  

affirming  the  judgment  of  the  Motor  Accident  Claims  

Tribunal,  Gurgaon  (hereinafter  referred  to  as  ‘the  

Tribunal’)  dismissing  the  claim  of  the  claimants-

appellants has been challenged.  Shortly stated, the  

factual conspectus is as under:-

Claimants-appellants are the legal representatives  

of one Joginder Singh who was a young man of 34 years.  

An  accident  took  place  on  16.09.2005  while  deceased  

Joginder  Singh  was  driving  a  motorcycle  bearing  

registration  No.HR-26-P/9413  while  going  to  village  

Nimot from village Mandavar.  As per the claim, the

motorcycle met with an accident as it was hit by a  

vehicle, Tata 207 bearing registration No. HR-38-L/6592  

which was being driven in a rash and negligent manner.  

It is claimed that in that accident Joginder Singh died  

on the spot.  He was claimed to be a registered medical  

practioner and that his monthly earning was Rs.25,000/-  

approximately.   Therefore,  a  claim  was  filed  under  

Section  166  of  the  Motor  Vehicles  Act  wherein  the  

driver Het Lal, owner of the vehicle Pramod Kumar and  

the  Oriental  Insurance  Company  were  joined  as  party  

respondents.  The claim was opposed by the driver and  

he took the plea that no such accident ever took place  

though  he  admitted  that  he  was  the  driver  of  

aforementioned vehicle.  In his statement, however, the  

owner i.e. respondent No.2, while opposing the claim,  

admitted that his vehicle was engaged in the accident  

in paragraph three of his written statement.  The part  

of paragraph 3 of the written statement of respondent  

No.2 is as under:

“The  present  claim  petition  is  not  maintainable  against  the  answering  respondent in view of the facts mentioned in  preliminary  objection  No.1  above  and  especially  when  the  deceased  was  driving  motorcycle  No.HR-26-P-9413  rashly,  negligently  at  a  reckless  speed  without  wearing  helmet,  without  holding  effective

and  valid  licence,  hit  Tata  207  bearing  No.HR-38-L-6592  of  respondent  No.2  from  behind as he could not control his speed and  thus, the deceased himself was the author of  the alleged accident and there was no fault  on  the  part  of  respondent  No.1  who  was  driving  the  Tata  207  with  moderate  speed,  adopting traffic regulations and with valid,  effective  driving  licence.   Hence  this  petition is liable to be dismissed on this  ground alone.”

3. The same plea is repeated in the written statement  

while  replying  to  paragraphs  1  to  13  of  the  claim  

petition practically in the same words as stated above.  

The  owner  of  the  vehicle  also  went  on  to  oppose  the  

petition on the ground that the claimants-appellants were  

not the only legal heirs of the deceased nor were the  

sufferers or dependant upon him and that they had filed  

the  petition  only  to  extract  huge  amount  by  way  of  

compensation.   The  claims  made  by  the  claimants-

appellants in their petition about the age and income of  

the deceased were also denied.

4. Thus, it was clear that at least the owner of the  

vehicle admitted the claim made in the claim petition to  

the effect that the vehicle was engaged in an accident  

with the vehicle of the deceased and that it was being  

driven by respondent No.1 who was his driver.  In support

of their claim of the appellants, following issues were  

framed by the Tribunal, they being:-

(1) whether the accident took place due to rash  and negligent driving of vehicle No. HR-38- L/6592 by respondent No.1?

(2) whether  the  petitioners  are  entitled  to  compensation on account of death of Joginder  Singh in the accident and, if so, to what  amount and from whom?

(3) whether  respondent  No.1  was  not  holding  a  valid and effective driving licence at the  time of the accident?

(4) Relief.

5. While respondent Nos.1 and 2 did not contest the  

claim and they were proceeded ex parte, it was only the  

insurance company, the third respondent who took part in  

the proceedings and tendered some documents to support  

their claim.

6. One Virender Singh was examined as PW-11 who was an  

eye-witness to the accident.  He supported the fact of  

accident  which  took  place  near  a  bridge.   He  also  

asserted that the Tata 207 vehicle was being driven at a  

very high speed and in a rash and negligent manner and it  

hit a motorcyclist from behind.  He also gave the correct  

registration  number  of  the  motorcycle.   The  only  

suggestion made to him was that he was not present at the

time of the accident and he was a procured witness.  The  

appellants  also  led  the  evidence  that  the  driver,  

respondent No.1 was facing trial for causing accident in  

the Court of Smt. Ranjana Agrawal, Judicial Magistrate 1st  

Class, Gurgaon for offences under Sections 279 and 304A,  

Indian Penal Code (IPC).  The Tribunal took the note that  

the First Information Report was filed after 18 hours of  

the accident by the brother of the deceased wherein it  

was claimed that his elder brother Joginder Singh who was  

riding  the  motorcycle  No.HR-26-P/9413  was  hit  by  some  

unknown vehicle and he died on the spot.  The Tribunal  

also  noted  that  this  witness  had  done  the  further  

formalities of removing the dead body etc.  The Tribunal  

then posed a question to itself as to how and under what  

circumstances the police came to know that accident was  

caused by the Tata 207 vehicle belonging to respondent  

No.2 and that at the time of the accident, it was being  

driven by respondent No.1.  The Tribunal noted that one  

Dhani Ram of village Sanpla was present at his house when  

the first respondent, who was the son of his brother-in-

law, came to him and asked him to produce him before the  

police saying that the accident in question was caused by  

him.   Dhani  Ram,  on  this,  asked  him  to  bring  the  

offending vehicle which he brought.  That is how Het Lal

produced himself on 18.9.2005 to the police along with  

the vehicle.  The Tribunal questioned this and doubted  

this story of Dhani Ram.  According to the Tribunal,  

there was no reason for respondent No.1 to go to Dhani  

Ram and make the request, as he did.  The Tribunal also  

drew an adverse inference on account of non-examination  

of Dhani Ram.  The Tribunal also noted the fact that in  

the  charge-sheet,  Exhibit  P-9,  Virender  Singh  was  

initially  not  cited  as  a  witness.   The  Tribunal,  

therefore,  deduced  that  the  alleged  confession  by  

respondent No.1 to Dhani Ram was a weak type of evidence.  

Virender Singh was introduced as eye-witness and his name  

was added with different ink in the report in last at  

serial No.11.  The Tribunal did not accept his evidence  

on the ground that Virender Singh did not take any step  

to go to the police after having seen the accident and  

his statement was recorded as late as after 20 days.  The  

Tribunal  also  refused  to  comment  on  the  fact  that  

respondent No.1 was facing a trial for the offence under  

Sections 279 and 304A, IPC.  Lastly, the Tribunal wrote a  

finding that it was apparent that it is a case of hit and  

run  by  some  unknown  vehicle  and  the  alleged  unknown  

vehicle was a introduced vehicle to claim compensation.  

7. In view of this, the claim was dismissed.   

8. The claimants-appellants came to the High Court and  

the High Court virtually confirmed the order repeating  

the findings given by the Tribunal including a finding  

that the offending vehicle owned by respondent No.2 and  

allegedly driven by respondent No.1 was not involved in  

the accident at all.

9. Shri Balakrishnan, learned senior Counsel appearing  

on behalf of the appellants pointed out firstly that both  

the Courts below have totally failed to apply their mind  

to  the  pleadings  and  that  has  resulted  in  grave  

miscarriage  of  justice.   He  pointed  out  that  the  

involvement of the Tata 207 vehicle owned by respondent  

No.2 in this very accident was an admitted fact which was  

admitted in pleadings and as such both the Courts below  

were wholly unjustified in holding that the said vehicle  

was not involved in the accident and that it was a hit  

and run case.  The learned Counsel urged that the finding  

that this was a hit and run case where the vehicle, Tata  

207 was not involved was a mere imagination on the part  

of the Tribunal which even the High Court failed to note.  

The learned Counsel urged that in fact it was an admitted  

position that respondent No.1 was being prosecuted for

causing the accident and death while he was driving the  

very same vehicle.  The learned Counsel further urged  

that  there  was  nothing  unnatural  in  the  evidence  of  

Virender  Singh  and  merely  because  his  statement  was  

recorded later on, that by itself was no reason to dis-

believe the evidence as he was a totally dis-interested  

witness.  The learned Counsel also pointed out that non-

examination of Dhani Ram was also of no consequence for  

the  simple  reason  that  police  indeed  found  that  the  

accident had taken place wherein the said vehicle, Tata  

207  was  involved  on  the  one  hand  and  the  motorcycle  

driven  by  Joginder  Singh  on  the  other.   The  learned  

Counsel, therefore, pointed out that the judgments of the  

Courts below could not be sustained.   

10. On the other hand, Shri S.L.Gupta, learned Counsel  

appearing on behalf of respondent No.3, Insurance Company  

tried to support the findings and also admitted that even  

if this was a case of hit and run accident, even then the  

appellants were liable to be paid the no-fault liability  

under  Section  161  of  the  Motor  Vehicles  Act  which  

admittedly was not paid to them.   

11. Shri  Gagan  Gupta,  learned  Counsel  appearing  on  

behalf of respondent No.1, driver, however, denied that

any accident had ever taken place or that the driver was  

involved in any accident.  Respondent No.2, however, did  

not choose to come before us.

12. On considering the rival arguments, it must be said  

that  the  petition  could  not  have  been  dismissed  in  

totality.  Presuming it to be a hit and run case, the  

appellants were entitled to at least Rs.25,000/- as per  

the  provisions  of  Section  161  (3)  (a)  of  the  Motor  

Vehicles  Act.   Therefore,  both  the  Courts  below  have  

obviously failed to note this provision.  But that is not  

the end of the matter.  In our opinion, both the Courts  

below have completely erred in giving the finding that it  

was a hit and run case and that the concerned vehicle  

belonging  to  respondent  No.2  was  not  involved  in  the  

accident.  Insofar as that finding is concerned, it was  

an admitted position in the pleadings of respondent No.2  

that firstly, the Tata 207 vehicle bearing registration  

No. HR-38-L/6592 was involved in an accident with the  

motorcycle  bearing  registration  No.HR-26-P/9413  which  

took place on 16.9.2005 at 3.30 p.m. and secondly, the  

said vehicle was being driven by respondent No.1.  This  

admission in the pleadings which we have quoted in the  

order was itself sufficient to hold that the concerned

vehicle belonging to respondent No.2 was involved in the  

accident.   This  admission  was  never  traversed  by  

respondent No.2 and, thus, there was no occasion to hold  

that the said vehicle was not involved and that it was a  

hit and run case.  It is surprising that not only the  

Tribunal but the High Court also should have ignored the  

vital admission on the part of respondent No.2.  It was  

nobody’s case that this admission of respondent No.2 was  

in  collusion  between  respondent  No.2  and  appellants.  

Once this position is clear, there is no occasion for  

holding that the vehicle was not involved in the accident  

and on that count exonerating the three respondents.   

13. In strict sense, this admission may not be binding  

vis-à-vis respondent No.1, the driver, who continued to  

take a stand that vehicle being driven by him was not  

involved in the accident.  This defence of respondent  

No.1 is understandable as admittedly he is facing the  

prosecution  for  causing  the  accident  and  the  death  

thereby of deceased Joginder Singh on 16.9.2005 at 3.30  

p.m.

14. Shri Gupta, learned Counsel could not dispute the  

written statement, copy of which is filed before us and  

the fact that there was an admission by respondent No.2

that the vehicle belonging to him was involved in an  

accident.

15. It is obvious that both the Courts below have failed  

to note this fact.  The judgments, therefore, would have  

to be set aside and the matter would have to be remitted  

back  to  the  Tribunal  to  decide  the  liability  of  the  

respondents on account of the accident caused by Tata  

vehicle No.207 bearing registration No. HR-38-L/6592 with  

motorcycle bearing registration No.HR-26-P/9413 and the  

death of Joginder Singh in the same.  It was tried to be  

feebly  argued  that  under  any  circumstances,  the  

negligence was only on the part of the motorcyclist and  

there will be no question of any compensation on that  

count.  We are afraid, we cannot appreciate this.  The  

Tribunal has not considered the matter from this angle.  

It is for this reason that we are inclined to remand the  

matter  back  to  the  Tribunal  only  on  the  question  of  

liability for compensation on the part of respondent Nos.  

1, 2 and 3.  The matter is pending for the last five  

years.  It is an admitted position that the appellants  

have  not  received  any  compensation  up  till  now.  

Therefore, the Tribunal shall be well advised to dispose  

of the matter within six months from the date on which

this order is received by the Tribunal.  The Tribunal  

shall hear the parties again and shall dispose of the  

matter in the light of the observations we have made  

above  regarding  questions  like  no-fault  compensation  

along  with  other  necessary  questions.  The  appeal  is  

allowed in these terms.  The costs are assessed at Rs. 25,000/-.

...………………….….J.

[V.S. Sirpurkar]

 ...………………….….J.

    [T.S. Thakur] New Delhi; December 7, 2010

J