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FARAD CONTINUATION SHEET NO.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
First Appeal No.91/1993
Executive Engineer,
Medium Project Division,
Yeotmal. ..APPELLANT
(Ori. Non-applicant No.1)
..VERSUS..
1. Smt. Sunanda W/o Madhukar Mahalley,
Aged about 30 Yrs., Occu. Household,
R/o Bramhanwada (Govindrapur),
P.S. Mahuli Jahangir,
District Amravati.
2. Ku. Savita D/o Madhukarrao Mahalley,
Aged about 13 Yrs., Minor.
3. Ku. Vanita D/o Madhukar Mahalley,
Aged about 3 Yrs., Minor.
Respondents 2 and 3 through G.A.L.
Mother respondent no.1/original Applicant
4. Gangaram S/o Mahadu Dhule,
Aged about 30 Yrs., R/o Shembalpimpri,
Tq. Pusad, Dist. Yeotmal,
presently R/o Singandoh, Project,
P.S. Ladkhed,
Tq. Ner, Dist. Yavatmal. (Or. N.A. No.2)
..RESPONDENTS
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Ms R.A. Wasnik, A.G.P. for appellant.
Mr. Bharat Vora, counsel for the respondent nos.1 to 3.
Mr. K.R. Lambat & Mr. D.S. Yadav, counsel for the respondent no.4.
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Coram : F.M.REIS, J.
Dated : 3rd March 2010.
ORAL JUDGMENT
1. Heard the learned A.G.P. for appellant, learned
counsel for the respondent nos.1 to 3 and the learned
counsel for the respondent no4.
2. The parties shall be referred in the manner as they
appear in the cause title of the impugned award dated 29th
September 1992.
3. The respondent nos.1 to 3/applicants filed a claim
for compensation of a sum of Rs.1,00,000/- on account of
death of deceased Madhukar Pundlik Mahalley caused on
account of a motor accident which occurred on 3rd
December 1989 at around 3.30 p.m. It is the case of the
said applicants that on the said date the said deceased had
gone to the bus-stand at Ner and he found a truck tanker
bearing No.MHV-1388 was stationary on the road, the
non-applicant no.2 was the driver of the said truck tanker.
As the said truck was not starting, the deceased along with
some other persons pushed the tanker and immediately
the tanker started but the non-applicant no.2 could not
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stop the tanker which resulted in the deceased coming
beneath the tanker thereby causing his death. It is
further their contention that the said accident occurred on
account of rash and negligent driving on the part of the
non-applicant no.2 and consequently, filed said petition
for the compensation against the non-applicant no.2 as
well as the non-applicant no.1 who are admittedly the
owners of the said tanker. It is further their contention
that the said deceased was earning Rs.420/- per month
and in view of his death, the applicants are entitled to a
sum of Rs.1,66,400/- on account of the dependency
besides a sum of Rs.25,000/- on account of shock and loss
of consortium however, they have restricted their claim to
a sum of Rs.1,00,000/-.
4. The claim of the applicants was resisted by the
non-applicant nos.1 and 2 by filing their written
statements which are at Exh.20 and 28. It is the
contention of the of the non-applicant no.1 that they do
not dispute that they are the owners of the said vehicle nor
that the non-applicant no.2 was an employee of the
non-applicant no.1. They also did not dispute that the
accident occurred which resulted in the death of the
deceased however, they disputed the contention of the
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applicants to the effect that the accident occurred due to
rash and negligent driving on the part of the
non-applicant. It is further their contention that although
non-applicant no.2 was in service, the said non-applicant
was in-charge of the road roller and he was on duty and it
was his duty to drive the road roller and no other vehicle.
It is further their driver of the said ill-fated tanker, and
that the non-applicant no.2 had no authority to drive the
said vehicle and that on the eventful date the non-
applicant no.2 without the permission of the higher
authorities took the tanker into his custody and caused the
accident with the said vehicle. The act of driving of said
vehicle by non-applicant no.2 was unauthorized and as
such the non-applicant no.1 is not vicariously liable for the
act of the non-applicant no.2.
5. In the written statement filed by non-applicant
no.2 he admitted that he took the tanker from Singandoh
to Ner and that the deceased came beneath the tanker at
the relevant time and place and died. He further
contended that he was in charge of the road roller but as
an experienced driver was also assigned a job to drive
other vehicles by the higher authority as and when
required. It is further his contention that as the wife of the
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Watchman suddenly fell ill, at the request of the
Watchman he took her to the hospital to give her medical
aid. At the relevant place, he had not requested the
deceased to push the tanker but he on his own came near
the tanker and fell which resulted in his death on account
of his own negligence. Consequently, the said
non-applicants prayed that the Claim petition deserves to
be rejected.
6.
The Motor Accident claim Tribunal after framing
the issues and recording the evidence by award dated 29th
September 1992 partly decreed the claim of the
applicants and directed the non-applicants to pay jointly
and severally a sum of Rs.86,000/- inclusive of the no-fault
liability compensation to the applicants with interest at the
rate of 12 % per annum from the date of the application
until the actual payment. Being aggrieved by the said
award, the non-applicant no.1 has preferred the present
appeal.
7. The learned A.G.P. appearing for the appellant
submitted that there was no justification in directing the
non-applicant no.1 to pay compensation to the applicants.
It is her contention that the non-applicant no.2 was not
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authorized to drive the said vehicle and as such the act on
the part of the non-applicant no.2 was unlawful and as
such the non-applicant no.1 is not liable to pay the said
compensation to the applicants. It is further her
contention that the non-applicant no.1 cannot be held to
be vicariously liable to pay the amount as according to the
learned A.G.P., the act on the part of the non-applicant
no.2 was unauthorized and as such no liability can be
fastened on them. The learned A.G.P. further submitted
that there is no evidence to show that the non-applicant
no.2 was driving the said vehicle rashly and negligently
and as such the non-applicant no.1 is not liable to pay the
said amount. It is further her submission that the appeal
deserves to be allowed and award of the Tribunal directing
the non-applicant no.1 to pay the amount deserves to be
quashed and set aside.
8. On the other hand, the learned counsel
appearing for the applicants supported the award and
submitted that there was ample evidence on record to the
effect that the accident occurred due to rash and negligent
driving on the part of the non-applicant no.2. It is further
his submission that there is a presumption that once the
ownership of the said tanker has been admitted by the
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non-applicant no.2, he is vicariously liable to the acts of
the driver. It is further his submission that there is no
evidence on record to show that the respondent no.2 was
not authorized to drive the said vehicle. He has further
submitted that in fact the witnesses of the non-applicant
no.1 had admitted that in case of emergency situation, the
said tanker could have been taken to provide medical aid
to persons who are in need of such aid. He further
submitted that the non-applicant no.2 in fact allowed to
drive the vehicles as and when the need arises and as such
it cannot be said that the act on the part of the non-
applicant no.2 was unauthorized. The learned counsel
further submitted that the accident occurred due to rash
and negligent driving of the non-applicant no.2 on account
of his failure to stop the said vehicle after the same has
started. He accordingly submitted that no interference is
called for in the impugned award passed by the Motor
Accident Claim’s Tribunal and that the appeal has no
merits and deserves to be dismissed.
9. The learned counsel for the non-applicant no.2
has submitted that the non-applicant was authorized to
drive the said vehicle though at the time of specific
eventualities and as such it cannot be said that his act to
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drive the ill-fated tanker was unauthorized. He has further
submitted that the non-applicant no.2 is a poor person and
is not in position to pay any amount of compensation.
10. Having heard the learned A.G.P. and the learned
counsels for the parties and on perusal of the records the
following points arise for determination in the present
appeal –
1. Whether the non-applicant no.1/appellant
are vicariously liable to pay thecompensation to the applicants/respondent
nos.1 to 3 on account of the accident which
resulted in the death of the deceased ?
2. Whether the compensation awarded by the
Motor Accident clam’s Tribunal isexorbitant ?
11. Dealing with the said points for determination,
in the cross examination of Vishwanath Joshi on behalf of
the applicant no.1 he has admitted that in case of
emergency when a person had need of medical help a
vehicle of the department is used for taking such a person
to the hospital. In such cases the permission can be
granted ex-post-facto. He has further stated that the
enquiry revealed that the Watchman had asked the non-
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applicant no.2 to take the vehicle to provide medical aid
to his wife. The said submissions of the non-applicant
no.1 discloses that in case of emergency situation the
truck/tanker could have been used which belong to the
department to take the persons who required medical
attention. In the present case it is not in dispute that the
tanker was being used to take the wife of the Watchman
for medical aid to the hospital at Ner. This discloses that
the taking vehicle to Ner by the non-applicant no.2 at the
relevant time cannot be said to be unauthorized.
12. As far as the contention that the non-applicant
no.2 was not authorized to drive the said vehicle, I find
that the said non-applicant has stated in his deposition
that he was working as an Operator of the road roller at
Singandoh project. He has further stated that he also
worked as a driver of truck as per the oral order of the
Project Officer. If any regular driver was on leave, he was
asked to drive the vehicle by the superiors. He has further
stated that the driver of the truck bearing No.1388 was on
leave on the relevant date and that the wife of Watchman
was ill and as such he took her to the hospital in the said
truck to Ner. He has further stated that he was entitled to
take away the said vehicle for private purposes, provided
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he paid certain amount to the office. He has further
deposed that the starter of the tanker was not in order and
hence he collected some persons and asked them to push
the said tanker which he had parked near the bus-stand.
He further deposed that he had not called the deceased.
The next witness examined by the non-applicant no.1 is
the driver Shri Vasant Waghade. He deposed that he had
never authorized the non-applicant no.2 to drive the
tanker nor he was authorized by any other person to drive
the said tanker. He further deposed that he left the
premises at around 5.30 p.m. on 21/2/1989 and he had
kept the tanker at the site and asked the Watchman to
keep watch on the said tanker as he had taken leave on
account of the illness of his mother. He further deposed
that on the date when he parked the said vehicle, he let
the wires of the battery loose to take necessary
precautions. In the cross examination, he admitted that
even if the wires of the battery of the tanker are not
operating, the tanker can be started by giving a push.
13. Though the evidence on record may disclose
that there was no order to the non-appellant no.2
authorizing him to drive the said tanker on the said date
nevertheless, the evidence demonstrates that in specific
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eventualities, the non-applicant no.2 was allowed to drive
the said vehicle as per the oral instructions of the officers.
The witness of the non-applicant – Shri Joshi in his cross
examination also admitted that in the enquiry which was
held there was no evidence to show that the non-applicant
no.2 had forcefully taken the vehicle from the site. Apart
from the fact that the evidence of the non-applicant no.1
further disclosed that though it was contended by the said
non-applicant that taking the vehicle unauthorizedly was a
serious mater nevertheless, no punishment was inflicted on
the non-appellant no.2 on account of such acts.
Considering that at the relevant time even the Technical
Assistant was not available at site, I find that, in the overall
consideration of the mater, there was implicit approvals
for the non-applicant no.2 to drive the said vehicle in
emergency situation. The evidence further discloses that at
the instance of the said Watchman who was also an
employee of non-appellant no.1, the non-applicant no.2
was forced to drive the said vehicle in view of the fact that
the wife of the said Watchman was ill. In the judgment
reported in AIR 1979 Karnataka 134 ( K. Jayaraja Ballal
V/s. Alfred Quadres and another ) relying upon the
judgment of the Apex Court it has been held that the
presumption is that the driver of motor vehicle is driving
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the vehicle on his own master’s business as his authorized
agent. The burden is on the owner to rebut the
presumption. If a person drives a vehicle with the consent
of the owner or his Manager, the owner will became
vicariously liable for the accident caused by the driver. It
is further been held that when the owner of the vehicle has
exclusive charge of the vehicle, and the driver allows
another person to drive the said vehicle which resulted in
an accident, the owner will became liable for the damages
for the injury caused. The Apex Court in the judgment
reported in 1996 (2) Bom. C.R. 153 ( State of Maharashtra
and others V/s. Kanchanmala Vijaysingh and others) has
held at para 9 as under –
“The question of payment of compensation for
motor accidents has assumed great importance
during the last few decades. The road accidentshave touched a new height in India as well as in
other parts of the world. Traditionally, before
the Court directed payment of tortcompensation, the claimant had to establish the
fault of the persons causing injury or damage.
But of late, it shall appear from different
judicial pronouncement that the fault is being
read as because of someone’s negligence orcarelessness. Same is the approach and attitude
of the Courts while judging the vicarious liability
of the employer for negligence of the employee.
Negligence is the commission to do something
which a reasonable man expected to do or a
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prudent man expected to do. Whether in the
facts and circumstances of a particular case, the
person causing injury to the other was negligent
or not has to be examined on the material
produced before the Court. It is the rule that an
employer, though guilty of no fault himself, is
liable for the damage done by the fault or
negligence of his servant acting in the course of
his employment. In some case, it can be found
that an employee was doing an authorized act in
an unauthorized but not a prohibited way. The
employer shall be liable for such act, because
such employee was acting within a scope of his
employment and in so acting did something
negligent or wrongful. A master is liable even
for acts which he has not authorized provided
they are so connected with acts which he has
been so authorized. On the other hand, if the
act of the servant is not even remotely connected
within the scope of employment and is an
independent act, the Master shall not be
responsible because the servant is not acting in
the course of his employment but has gone
outside. In Salmands Law of Tort (28th Edn.) at
page 458 it has been said ;
“On the other hand it has been held
that a servant who is authorized to drive a motor
vehicle and who permits an unauthorized person
to drive it in his place, may yet be acting within
the scope of his employment. The act of
permitting another to drive may a mode, albeit
and improper one, of doing the authorized work,
the master may even be responsible if a servant
impliedly, and not expressly, permits an
unauthorized person to drive the vehicle, as
where he leaves it unattained in such a manner
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that it is reasonably foreseeable that the third
party will attempt to drive it, at least if the
driver retains notional control of the vehicle.”
14. In view of the said judgment and from the
material on record it is oblivious that the act committed by
the non-applicant no.2 was within the course of the
employment and as such the non-applicant no.1 is liable to
pay the compensation for the rash and negligent driving of
the vehicle by the non-applicant no.2. As such, I find that
no interference is called for in the findings of the Tribunal
to the effect that the non-applicant no.1 is vicariously
liable to pay for the acts committed by the non-applicant
no.2. The said point for determination is answered
accordingly.
15. With regard to the contention of the learned
counsel for the appellant as far as the quantum of
compensation is concerned, I find that he Tribunal has
awarded the compensation in a just and proper manner.
The Tribunal has come to the conclusion considering the
uncertainties of human life and looking to the facts of the
case that the amount of annual dependency was a sum of
Rs.3,000/-. Considering that the deceased was 34 years
the Tribunal came to the conclusion that the applicants
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were entitled for a sum of Rs.81,000/- on account of
dependency and a further sum of Rs.5,000/- has been
awarded towards consortium, love and affection. I find
that there is no infirmity committed by the Tribunal in
awarding the compensation considering the income of the
deceased and the age at the time of his death. The amount
as awarded by the Tribunal is in accordance with law and
no interference is called for on that count.
16.
In view of the above, there is no merits in the
above appeal and as such the above appeal stands
dismissed with costs.
Judge.
Tambaskar.
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