JUDGMENT
S.K. Dubey, J.
1. The appellant driver has filed the two appeals, M.A. Nos. 68 of 1987 and M.A. No. 79 of 1987, under Section 110-D of the Motor Vehicles Act, 1939 (for short ‘the Act’), aggrieved of the common award dated 27.11.1986 passed by Additional Motor Accidents Claims Tribunal, Jabalpur in Claim Case No. 12 of 1982 for the death of Raja Dongra arising out of motor accident on 7.2.1981 a compensation of Rs. 11,000/- was awarded and in Claim Case No. 13 of 1982 an amount of Rs. 20,000/- as compensation for the death of Ganesh Datta was awarded with interest at the rate of 10 per cent per annum, exonerating the owner of the jeep and the insurance company holding that the driver exceeded his authority in carrying passengers beyond the scope of his employment. The legal representatives of deceased Ganesh Datta have filed M.A. No. 87 of 1987 and M.A. No. 88 of 1987 has been filed by the legal representatives of the deceased Raja Dongra for enhancement of the compensation.
2. Facts giving rise to these appeals are these. Admittedly the appellant Virendra Kumar is the driver of the University who was entrusted with the jeep in the evening of 6.2.1981 to drop officers of the University next morning at the bus station. On the next day morning when the appellant/driver dropped the passengers at the bus station where according to the driver Accountant Mishra who was one of the two officers, directed the driver to get the service of the vehicle done at any service station. Therefore, at about 9.30 a.m. as there was strike, after washing and cleaning the vehicle when the driver was going to Singhai Petrol Pump towards Bajna Math some persons without his permission came in the jeep and compelled the driver to carry them. When the jeep was going towards petrol pump near Chouhani Chowraha, truck No. MPO 3735 owned by one Bhurelal, respondent No. 2 and driven by Sharvanlal, respondent No. 1, carrying angle-irons came from opposite direction at high speed. Some portion of iron rods was out of the ‘dala’ of the truck which struck against the jeep causing damage to wind-screen and hood of the jeep, as a result of which the jeep did not remain in control of the driver and dashed against a culvert as a result of which Raja Dongra, aged 20 years fell down from the jeep and was crushed by the truck. The neck of other passenger Ganesh Datta, aged 18 years who was sitting in the jeep was cut by the iron rods. Both died instantaneously. The legal representatives of deceased Raja Dongra claimed compensation for the death arising out of the motor accident in a sum of Rs. 1,20,000/- and the legal representatives of Ganesh Datta claimed Rs. 2,00,000/-.
3. In Claim Case No. 13 of 1982 on the defence raised by the owner of the jeep, i.e., the Jawaharlal Nehru Krishi Vishwavidyalaya (University), issue Nos. 11 and 12 were framed which are reproduced thus:
(Omitted)
To prove the special defence raised by the University of which issue Nos. 11 and 12 were framed, University did not examine any witness nor put any question to its driver Virendra Kumar, N.A. No. 1. No cross-examination was done on the case put up by N.A. No. 1 that he was instructed by Accountant Mishra to take the vehicle for servicing. Accountant Mishra was also not examined in rebuttal to controvert the story as put up by N.A. No. 1. However, N.A. No. 1 in cross-examination by the insurance company, in para 17 admitted that he had no authority from the Agricultural College to allow and carry any passenger in the jeep. In para 18 he admitted that the jeep cannot be used as a taxi nor he was having any authority to admit passengers in the jeep.
4. The Tribunal after appreciating evidence adduced by the parties held that the story of the driver of the jeep of taking the vehicle for servicing wherein he was carrying passengers including his relative is an afterthought. He acted beyond the scope of his duty and employment. The accident occurred due to rash and negligent driving of the jeep. On quantum of compensation the Tribunal recorded a finding that Raja Dongra was earning Rs. 300/- per month from doing refrigeration work, hence for his death Rs. 10,000/- was awarded as general damages and Rs. 1,000/- under the head of funeral expenses. For the death of Ganesh Datta Pyasi the Tribunal recorded a finding that the deceased was earning a sum of Rs. 300/- per month, therefore, under the head of general damages an amount of Rs. 15,000/- and Rs. 5,000/- under the head of pain and suffering, in all Rs. 20,000/- was awarded as compensation. The Tribunal exonerated the owner and insurer of the jeep and the driver of the jeep was made liable to pay compensation as he acted beyond the scope of his authority.
5. To prove that the University as the master was vicariously liable, counsel for the appellant driver and the counsel for the claimants contended that the entrustment of the jeep to the driver in his duty is not denied who took the vehicle in the morning within the scope of his employment, therefore, while taking the vehicle for servicing at the instructions of Accountant Mishra who was not examined by the University nor the University led any evidence to demonstrate that the driver was instructed only to drop the passengers of the jeep at the bus station and to come back to the University, the Tribunal committed an error in holding that the driver of the jeep took the vehicle beyond the scope of his employment or the authority for which he was not authorised.
6. It was also contended by the counsel for the appellant driver that the driver of the truck was negligent as is evident from the statement of Pramod Kumar Shukla, AW 2 who has categorically stated that at the time of occurrence, speed of the truck as well as of the jeep was 60 km. per hour, as there was no space ahead and, therefore, the jeep dashed against the culvert as a result of which deceased Ganesh Datta Pyasi came beneath the rear wheel of the truck. In para 8 the witness has stated that the angle-irons were coming out of the truck about 11/2 to 2 ft. The accident occurred at the turn because of the dash by angle-irons whereby the jeep was badly damaged.
7. Regarding quantum the appellants-claimants submitted that the Tribunal committed an error in awarding the compensation of Rs. 20,000/- only to the legal representative of Ganesh Datta Pyasi who passed his Matriculation examination and was earning from agriculture. Even if the minimum wage of a labourer is applied with, it could not be less than Rs. 300/- per month. After deducting his own expenses of Rs. 150/- the amount of monthly dependency comes to Rs. 150/- and yearly Rs. 1,800/-, multiplied by the multiplier of 16, the amount would come to Rs. 28,800. The same compensation would be in case of death of Raja Dongra as he was 20 years of age and was earning Rs. 300/- per month.
8. Mr. A.G. Dhande, learned Counsel for the University and Mr. T.C. Naik, the learned Counsel for the insurance company contended that the appellant driver overstepped his authority. He was not authorised to take any passenger or to go to the temple where on way the accident occurred. Therefore, the Tribunal on appreciation of evidence, rightly exonerated the University and the insurance company. The finding recorded by the Tribunal is based on appreciation of oral evidence, hence is not liable to be interfered with in appeal. Reliance was placed on case of Madhusudan v. Varayanibai AIR 1983 SC 114.
9. Mr. Naik also submitted that the statutory liability of the insurance company is limited to the extent of Rs. 50,000/- only as per Section 95(2)(b) of the Act. Neither the claimants nor the owner have produced the policy or led any evidence to prove that any extra premium was paid to cover the unlimited risk of which the burden was upon the claimants or the owner of the vehicle.
10. After hearing counsel we are of the opinion that on reappraisal of evidence, driver of the truck as well as of the jeep equally contributed to the accident which is evident from the circumstances and the evidence of claimants in particular Pramod Kumar Shukla, AW 2. As regards liability of the owner of the jeep we are of the view that the Tribunal illegally and erroneously in absence of any evidence adduced by the parties and pleadings and issues framed, exonerated the owner of the jeep. Admittedly the driver was entrusted with the jeep who kept the jeep at his residence to drop the two officers at the bus station and then bring back the jeep at the University, after its servicing. As the entrustment of the jeep is not denied even though the appellant carried the passengers in the jeep unauthorisedly it cannot be said that for the accident owner is not vicariously liable and the driver was driving the jeep unauthorisedly. A Division Bench of this Court in case of State of Madhya Pradesh v. Ratna Devi 1991 ACJ 166 (MP), in a case where the driver of the jeep allowed the two passengers to travel in the jeep unauthorisedly which met with an accident and the driver took the jeep unauthorisedly without permission of his superior officer, relying on the decision of the Supreme Court in case of Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 1966 ACJ 89 (SC) and the decision in case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), drew an inference that whenever a driver drives a vehicle entrusted to him, it would be deemed that he is driving it for his employer unless it is shown to the contrary.
11. A Division Bench of Karnataka High Court in case of M.S. Rayta v. Gowrawwa Channabasappa 1987 ACJ 846 (Karnataka), has held that a driver of military goods vehicle who took fare from the passengers on the way in violation of departmental instructions would also make his employer liable to such fare-paying passengers in the truck in case of an accident.
12. The case in hand is in a better situation where the driver was entrusted with the jeep to drop officers of the University as part of his duty, in that the accident occurred. Taking into consideration the circumstances and in particular that when the specified plea was raised by the owner of the jeep and issues were framed to that effect no evidence was led by the University to demonstrate that the jeep was entrusted only to drop the officers of the University at the bus station and to come back and not to take vehicle to any other place, it cannot be said that the University as the owner of the jeep would not be vicariously liable.
13. Coming to the quantum we are of the view that compensation awarded by the Tribunal is on lower side as the two young persons whose minimum earning is considered to be Rs. 300/- per month after deducting their personal living expenses even at the rate of Rs. 150/- per month, the monthly dependency would be at Rs. 150 and yearly Rs. 1,800/-, by applying the multiplier of 16 the amount of compensation would come to Rs. 28,800/- for each death. As it is a case of composite negligence the claimants would be entitled to recover the said amount from the joint tortfeasors. However, the liability of the insurance company, in our opinion, is statutorily limited to Rs. 50,000/- only. Out of the said amount Rs. 25,000/- with interest at the rate of 12 per cent per annum from the date of application would be paid to legal representatives of deceased Ganesh Datta Pyasi and the balance amount of Rs. 25,000/- with interest at the rate of 12 per cent per annum from the date of application till deposit would be paid by the insurance company to the legal representatives, the claimants-appellants, of the deceased Raja Dongra. The respondent insurance company shall deposit the amount with accrued interest in each case within two months from today. The balance amount of Rs. 3,800/- in each case shall be recoverable by the claimants from the owners and drivers of the jeep and of the truck.
14. In the result, the appeals are allowed in the manner aforesaid, by modifying the award. No order as to costs.