STATE OF UTTAR PRADESH v. DEVESHWAR PRASAD — 1982 DIGILAW 1326 (ALL)

JUDGMENT : O.P. Saxena, J.—This is an appeal u/s 110-D of the Motor Vehicles Act against the order dated 21.5.1979 passed by the Motor Accidents Claims Tribunal, Tehri Garhwal decreeing the claim of Respondent Nos. 1 and 2 for Rs. 2,000/- as compensation against the Appellant and Respondent No. 3. 2. Respondent No. 1 is the father and Respondent No. 2 is the mother of minor boy Sanju aged about five years who met with an accident on 12.4.1978 at about 5 p.m. on the road near the old bus stand in the town of Tehri. The boy was standing at the end of the motor road near the old bus stand when truck No. UTD 1591 came from the side of Dobata. It is said that the truck was being driven rashly and negligently by Respondent No. 3 and the left front wheel of the truck crushed the boy standing on the extreme end of the road. It is further said that the truck was being driven so rashly and negligently that it could not be stopped even after the boy had been knocked down by the front wheel and the rear wheel ran over the boy killing him on the spot. It is further said that Respondent No. 3 did not stop the vehicle and took it to a nearby workshop, parked it there and ran away. The Appellant was made vicariously liable for rash and negligent driving of Respondent No. 3. A sum of Rs. 18,200 was claimed as compensation. 3. The claim petition was contested by Appellant and Respondent No. 3 separately. The Appellant was made vicariously liable for rash and negligent driving of Respondent No. 3. A sum of Rs. 18,200 was claimed as compensation. 3. The claim petition was contested by Appellant and Respondent No. 3 separately. The case of the Appellant was that the Respondent No. 3 was not an employee of the Department on the date of the accident, that Respondent No. 3 remained on duty upto 30.11.1977, that he absented himself till 28.2.1978, that Respondent No. 3 was an employee on work charge basis and was not a permanent employee of the Department, that the sanction of work charge employee is obtained after every three months, that they are paid on monthly basis for the period of sanction, that there was an accident of Jeep No. USQ 465 on 11.4.1978, that the truck in question brought this Jeep for repairs to the Garhwal Motors, Tehri, that the truck was driven by the truck driver, that he locked the truck and went to his village after parking the truck within the premises of Garhwal Motors, that the Respondent No. 3 some how managed to insert an iron nail in the key hole of the ignition key of the truck and started the truck, that the Respondent No. 3 absconded from the place of occurrence and later on surrendered himself before the Chief Judicial Magistrate, Tehri and that no notice or claim for compensation was lodged with the Appellant. 4. The claim petition was contested by Respondent No. 3 with the allegations that on the date of the accident he was only a conductor and Kamalnain was the driver of the truck. On 12.4.1978, at about 12 noon the driver brought the truck to the workshop and Respondent No. 3 went away home, that when he returned after some days, he came to know about the accident that be was not responsible for the accident and that he is not liable to pay any compensation. 5. The learned Tribunal considered the evidence on record and believed the version of the claimants. 5. The learned Tribunal considered the evidence on record and believed the version of the claimants. He held that Respondent No. 3 was the conductor of the truck on 12.4.1978, that the accident took place on account of rash and negligent driving of the truck by Respondent No. 3, that the Appellant is vicariously liable for the act of the driver Kamalnain in employing Sohan Lal to look after the vehicle and Sohan Lal in the meantime driving the vehicle causing the accident and that the Respondent Nos. 1 and 2 are entitled to a sum of Rs. 2,000 as compensation. He consequently passed the impugned order and hence this appeal. 6. I have heard the Learned Counsel for the Appellant and have gone through the record. None appeared to argue the appeal on behalf of the Respondents. 7. The first point urged by the Learned Counsel for the Appellants is that Respondent No. 3 was not in the employment of the Appellant on the date of the occurrence. 8. P.W. 2 Kamalnain, the driver of the bus was examined by Respondent Nos. 1 and 3 in support of the version that Respondent No. 2 was employed as a conduct of on the truck in question. His statement shows that he parked the truck on 12.4.78 in the workshop of Garhwal Motors and went back for taking meals and that when he returned at 3 p.m. he found the vehicle where he had parked it. He thereafter went home to deliver a message leaving the truck in the charge of conductor (Respondent No. 3). He took the key with him. He came to know at Dobata that an accident was caused by the truck. He returned to Tehri. He found that the truck was in the workshop and a police constable was on duty. His statement shows that Sohan Lal was the cleaner of the truck for two years earlier. The learned Tribunal has considered the evidence of P.W. 1 Sri Satyendra Pal Singh and D.W. 2 Chandan Singh. The former was the Junior Engineer in the Division since January 1975 and he used to prepare pay bills of work-charge employees. The latter used to prepare pay bills of the work-charge employees of Electrical and Mechanical Section during the period form October, 1977. The former was the Junior Engineer in the Division since January 1975 and he used to prepare pay bills of work-charge employees. The latter used to prepare pay bills of the work-charge employees of Electrical and Mechanical Section during the period form October, 1977. The learned Tribunal has rightly pointed out that no reliance could be placed on the registers brought by these witnesses as even salary of Kamalnain for the period August 1977 to February 1978 was not shown as drawn in the register. P.W. 2 Chandan Singh stated that this salary was drawn in the regular pay bill register. The regular pay bill register has not been produced. The muster roll in which the presence of the work-charge employee is noted has not been produced. No officer under whose supervision the truck in question worked has come forward to depose. No officer from the office of the Executive Engineer has come forward with the relevant records. In the circumstances the learned Tribunal was quite justified in believing the statement of P.W. 2 Kamalnain and holding that Respondent No. 3 was a conductor on the truck in question on the date of the accident. 9. The second point urged by the Learned Counsel for the Appellant is that the Appellant cannot be made vicariously liable as the act of Respondent No. 3 was not in the course of employment. 10. Reliance was placed on the evidence of P.W. 2 Kamalnain, the driver of the truck which shows that he left the truck parked at the workshop of Garhwal Motors that he had locked the truck and that he went home along with the ignition key leaving the truck in the custody of Sohan Lal Respondent No. 3. He had earlier brought a Jeep on the truck to the workshop of Garhwal Motors. The Jeep was given for repairs. The truck was parked in the workshop. Respondent No. 3 Sohan Lal had no business to drive in the absence of Kamalnain. It was a diesel truck and it could be started on being given a push. There was a slope at the place where the truck was parked. The statement of Kamalnain shows that when the Technical Inspector examined the truck the ignition key hole was found damaged to the extent of four inches and the key could not be fitted. The vehicle was started by giving a push. There was a slope at the place where the truck was parked. The statement of Kamalnain shows that when the Technical Inspector examined the truck the ignition key hole was found damaged to the extent of four inches and the key could not be fitted. The vehicle was started by giving a push. It was submitted that Respondent No. 3 was not authorised to take the vehicle from the workshop of Garhwal Motors and as Respondent No. 3 wrongfully drove the truck, he could not be said to be acting in due course of employment. 11. In the case reported in Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, the manager of the company was driving the car for company's business when he gave a lift to a passenger and the accident took place. 12. In the case reported in Amthiben Manganlal and Others Vs. Supdt. Geophysicist, O.N.G.C. and Others, , the Government vehicle was being driven on duty when the driver gave a lift to two persons and the accident occurred. 13. In P.N. Khanna Vs. Balbir Singh Kohli and Others, the mechanic was checking the dynamo of the car. The driver pushed the car while the mechanic was on the steering wheel. The car started and knocked down a pedestrian. It was held that the owner was liable as the driver acted in due course of his employment in assisting the mechanic. 14. In Oriental Fire and General Insurance Company Ltd. Vs. Surinder Kumar and Others, the cleaner while reversing the truck ran over the foot of a boy. The act of the cleaner was held in due course of employment and the State was held to be vicariously liable. 15. Learned Counsel for the Appellant submitted that the present case is distinguishable. He pointed out that in this case Respondent No. 3 had no business to remove the truck from the workshop of Garhwal Motors in the absence of Kamalnain. Such an act of Respondent No. 3 could not be said to be in due course of employment. He was only a bus conductor. He placed reliance on two cases. He pointed out that in this case Respondent No. 3 had no business to remove the truck from the workshop of Garhwal Motors in the absence of Kamalnain. Such an act of Respondent No. 3 could not be said to be in due course of employment. He was only a bus conductor. He placed reliance on two cases. The first case is reported in Morgans v. Launchbury 1973 A.C.J. 21 (H.L., England) as under: It is settled law that in order to fix vicarious liability on the owner of a car in such a case as the present, it must be shown that the driver was using it for the owners's purpose under delegation of a task or duty. Mere permission to drive is not enough to establish vicarious liability. The owner's interest or concern in the proper driving of the vehicle and in the well being of the driver is not a positive test for determining liability. In the present case, even though the husband had given the control of the car to a friend as per assurance given by him to his wife, it cannot be said that the friend became the wife's agent. The car continued to remain in the husband's use and it was driven by the friend for the husband's purposes. 16. The second case is reported in Mohiddinsab Gaffarsab Kundigol v. Rohidas Hari Kindalkar 1973 A.C.J. 424 (Mys.), the driver of a goods vehicle took the Appellant as a passenger. It was held that giving lift to a passenger in a goods vehicle by the driver is outside the scope of his employment. 17. I have carefully considered the submission made by the Learned Counsel for the Appellant and I find much substance in the same. The conduct of Respondent No. 3 in driving the vehicle from Garhwal Motor Works was wholly unauthorised and as he was only a bus conductor, it cannot be said that the vehicle was driven in due course of employment. Kamalnain had locked the vehicle when he went to his house for a short time to give a message and Respondent No. 3 somehow managed to drive the vehicle. The ignition key was found damaged. The act of Respondent No. 3 was wholly unauthorised and beyond the scope of his employment. The Appellant cannot be made vicariously liable for such an act. 18. The ignition key was found damaged. The act of Respondent No. 3 was wholly unauthorised and beyond the scope of his employment. The Appellant cannot be made vicariously liable for such an act. 18. The appeal succeeds and the order passed by the learned Tribunal is modified. The claim of Respondent Nos. 1 and 2 against the Appellant is dismissed. The rest of the award is confirmed.