JETHABHAI BHIMABHAI v. MER POLA RINA — 1995 DIGILAW 316 (GUJ)

R. A. MEHTA, J. ( 1 ) THE appellants are the original claimants whose claim for compensations for the death of the bread-winner has been dismissed by the Tribunal. The deceased Kadviben was the wife of appellant No. 1 and mother of appellants no. 2 to 6. The deceased Kadviben and injured Bhimiben were walking over the bridge at about 10-30 in the morning on 3-1-1991. While they were near half way of the bridge, the offending auto-rickshaw came from the opposite direction. A handcart was attached to the auto-rickshaw which dashed against these women; iron handcart got separated from the rickshaw; two women fell 30 feet down in the river and the iron hand-cart also fell in the river and hit these two persons. Kadviben died and Bhimiben received some injuries. ( 2 ) THE appellants filed Motor Accidents Claim Petition against the rickshaw driver, owner Mer Pola Rina and against the insurer-Oriental Insurance Company ltd. After a few days, by Ex. 9, Gujarat Electricity Board, respondent No. 2 herein was added as a defendant and it was alleged that the hand-cart (iron rekadi) which was involved in the accident was of the ownership of Gujarat Electricity Board and it was used for transporting its electricity poles and other goods. ( 3 ) BY Ex. 21, Arjan Dosa was added as a defendant (respondent No. 3 ). In the application, it was alleged that he was a contractor of Gujarat Electricity Board and he had hired the auto-rickshaw. Therefore, he was joined as a party-respondent. By an application Ex. 36 dated 18-9-1991, the applicants Advocate requested for deleting the defendant-insurer because the auto-rickshaw was not insured. ( 4 ) THE learned Tribunal came to the conclusion that the trolly did not belong to the Gujarat Electricity Board and the Gujarat Electricity Board had not supplied the same and the Gujarat Electricity Board was not concerned with the incident at all. The rickshaw driver, owner and the contractor were also examined on the point that there was no negligence and the injury and the death was too remote. The rickshaw driver, owner and the contractor were also examined on the point that there was no negligence and the injury and the death was too remote. The tribunal observed that the rickshaw had never hit the ladies, but what had hit was the iron hand-cart which was tied at the back of the rickshaw and there was no breach of any duty and concluded that the accident had not occurred due to the negligent driving on the part of the opponent No. 1. (See Para 15 of the judgment of the Tribunal.) ( 5 ) THE learned Counsel for the appellants has submitted that the negligence of the rickshaw driver is eloquent and clearly proved by the fact that the trolly attached to the rickshaw had got detached and fallen in the river. These are very strong factors clearly pointing out the negligence of the rickshaw driver. If the rickshaw driver had been careful, such a thing would not have occurred. This was a clear and gross case of negligence on the part of the rickshaw driver. He is also the owner of the rickshaw. Therefore, he is certainly liable for his act of negligence which has resulted into the death of Kadviben and, therefore, he is liable to meet with the claim. ( 6 ) THE next question is whether the Gujarat Electricity Board and/or the contractor are vicariously liable. As far as the Gujarat Electricity Board is concerned, it has no connection whatsoever with the incident. The allegation that the trolly belonged to the Gujarat Electricity Board is not at all proved. The witness Bhimiben had stated that the trolly belonged to the Gujarat Electricity Board, but she has not stated anything as to on what basis she had said so. The claimants witness No. 1 jethabhai has merely stated that the iron hand-cart belonged to the Gujarat Electricity board and, therefore, it is of Gujarat Electricity Board and that the iron hand-cart was taken by the contractor and, therefore, he is joined as an opponent. ( 7 ) THE rickshaw driver Polabhai Rinabhai, Ex. 75 has not stated anything about the ownership of the rekadi in his examination-in-chief. However, in the cross- examination, Para 2, he has twice stated that the rekadi belonged to Arjan Dosa. ( 7 ) THE rickshaw driver Polabhai Rinabhai, Ex. 75 has not stated anything about the ownership of the rekadi in his examination-in-chief. However, in the cross- examination, Para 2, he has twice stated that the rekadi belonged to Arjan Dosa. However, in the end of the cross-examination, he has stated that it was true that the rekadi belonged to the Gujarat Electricity Board. For saying so, he has not given any reason. ( 8 ) ARJAN Dosa, Ex. 83 has not stated anything about the ownership of the trolly. Even though there was some dispute about the commencement of this contract, according to him, he had already started the contract work and according to the gujarat Electricity Board, the work order was not given till the date of the accident and the work had started the next month. He has also not stated that the trolly was of the ownership of the Gujarat Electricity Board. The Deputy Engineer pravinchandra B. Trivedi, Ex. 89 has categorically denied that the trolly belonged to the Gujarat Electricity Board. He had stated that the contractor was given the annual contract for transportation and erection of electric poles, but that work was given after the accident. ( 9 ) FROM the panchnama of the scene of offence, it appears that the trolly was seized by the police. However, nothing has come into evidence as to who has brought the trolly and who had claimed the possession of the same. In this view of the evidence, it is clear that the trolly did not belong to the Gujarat Electricity Board. It appears that the contractor was a regular contractor undertaking the work of transportation and erection of electric poles and, therefore, he may have got such a trolly of his ownership. Therefore, the Gujarat Electricity Board is not connected with this accident at all. ( 10 ) EVEN if the trolly belonged to the Gujarat Electricity Board, the trolly was under full control of the contractor and the liability for damages arises only out of the negligence and the person who is negligent is the tort-feasor. Someone else can be liable only on the principle of vicarious liability. The negligence proved is that of the rickshaw driver who was also the owner of the rickshaw. The contractor as well as the Gujarat Electricity Board were neither the owner of auto-rickshaw nor the employer. Someone else can be liable only on the principle of vicarious liability. The negligence proved is that of the rickshaw driver who was also the owner of the rickshaw. The contractor as well as the Gujarat Electricity Board were neither the owner of auto-rickshaw nor the employer. Merely because the contractor had hired the rickshaw, he would not become vicariously liable for the negligence of the driver of the auto- rickshaw. ( 11 ) THE learned Counsel for the appellants made a vehement attempt to contend that the iron hand-cart attached to the motor vehicle, namely, auto-rickshaw was a trailer as defined in Sec. 2 (46) of the Motor Vehicles Act, 1988. That section provides that unless the context otherwise requires, trailer means any vehicle other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle and it is submitted that if this trolly is a trailer, it is a motor vehicle as defined in Sec. 2 (28 ). There cannot be any doubt that trailer as defined in Sec. 2 (46) is required to be registered as required under the Motor Vehicles Act. Sec. 2 (28) of chapter IV and Sec. 61 require that no person shall drive any vehicle and no owner of the motor vehicle shall cause or permit the vehicle to be driven in any public place unless the vehicle is registered in accordance with this Chapter. Under Sec. 44, the vehicle is required to be produced at the time of registration and the registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of the Act and Rules made thereunder. Section 61 provides that no person shall drive a motor vehicle to which a trailer is attached unless the registration mark is displayed on the trailer. ( 12 ) THE learned Counsel for the appellants submitted that a trailer need not cease to be a trailer because it is not registered. However, it would be a clear evidence that a vehicle is a trailer if it is so registered. When it is not so registered, the question arises whether it is a trailer. This rekadi or iron hand-cart is clearly not shown to be registered and, therefore, it is not covered by the latter part of the definition of a trailer. However, it would be a clear evidence that a vehicle is a trailer if it is so registered. When it is not so registered, the question arises whether it is a trailer. This rekadi or iron hand-cart is clearly not shown to be registered and, therefore, it is not covered by the latter part of the definition of a trailer. However, it is submitted that in the present case, the hand-cart was actually drawn whether intended or not by the auto-rickshaw and even if this might be a single such incident, it satisfies the definition of a trailer because the rekadi is in fact drawn by the auto-rickshaw. It is not possible to accept this contention. Merely because the hand-cart is put to an extra-ordinary, exceptional or special use or on a stray occasion, it would not become a trailer and would not become a motor vehicle and would not attract the provisions of Motor Vehicles Act. Hence, the contention of the appellants on this point must fail and the contractor and the Gujarat electricity Board cannot be held liable. ( 13 ) WE have already held that opponent No. 1 Pola Rina, (the driver and the owner of the auto-rickshaw) was solely negligent for the accident and, therefore, he is liable for the damages. ( 14 ) THE next question is of quantum. It is in the evidence that the deceased was earning about Rs. 900. 00 per month. This evidence is not challenged. It is otherwise also reasonable to assume that an able bodied person of this class of labour would earn atleast Rs. 30. 00 per day and Rs. 900. 00 per month. Therefore, deducting a sum of Rs. 200. 00 towards the personal expenses, the dependency benefit can be taken at Rs. 700. 00 per month and Rs. 8,400. 00 per annum. She was aged about 35 years and was doing agriculture and animal husbandry work. Applying the multiplier of 12, the amount comes to Rs. 1,08,000. 00. This amount is the dependency amount for loss of expectancy of life. However, the claim is restricted to Rs. 1 lac. That claim is required to be allowed fully against the opponent No. 1. ( 15 ) IN the result, the appeal is allowed against opponent No. 1 Mer Pola Rina and he is directed to pay a sum of Rs. 1,00,000. 00 (Rs. However, the claim is restricted to Rs. 1 lac. That claim is required to be allowed fully against the opponent No. 1. ( 15 ) IN the result, the appeal is allowed against opponent No. 1 Mer Pola Rina and he is directed to pay a sum of Rs. 1,00,000. 00 (Rs. One lac only) to the appellantsclaimants with 12% interest from the date of the application to the Tribunal till realisation. The claim against other respondents-Gujarat Electricity Board and the contractor is dismissed. On realisation of this amount, the proportionate shares coming to the minor claimants No. 3 to 6, shall be invested in long term fixed deposits of minimum five years and periodical interest thereon shall be payable to the concerned claimants. Rest of the amount to be paid by an account payee cheque to the claimants. No order as to costs. .