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2003 DIGILAW 209 (MP)

ARUN KUMAR THAPAR v. YASHWANT INDAPURKAR

2003-01-31

N.K.JAIN, S.S.JHA

body2003
S. S. JHA, J. ( 1 ) THIS order shall govern the disposal of both the appeals, viz. , misc. Appeal Nos. 599 and 609 of 1997. ( 2 ) MISC. Appeal No. 599 of 1997 is filed by the claimant for enhancement of the compensation whereas Misc. Appeal no. 609 of 1997 is filed by the owner of the vehicle claiming therein that there should be joint liability of the State Bank of India and the owner of the vehicle for payment of compensation. ( 3 ) BRIEF facts of the case are that the appellant in M. A. No. 609 of 1997 is the owner of the jeep bearing registration No. CPW 100. This jeep was hired by the State bank of India on a written agreement, Exh. D-2. As per the term of the agreement, the vehicle was taken on hire at the rate of rs. 1,200 per month by the bank on the conditions enumerated in the agreement exh. D-2. On 31. 5. 1982 when the claimant along with one Om Prakash Jain was travelling from Gwalior to Delhi in his car bearing registration No. CPW 179 when the car has proceeded about half kilometre from Rairu Petrol Pump, jeep bearing registration No. CPW 100 dashed against the car. Jeep was driven in a rash and negligent manner. This accident caused injuries to claimant and damage to the car. Claimant had suffered a fracture in the socket of femur bone of the left leg and injury in the head. The claimant was operated upon at delhi. He remained immobile and confined to bed for a period which caused him loss in his business. Claimant had claimed that he had suffered permanent disability in his left leg and claimed a compensation of rs. 6,96,000. Claim was denied. Owner of the vehicle/jeep submitted that since the vehicle was in possession of the bank, therefore, at the relevant time bank was the owner of the said vehicle and the bank is liable to pay the compensation. ( 4 ) MR. K. N. Gupta, the counsel for the appellant in M. A. No. 609 of 1997 (owner of vehicle) invited attention of this court to the document Exh. D-2 and submitted that the jeep was taken on hire on a rate of Rs. 1,200 per month. ( 4 ) MR. K. N. Gupta, the counsel for the appellant in M. A. No. 609 of 1997 (owner of vehicle) invited attention of this court to the document Exh. D-2 and submitted that the jeep was taken on hire on a rate of Rs. 1,200 per month. According to the agreement, fuel of the vehicle was at the bank's cost and the vehicle was to be kept overnight in the garage of the bank at the risk of the owner. The average running of vehicle should not be below 6 km. per litre. The driver of the vehicle will report for duty as required by the authorised officers of the bank. The owner was required to maintain the jeep at his costs and to provide a full-time driver. In case average of the vehicle is found to be poor, cost of petrol shall be deducted from the hiring charges. As and when the jeep is not available for the bank's use, the hiring charges for that day shall not be payable. The bank has right to terminate the agreement without assigning any reason. The owner was required to keep tools in the jeep. Counsel for the appellant submitted that the Claims tribunal has committed an error in holding that the bank is not liable to pay the compensation. He assailed the findings recorded by the Claims Tribunal in para 22 of the judgment wherein the Claims Tribunal has held that under section 2 (19) of the Motor vehicles Act, 1939 State Bank of India is not the owner of the vehicle. The Claims tribunal has distinguished the judgment in the case of State of Madhya Pradesh v. Premabai, 1979 ACJ 503 (MP ). ( 5 ) QUESTION involved in this case is when the vehicle is taken on hire by the bank, then whether the bank is also liable to pay compensation and shall be deemed to be the owner of the vehicle? Counsel for the appellant in support of his contention has relied upon the judgment in the case of Rajasthan State Road Trans. Corpn. v. Kailash Nath Kothari, 1997 ACJ 1148 (SC) and submitted that the owner includes hirer who is in possession and in actual control of the vehicle. Counsel for the appellant in support of his contention has relied upon the judgment in the case of Rajasthan State Road Trans. Corpn. v. Kailash Nath Kothari, 1997 ACJ 1148 (SC) and submitted that the owner includes hirer who is in possession and in actual control of the vehicle. In support of this contention, he has also placed reliance on the decisions in the cases of Leelawati v. Ravindra Kumar, 1998 ACJ 1306 (MP); bhagwan Das Tiwari v. Ratni Bai, 2001 acj 289 (MP) and General Manager, andhra Pradesh State Road Trans. Corpn. v. Bodapati Kanaka Ratnabai, 2001 ACJ 401 (AP ). ( 6 ) MR. N. D. Singhal, learned counsel appearing for the respondent bank submitted that the vehicle taken on hire was not at all under the control of the bank. He submitted that the judgment in the case of rajasthan State Road Trans. Corpn. , 1997 acj 1148 (SC), is distinguishable and is not applicable in the present case. ( 7 ) WHILE interpreting the scope of section 2 (19) of Motor Vehicles Act, 1939, the Supreme Court held in para 13 of the judgment as under: "the definition of 'owner' under section 2 (19) of the Act is not exhaustive. It has, therefore, to be construed, in a wider sense, in the facts and circumstances of a given case. The expression 'owner' must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the 'owner' is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. In this case, Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete 'control' to RSRTC under whose directions, instructions and command the driver was to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving the fare from them. Sanjay Kumar was, therefore, not concerned with the passengers travelling in that bus on the particular route on payment of fare to rsrtc. Driver of the bus, even though an employee of the owner was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety, therefore, became the responsibility of the rsrtc while travelling in the bus. They had no privity of contract with Sanjay kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. The general proposition of law and the presumption arising therefrom that an employer is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the concerned employee in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver of the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC. " ( 8 ) FROM perusal of the agreement, Exh. D-2, it is clear that the vehicle was under the control of the bank. Even otherwise dw 4 Anand Narayan Chawrashe for the bank has deposed that the jeep was taken on hire in the year 1982. In para 2 of his deposition he has admitted that the vehicle was in possession of the bank and was kept in the garage of the bank. Driver used to take the vehicle on the instructions of the officers of the bank. In para 3 he further admitted that the garage in which the vehicle was kept was locked by the bank and the key of the vehicle was kept in the bank. In para 8, he has further admitted that the key of the jeep was kept in the bank and the driver of the vehicle was required to report for duty in the bank and follow the directions of the bank officers. In para 8, he has further admitted that the key of the jeep was kept in the bank and the driver of the vehicle was required to report for duty in the bank and follow the directions of the bank officers. 8-A. Thus, from the entire evidence, it is clear that the vehicle was under the control of the bank. Considering the conditions as contained in the agreement, Exh. D-2, the bank is also the owner being in actual possession and control of the vehicle and under the directions and command of the bank, the driver was obliged to operate the vehicle. Apart from the owner, where the vehicle is in actual possession and control of the hirer, liability of the hirer is vicarious with the owner and, therefore, the hirer is also liable for payment of compensation jointly and severally with the owner of the vehicle. ( 9 ) HEARD Mr. R. P. Gupta, learned counsel for the appellant-claimant in M. A. No. 609 of 1997 on the point of enhancement of compensation. He submitted that the quantum of compensation awarded by the claims Tribunal is on lower side, once a finding is recorded that there is shortening of leg. Counsel for the claimant referred to Division Bench decision of this court in mohammad Rashid Khan v. Madhya Pradesh State Road Trans. Corpn. , 2004 ACJ 1135 (MP ). In that case, there was shortening of leg by 2", left leg had stiffened as a result of which claimant can neither ride bicycle nor walk freely. Division Bench has awarded Rs. 1,00,000 towards permanent disablement, Rs. 50,000 towards pain and suffering, Rs. 10,000 towards transportation, Rs. 10,000 towards special diet and Rs. 5,000 towards loss of salary. Thus, a total compensation of Rs. 1,75,000 has been awarded in that case. AW 2 Dr. Badri prasad Purohit has been examined by the claimant. He has deposed that the left leg was shortened by 1. 5 cm. and developed secondary osteoarthritis and the disability is permanent. He deposed that the main injury is on account of osteoarthritis. ( 10 ) CLAIMS Tribunal after considering the evidence on record has awarded compensation of Rs. 1,41,000 to the claimant with interest at the rate of 12 per cent per annum after adjusting the amount already paid. Rs. 2,000 were awarded towards the repair of car. He deposed that the main injury is on account of osteoarthritis. ( 10 ) CLAIMS Tribunal after considering the evidence on record has awarded compensation of Rs. 1,41,000 to the claimant with interest at the rate of 12 per cent per annum after adjusting the amount already paid. Rs. 2,000 were awarded towards the repair of car. The Claims Tribunal directed the claimant to pay costs of Rs. 2,000 to the insurance company for improperly impleading it as a party. Considering the facts of the case the Claims Tribunal has awarded Rs. 78,000 towards permanent disablement, Rs. 10,000 towards pain and suffering, Rs. 28,000 towards operation and medicines and Rs. 25,000 towards loss of capacity to work. ( 11 ) CONSIDERING the facts of the case, and the disability of the injured-claimant, disability compensation is determined at rs. 8,000 per annum and on applying the multiplier of 13, it comes to Rs. 1,04,000. We do not find any reason to interfere with the compensation awarded by the Claims tribunal under other heads such as mental agony and pain, treatment and operation charges, loss of earnings and repair of car which has been determined by the Tribunal at Rs. 10,000, Rs. 28,000, Rs. 25,000 and Rs. 2,000 respectively. Thus, in all the claimant will be entitled to a compensation of Rs. 1,69,000 (rupees one lakh sixty-nine thousand only ). The claimant shall be entitled to interest at the rate of 9 per cent per annum on the difference of amount. The amount shall be payable by the owner as well as the hirer of the jeep, i. e. , State bank of India. ( 12 ) IN the result, appeals succeed in part and are disposed of. Appeals allowed. .