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2004 DIGILAW 608 (MP)

S B PARIKH v. MOHAN THAPAR

2004-08-02

S.K.PANDE

body2004
Judgment ( 1. ) THIS revision under section 115 of CPC is directed against the order dated 28-8-97, passed by the 3rd Additional MACT, Satna in MJC No. 72/95. ( 2. ) PETITIONER Smt. S. B. Parikh in the employment of respondent state of MP was posted as Dy. Director, Panchayat and Social Welfare, Rewa. She was also looking after the additional charge of the post of Dy. Director panchayat and Social Welfare, Satna, Project Officer Rural Literacy Programme, and District Adult Education Officer Distt. Satna. Respondent-driver of the Government vehicle CPZ 4519 was directed to take the vehicle from satna to Rewa so as to provide facility to the petitioner to perform journey on official tour. On 2-4-90 respondent No. 3, the driver while taking the vehicle aforesaid from Satna to Rewa permitted the passengers to travel and at about 10 p. m. met with an accident wherein respondent claimant Mohan Thapar sustained injuries. Accordingly, respondent/claimant Mohan Thapar filed application under section 166 of MV Act against respondent-State of MP, driver ramraj Singh and petitioner Smt. S. B. Parikh. It was registered as claim case no. 16/90. Written statement repudiating the liability was jointly filed by respondent-State of MP and petitioner Smt. S. B. Parikh stating inter alia that in any case petitioner Smt. S. B. Parikh neither the owner nor the person present at the time of alleged accident is liable to liquidate the claim of compensation. Recording the evidence, the tribunal below vide award dated 3-1-95 held that respondent- driver Ramraj Singh was negligent in driving the vehicle CPZ 4519 and in an accident injuries were sustained by claimant/respondent Mohan thapar. The vehicle although belongs to the State of MP, the petitioner Smt. S. B. Parikh being in charge of the department is liable to liquidate the claim of compensation. Accordingly, directed the petitioner and respondent-driver ramraj Singh jointly and severally to pay Rs. 35,000/- together with interest at the rate of 12% per annum and costs to claimant/respondent Mohan Thapar. Petitioner Smt. S. B. Parikh submitted petition under order 47 rule 1 CPC seeking review of the award aforesaid stating inter alia that she being neither the owner nor the person present at the time of alleged accident or any way concerned with the accident dated 2-4-90 ought not to have been held responsible to pay the compensation to the claimant/respondent Mohan Thapar. The tribunal below vide impugned order dated 28-8-97 in MJC No. 72/95 dismissed the petition only on the ground that in the award impugned, no mistake or error apparent on the face of the record has been demonstrated by the petitioner. Being aggrieved, the petitioner has preferred this revision under section 115 of cpc. ( 3. ) ADMITTEDLY, petitioner Smt. S. B. Parikh was neither owner of the vehicle CPZ 4519 nor person present at the time of accident. Further she had no relation whatsoever with the alleged accident wherein respondent/claimant-Mohan Thapar sustained injuries while travelling in the jeep driven by respondent-driver Ramraj Singh. Respondent-Driver Ramraj Singh was never permitted or authorized by any authority to carry the passengers or permit an individual to travel in the jeep as gratuitous passenger. In any case liability of the: respondent-State of MP may be co-extensive with that of driver-respondent ramraj Singh, petitioner Smt. S. B. Parikh was not concerned in any way with the claim of respondent Mohan Thapar. In the written statement filed by respondent-State of MP, it has been clearly asserted that petitioner Smt. S. B. Parikh is not at all liable for any act of negligence on the part of respondent-driver while taking the vehicle belonging to the State of MP from Satna to Rewa. Under order 1 rule 10 (2) CPC, the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out. It would have been proper for the tribunal below to have discharged petitioner Smt. S. B. Parikh immediately directing her name to be struck out from the array of the respondent in claim case No. 16/90. Instead the tribunal proceeded further and without any material on record while deciding the issue No. 5 vide impugned award dated 3-1-95 on surmises held petitioner Smt. S. B. Parikh liable to liquidate the claim of compensation. The tribunal below ignoring the vicarious liability of the respondent State of MP exonerated it from the liability. In Virendra Kumar Vs. Gandharv Singh Dongra and others, 1998 ACJ 1154 dealing with the vicarious liability vis-a-vis master and servant, the Division Bench of this Court held :-10. The tribunal below ignoring the vicarious liability of the respondent State of MP exonerated it from the liability. In Virendra Kumar Vs. Gandharv Singh Dongra and others, 1998 ACJ 1154 dealing with the vicarious liability vis-a-vis master and servant, the Division Bench of this Court held :-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 the case of State of M. P. Vs. 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 Vs. Santanuprasad Jaishankar bhatt, 1966 ACJ 89 (SC) and the decision in the case of Pushpabai purshottam Udeshi Vs. 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 Vs. 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 Vs. 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. ( 4. ) BY any imagination such a vicarious liability cannot be attributed to petitioner Smt. S. B. Parikh who infect was neither owner of the vehicle nor person present at the time of alleged accident. On account of mistake and error apparent on the face of the record creating the vicarious liability on petitioner smt. S. B. Parikh, petition under order 47 rule 1 CPC was filed by her before the tribunal below to re-consider and rectify the error. The Tribunal below declined to accept the contention and vide impugned order dated 28-8-97 dismissed the petition for review MJC No. 72/95. The Tribunal below failed to exercise the jurisdiction vested in it to correct the error and has acted with material irregularity-illegality. ( 5. ) CONSEQUENTLY, revision succeeds and is allowed. Petitioner Smt. S. B. Parikh shall not be liable to liquidate the claim of the compensation. The tribunal below accordingly is directed to pass an appropriate award according to law absolving the liability of petitioner Smt. S. B. Parikh from payment of amount of award. The Tribunal below must pass an order to the effect aforesaid within a period of 2 months time from today. No order as to costs. Civil Revision allowed.