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Himachal Pradesh High Court · body

2005 DIGILAW 16 (HP)

PRITAM CHAND v. H. R. T. C.

2005-01-07

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.—This appeal has been filed under Section 173 of the Motor Vehicles Act against the award of the Motor Accident Claims Tribunal, Shimla dated 8.9.1997 dismissing the claim petition filed by the appellant. 2. The facts necessary for disposal of the petition are that one Pritam Singh was the driver of Jeep No.HIM-537 owned by the Himachal Road Transport Corporation, hereinafter referred to as the HRTC. He had gone on official duty with Shri Kanshi Ram Verma, Chief Inspector of the HRTC. According to the version of the respondent as stated by Shri Kanshi Ram Verma, they had returned from tour on 26.3.1995 at 9.45 p.m. He had instructed the driver Pritam Singh to park the vehicle at the main Bus Stand and to get the same repaired next day at Tara Devi Workshop. The driver Pritam Singh, admittedly, was residing at Junga which is about 25 Kms away from Shimla. This witness also admitted that at the relevant time no bus left for Junga after 6 -7 p.m. in the evening. Pritam Singh took the bus towards his residence and on the way he gave a lift to the present appellant who is also employed as a driver with HRTC. The jeep met with an accident in which the driver Pritam Singh died. The appellant suffered injuries in the said accident and filed a claim petition for grant of compensation. This petition has been dismissed by the Tribunal on the ground that the vehicle at the relevant time was not being driven by the driver in connection with the business of the respondent and, therefore, owner-respondent is not vicariously liable. 3. Mr. Rakesh Jaswal appearing on behalf of the claimants has argued the matter at length and submitted that the Tribunal has not appreciated the law cited before him especially the judgment of the Apex Court rendered in Pushpabai Purshottam Udeshi and others v. M/s Ranjit Ginning and Pressing Co. and another [1977 ACJ 343]. According to him, the master is vicariously liable for the acts of his servant even if the servant acts in a manner that does not comply with the mandate given him by his master. Mr. Jaswal submits that the third party can claim compensation from the owner on the principle of vicarious liability. 4. On the other hand, Mr. According to him, the master is vicariously liable for the acts of his servant even if the servant acts in a manner that does not comply with the mandate given him by his master. Mr. Jaswal submits that the third party can claim compensation from the owner on the principle of vicarious liability. 4. On the other hand, Mr. D.S. Parmar, appearing on behalf of the respondent- HRTC has supported the award of the Tribunal and has submitted that since the driver was not on duty and he had been specifically directed to park the vehicle at the main Bus Stand and had unauthorisedly taken it towards his residence, the HRTC cannot be held responsible for payment of compensation. 5. The law with regard to the vicarious liability is evolving and developing. Over the years, the approach of the Courts is becoming more liberal and the trend is moving towards the making the master liable for the acts of the servant. The concept of no fault liability has been introduced in Motor Accident cases. Even in such cases of no fault liability the trend is to make the master responsible for the acts of the servant. 6. In Site Ram Motilal Kalal v. Santanuprasad Jaishanker [AIR 1966 SC 1697], the owner of the vehicle entrusted it to person A for plying a taxi. B used to clean the taxi. He was either employed by the owner or by A. A trained B to drive the vehicle and took B for obtaining licence for driving. While taking the test B caused the accident. A was not present when the accident occurred. By a majority view, the apex Court held that the owner was not liable since the person who borrowed the taxi and the driver had not acted in the course of the business of the owner. The Court held that test was - whether the act was done on the owners business or that it was proved that it has been impliedly authorized by the owner. It was further held that unless the act is done in the course of his employment, the servants act does not make the employer liable. 7. This judgment was considered by the Honble Supreme Court in Pushpabai Purshottam Udeshi and others v. M/s Ranjit Ginning and Pressing Co. and another [1977 ACJ 343]. It was further held that unless the act is done in the course of his employment, the servants act does not make the employer liable. 7. This judgment was considered by the Honble Supreme Court in Pushpabai Purshottam Udeshi and others v. M/s Ranjit Ginning and Pressing Co. and another [1977 ACJ 343]. In this Case one T was traveling in the Car being driven by the Manager of the respondent-company The car dashed against the tree resulting in the death of P. The widow of P filed claim petition under the Motor Vehicles Act against the company - the owner of the Car. The High Court following the decision of Sita Ram Motilal Kalal case (supra) held that the owner cannot be held to be vicariously liable in taking Purshotam as a passenger as the said act was neither in the course of employment nor under any authority of the owner. The Supreme Court upset the findings of the High Court and held that the owner was liable to pay the compensation. The Apex Court in Pushpabai Purshottam Udeshi and others v. M/s Ranjit Ginning and Pressing Co. and another [1977 ACJ 343] held thus: "14. Before we conclude we would like to point out that the trend in law is to make the master liable for acts which do not strictly fall within the term "in the course of the employment" as ordinarily understood. We have referred to Sitaram Motilal Kakal v. Santanuprasad Jaishankar Batti, where this Court accepted the law laid down by Lord Denning in Ormrod and another v. Crosville Motor Services Ltd. and another (supra) that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owners consent, driving the car on the owners business or for the owners purposes. This extension has been accepted by this Court." 8. Lord Justice Denning in Young v. Edward Box and Co. Ltd. [(1951) 1 T.L.R. 789] has made the pertinent observations: "The next question is how far the employers are liable for their servants conduct. In order to make the employers liable to the passenger it is not sufficient that they should be liable for their servants negligence in driving. They must also be responsible for his conduct in giving the man a lift. In order to make the employers liable to the passenger it is not sufficient that they should be liable for their servants negligence in driving. They must also be responsible for his conduct in giving the man a lift. If the servant has been forbidden, or is unauthorized, to give anyone a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned; but that is not of itself an answer to the claim.............. In my opinion, when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in position not only to drive it, but also to give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey not only in the driving of it, but also in giving lifts in it, provided, of course, that in so doing the servant is acting in the course of his employment." 9. In Salmonds Law of Torts, it has been said thus: "On the other hand it has been held that a servant who is authorized to drive a motor vehicle, and who permits an unauthorized person to drive it in his place, may yet be acting within ths scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, oi doing the authorized work. The master may even be responsible if the servant impliedly, and not expressly, permits an unauthorized person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it, at least if the driver retains notional control of the vehicle." 10. In Halsburys Law of England, it has been stated: "Where the act which the employee is expressly authorised to do is lawful, the employer is nevertheless responsible for the manner in which the employee executes his authority. If, therefore, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorize the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his employer." 11. A Full Bench of the Punjab and Haryana High Court dealt with the question of vicarious liability of the owner in Pirthi Singh and another v. Binda Ram and others [AIR 1987 Punjab and Haryana 56]. After considering the aforementioned authorities of the Honble Supreme Court and a large number of English authorities on the point, the Full Bench held as follows: "The vicarious liability of the master does not depend on the lawful or unlawful nature of the acts of the servant and the master would be liable for the alleged act of the servant which had taken place in the course of his employment even though the servant may have acted in contravention of some of the provisions of the statute or the Rules made thereunder. It follows that in a motor accident case the determining factor so far as the liability of the owner is concerned is whether the act was committed by the driver in the course of his employment or not. If the driver was acting in the course of his employment then the owner would be liable even though he acted against the express instructions of the owner or in violation of the Rules framed under tne Statute." 12. This question has also come up for consideration before a Division Bench of the Karnataka High Court in M.S. Rayta and another v. Gowrawwa Channabasappa and another [1987 ACJ 846]. It was held that the master is vicariously liable even if act of the driver is in violation of the departmental instructions. In that case, the vehicle in question belonged to the defence department. The defence taken was that the driver was not in the masters employment not driving the vehicle on the masters instructions. The driver had been asked to take the vehicle to i particular place and to bring it to the garage; but the driver did not return to the garage and instead unauthorisedly he on his own went in an altogether different direction on a joy ride. On the way he picked up some civilian passengers. An accident occurred and the claim petition was filed. 13. The High Court rejected the defence of the State and held that despite departmental instructions and the specific instructions to the driver, it cannot be said that the driver was not driving the vehicle in connection with his duties and functions as a driver. 14. An accident occurred and the claim petition was filed. 13. The High Court rejected the defence of the State and held that despite departmental instructions and the specific instructions to the driver, it cannot be said that the driver was not driving the vehicle in connection with his duties and functions as a driver. 14. In State of Madhya Pradesh and another v. Ratna Devi and others [1991 ACJ 166] while considering a similar plea held the owner- State of Madhya Pradesh vicariously liable to pay compensation even though the driver of the Government jeep took the vehicle without permission and unauthorisedly gave lift to two passengers who died in the accident. 15. A similar point came up before the apex Court in State of Maharashtra and others v. Kanchanmala Vijaysing Shirke and others [(1995) 5 SCC 659]. The apex Court held as follows: "15. On behalf of the appellants reliance was placed on the judgment in the case of Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt. In that case the owner of the vehicle entrusted it to A for plying as a taxi. B used to clean the taxi. He was either employed by the owner or by A. A trained B to drive the vehicle and took B for obtaining the licence for driving. While, taking the test B caused bodily injury to the respondent. At the time of the accident, A was not present in the vehicle. On the question whether the owner was liable, it was held in the majority judgment that the owner was not liable because evidence did not disclose that owner had employed B to drive the taxi or given him the permission to drive the taxi. However, Subba Rao, J, (as he then was) held that the owner was liable because A did not exceed the authority conferred on him by the owner in employing B as a servant and permitted him to drive the vehicle in order to obtain the licence for assisting him as a driver. This case was considered by this Court in the case of Pushpabai and it was said that recent trend in law is to make the master liable for acts which do not strictly fall within the term "in the course of the employment" as ordinarily understood. This case was considered by this Court in the case of Pushpabai and it was said that recent trend in law is to make the master liable for acts which do not strictly fall within the term "in the course of the employment" as ordinarily understood. The learned Counsel for the appellants sought to distinguish Pushpabai case by contending that therein this Court accepted the unauthorized act of the driver being within the course of employment because of his occupying "high position of Manager", whereas in the case at hand Appellant 3—the driver—was a Class IV employee. We do not think that the ratio of the case turns on the opposition occupied by the driver. The real thrust of the decision is acceptance of the trend to make the master liable for acts which do not strictly fall within the term "in the course of employment" as ordinarily understood. 17. Incidentally, it may be pointed out that in Motor Vehicles Act, 1939, Chapter VII-A "liability without fault in certain cases" has been introduced (Chapter X of the Motor Vehicles Act, 1988). Subsection (1) of Section 92 - A provides that where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle shall be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said Section. Sub-section (2) specifies a fixed amount for such liability without fault. In view of sub-section (3), the claimant is not required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner of the vehicle. Sub-section (4) of that Section says in clear and unambiguous words that a claim for compensation under sub-section (1) of that Section shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made. Section 92-B clarifies that the rigrit to claim compensation under Section 92-A in respect of death or permanent disablement of any person shall be in addition to any other right i.e. the right to claim compensation on principle of fault. Section 92-B clarifies that the rigrit to claim compensation under Section 92-A in respect of death or permanent disablement of any person shall be in addition to any other right i.e. the right to claim compensation on principle of fault. The introduction of provisions creating liability without fault gives out that Parliament has provided for payment of compensation within certain limits, ignoring the principle of fault. When even under the law of tort, Courts have held that the employer is vicariously liable for an authorized act done in an unauthorized manner taking into consideration the interest of the victims of the accident, according to us, this approach is all the more necessary while judging the liability of the owner of the vehicle under the statutory provisions of the Motor Vehicles Act." 16. A Division Bench of this Court has considered in detail the law with regard to the vicarious liability in New India Assurance Co. Ltd. v. Lachhmi Devi and others, [1996 ACJ 496]. In that case several persons sustained injuries when they were traveling in a truck. The owner of the truck contended that the driver had allowed the passengers to board the truck against his instructions and, therefore, he was not liable. After taking into consideration, the entire law, the Division Bench of this Court negatived the plea of the owner and held that the owner was responsible and liable for the conduct of his driver even if the same may be unauthorized. 17. From a reading of the various judgments noticed hereinabove it is clear that the law with regard to the vicarious liability has been made moie liberal and the rule of vicarious liability has been expanded by judicial pronouncements. One cannot lose sight of the fact that the State has thought it fit to even introduce the concept of no fault liability. After the amendment of 1994 in the Motor Vehicles Act, 1988 the legislature has enacted Section 163-A in the Act. The claimants can claim compensation without having to prove negligence. Even the Insurance Companies are held liable in cases where the owner is not at fault on the ground that since the owner has not committed a breach of the policy, the Insurance Company is liable. The claimants can claim compensation without having to prove negligence. Even the Insurance Companies are held liable in cases where the owner is not at fault on the ground that since the owner has not committed a breach of the policy, the Insurance Company is liable. The State Governments and the State owned Transport Corporations have been exempted from getting their vehicles insured and they cannot be placed on the better footing than the Insurance Companies. They must take the responsibility for the acts of their employees and as such they are liable to pay compensation for any tortious act of the employee. Even if the act of the employee may be beyond the scope of his duties or he may have acted in violation of the instructions or mandate issued to him, the employer cannot escape the liability. 18. In the present case, admittedly, the driver was on duty. According to the respondents, he had been asked to park the jeep at the bus stand. This appears to be afterthought. The driver could not have been expected to walk to his native place which is about 25 Kms away from the main Bus stand. It is a known fact that the drivers do take the government vehicles to their residences especially when they finish their duties at odd hours as happened in the present case. 19. However, assuming that the driver had taken the vehicle unauthorisedly, this would not help the case of the respondent-HRTC. He was admittedly the driver of he vehicle and the vehicle had been put in his charge by the owner. In view of the law laid down by the apex Court, the owner is also liable for acts of the driver which he may have unauthorisedly done. Therefore, the findings of the Tribunal below on this point is set aside and it is held that the respondent - HRTC is responsible for tortious act of the driver. 20. With regard to negligence from the evidence on record, it is apparent that the vehicle rolled down into the Khud. It has also come in evidence that the vehicle was being driven rashly and negligently. In fact the Tribunal has also given this finding which has not been challenged. Therefore, it is held that the accident had occurred due to the negligence of the driver. 21. It has also come in evidence that the vehicle was being driven rashly and negligently. In fact the Tribunal has also given this finding which has not been challenged. Therefore, it is held that the accident had occurred due to the negligence of the driver. 21. Now comes the question of the amount of compensation to which the claimant is entitled to. As per the statement of PW1 Dr. R.S. Yadav the appellant Pritam Chand remained admitted in the Neurosurgery Department with effect from 27.3.1995 to 4.4.1995. He has suffered compression facture of lumber spine No. 1. After the discharge from the hospital, the appellant- Pritam Chand remained as out door patient in the Orthopaedics Department. According to this witness, the appellant has been under treatment though as an out door patient right from May, 1995 and he was still under treatment when the statement of the doctor was recorded on 5.3.1997. 22. According to the expert witness, the claimant-appellant has suffered permanent disability to the extent of 25% as per the disability certificate Ex. PA. He has stated that the claimant-appellant had to wear belt atleast for a period of three years and he cannot carry heavy load or do heavy manual work. He cannot also bend his body easily. However, he has admitted that the claimant - appellant can continue his job as a driver. From the above evidence, it is clear that no financial loss has been caused to the appellant-claimant with regard to loss of his pay since he continues to be employed as a driver in the HRTC. However, he remained in hospital for about a week. He has not claimed any medical expenses since the same were being reimbursed to him. However, he remained on leave for about 3 months and keeping in view the fact that his salary was Rs. 5,085/-, therefore he is entitled to Rs. 15,000/- on account of leave due to the accident. He is also entitled to an amount of Rs. 5,000/- for special diet etc. It may be true that the salary of the appellant-claimant is not affected. However, the fact remains that he has suffered a permanent disability to the extent of 25%. He will have to bear with his disability throughout his life and the earning capacity of the claimant-appellant after retirement would definitely be adversely affected. 23. 5,000/- for special diet etc. It may be true that the salary of the appellant-claimant is not affected. However, the fact remains that he has suffered a permanent disability to the extent of 25%. He will have to bear with his disability throughout his life and the earning capacity of the claimant-appellant after retirement would definitely be adversely affected. 23. Keeping in view all these factors, a sum of Rs. 30,000/- is awarded to the appellant-claimant on account of pain and suffering as well as future loss, discomforts and loss of amenities. The total compensation thus payable to the claimant-appellant is Rs. 50,000/-. He is also entitled to interest at the rate of 9% per annum with effect from 8.9.1997 the date of institution of the petition till the date of deposit of the amount. The respondent-HRTC is directed to deposit the amount within eight weeks from today failing which the rate of interest shall stand enhanced to 12 % per annum. 24. The impugned award of the Tribunal is set aside and the appellant is held entitled to compensation and interest as detailed above. The appellant-claimant is also entitled to costs which are quantified at Rs. 2,000. Petition disposed of.