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2005 DIGILAW 436 (HP)

UNION OF INDIA v. RAJ RANI

2005-11-23

DEEPAK GUPTA

body2005
JUDGEMENT Deepak Gupta, J (Oral).: This appeal by the Union of India under Section 173 of the Motor Vehicles Act is directed against the award of the Motor Accident Claims Tribunal, Una, in MAC Petition No.24/1999, decided on 25.3.2002. 2. The brief facts of the case are that Pritam Chand, husband of claimant Raj Rani and father of Reeta Rani and Dharam Singh, was aged 43 years. He was earlier serving in the Indian Army and after his retirement was employed as Constable in the Himachal Police. On 20.11.1997, he was going to Chamba to join his duty when he took a lift in truck No. 65655, belonging to the General Reserve Engineers Force (GREF) of the Union of India. The said vehicle met with an accident at a place called Gulabgarh and the deceased died as a result of the injuries sustained therein. The defence taken by the present appellants was the deceased alongwith about 20 other civilians had forcibly got into the truck and they had threatened the driver and due to the threatening posture of the civilians travelling in the truck, the driver of the truck lost control of the truck which resulted in the accident. The other plea raised by the Union of India is that in the vehicle in question no civilians could have been carried and the driver was not supposed to carry any passengers and, therefore, the employer is not vicariously liable, even if it is held that the deceased had been taken on board by the driver with his consent. In this behalf Mr. Sandip Sharma, learned Assistant Solicitor General of India, argues that the area in question i.e. Gulabgarh in Doda District of Jammu and Kashmir is an insurgency prone area and, therefore, carrying of civilians in such vehicle is strictly banned. 3. The first question which is to be decided is whether the driver had been terrorized to carry the passengers. Unfortunately, the claimants led no evidence. In fact, the claimants could have led no evidence since they were not on the spot. The driver of the vehicle and one other witness have been examined. According to them, the driver alongwith three other employees of the Union of India were travelling in the truck. The rations were being carried in the rear of the truck. In fact, the claimants could have led no evidence since they were not on the spot. The driver of the vehicle and one other witness have been examined. According to them, the driver alongwith three other employees of the Union of India were travelling in the truck. The rations were being carried in the rear of the truck. About V% km from Gualabgarh, the truck was forcibly stopped by about 20 civilians who forcibly got on to the truck and sat on the top of the ration. The deceased was a part of this group of persons. The driver then states that after going some distance he saw another vehicle belonging to the GREF. Therefore, according to him, he wanted to stop the vehicle so that he could remove the civilians who had forcibly climbed on to his truck. According to him, one of the civilians threatened him with a knife and as such he lost control over the vehicle and the accident occurred. He also states that he was to take some other route but the civilian persons who had forcibly boarded the truck forced him to take the road wherein the truck was being driven. 4. A perusal of the reply filed by respondent No.2 shows that in this reply respondent No.2 has stated that after crossing Gulabgarh he saw about 20 civilians. He feared that they would forcibly try to board his vehicle. According to him, the road was under construction and in a bad condition and, therefore, he could not turn his vehicle and the civilians forcibly boarded the vehicle and since he was threatened in a terrorist prone area he permitted them to board on the vehicle. In this reply, no where is it stated that the civilians forced the driver to change the route which he was supposed to take nor it was stated that he was ever threatened with a knife. The stand taken by the driver in his statement is totally inconsistent with the stand taken by him in his reply. Only one of the other passengers travelling in the vehicle has been examined as RW-1. It is interesting to note that Dev Raj, who is this witness, states that after the civilians forcibly got on to the truck and the vehicle had moved 2-3 kms further, the same overturned. Only one of the other passengers travelling in the vehicle has been examined as RW-1. It is interesting to note that Dev Raj, who is this witness, states that after the civilians forcibly got on to the truck and the vehicle had moved 2-3 kms further, the same overturned. He states that the vehicle overturned because the civilians were troubling the driver of the vehicle. On the other hand, the statement of the driver is that he was threatened with a knife and as such he lost control over the vehicle. 5. The version of the driver cannot be believed. Admittedly, the civilians who are alleged to have forcibly boarded the truck were all sitting in the rear of the truck. It has also come in evidence that the driver alongwith three other employees of the Union of India were in the cabin of the truck and this cabin is separate from the rear of the truck. Therefore, the question of the driver being threatened by the civilians does not arise. These are contradictory versions. Therefore, it is held that the civilians had not forcibly boarded the truck and had not terrorized the driver. 6. The next question is with regard to the vicarious liability of the appellant. 7. I have heard Mr. Sandip Sharma, learned Assistant Solicitor General appearing on behalf of the Union of India. He has contended that the driver was driving the vehicle in an unauthorized manner. In this case since he permitted the civilians to board the vehicle without permission, the Union of India cannot be held vicariously liable for the totally unauthorized act of the driver. He has relied upon the judgment in case Sita Ram Motirlal Kalal versus Santanprasad Jaishanker Bhatt, AIR 1996 SC 1697, in which the Honble Apex Court held as under: "(27) The law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servants act does not make the employer liable. In other words, for the masters liability to arise, the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by the master. The driver of a car taking the car on the masters business makes him vicariously liable if he commits an accident. In other words, for the masters liability to arise, the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by the master. The driver of a car taking the car on the masters business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant, at the time of the accident, is not acting within the course his employment but is doing something for himself the master is not liable. There is a presumption that vehicle is driven on the masters business and by his authorized agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorized person and on his own business. The de facto driver was not the driver by an unauthorized person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner would not be liable in such circumstances." 8. 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 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. In Sita Rams case (Supra), the owner of the vehicle entrusted it to person A for plying a taxi. B used to clean the taxi. He was neither employed by the owner or by A. A trained B to drive the vehicle and took B for obtaining license 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. 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 the 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 servant, act does not make the employer liable. 9. 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 P was travelling 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 fo point out that the trend in Jaw 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." 10. Lord Denning in Young v. Edward Box and Co. Ltd. (1951) 1 T.L.R. 789, has made the following 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. 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 hat 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." 11. 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 the scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, of 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." 12. 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. 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." 13. 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 versus 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 there under. 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 the Statute." 14. This question also come up for consideration before a Division Bench of the Karnataka High Court in M.S. Rayta and another versus Gowrawwa Channabasappa and another, 1987 ACJ 846. It was held that the master is vicariously liable even if the 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 and was not driving the vehicle on the masters instructions. It was held that the master is vicariously liable even if the 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 and was not driving the vehicle on the masters instructions. The driver had been asked to take the vehicle to a particular place and to bring it 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. 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. 15. In State of Madhya Pradesh and another v. Ratna Devi and others, 1991 ACJ 166, while considering a similar plea the High Court of HP. 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 unauthorsidly gave lift to two passengers who died in the accident. 16. A similar point came up before the apex Court in State of Maharashtra and others versus 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 Sitraram 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 license for driving. While taking the test B cause 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. 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 license 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. 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. Xxx xxxx xxxx xxx 17. Incidentally, it may be pointed out that in Motor Vehicles Act, 1939, Chapter Vll-A "liability without fault in certain cases" has been introduced (Chapter X of the Motor Vehicles Act, 1988). Sub section (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. 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 of 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 right 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." 17. A Division Bench of this Court has considered in detail the law with regard to vicarious liability in New India Assurance Co. Ltd. versus lachhmi Devi and others, 1996 ACJ 496. In that case several persons sustained injuries when they were travelling in a truck. The owner of the truck contended that the driver had allowed the passengers to board the truck against his instruction 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. 18. From a reading of the various judgments cited above it is clear that the law with regard to vicarious liability has been made more liberal and the rule of vicarious liability has been expanded by judicial pronouncements. 18. From a reading of the various judgments cited above it is clear that the law with regard to vicarious liability has been made more 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 legjslature has enacted Section 163-A in the Act. The claimants can claim compensation without even 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 Government and the State owned Transport Corporations have been exempted from getting their vehicles insured and they cannot be placed on a 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 any tortuous 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. 19. In view of the above law, I am of the considered view that the Union of India is liable for the acts of the driver even if those acts are unauthorized and not permitted by the employer. 20. So far as quantum is concerned, I find that the last pay of the deceased, which proved on record, is about Rs.6,000/- per month. The dependency has been taken at Rs.4,000/- per month and a multiplier of 10 has been applied. In my view, the compensation awarded is just and reasonable and calls for no interference whatsoever. 21. In view of the above, the appeal is without any merit, which is accordingly dismissed. Cross Objections No.373/2002 22. In view of the judgments of this Court in FAO No. 267 of 1993 Miss Lata versus United India Insurance Company Ltd. and others, decided on 27 October, 2004 and Cross Objections in FAO No.221 of 1996, HRTC versus Smt. Breekan Devi and others, decided on 7.6.2005, the Cross Objections are not maintainable and, hence, dismissed. 23. In view of the judgments of this Court in FAO No. 267 of 1993 Miss Lata versus United India Insurance Company Ltd. and others, decided on 27 October, 2004 and Cross Objections in FAO No.221 of 1996, HRTC versus Smt. Breekan Devi and others, decided on 7.6.2005, the Cross Objections are not maintainable and, hence, dismissed. 23. Both the appeal and the Cross-objections are disposed of in the aforesaid terms. No order as to costs.