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2007 DIGILAW 138 (UTT)

Amar Singh and others v. Sri Jagdish Kumar

2007-03-26

RAJESH TANDON

body2007
Judgment 1. Heard Sri Lalit Belwal, counsel for the appellants and Sri K.K. Sah and Sri K.N. Joshi, counsel for the respondents. 2. This appeal has been preferred against the Award dated 21-8-2006, passed by the Motor Accident Claims Tribunal,Udham Singh Nagar. 3. The claimant Jagdish Kumar preferred a claim petition under section 166 of the Motor Vehicles Act, for the grant of compensation on account of the injuries sustained by Sri Mohit Kumar in a motor vehicle accident. According to the claimant on the fateful day on 226-2003, deceased was going to his maternal home by tractor No. UA 06A-5006 along with his sister. The tractor was being driven rashly and negligently due to which it collided with a tanker and Mohit Kumar fell down from the tractor due to heavy jerk. He sustained grievous injuries in the accident. The injured had lost his eyesight and he was admitted in Deep Nursing Home, Rudrapur and thereafter he was treated in different hospitals at Delhi, Sitapur and Chennai. The claimant claimed Rs. 3,00,000/- as compensation. 4. Opposite parties have contested the claim petition and have filed their respective written statements. Opposite parties NO.1 and 2 owner of the vehicle and driver have filed joint written statement and have submitted that the accident has not taken place due to rash and negligent driving. The driver had a valid driving licence and the vehicle was validly insured with the United India Insurance Company and the insurance company is liable to pay compensation. 5. Respondent no. 3 Surjeet Singh has admitted that the tractor was registered in his name. He also pleaded that the driver of the tractor had valid driving licence and the insurance company is liable to pay compensation. 6. The insurance company has admitted that the tractor involved in the accident was insured with it but no information of the accident has been given to it. The tractor was registered for agriculture purposes but the tractor was being plied for carrying passengers in violation of the terms and conditions of the insurance policy. 7. In order to prove the case, the claimant has examined P.W.1 Jagdish Kumar P.W.2 Vijai Kumar and P.W.3 Smt. Radha Rani. The opposite parties have examined D.W.1 Amar Singh, D.W.2 Jagtar Singh and D.W.3 Satpal Singh. Both the parties have also filed documentary evidence also. 8. 7. In order to prove the case, the claimant has examined P.W.1 Jagdish Kumar P.W.2 Vijai Kumar and P.W.3 Smt. Radha Rani. The opposite parties have examined D.W.1 Amar Singh, D.W.2 Jagtar Singh and D.W.3 Satpal Singh. Both the parties have also filed documentary evidence also. 8. On the basis of the evidence adduced by the claimant, the Claims Tribunal has held that the accident had taken place due to rash and negligent driving of the tractor driver. 9. So far as the compensation is concerned the Tribunal has recorded the findings that the claimant has incurred Rs. 11,621.00 in the treatment of his son. He was also granted Rs. 15,0001- for pain and suffering and Rs. 1,50,000/- for permanent disability. Thus a total sum of Rs. 1,76,6211- was granted to the claimant as compensation along with pendente lite and future interest at the rate of 5% per annum. 10. The Claims Tribunal has also held that the tractor was being used for carrying passengers in violation of the terms and conditions of insurance policy, therefore, the owners and the driver of the tractor are jointly and severally liable to pay compensation to the claimant. 11 . Feeling aggrieved the owners and driver of the tractor have preferred the present appeal. 12. The Claims Tribunal exonerated the Insurance company on the ground that the vehicle in question was an agriculture vehicle and was used for non-agriculture purpose, contrary to the terms of the insurance policy. 13. The Claimant has not filed any cross-objection or any independent appeal against the impugned award, hence, the question of quantum is not involved and the only question involved in this appeal is about liability of the Insurance Company. 14. Although in this case the appellants owners and driver of the tractor have not come with clean hand and they came up to defend the claim of the claimant by completely denying the accident involving their tractor No. UA 06A-5006. They based their defence on the tractor- number wrongly mentioned in the F.IR Le. UA06-A/5066. However, the claims Tribunal has rejected their defence and has held that the accident had taken place due to rash and negligent driving of Tractor No. UA06-A-5006, which was being driven by Jagtar Singh and was owned by Amar Singh and Surjeet Singh. Tractor number has wrongly been mentioned in the F.I.R as UA06A-5066 while it should be UA 06-A/5006. However, the claims Tribunal has rejected their defence and has held that the accident had taken place due to rash and negligent driving of Tractor No. UA06-A-5006, which was being driven by Jagtar Singh and was owned by Amar Singh and Surjeet Singh. Tractor number has wrongly been mentioned in the F.I.R as UA06A-5066 while it should be UA 06-A/5006. Later on by amending the Claim Petition the claimant has removed this defect. Either of the party has not challenged the findings of the Claims Tribunal on this point. 15. Counsel for the appellants has submitted that the insurance company has failed to prove that the breach was committed with the knowledge and consent of the owner and, therefore, breach is not a willful breach at the instance of the owner. 16. Counsel for the appellants has placed reliance on the case Sohan Lal Passi vs. P. Sesh Reddy (1996) 5 SCC 21, where the Apex Court has held that the insurer is required to establish willful violation or infringement of a promise by the insured. The rights of the legal heirs of the victim should not be defeated on technical ground of mere contravention of the condition prescribed under Sec. 96 (2) (b) (ii) of the M.V. Act. The bar under section 96(2)(b)(ii) on the face of it operates on the person insured. If the breach or violation of a promise or obligation has been done at the instance of the owner then only that clause shall be attracted. In the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. (P) Ltd. 4, it was said: (SCC pp. 756-57, para 14) ".........we would like to point out that the 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. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt (1966) 3 SCR 527 where this Court accepted the law laid down by Lord Denning in Ormrod v. Crosville Motor Services Ltd. (1953) 2 AII ER 753 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 owner's consent, driving the car on the owner's business or for the owner's purposes. This extension has been accepted by this Court. The law as laid down by Lord Denning in Young v. Edward Box and Co. Ltd. (1951) 1 TLR 789 already referred to i.e. the first question is to see whether the servant is liable and if the answer is yes, the second question is to see whether the employer must shoulder the servant's liability, has been uniformly accepted as stated in Salmond's Law of Torts, 16th Edn., p. 606, in Crown Proceedings Act, 1947 and approved by the House of Lords in Staveley Iron and Chemical Co. Ltd. v. Jones 3 and ICI Ltd. v. Shatwell (1964) 2 All ER 999." Same is the position in the present case. The appellant had authorised Gurbachan Singh to drive the vehicle, but Gurbachan Singh allowed Rajinder Pal Singh, the cleaner/ conductor who was also the employee of the appellant to drive the vehicle because of which the accident took place. It is not the stand of the appellant that Rajinder Pal Singh was driving the vehicle without the knowledge or consent of Gurbachan Singh, for his personal pursuit. He was driving the bus for the business of the appellant, that is to carry the passengers. In this background, the appellant cannot escape the liability so far the third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. As it has been established that the negligent act of Gurbachan Singh and respondent Rajinder Pal Singh was "in th.e course of employment" the appellant shall be liable for the same. In the present case, the accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected within the course of employment. It was not an independent act for a purpose which had no nexus or connection with the business of the appellant so as to absolve the appellant from the liability. 17. In the present case the driver of the Tractor allowed the son and daughter of the claimant to board on the tractor for going to Rudrapur from Jaspur. This act was done by the driver Jagtar Singh in the absence of the owners of the tractor. 17. In the present case the driver of the Tractor allowed the son and daughter of the claimant to board on the tractor for going to Rudrapur from Jaspur. This act was done by the driver Jagtar Singh in the absence of the owners of the tractor. The insurance company has failed to prove that his breach was committed with the knowledge and consent of the owner and therefore, this breach is not a willful breach at the instance of the owner. Therefore, the insurance company is liable to satisfy the claim of the third party in the present case. 18. Counsel for the Insurance Company has placed reliance on the judgment of a single Judge of Madhya Pradesh High Court in the case Raja Beti and another vs. Smt. Ramshri and another, 2003 (2) TAC. 731 (M.P.) but the facts of the said case are different to the present case. In that case the owner of the tractor was also sitting near the driver of the vehicle at the time of accident and thus the breach was done in his presence, knowledge and consent of the owner of the tractor. 19. In view of the above, I find that the Claims Tribunal was not justified by exonerating the Insurance Company from making payment of the compensation awarded. 20. Accordingly, the appeal is allowed and the United India Insurance Company respondent no. 2 is directed to satisfy the award. 21. No order as to costs.