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2009 DIGILAW 209 (GAU)

State of Tripura v. Gayetri Acherjee

2009-03-25

B.D.AGARWAL

body2009
JUDGMENT B.D. Agarwal, J. 1. This appeal by the State of Tripura has been filed assailing the judgment and award dated 23-9-1999 passed by the learned Member, Motor Accident Claim Tribunal Court No. 2. West Tripura. Agartala in T.S. No. (MAC)/116/93. By this Impugned Judgment apart from awarding a sum of Rs. 2,33,000/- ,as compensation to the legal heirs of this deceased Under Section 166 of the Motor Vehicles Act, 1988 (for short the 'Act') the Tribunal has directed that the award shall be satisfied by the Inspector General of Police. Govt. of Tripura since the said officer had hired the offending vehicle at the relevant period. 2. I have heard Shri T.D. Mazumder, learned Counsel for the appellants. Shri H.K. Bhowmik, learned Counsel for the respondent Nos. 1, 2 and 3 and Shri S.M. Chakraborty, learned Senior Counsel for the respondent Nos. 4, and 5. The respondent No. 6 who was impleaded in the claim application on the premise that the vehicle was, in fact sold to him before the accident took-place, has not come forward to contest this appeal. 3. The only, question involved in this appeal is as to whether the award should be satisfied by the State of Tripura or by the owner of the vehicle. 4. Shri T.D. Mazumder, learned Counsel for the appellants submitted that the Jeep No. TRT-2694 was hired by the Police Department of the State of Tripura for a short period and as such it cannot be presumed that the entire custody and liability of the vehicle and its driver were taken over by the State Government. The learned Counsel for the appellants submitted that the Tribunal has proceeded with a wrong presumption that the offending vehicle was in fact requisitioned by the Government to shift the liability from the registered owner upon the State. 5. On the other hand, Shri H.K. Bhowmik learned Counsel for the owner of the vehicle submitted that pleadings of the opposite parties in the claim case are enough to decide the legal issue. According to the learned Counsel, the offending vehicle was essentially requisitioned by the Government for election duty and while the vehicle was under the custody and control of the Government it was utilized by the Police Department to carry a victim of rape for medical examination. The deceased being the father of the victim was also travelling in the same vehicle. The deceased being the father of the victim was also travelling in the same vehicle. It may also be mentioned that the deceased was also a Govt. employee in the Social Welfare Department under the Govt of Tripura. While the vehicle was returning from the hospital at a high speed the deceased suddenly fell down from the vehicle and succumbed to the injuries. Thereafter claim was lodged Under Section 166 of the 'Act' and compensation has been awarded by the Tribunal. 6. Long back in the year 1997, in the case of Rajasthan State Road Transport Corporation v. Kailash Nath Kothari AIR 1997 SC 3444 , the Apex Court had the occasion to consider as to who would be liable to pay compensation if the vehicle is hired by a public undertaking In that case the offending vehicle was hired by RSRTC under an agreement. One of the conditions of the agreement was that in the event of an accident the owner of the bus would be livable for the loss, damages and for the liabilities of the passengers. Despite this Stipulation in the agreement the Apex Court held that RSRTC was in fact liable to satisfy the award since the vehicle was under effective control of the said-Corporation. The relevant observations of the Apex Court can be fruitfully reproduced below: The definition 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.... 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.... 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 pay roll of the original owner.... 7. Again in the case of National Insurance Co. Ltd. v. Deepa Devi the Apex Court held that if a vehicle is requisitioned by the State the vicarious liability of the owner would stand shifted upon the State and in this situation the State would be treated as 'owner' of the vehicle within the meaning of Section 2(30) of the Motor Vehicle Act, 1988. 8. A similar view has been taken by the Gauhati High Court in the case of State of, Assam v. PranesK Debnath reported in (1991) 2 GLR 389. This judgment has been referred and relied, upon by the Tribunal. The relevant views expressed in this judgment are in the following words: ...during, the period the vehicle remains under requisition, the liability for, compensation or payment of any kind lies, with the officer or authority requisitioning the vehicle and not the owner. The reason is obvious. The vehicle is in absolute control of the requisitioning authority. The owner has no control whatsoever over the user of the vehicle during such, period. The driver and/or other employees work under the directions and control of the requisitioning authority and not the owner. The vicarious liability, therefore, cannot be fastened to the owner. It has to fall on the requisitioning authority.... 9. It may be mentioned here that except filing their written statements neither the owner nor the State defendants adduced any oral evidence in the Tribunal. Hence, I have no other option except to determine the issue on the basis of averments of the contesting defendants. 10. It has to fall on the requisitioning authority.... 9. It may be mentioned here that except filing their written statements neither the owner nor the State defendants adduced any oral evidence in the Tribunal. Hence, I have no other option except to determine the issue on the basis of averments of the contesting defendants. 10. In the written statement the State defendant admitted the fact that they had hired the vehicle for a long period of nearly 3 (three) months i.e. from 21-1-1993 to 17-4-1993 and the vehicle was placed under the control of Airport Police Station. It is true that the State defendants did not say specifically that the vehicle was requisitioned by the State or that it was under the effective control of the State. It may be so, because there is no special law for requisition of motor vehicles in the State of Tripura. On the other hand, in the written statements of the owner submitted on 20th of June, 1995 and again on 3rd August, 1996 it was specifically pleaded that the vehicle was hired by the Police Department and the same was deputed to Airport Police Station on Govt. duty. In the additional written statement the factual aspect was made further clear by pleading that at the relevant time the vehicle was under the proper custody and control of the Airport Police Department and the said department was the custodian of the vehicle. 11. It is true that the words 'hire' and 'requisition' have not been defined in the Motor Vehicles Act. In other words hiring of a vehicle may be for a limited purpose and period and it can also be in the sense of requisition by the State authorities. If we go by the dictionary meaning of the two disputed words the consensus meaning of the word 'hire' is to obtain a thing for temporary use in return for payment. Whereas the term 'requisition' denotes using a property by laying formal demand and usually for a longer period. In this way both the Words are relative and to some extent synonymous. In my opinion both the words 'hire' and 'requisition' are not essentially antonymous to each other. In other words, I find that most of the characters of both words are identical and facts and circumstances of each case would determine whether the property was taken on hire or on requisition. In my opinion both the words 'hire' and 'requisition' are not essentially antonymous to each other. In other words, I find that most of the characters of both words are identical and facts and circumstances of each case would determine whether the property was taken on hire or on requisition. I am of further view that in the absence of any special law for requisition of private or public motor vehicles if a vehicle is hired by the State Authorities it would ordinarily be construed as requisitioning of the vehicle. To say it differently the presumption in such cases would be that of requisitioning of vehicle, provided contrary is proved by the State. 12. In the case before me despite specific averments by the owner of the vehicle that the Government had taken effective control of the vehicle, the State defendants neither filed any rejoinder nor choose to adduce any evidence to rebut the averments of the owner. Besides this, the long period of hiring of the vehicle also indicates that, the vehicle was in essence had been taken by the Government on requisition and as such the Tribunal has rightly fastened the liability to satisfy the award upon the State defendants/appellants. 13. In the result, I do not find any merit in the appeal. Consequently, the appeal stands dismissed.