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Karnataka High Court · body

2009 DIGILAW 407 (KAR)

Mallamma v. Mahaboob Ali

2009-06-16

A.N.VENUGOPALA GOWDA

body2009
Judgment :- These appeals arise out of a common judgment and consequential awards passed by the learned member, Motor Accident Claims Tribunal – II (for short ‘the tribunal’) Chitradurga, whereby the claim petitions have been rejected. 2. The appellants filed claim petitions before the tribunal under Section 166 of Indian Motor Vehicles Act, 1988, (for short ‘the Act’). The appellants are either the injured persons or the legal representatives of the deceased, who had gone to coolie work in Davanagere or in Nittur village and had boarded lorry bearing registration No.CNT-8786 on 08.06.1995 at Davanagere, to return to their villages, namely Chinnobanahally or Hirehally alongwith their paddy bags by paying in all Rs.1,100/-as hire charges to the driver of the said lorry and when the said lorry was going near Lokikere cross, its driver drove the same at high speed in rash and negligent manner, as a result of which, the lorry toppled down and capsized and the accident took place, as a result of which, few persons travelling in the lorry died and the others sustained grievous injuries, who were all shifted to the District Hospital, Chitradurga, wherein they took treatment. The said lorry belonged to the first respondent and the same was insured by the second respondent. According to the appellants, in view of the actionable negligence on the part of the driver of the lorry and the resultant loss to them, the respondents are liable to pay the compensation. The driver of the lorry was impleaded in few petitions. However, he was subsequently given up. Though the 1st respondent – owner of the lorry entered appearance through an advocate, he has not filed objections to the claim petitions. The driver of the lorry was impleaded in few petitions. However, he was subsequently given up. Though the 1st respondent – owner of the lorry entered appearance through an advocate, he has not filed objections to the claim petitions. The second respondent – insurance company has filed objections inter-alia contending that, the injured petitioners and the deceased were traveling in the lorry as unauthorized or gratuitous passengers; the accident was not due to the rashness or negligence of the driver; the vehicle was a goods vehicle and the passengers were not entitled to travel or to be carried in the vehicle; the lorry though was insured by it, the same was subject to the condition that the vehicle shall be used as private goods carrier with liability of the insurance company to indemnify the third party, driver, third party property damage and the said policy did not cover the risk of unauthorized or gratuitous passengers and therefore the petitioners cannot claim any compensation from it. 3. Based on the pleadings of the parties, the issues, which are more or less similar in nature, were framed separately in all the petitions. Some of the petitioners got themselves examined as PWs 1 to 9 and Ex.P-1 to Ex.P-68 were marked. The owner of the vehicle did not cross-examine PW-1 to PW-9 and did not get himself examined nor any other evidence. On behalf of the second respondent – insurance company, RW-1 deposed and Ex.R-1 and Ex.R-2 were marked. After appreciation of the evidence on record with regard to issue No.1 in all the claim petitions, the tribunal has held that, the accident in question has occurred due to rashness and negligence of the driver of the lorry, resulting in injuries to many persons and death of few persons. 4. However, taking into consideration the delay of about 4 years in filling the claim petitions, absence of proof of the deceased and the injured transporting paddy bags and the judgment at Ex.R-2 fixing the liability on the insurer in respect of only 5 passengers who had accompanied the goods, it has held that, the travel of the injured persons and the deceased persons in the vehicle was illegal and unauthorized and hence the insurer cannot be fastened with the liability. Examining the question, whether the respondent – owner can be made liable to pay compensation to the petitioner, it has held that, the owner cannot be made liable to pay compensation, since proof has not been produced by the petitioners establishing the fact, that the owner had permitted the driver to carry many persons in the goods carrier and that the driver was ‘on a frolic of his own’ or having ‘a joy ride’, though it was held that, the driver had acted under employment of the owner. 5. I have heard Sri B.M. Siddappa, learned counsel for the appellants and a battery of learned counsel for the respondent – insurance company. The first respondent – owner, though served with the notice, has remained unrepresented. I have perused the records. 6. An important aspect has to be noticed at this stage. MVC Nos.275 to 277 of 2006 and 1037 to 1039 of 1996, involving the very same accident had been filed in the tribunal, claiming compensation for the loss sustained on account of the actionable negligence on the part of driver of the vehicle. The respondents herein were the respondents in the said petitions also. The tribunal by its judgment dated 19.11.1999 held that, the accident occurred due to rash and negligent driving of the lorry by its driver and the deceased were travelling with their goods namely, paddy bags and the petitioners being the legal representatives of the deceased are entitled to compensation and further held that, in view of the fact that the lorry was insured with the second respondent on the date of accident, both the insured and the insurer are jointly and severally liable to pay the compensation awarded. Dissatisfied with the amount awarded, the petitioners therein filed appeals before this court. The insurance company also filed separate appeals contending that, the liability of the insurance company is restricted to 4 persons, as the insurance policy covers indemnity only in respect of 5 persons and it had already satisfied the award passed by the Workmens’ Compensation Commissioner in respect of death of cleaner of the lorry and therefore the tribunal was not justified in fastening the liability in all the 6 cases on the insurance company. Considering the rival contentions and the record, it was held by this court as follows: “The liability of the insurance company should be restricted to satisfy the award passed in 5 claim petitions and not 4 as contended by the insurance company and to that extent the award passed by the Motor Accident Claims Tribunal that insurance company is liable to satisfy the award passed in 6 claim petitions is liable to be modified and having regard to the nature of the claim and the compensation awarded, I hold that the insurance company shall satisfy the award passed in MVC 275, 277, 1037,1038 to 1039 and it is absolved of its liability in MVC 276/1996 and in the said case, the compensation awarded shall be paid by the owner and the claim petition against the insurance company is liable to be dismissed”. (underlining by me) 7. After noticing the judgment of this court as at Ex.R-2, Sri B.M. Siddappa, rightly did not press the claim against the second respondent – insurance company. The claim against the insurance company was given up by the learned counsel, keeping in view the fact that, this court while passing the judgment at Ex.R-2 has held that the risk of 5 persons accompanying the goods was only covered by policy at Ex.R-1 and since this court directed the insurance company to satisfy the award in respect of 5 claims, which the insurance company satisfied, the claim by others against the insurance company was not tenable. In the said circumstances, the tribunal was justified in dismissing the claim made by the appellants herein against the 2nd respondent-insurance company. 8. However, the emphatic contention of Sri B.M.Siddappa, is that, the tribunal was in error in holding that the accident did not take place in the course of the employment of the driver or under the authorization of the owner. Learned counsel pointed out that the owner, who was served with the notice of the claim petitions, after entering appearance, did not contest the claim petitions not cross-examined PWs 1 to 9, much less has placed any evidence to prove that the driver of lorry on the date of accident was ‘on a frolic of his own’ or having ‘a joy ride’ as held by the tribunal. He contended that, the learned member of the tribunal has committed grave error in wrongly placing the burden of proof on the petitioners to establish that the owner had granted the permission to the driver to carry the persons in goods carrier. He contended that the tribunal having held that the driver was acting under the employment of the owner, it was for the owner to have established as to how he is not vicariously liable for the acts of his servant – driver. He further contended that, the tribunal has committed an error and illegality in holding that the petitioners are not entitled to any relief or compensation from the owner. 9. The question of payment of compensation for motor vehicle accidents has assumed great proportions. The road accidents have been on increase. The courts and tribunals direct payment of compensation, on the claimant establishing the fault of the person causing the injury or the damage i.e., on account of actionable negligence. While judging vicarious liability of the employer for the negligence of the employee, the same is the approach. Dictionary meaning of the word ‘negligence’, is the omission to do something, which a reasonable man is expected to do something, which a reasonable man is expected to do or a prudent man is expected not to do. In the given set of facts and circumstances of a case, whether the person causing the injury to the other was negligent or not, has to be examined on the basis of the evidence before the court. The ordinary rule is that, an employer though guilty of no fault of himself, he is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case it can be found that an employee was doing authorised act in unauthorised, but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting, done something negligent or wrongful. A master is liable even if acts which he has not authorised, provided they are so connected with acts which he has been so authorised. 10. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting, done something negligent or wrongful. A master is liable even if acts which he has not authorised, provided they are so connected with acts which he has been so authorised. 10. In Halsbury’s Laws of England, 4th Edition, vol.16 at para 739, it has been stated that: 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 employer does the act in such a manner as to occasion to an injury to 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. In the case of Pushpabai Parshottam Udeshi and Others Vs. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. and another, reported in AIR 1977 Supreme Court 1735, the facts were that, one Purshottam Udeshi was traveling in a car which was driven by the Manager of the first respondent company. The car dashed against a tree, resulting in the death of Purshottam Udeshi. The widow and children of the deceased filed a claim for compensation, which was allowed in part by the tribunal. On appeal by the insurance company, it was held that, the respondent company cannot be vicariously liable for the act of driver in taking Purshottam Udeshi as a passenger, as the said act was neither in the course of his employment nor under any authority whatsoever. Therefore, the respondent company was not liable to pay any compensation. On an appeal being filed, it was pointed out by the Hon’ble Supreme Court that, the recent trend in law was to make the master liable for the acts which do not strictly fall within the term “in the course of the employment” as ordinarily understood and it was held that the respondent company was vicariously liable in respect of the accident. 12. In the case of Sohan Lal Passi Vs. 12. In the case of Sohan Lal Passi Vs. P. Sesh Reddy and Others, reported in (1996) 5 Supreme Court Cases 21, the facts were that, an accident took place between a bus and scooter, as a result whereof, the rider of the scooter fell down and succumbed to the injuries. A Claim petition was filed before the Motor Accident Claims Tribunal by his legal representatives claiming compensation. It was contended that the cleaner/conductor of the bus was driving the bus at the relevant time when the accident took place resulting in death of the deceased, on account of rash and negligent driving of the vehicle. The claim petition was resisted by the owner of the vehicle contending that, when the accident took place the bus was driven by the driver who had the license to drive the bus in question and as such, the insurance company was liable to pay the compensation. The insurance company, however, took the defence that as the bus was being driven by the cleaner/conductor of the bus who was not holding the driving license and, therefore, the insurance company cannot be held liable to pay the compensation because under the terms of policy only such person holding a driving license could have driven the bus in question. The tribunal on consideration of the materials before it came to the conclusion that the accident was a result of rash and negligent driving of the bus by the cleaner/conductor who did not have a driving license. Consequentially, tribunal discharged the liability of the insurance company and directed the owner and the driver as well as the cleaner to pay the compensation amount. The claimants filed appeal for enhancement of compensation. The owner of the bus also filed appeal for setting aside the order of tribunal. Compensation was enhanced by allowing the appeal of the claimants in part. In respect of the dispute regarding liability to pay the compensation between the owner and the insurance company, it was held that, the insurance company was not liable because the vehicle was being driven by a person at the time of accident who was not holding a driving license. An appeal was filed by the owner of the bus in the Hon’ble Supreme Court. An appeal was filed by the owner of the bus in the Hon’ble Supreme Court. After noticing the finding of fact that it was the cleaner/conductor of the bus who was driving the bus – obviously with the consent and authority of the regular driver, it was held that the accident took place when the vehicle was driven not by the regular driver of the bus, but by the cleaner/conductor, resulting in the death of the deceased. A contention was advanced on behalf of the owner to the effect that, he had appointed the driver with valid driving license to drive the vehicle in question and if the said driver had allowed the cleaner/conductor to drive the vehicle without any authority from the appellant – owner, then in that event the appellant – owner shall not be liable to pay any compensation to the heirs and legal representatives of the victim. The said contention was not accepted. After noticing the fact that the owner had authorised the driver to drive the vehicle who allowed the cleaner/conductor to drive the vehicle because of which the accident took place and it was not the contention of the owner that the cleaner/conductor drove the vehicle without knowledge or consent of regular driver for his personal pursuit, it was held that appellant-owner cannot escape the liability insofar as the 3rd parties are concerned on the ground that he had not actually authorized the particular manner in which the act was done, since it was established that the negligent act of the driver was “in the course of employment” the owner shall be liable for the same. 13. It has been established from the record that, the first respondent who was the owner of goods lorry, appointed the driver to drive the said vehicle. There is no dispute with regard to the accident having taken place on 08.06.1995, which is established from Ex. P-1 and Ex. P-2. The said accident has occurred due to rashness and negligence of the driver of the said lorry, which was the finding recorded earlier by the tribunal and was affirmed by this court in Ex.R-2. The vehicle being a goods lorry, the driver has allowed the appellants, who were carrying paddy bags, to board the lorry along with their goods. P-2. The said accident has occurred due to rashness and negligence of the driver of the said lorry, which was the finding recorded earlier by the tribunal and was affirmed by this court in Ex.R-2. The vehicle being a goods lorry, the driver has allowed the appellants, who were carrying paddy bags, to board the lorry along with their goods. Ex.R-2 shows that 6 others had also travelled in the lorry on the date of accident along with their paddy bags. The accident has taken place in the course of employment of the driver, who was driving the lorry. When the vehicle belonging to an owner is driven by a driver employed by the owner, when the vehicle meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. A third party is therefore entitled to show when he files a petition under Section 166 of the Act, that the driver was negligent in driving the vehicle resulting in the accident, which on being established, the owner is vicarious liable to pay the award amount. 14. A perusal of Ex.R-2 shows that, this court has held the first respondent – owner of the vehicle, liable to pay the compensation awarded in respect of the claim made in MVC No.276/1996, which also arose out of the same accident. The said finding which has become final, itself was sufficient for the tribunal, to hold that the first respondent is liable for the wrongful acts committed by the driver while acting in the course of employment. Without any evidentiary support and also by not noticing the finding of this court in Ex.R-2 against the owner, the tribunal has illegally held that the driver was ‘on a frolic of his own’ or having ‘a joy ride’. The finding of the tribunal is perverse and its said conclusion is illegal. 15. The crucial test is, whether the initial act of the employee was expressly authorised and lawful. The first respondent had employed the driver to drive his goods vehicle. Hence, the first respondent shall be responsible for the manner in which the employee i.e., the driver performed his duty. 15. The crucial test is, whether the initial act of the employee was expressly authorised and lawful. The first respondent had employed the driver to drive his goods vehicle. Hence, the first respondent shall be responsible for the manner in which the employee i.e., the driver performed his duty. This is necessary to ensure so that, the injured third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant, are not deprived from getting compensation for the wrongful acts on the part of the employee acting in the course of his employment, if the dispute resolves around the mode or manner of performing the duty on the ground that the employer had not actually authorised the particular manner in which the act was to be done by the employee. The tribunal having wrongly framed the point for consideration, in placing the burden of proof on the petitioners before it, has misdirected itself and has recorded an illegal finding. As is established from the record, the driver of the goods lorry had allowed several people to board the vehicle along with their goods. If he had exceeded his authority and carried more people with goods than the one permitted when the accident took place, it is an interse matter between the first respondent and his driver and the third parties, that is the appellants, cannot be deprived from getting the compensation. 16. It has been established from the record that, the negligent acts of the driver in driving the vehicle in rash and negligent manner and toppling the same resulted in the accident, which was, while he was acting in the course of his employment. Hence, the employer i.e., the first respondent is liable for the consequences, which has arisen on account of wrongful / negligent acts of his servant i.e., the driver of the vehicle. In short, the owner of the vehicle is vicariously liable for the wrongful acts committed by the driver. 17. The tribunal while rejecting the petitions has not assessed the compensation payable to the appellants, though the appellants have placed on its record, the evidence even with regard to the loss. Unfortunately, on the measure of the compensation amount, the tribunal recorded no finding. 17. The tribunal while rejecting the petitions has not assessed the compensation payable to the appellants, though the appellants have placed on its record, the evidence even with regard to the loss. Unfortunately, on the measure of the compensation amount, the tribunal recorded no finding. It was its duty to record findings on all the issues, even if on the finding of any one of the issues, it was possible to decide the matter one way or the other. Under Order XX Rule 5 of Code of Civil Procedure it is mandatory that the court shall state its finding or decision, with the reasons therefore, upon each separate issue and all the distinct issues have to be answered separately. The exceptional situations are only those provided under Order XIV Rule 2 (2), where an issue relating to the jurisdiction or a bar to a suit/proceedings is required by any law for the time being in force to be decided as a preliminary issue. In matters of the present nature, where evidence is recorded on all the issues, when there is scope of appeal, like the one under Section 173 of the Act, to avoid delay and protraction of litigation, that the tribunal/court should, when dealing with the matter dispose of all the issues and not issues and not merely to rest its decision on one or more issues by leaving unanswered the remaining issues/points. Such a course of action, when an appeal is filed by the aggrieved party, will enable the appellate court to decide the whole matter at once. 18. In not quantifying the amount of loss i.e., general and special damages, as the alternate measure, the tribunal has failed in its duty. In the absence of any finding by the tribunal on the issue relating to the quantum of compensation which each of the appellants are entitled to, I deem it proper to remand the matters, only to decide the quantum of loss to each of the appellants and to pass the awards. In the result, I pass the following: Order 1. The impugned common judgment and the consequential awards in respect of matters other than on issue No.1, are hereby set-aside. 2. The finding recorded by the tribunal on issue No.1, i.e., with regard to the actionable negligence on the part of driver of the vehicle, stands affirmed. 3. In the result, I pass the following: Order 1. The impugned common judgment and the consequential awards in respect of matters other than on issue No.1, are hereby set-aside. 2. The finding recorded by the tribunal on issue No.1, i.e., with regard to the actionable negligence on the part of driver of the vehicle, stands affirmed. 3. The first respondent – owner of the lorry is hereby held vicariously liable for the actionable negligence on the part of the driver of the vehicle and consequently, he shall pay the compensation as may be determined by the tribunal. 4.The tribunal shall issue notice to the first respondent, grant opportunity of hearing to both parties to lead additional evidence, if any, with regard to quantum of compensation payable on account of the loss sustained due to the wrongful action on the part of the driver of the vehicle, assess the quantum of compensation payable on account of the loss sustained due to the wrongful action on the part of the driver of the vehicle, assess the quantum of compensation payable and pass the consequential awards. The process shall be completed by the tribunal within a period of 6 months. 5. Registry is hereby directed to immediately return the records of the tribunal, to enable it to comply with the direction. 6. Since the matter is being remitted back to the tribunal, costs of these appeals will abide by the judgment and awards of the tribunal.