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2010 DIGILAW 234 (GAU)

Nagaland University v. Narola

2010-03-31

HRISHIKESH ROY

body2010
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. K. H. Savi, learned counsel appearing for the appellants. Also heard Mr. Temjen, learned counsel appearing for the respondents claimants. 2. The appellants challenge the award dated 23.07.2007 in MAC Case No. 32/ 2004, whereby the Nagaland University and its officials were held vicariously liable for payment of compensation to the claimants arising out of an accident involving a University bus driven by Late. Imtimongba, who was employed as a bus driver by the Nagaland University. 3. The concerned bus bearing registration No. NL -02-B-1331 was assigned for the daily duty of carrying the University staffs and students from Mokokchung town to the University campus at Lumami. The accident took place on 06.11.2003 afternoon, when the bus was driving back from Waromong village after the bus was used for carrying a dead body from Mokokchung town to Waromong village. In the accident, one Imkongmery and the bus driver Imtimongba died on the spot whereas one Bendangtemsu and Tarepkala sustained serious injuries. 4. Before the Tribunal the appellants (University) resisted the claim by contending that although the Nagaland University owned the bus and employed the driver, the University is not vicariously liable to pay compensation, as the bus was being driven by the driver to Waromong village without due authorization of the owner/employer and the University authorities cannot be held responsible for negligence of the bus driver. 5. On the pleadings of the parties the following specific issue on the above contention was framed by the MAC Tribunal, Mokokchung (hereinafter referred to as the Tribunal): Issue No. 1 Whether driver was driving the bus during the course of his employment when it was met with accident ? 6. The appellants in order to show that the bus was not being driven in course of employment with the University had adduced as evidence (Exbt. D.2) the report dated 11.11.2003, wherein it was indicated that when the deceased bus driver Imtimongba sought permission from the Sectional Officer to take the bus to Waromong village, the permission was denied by the Sectional Officer and that the bus was taken by the driver at his own volition, without authorization from the University authorities. D.2) the report dated 11.11.2003, wherein it was indicated that when the deceased bus driver Imtimongba sought permission from the Sectional Officer to take the bus to Waromong village, the permission was denied by the Sectional Officer and that the bus was taken by the driver at his own volition, without authorization from the University authorities. 7.1 The Sectional Officer was also examined as D.W. 1 and in his deposition he testified that the competent person to give permission for unofficial use of the bus was the Professor-in-charge of Lumami Campus and although the driver sought permission to take the bus to Waromong village from the Sectional Officer (D.W. 1), he had refused him the permission. 7.2. The claimants in order to show that the bus was being driven with due authorization of the University authorities, introduced the evidence of PW 1 Smti. Tarepkala who was one of the injured claimants. According to the deposition of P.W.1, the deceased driver Imtimongba had reportedly stated to her that he drove the bus after obtaining due authorization of the Sectional Offficer (DW1). 8.1 It is submitted by Mr. Savi, learned counsel appearing for the appellants that the evidence of P.W.1 is hearsay evidence and cannot be made the basis for holding that the bus when met with the accident, was being driven with due authorization from the competent official of the University. 8.2 The learned counsel further submits that only the Professor-in-Charge of Lumami Campus could have authorized to use of the University bus for a non-official purpose and since it is not the case of the claimants that the bus was driven with due authorization of the Professor-in-Charge, even assuming that the authorization was given by the Sectional Officer, the same would not lead to the assumption that the bus at the time of the accident was being driven in course of the employment with the University. 8.3 In response, it is argued by the O.P/claimants that since the bus driver himself had died in the accident, it was not possible for the claimants to produce any direct evidence about the authorization of the trip to Waromong village and under such unavoidable circumstances, the claimants seek to rely on the evidence given by the P.W.1, who reportedly heard from the deceased driver that he received due permission from the Sectional Officer to drive the bus to Waromong village. 9. 9. The liability of the appellant University to pay the compensation for the negligence of the driver would depend mainly upon the fact as to whether, the bus was being driven in course of its employment with the University. The University cannot naturally be made vicariously responsible for the negligent acts of its driver, when he was acting on his own without the knowledge and authorization of the appellants. 10.1 To resolve the Issue, this Court has to examine the veracity of the version given by the rival witnesses. The evidence of DW1 is the direct evidence and his testimony is supported in all material particulars by the (Exbt. D-2) report dated 11.11.2003 which was furnished to the University soon after the accident took place on 06.11.2003. 10.2 In contradiction, the evidence of P.W.1 Smt. Tarepkala, apart from being based on hearsay, appears to be an unnatural version of the events preceding the accident. If the testimony of the P.W.1 is to be believed then on the fateful day while taking a ride in the bus, she obtained information from the deceased driver Imtimongba that he was authorized by the Sectional Officer of the University to carry a dead body from Mokokchung to Waromong village and that the Sectional Officer had instructed the driver to positively return the bus at 9 a.m. next day. This hardly appears to be the kind of conversation expected between a bus driver and a co-passenger. 10.3 Considering the circumstances under which the University bus was unofficially used to carry a dead body, it appears to be totally unnatural and improbable for Smti. Tarepkala (PW1), who traveled in the said bus, to have enquired of the driver as to whether he was driving the bus with due authorization of the University. Such a query by the P.W.1 to the driver appears to be highly improbable and therefore the version given by P.W.1 does not appear to be truthful. 11.1 The learned counsel appearing for the O.P./claimants submits that notwithstanding the evidence of D. W. 1, the University must be held liable to pay compensation to the victims of the accident as undisputedly the bus involved in the accident was owned by the University and the driver too was employed under the University. In support of the submission the learned counsel relies upon the following decisions. (i) 1991 (1) TAC 431: State of M.P. Vs. In support of the submission the learned counsel relies upon the following decisions. (i) 1991 (1) TAC 431: State of M.P. Vs. Ratna Devi, (ii) 2005 (2) Tac 943 : Pritam Chand Vs. HRTC, and (iii) 2006 (3) TAC 900 : Secretary, HPSEB Vs. Richard. 11.2 The cases relied upon by the learned counsel appearing for the claimants are based on such facts where, beyond the ownership of the vehicle and the employment of the driver, it was also established that the accidented vehicle was entrusted to the driver when it met with the accidents. On that basis the respective Courts have held that the employer is vicariously liable to pay compensation to the victims of the accidents. 11.3. However in the present case the entrustment of the bus to the driver to travel to the Waromong village is not established. The bus is kept parked in the University Guest House and does not remain under the custody of the bus driver. But notwithstanding the refusal of permission, the bus driver unauthorizedly took out the bus from the University Guest House without the knowledge of any of the authorized persons to carry a dead body to Waromong village and in the return journey it met with the accident. In such circumstances, the facts in the 3 cited cases are distinguishable from facts of the present case. No entrustment of the bus is found present in the instant case and therefore I feel that on the basis of these 3 decisions, the appellants cannot be held vicariously liable for the negligent and unauthorized acts of its driver. 12. The learned Tribunal had answered the Issue No. 1 against the appellants by relying solely on the testimony of P.W.1 but in the process, the testimony of D.W.1 has been totally ignored. The Exbt. 2 report dated 11.11.2003 have been also disregarded by the learned Tribunal, in answering the Issue No. 1 against the University. 13. As this Court has concluded that the testimony of P.W.1 does not appear to be truthful and it being, hearsay evidence and the entrustment of the bus to the driver is not established, I feel that the Tribunal erred in basing its conclusion on the evidence given by the P.W.1. Accordingly the declaration made against the appellants is found to be unsustainable. Accordingly the declaration made against the appellants is found to be unsustainable. The impugned award whereby the appellants have been fastened with the liability to pay the compensation is held to be erroneous and the same is quashed. The Appeal stands allowed accordingly. 14. However considering the background of the claimants and in the interest of justice, the claimants would not be required to refund any amount received as interim compensation, even though this Court has allowed the Appeal filed by the University. It is ordered accordingly. 15. All appeals are disposed of in terms of the above order.