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Madhya Pradesh High Court · body

2010 DIGILAW 744 (MP)

C. B. Awasthy v. Ramnarayan S/O Nanuramji Devda

2010-07-26

S.R.WAGHMARE

body2010
Judgment (1) THIS is an appeal filed by the Senior Co-operative Inspector Prashasan Sahakari Vipnan Sanstha under section 173 of the Motor Vehicles Act (hereinafter referred as 'the Act') challenging the award dated 26-3-2002 passed by the Additional Motor Accidents Claims Tribunal, Garoth in M.A.C.T. No. 61/94 mulcting the liability on the appellants to pay compensation of Rs.76,000/- to the claimants and respondents No. 1 and 2 in the present case. (2) RAMNARAYAN the applicant was the owner of a tailoring shop which was situated near the institution of appellant No. 2 Sahakari Vipnun Sanstha, Maryadit at Shamgarh, Garoth. On the date of incident i.e. 9-10-1994, the employees of non-applicant No. 2 Ravi Kishore and Manikchand were to go for some office work on their motorcycle at Khadavada and requested the son of the applicant Balwant to go with them. On completing work of the institution on 10-10-1994 at 12.30 pm in the night when all the three persons were returning, Ravi Kishore driving the motorcycle rashly and negligently near Varkheda Gangasa on the Khadavada Road, dashed against the tree and due to the accident Ravi Kishore and Balwant both died on the spot itself. Manikchand was injured. The report was filed at Police Station Garoth and the bodies were sent for postmortem examination. The claimants on behalf of Balwant stated that he was their only son and sole bread earner of the family and after his death they were legal representatives and entitled to compensation since the accident had occurred due to the negligence of Ravi Kishore the employee of the institution. They claimed for compensation of Rs.4,00,000/- with interest. Non-applicant No. 1 C. B. Awasthy, the Senior Co-operative Inspector Prashasan Sahakari Vipnun Sanstha and non-applicant No. 2 the Sahakari Vipnun Sanstha Maryadit resisted the claim, stating that the deceased Balwant was unemployed and the applicants were not dependent on him. Moreover, he also deposed that Ravi Kishore and Manikchand the employees of the institution had taken the motorcycle illegally at 12.30 in the night and the institution had not sent any official to Khadvada for any work. So also it was alleged that the son Balwant was not an employee of the institution and therefore not entitled to any compensation. Moreover, he also deposed that Ravi Kishore and Manikchand the employees of the institution had taken the motorcycle illegally at 12.30 in the night and the institution had not sent any official to Khadvada for any work. So also it was alleged that the son Balwant was not an employee of the institution and therefore not entitled to any compensation. The non-applicant institution also took up the plea that the Ravi Kishore was the driver of the alleged vehicle and his legal representatives would be responsible for paying the compensation if any to be paid to the applicants. Moreover only employees were entitled to Workmen's Compensation and the claim was not within the jurisdiction of the MACT. Non-applicant No. 3 the government of Madhya Pradesh denied all the allegations and stated that it was merely a formal party and not necessary party and was not liable for any claim made by the claimants. (3) THE Tribunal on considering the evidence, however, came to the conclusion that Ravi Kishore was responsible for causing the accident by rash and negligent driving and at the time of the accident although, he had not sought proper permission from the co-operative Vipnun Sanstha, yet the vehicle was under the control of non-applicant No. 1. Shri Awasthy as he was the officiating Senior Co-operative Inspector and the State was the controlling authority. Moreover, the vehicle was not insured and hence the Tribunal on considering the evidence adduced came to the conclusion that the non-applicant Vipnun Sanstha and the officiating person Shri Awasthy the appellant No. 1 were jointly and severally liable to pay the compensation to the claimants as owner of the alleged vehicle. (4) ON assessing the claim, the Tribunal came to the conclusion that the appellants claimants were entitled to sum of Rs. 76,000/-. Being aggrieved the co-operative society and Shri Awasthy the Senior Officer filed the present appeal challenging the liability whereas the non-applicants claimants have also filed cross-objections and prayed for enhancement of compensation. The main contention by the Counsel for the appellants is that the appellant co-operative society was not liable to pay the compensation because on the principles of liability, the driver alone would be personally liable for the injury or death caused by his negligence. The main contention by the Counsel for the appellants is that the appellant co-operative society was not liable to pay the compensation because on the principles of liability, the driver alone would be personally liable for the injury or death caused by his negligence. Placing his reliance on Nerati Pichamma and another vs. Pasumala Arogiya and others, 1991 ACJ 251 Counsel stated that unless there is jural relationship of master and servant between the owner and driver, the doctrine of vicarious liability cannot be extended to the third party; driver alone liable. (5) COUNSEL placed reliance on Sitaram Motilal Kalal vs. Shantanuprasad Jaishankar Bhatt and others, 1966 MPLJ (SC) 913 = 1966 A.C.J. 89 whereas the Full Bench has held that owner of car had entrusted it to another for plying it as a taxi. The latter gave it to the cleaner for taking driving test and it was held that while taking the test he knocked down and injured the claimant, the owner was not vicariously liable for the tort. The Apex Court has in the said case observed that the law is settled that a master was vicariously liable for the acts of his servant acting in the course of his employment. Unless the act was done in the course of employment, the servant's act would not make the employer liable. The act must either be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorised by the master. (6) IN the instant case, Counsel for the appellants has contended that there was categoric evidence led by appellant No. 1 Shri Awasthy that he was only the presiding and acting officer of appellant No. 2 Sahakari Vipnun Sanstha Maryadit since there was no elected body at the time of the incident. Moreover, Shri Awasthy has also categorically stated that on the date of incident, neither Ravi Kishore or Manikchand who are employees of the appellant No. 2 Vipnun Society had sought permission to take the vehicle to Khadavada Gangasa. Moreover the geographical jurisdiction of the officer Shri Awasthy was only till Shamgarh and its marketing society whereas Garoth was beyond the jurisdiction of the appellant No. 1 Shri Awasthy. Counsel stated that acts were done illegally by the employees, then under such circumstances the employer cannot be held liable to pay compensation. Moreover the geographical jurisdiction of the officer Shri Awasthy was only till Shamgarh and its marketing society whereas Garoth was beyond the jurisdiction of the appellant No. 1 Shri Awasthy. Counsel stated that acts were done illegally by the employees, then under such circumstances the employer cannot be held liable to pay compensation. Only for legal acts done in the course of duties the co-operative society or the officials would be liable for the acts of its employees. Counsel prayed that mulcting of the liability on the appellants be set aside. Counsel for the Respondent claimant on the other hand has vehemently stated that the deceased Balwant was persuaded by the employees of the appellant co-operative society. Ravi Kishore and Manikchand to accompany them and hence, it could not be said that the deceased Ravi Kishore was not the employee of the society at the time of the incident. Merely because Balwant was not aware that the Ravi Kishore, Manikchand and Balwant were not doing anything contrary to the interests of the society, for that matter however, not doing anything illegally. (7) COUNSEL for the respondent claimant placed reliance on judgment of the High Court of Andhra Pradesh at Hyderabad in the case of Oriental Insurance Company Co. Ltd. vs. S. A. Gafer and others, 1989 ACJ 938 to state that in a similar case the Court had considered that when a person had possession of the ignition-key of the motorcycle and while driving it caused accident and question before the Court was, whether the owner vicariously liable for the tort committed by the motor-cyclist; it had held that the driver was driving the vehicle with the express or implied permission of the owner; when the driver is in possession of the ignition-key, the presumption is that he was driving the vehicle with the permission of the owner unless established otherwise. (8) COUNSEL for the respondent claimant fully supported the judgment of the Tribunal and stated that the Tribunal had held that both the employees Ravi Kishore as well as Manikchand were in the employ of the appellant co-operative society and whereas deceased Ravi Kishore was paid all the benefits under the Workmen's Compensation, merely because Balwant was a third party under the circumstances; the claimants have been denied the benefits. Moreover, since the Govt. Moreover, since the Govt. vehicle was not insured in such circumstances, COUNSEL stated that even under the principles of natural justice, no fault could be found with the liability mulcted on the non-applicant co-operative society. COUNSEL prayed that the judgment of the lower Court was fully in accordance with the provisions of law and the appeal be dismissed. He, however claimed that just and fair compensation had not been awarded, merely Rs.76,000/- was awarded by the Tribunal for the death of a 20 years old youth. Counsel further urged that the dependency was wrongly assessed by presuming that deceased Balwant was earning Rs.30/- per day and for 20 days a month Rs. 600/- and Rs. 7,200/- per annum. One third deducted Rs. 2,400/- would amount to Rs. 4,800/- and the multiplier of 15 was used which ought to be enhanced. Counsel stated that at least Rs. 80/- per day ought to have been calculated and Counsel prayed that the amount be enhanced and the impugned award be set aside. (9) ON considering the above submissions, I find that the legislation and its application under the Motor Vehicles Act has undergone a sea of change. Compensation granted by insurance companies to victims of motor accidents has become a regular and routine phenomena; however in the peculiar facts and circumstances of the present case the victim Balwant was travelling on a government vehicle, the ill-fated motorcycle belonging to the appellant Vipnun Sahakari Society and therefore, it was not insured; and consequently the question whether the parents of Balwant would be entitled to receive compensation from the appellant society for the negligent act of its employee Ravi Kishore who was admittedly driving the motorcycle. The tribunal has also found that the accident had occurred due to his negligence and this fact has not been controverted by any of the parties till date. (10) THE other important point raised by the Counsel for the appellant is that even if the relation between the appellant and deceased Ravi Kishore is one of master and servant, the master cannot be responsible for the illegal acts of its employee, the driver or the actual tort feasor alone would be liable and in the present case it has not been established that Ravi Kishore had gone to Khadavda on official work with permission of the appellant society. Considering the case of S. A. Gafer (supra), I find that the learned Judge of the Hyderabad High Court was dealing with the co-extensive liability of the insurance company vis-a-vis the owner of the vehicle and had held that since the motor-cyclist was using the motorcycle in a public place with the express or implied permission of the owner, therefore, the owner is vicariously liable and therefore, the owner, driver and insurance company were held to be jointly and severally liable. The learned Judge has considered the presumption that since the driver is in possession of the ignition key, the presumption is that he was driving the vehicle with the permission of the owner unless otherwise established; and consequently mulcted the liability on all the respondents co-extensively. (11) I find that the learned Judge of the Tribunal has also got carried away by the attractiveness of the said argument in the present case. Undoubtedly the provisions of the M.V. Act are meant for the benefit of the accident victims but at the same time the important fact that must not be lost sight of is that the claimant's should be entitled under the provision of law for the compensation from the owner, driver or insurance company; and when Counsel for the appellant Shri Sharma has drawn my attention to the fact that the question of vicarious liability of the owner and insurer and employer in a motor vehicle accident has been concluded by the Apex Court way back in the year 1966 by a Full Bench decision in the matter of Sitaram Motilal (supra) then the question of deviating from the same does not arise at all and the liability cannot be mulcted on the owner/employer and impugned judgment therefore must be set aside in this regard. (12) IT may also be noted at this stage that there was a dissent recorded by Hon'ble Justice K. Subba Rao who recorded his dissent in the case of Sitaram Motilal Kalal vs. Santanuprasad Jaishankar Bhatt and others, 1966 MPLJ (SC) 913 = 1966 A.C.J. 89 thus: "19. The doctrine of constructive liability is in a process of evolution. IT is a great principle of social justice. The doctrine of constructive liability is in a process of evolution. IT is a great principle of social justice. A court no longer need be over weighed with the old decisions on the subject given under radically different circumstances, for now the owner of a car in India is not burdened with an unpredictable liability as there is a statutory compulsion on him to insure his car against third-party liability and his burden within the framework of the Motor Vehicles Act is now transferred to the insurer." And consequently "32. In the result, agreeing with the High Court, I hold that the 1st defendant is liable in damages to the plaintiff for the accident caused by the 3rd defendant. The appeal fails and is dismissed with costs." However the majority decision was against the claimants, the appeal was allowed and the view that the employer appellant cannot be mulcted with vicarious liability for the wrongful acts of his employee or agent has not been set aside till date and holds the field till today. (13) COUNSEL for the respondent has placed reliance on a single Bench decision of the High Court of Andhra Pradesh, whereas the decision in Sitaram (supra) is by a Full Bench of the Apex Court and therefore, must hold the field unless set aside. Consequently since the COUNSEL for the respondent in the present case has been unable to establish that the motor-cycle was being driven by Ravi Kishore in the course of his employment and there was no violation of law despite there being three riders on the motor-cycle, I am of the considered opinion that the judgment of the lower Court needs to be set aside. (14) SO also considering the cross-objections, I find that no fault can be found with the assessment of income of the deceased Balwant, since there is no evidence on record to support the claim that he was earning his livelihood as a tailor then the notional income taken by the Tribunal for the assessment is adequate under the circumstances. The cross-objections are hereby dismissed. Ex-consequenti, the appeal is allowed, the judgment of the lower Court is set aside to the extent that the owner appellants are exonerated from the liability to pay compensation to the claimants, the driver alone would be liable unfortunately, he died in the accident itself. The cross-objections are hereby dismissed. Ex-consequenti, the appeal is allowed, the judgment of the lower Court is set aside to the extent that the owner appellants are exonerated from the liability to pay compensation to the claimants, the driver alone would be liable unfortunately, he died in the accident itself. (15) THUS the appellants are entitled to refund of deposit if any already paid in the trial Court and it is directed that the trial Court shall pass appropriate orders for the same on proper application forthwith. Appeal allowed.