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2011 DIGILAW 1670 (RAJ)

Jumma Khan v. Jagdish Prashad Gupta

2011-08-10

MAHESH CHANDRA SHARMA

body2011
JUDGMENT 1. - This civil misc. appeal under Section 173 of the Motor Vehicle Act has been filed against the award dated 26.4.2001 passed by the learned Tribunal, in claim case no. 44/96 whereby a sum of Rs. 1,75,000/- has been awarded to the claimant respondent with interest @ 9% per annum, from the date of application. The appellant and respondent no. 2 has been liable jointly and severally. 2. Brief facts of the case are that claimant respondent Jagdish Prasad Gupta was posted as Junior Engineer in the Public Works Department, Jhalawar. On 17.11.94 he was present in village Dhabla Khinchi, Tehsil Pidawa. At that time, respondent driver Jumma Khan came to him and informed him that Assistant Engineer has called him at Jhalawar Headquarter for some necessary work. He also told that Junior Engineer of Pidawa should also come with us. Upon that the claimant appellant with the driver Jumma Khan in the Government vehicle jeep no. RNB 7661 went to Pidawa and from there he took his colleague Rajendra Kumar Lohmi and proceeded for Jhalawar. In the night at about 12.00 a.m. when they reached 3-4 kms. ahead of village Soya], appellant Jumma Khan while driving the jeep rashly and negligently hit a tree which was standing in the right side of the road as a result of which the claimant received severe injuries alongwith Rajendra Kumar Lohmi. 3. Thereafter, a claim petition was filed before the learned Tribunal. Notices were issued. Reply was filed. Issues were framed and evidence were submitted by the parties. After hearing the parties and scrutinising the evidences, learned Tribunal had passed the aforesaid award. Aggrieved and dissatisfied with the aforesaid award dated 26.4.2001, this civil misc. appeal has been preferred by the driver Jumma Khan. 4. At the very outset on behalf of claimant, learned counsel Mr. Virendra Agarwal has contended that the claimant has received the award amount and it is irrelevant for him whether the amount is to be recovered from the State Government or the appellant respondent driver. 5. Learned counsel for the appellant respondent has contended that the appellant is the driver of the vehicle of govt. Jeep no. Virendra Agarwal has contended that the claimant has received the award amount and it is irrelevant for him whether the amount is to be recovered from the State Government or the appellant respondent driver. 5. Learned counsel for the appellant respondent has contended that the appellant is the driver of the vehicle of govt. Jeep no. RNB 7661 and the award amount recovered from the driver's salary has wrongly been recovered and for that purpose, he has cited a judgment of this Court passed at the Principal Seat in the case of Jaswant Singh v. State of Rajasthan and Ors., rendered in SB Civil Writ Petition No. 1256 of 1996 decided on 29.5.2003 and a judgment of Hon'ble the Supreme Court in the case of State of Maharashtra & Ors. v. KV Shirke & Ors., reported in 1 (1996) ACC 109 (SC) . 6. In the case of Jaswant Singh (supra) this Court has hell as under- "In view of the position of law just stated above, when in the present case, the jeep in question was being driven by the petitioner in t+ course of employment, therefore, the State (respondents) cannot escape their vicarious liability and in view of this conclusion., realising of amount, which was paid by the respondents to injured Chiman Singh, from m the pay of the petitioner cannot be justified. Similarly, initiation of disciplinary proceedings for that act would not be justified and thus, and thus, the penalty of withholding of one annual grade increment without cumulative effect also cannot be sustained." 7. In the case of K.V. Shirke (supra) Hon'ble the Supreme Court has held as under "The employee of State Government who was also going on an official duly to drive the jeep, when the accident took place and once it is established that the driver was in the course of employment, the State shall be liable for the same." 8. On the other hand, learned Additional Advocate General Mr. Dinesh Yadav appearing on behalf of the State respondent no. 2 has contended that the learned Tribunal has rightly passed the award holding equally responsible the appellant respondent for payment of the award amount and thus no interference whatsoever is required by this Court in the award. 9. On the other hand, learned Additional Advocate General Mr. Dinesh Yadav appearing on behalf of the State respondent no. 2 has contended that the learned Tribunal has rightly passed the award holding equally responsible the appellant respondent for payment of the award amount and thus no interference whatsoever is required by this Court in the award. 9. In view of the position of law as stated here in above the jeep in question was being driven by the appellant respondent in the course of employment therefore State respondent cannot escape from vicarious liability. Thus, the appellant respondent is free to recover the award amount from the State Government which has been realised from his salary. 10. Consequently, the award dated 26.4.2011 is set aside and the civil misc. appeal stands partly allowed. 11. Since the civil misc. appeal itself has been disposed of,the stay application stands disposed of.Award Set Aside - Appeal Allowed. *******