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2013 DIGILAW 1337 (MAD)

BLUE DART COURIER v. D. KRISHNAVENI

2013-03-13

C.T.SELVAM

body2013
JUDGMENT : C.T. Selvam, J. These civil miscellaneous appeals arise against the order passed by the Principal Sub-Judge, Motor Accidents Claims Tribunal, Coimbatore made in M.C.O.P. No. 10 of 2008 dated 14.12.2011. 2. For purpose of convenience, parties are referred to in their capacities before the Tribunal. 3. At about 6.30 p.m., on 4.7.2007, the claimant in M.C.O.P. No. 9 of 2008 was travelling along with her husband on a motor cycle bearing registration No. TN 39-AJ 4087 on Tirupur-Perumanallur Road, when a van bearing registration No. TN 37-W 5995 driven in a rash and negligent manner dashed against the motor cycle due to which the claimant sustained grievous injuries, in M.C.O.P. No. 9 of 2008, she has sought for compensation in a sum of Rs. 4,66,000 towards the injury suffered by her while she joined by her minor children has claimed compensation in a sum of Rs. 4,35,000 for loss of her husband in the accident. Both M.C.O.Ps. were tried together. The appellants were the respondent Nos. 2 and 3 before the Tribunal, while the owner of the offending vehicle was the respondent No. 2 in M.C.O.P. No. 9 of 2008 and respondent No. 4 in M.C.O.P. No. 10 of 2008. 4. The case of the appellants is that they were only the hirers of the vehicle involved in the accident, under an agreement of hire with the owner and were in no way liable to effect payment of compensation lo the claimants. 5. We have heard the learned counsel for appellants and the learned counsel for the claimants. Despite repeated adjournment towards enabling representation on behalf of the owner of the vehicle, none have appeared. 6. The only question which arises for consideration in the present appeals is whether the Tribunal has fallen into error in holding the appellants liable to effect payment of compensation to the claimants along with the owner and driver of the vehicle. The insurance company stood absolved since it was found that the vehicle was not covered by an insurance policy on the date of accident. The appellants have filed M.P. No. 2 of 2012 in C.M.A. Nos. 1252 and 1253 of 2012 for receiving additional evidence seeking to produce the original document, i.e., the Vehicle Agreement dated 5.1.2006 executed between the appellants and the vehicle owner. 7. The appellants have filed M.P. No. 2 of 2012 in C.M.A. Nos. 1252 and 1253 of 2012 for receiving additional evidence seeking to produce the original document, i.e., the Vehicle Agreement dated 5.1.2006 executed between the appellants and the vehicle owner. 7. Learned counsel for the appellants submitted that the fact of the appellants being only hirers of the vehicle was to the knowledge of all, as the very claim petition and proof affidavits filed in support thereof inform such position and in the course of evidence recorded before the Tribunal, the contention of the vehicle having been held on hire by the appellants was made on behalf of the owner of the vehicle. There was absolutely no material before the Tribunal which would inform that the driver of the offending vehicle was acting under the control and direction of the appellants. Despite such position the Tribunal had held the appellants liable to pay compensation even though the contention that as per the terms and conditions of the agreement, the owner alone was liable for all third party claims in case of accident was raised, no evidence had been produced in such regard and the appellants had failed to produce the agreement. Explaining that the original agreement could not be produced before the Tribunal as it had been misplaced and submitting that the Tribunal had permitted the appellant to mark a copy thereof learned counsel prayed that M.P. No. 2 of 2012 in C.M.A. Nos. 1252 and 1253 of 2012 may be allowed towards permitting the appellants to produce such agreement by way of additional evidence. The learned counsel also referred to certain clauses in the agreement to inform that the appellants thereunder stood absolved of liability and it was the owner of the vehicle who would be liable. He would pray that the appeals be allowed. 8. Given the position that the appellants, even in the counter before the Tribunal, raised contentions of their being not liable on the basis of the agreement, that such agreement was to the knowledge of the claimants and being satisfied with the reasons stated, viz., that after diligent steps the original documents were traced at the legal department of the appellants at Mumbai only on 30.8.2012, this court allowed the M.P. No. 2 of 2012 in C.M.A. Nos. 1252 and 1253 of 2012. 9. 1252 and 1253 of 2012. 9. We have perused the typed set produced in the matter. There is nothing to indicate that the driver of the offending vehicle was operating the same under the direct supervision and instructions of the appellants. In the vehicle agreement dated 5.10.2006, the appellants are referred to as the hirer, while the owner is referred to as the contractor. The agreement inter alia contains the following clauses: I. Provision of vehicle: xxx xxx xxx (F) The Contractor will be responsible to ensure that the vehicle have comprehensive insurance at all times including specific insurance for injury to drivers and supervisors. The Contractor will ensure that all registration permits and other papers in respect of the vehicle are always in order and up to date. Any fines, penalties, etc. relating to improper documents or papers in respect of the vehicle will be solely the responsibility of the Contractor. III. Rates: xxx xxx xxx (C) The Contractor will be responsible for providing accommodation for his drivers and for payment of all drivers salary/wages, allowances including all payments required by statute. No OVC will be provided by the Hirer. Given the unequivocal terms of the agreement above informed, it is clear that the appellants, in the absence of any evidence, which would inform their having direct control and supervision over the driver of the vehicle, would stand absolved of liability of any kind arising out of the accident. It was for the owner to have taken out a policy of insurance for his vehicle and when he has failed to do so, his alone would be the liability. 10. Accordingly, the civil miscellaneous appeals shall stand allowed. The order under challenge shall stand modified to the extent that the finding holding the appellants also liable to effect payment of compensation to the claimants alone shall be struck down. Appellants shall be entitled to have return of the compensation sum deposited by them, before the Tribunal on due application. No costs.