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2013 DIGILAW 1735 (PNJ)

Nazar Singh v. State of Punjab

2013-12-21

BHARAT BHUSHAN PARSOON

body2013
JUDGMENT Dr. Bharat Bhushan Parsoon, J.:- By way of this common judgment, CWP No.12064 of 1994 and CWP No.2373 of 1995 shall be decided together as both these petitions have common substantial questions of law to be answered and have similarity of facts as also of attending circumstances. For convenience and clarity, facts of CWP No.12064 of 1994 are being narrated. 2. Petitioner Nazar Singh, during his employment as a driver with Punjab Roadways, Nangal Depot, Ropar, on 12.2.1985 was driving bus No.PBM-6964 bound from Ludhiana to Chandigarh. The bus had met with an accident in the area of village Mander. It was about 10.45 a.m. As a result of this accident, two persons sitting in the Matador with which the bus had struck had died on the spot, whereas two others had sustained injuries. Dependents of the deceased as also the injured had filed a claim petition before the Motor Accident Claims Tribunal (MACT), Ludhiana where inter-alia the petitioner was impleaded as one of the respondents. 3. Though stand of the petitioner as also his employer therein was that the accident had not been caused due to fault of the petitioner, the Tribunal disagreeing with said plea, vide Award dated 2.6.1986 had held negligence of the petitioner in driving the bus and had further held that the accident resulting in two deaths and rendering two others injured, was occasioned because of such negligent driving of the bus by the petitioner. The employer of the petitioner, pursuant to Award of the Tribunal had to pay an amount of Rs.3,10,427.95p. 4. Consequently, a show cause notice (Annexure P-1) was issued to the petitioner on 27.11.1992 calling him upon to explain as to why he should not be made to pay Rs.2,12,000/- with 9% interest. After reply (Annexure P-2) of the petitioner, order of 24.2.1994 (Annexure P-3) was passed by the employer of the petitioner, ordering recovery of a sum of Rs.3,10,427.95p from the petitioner. 5. In reply (Annexure P-2) to the show cause notice submitted by the petitioner, liability to pay had been denied. Reference was also made to Section 146 of the Motor Vehicles Act, 1988 (in short, the Act). 5. In reply (Annexure P-2) to the show cause notice submitted by the petitioner, liability to pay had been denied. Reference was also made to Section 146 of the Motor Vehicles Act, 1988 (in short, the Act). In this writ petition, challenging the show cause notice (Annexure P-1) and order (Annexure P-3), when no written statement came from the respondents, interim order dated 1.9.1994 whereby impugned recovery as per order dated 24.2.1994 (Annexure P-3) from the petitioner had been stayed, was made absolute on 20.11.1996. 6. Stand of the petitioner-driver is that neither he was negligent nor rash in driving the bus and thus, was not responsible for the two deaths and injuries caused to two others in a motor vehicular accident. It is also claimed that the respondent taking shelter under provisions of Section 146 of the Act, had not got the bus insured but had not created any fund for payment of compensation to the victims or to the injured of any vehicular accident. In addition, it is also claimed that neither any opportunity of hearing was provided nor the liability was fixed on the petitioner as per procedure. 7. Stand of the respondents on the other hand is that the petitioner was held negligent in driving the bus which had caused the accident and that due to his negligence, the respondents had to pay a sum of Rs.3,10,427.95p, which the respondents have a right to recover from the petitioner. 8. Learned counsel for the parties have been heard while perusing the paper book. 9. Counsel for the petitioner relying on State of Maharashtra and others v. Kanchanmala Vijaysing Shirke and others, (1995)5 SCC 659 , has urged that not the petitioner but the respondents are liable to make payment of compensation to the victims of the accident. This authority is based on vicarious liability of an employer to third parties for negligence or fault of its employees acting in the course of employment. In this authority, a jeep belonging to the State Government had dashed against a scooter driven by the victim which had resulted in death of the victim. The Motor Accident Claims Tribunal had found that in fact respondent No.4, a Clerk in the State Government, in place of driver of the vehicle, was wrongly driving the vehicle at the relevant time. He had no driving licence. The Motor Accident Claims Tribunal had found that in fact respondent No.4, a Clerk in the State Government, in place of driver of the vehicle, was wrongly driving the vehicle at the relevant time. He had no driving licence. He had caused the accident because of his rash and negligent driving. Though the Tribunal had accepted the case of the appellants that the said respondent had snatched the keys of the jeep from the driver and was driving the vehicle unauthorizedly and had then held that the respondent No.4 alone was liable to pay compensation to the claimants, on appeal before the High Court, on the basis of the finding that respondent No.4 had not taken the jeep for his own private purpose but the jeep was on official duty although was being driven by respondent No.4 who had taken the charge of the vehicle under the authority of the driver of the vehicle, it was held that the State was vicariously liable for the accident. Consequently, the State Government was ordered to make payment of the compensation though the State Government, driver and respondent No.4 had been held jointly and severally liable for the same. The State Government had gone in appeal before the Hon’ble Supreme Court. In the said appeal, the Hon’ble Supreme Court had held as under:- “9. .... It is the rule that an employer, though guilty of no fault himself, 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 an authorised act in an 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 for acts which he has not authorised provided they are so connected with acts which he has been so authorised. ...” 10. Observations of the Hon’ble Supreme Court in para 19 of this judgment, in relevant portion thereof, are appended as below:- “19. .... A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. ...” 10. Observations of the Hon’ble Supreme Court in para 19 of this judgment, in relevant portion thereof, are appended as below:- “19. .... In the present case, it has been established beyond doubt that the driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was `in the course of employment’, the appellant State shall be liable for the same.” 11. In view of this authoritative pronouncement, it is clear that liability of the State is adjudicated on the principle of vicarious liability for the acts of omission and commission of its employees. 12. Counsel for the respondents, however, seeking support from HC Dilbagh Singh v. State of Punjab, 2002(1) RCR (Civil) 801 has urged that the petitioner was driving the bus rashly and negligently and that too in clear violation of the provisions of the Act and, thus, has rightly been asked to comply with the impugned order (Annexure P-3) to pay the demanded amount of compensation. 13. In this authority cited by counsel for the respondents, on the basis of Award of the Motor Accident Claims Tribunal, 50% of the amount of compensation of such Award was sought to be recovered pursuant to an order of employer of the driver. Holding that an employer can recover the loss occasioned to it because of fault of its employees, from them, this Court had declined to quash the order holding that vicarious liability of the State to pay the compensation awarded is qua the claimants and not qua the employee-driver. 14. There is no dispute that the employer-State is not debarred from recovering the loss caused to it by its employee but this aspect is to be examined in the interface of attending facts and circumstances of the case in hand. 15. There are multiple aspects which need to be considered. 14. There is no dispute that the employer-State is not debarred from recovering the loss caused to it by its employee but this aspect is to be examined in the interface of attending facts and circumstances of the case in hand. 15. There are multiple aspects which need to be considered. These are as under:- 15(1). The ill-fated bus being driven by the petitioner-driver was not insured. In Chapter XI dealing with “insurance of motor vehicles against third party risks”, there is stipulation of insurance cover against third party risks for which Section 146 of the Act is of relevance. For ready reference, the same is appended as below:- “146. Necessity for insurance against third party risk. (1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter. Explanation.-- A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub- section, shall not be deemed to act in contravention of the sub- section unless he knows or has reason to believe that there is no such policy in force. (2) Sub- section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise. (3) The appropriate Government may, by order, exempt from the operation of sub- section (1) any vehicle owned by any of the following authorities, namely:-- (a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise; (b) any local authority; (c) any State transport undertaking: Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties. (underlining added) Explanation.-- For the purposes of this sub- section,” appropriate Government” means the Central Government or a State Government, as the case may be, and-- (i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government; (ii) in relation to any corporation or company owned by the Central Government and one or more State Governments, means the Central Government; (iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority.” 15(2). Admittedly, vehicle No.PBM-6964 of respondent No.4 which was being driven by the petitioner and had met with an accident, was not insured. The bus in question was owned by the State of Punjab. Sequelly, sub-section (1) of Section 146 of the Act does not apply. 15(3). Counsel for the respondents has urged that the government vehicles in terms of sub-section (3) of Section 146 of the Act are exempt from taking insurance cover. When questioned, counsel for the respondents has conceded that no fund in terms of proviso to sub-section 3 of Section 146 of the Act has been established by the respondents. Before granting exemption to its buses, the Government of Punjab inter-alia was to establish a fund to be maintained by the State in accordance with the Rules, which was also required to be in place for meeting any liability (arising out of the use of vehicles of the Government) which inter-alia any of its employees including drivers in their employment, may incur towards third parties. 15(4). When owner of a motor vehicle is statutorily obligated to obtain an insurance for the vehicle to cover with the third party risk, exemption from this statutory obligation of obtaining an insurance cover, is permissible inter-alia to the State, subject to the condition of establishing and maintaining a fund to meet liabilities such as the present one, towards legal heirs of the deceased or to the victims injured in the accident caused by its vehicles while any vehicle of the State was being in use. It is, thus, clear that not the petitioner but the respondents are to be blamed for violation made in performance of their statutory duties. It is, thus, clear that not the petitioner but the respondents are to be blamed for violation made in performance of their statutory duties. Had such fund been in place, liability arising out of user of the bus driven by the petitioner could have been easily and conveniently met from that fund without undergoing the entire arduous exercise, as has been undertaken in absence of any such statutory fund being in place. 15(5). Order (Annexure P-3) has been rendered without referring to proviso to Section 146 of the Act, which statutorily binds the State for not making any order of exemption of its vehicles from insurance cover unless such a fund is established and is also maintained and controlled by the State for meeting any liability arising out of the use of such vehicles of the State which are not subjected to insurance cover. 16. On the basis of decision of 2.6.1986 rendered by the Motor Accident Claims Tribunal (MACT), Ludhiana, General Manager, Punjab Roadway, Nangal, i.e., respondent No.4 vide impugned order (Annexure P-3) of 24.2.1994 had called upon the petitioner to deposit a sum of Rs.3,10,427.95. It is a conceded fact that neither any inquiry was held nor liability to pay the demanded sum had been fixed by any objective method or criteria. When the impugned order (Annexure P-3) is read in relation to show cause notice Annexure P-1, it is evident that version of the petitioner in Annexure P-2 was not considered even a bit. 16(2). Mere issuance of show cause notice is of no legal importance. It remains a fact that no inquiry was held, no opportunity of being heard was given, there is no indictment of the petitioner. In absence of an inquiry having been held by the employer, there is another aspect which need to be considered in this context. 16(3). Claim of the counsel for the respondents is that Award of 2.6.1986 of the MACT is a sort of clear and absolute finding against the petitioner and he cannot escape its evil consequences thereof. This plea of the respondents is untenable. There is no material made available from the side of the respondents that there is any verdict from a criminal court or a civil court against the petitioner. 16(4). This plea of the respondents is untenable. There is no material made available from the side of the respondents that there is any verdict from a criminal court or a civil court against the petitioner. 16(4). It is to be noticed that in the proceedings before the Tribunal, admittedly, consistent stand of the respondents was that the present petitioner was not responsible for causing the accident. In fact, petition of the claimants before the Tribunal was contested tooth and nail by the respondents with vigour sustaining the stand of the petitioner that he had neither authored the accident or he was guilty of negligence in driving the vehicle. Even verdict of the Tribunal, standing alone or by its very natureof adjudication of compensation would not constitute the basis for recovery from the petitioner. 16(5). Parameters of evaluation of evidence by a Tribunal or by a criminal court or in a departmental inquiry are different. When in criminal cases, proof to nail a person is required beyond doubt and rather to the hilt, in cases before a Tribunal, evaluation of evidence is based on preponderance. In departmental inquiry though standard of proof is light as compared to proof required in criminal cases but proceedings of departmental inquiry are required to be consistently punctuated by the principles of natural justice, fair play and good conscience. Right of being heard though is uncodified but is of fundamental importance. It could not have been bye-passed by the respondents. Departmental inquiry was to precede passing of any order such as Annexure P-3 which has fixed liability of the petitioner of course without even hearing of the petitioner. 16(6). Plea of the respondents is that for providing right of hearing, opportunity had been given and reply (Annexure P-2) to the show cause notice (Annexure P-1) consists sufficient compliance of the principles of natural justice, the plea is a misnomer. Any opportunity of being heard provided to an aggrieved, is required to be effective. It is not to be merely a camouflage or a hoax. Giving of show cause notice (Annexure P-1) and passing of impugned order (Annexure P-3) thereafter without considering reply Annexure P-2 of the petitioner, is not a substitute for departmental inquiry. Thus, in absence of indictment in departmental proceedings, impugned order (Annexure P-3) loses its teeth, rendering it to be of no legal significance. 16(7). Giving of show cause notice (Annexure P-1) and passing of impugned order (Annexure P-3) thereafter without considering reply Annexure P-2 of the petitioner, is not a substitute for departmental inquiry. Thus, in absence of indictment in departmental proceedings, impugned order (Annexure P-3) loses its teeth, rendering it to be of no legal significance. 16(7). The petitioner was merely an employee of the Department, which is an entity of the State. It was the sovereign function of the State which the petitioner was performing and while doing so, if some mishap has happened, it is the liability of the State, being sovereign as also master of the employee, to discharge all such liabilities which arise due to such unfortunate incidents. The statute in question has been created by the legislature as a beneficial legislation and its aim is to provide succour to the victims of vehicular accidents. It is trite that being a beneficial legislation, no strict proof is required nor it is the aim and object of this legislation in accidental cases to establish guilt of the driver and rather is to provide compensation to the victims. 17. Keeping in view the entirety of facts and circumstances, when neither there is adjudication of fault of the petitioner vide any inhouse arrangement of holding inquiry nor the petitioner was provided effective opportunity of being heard before issuance of impugned order (Annexure P-3) and there is no violation of statutory provisions by the petitioner in the discharge of his duties during the course of his employment with the respondents, Award of the Tribunal ipso facto could not have formed the basis of recovery of the amount from the petitioner-driver of compensation paid to the victims of the accident by the respondent-employer. 18. For the foregoing discussion, present petition is allowed. Sequelly, the order dated 24.2.1994 (Annexure P-3) is quashed. 19. Before parting with this judgment, it is impressed upon the respondents that in compliance with the provisions of Section 146 of the Act, either they should get their vehicles insured or establish a fund and maintain it in accordance with the Rules to be made in that behalf under the Act for meeting any liability arising out of the use of any vehicle of the respondents which may be incurred to the third parties in this behalf. 19(2). 19(2). The Government may make recovery of the loss occasioned to it because of acts of omission and commission of its employees but procedure viz giving of opportunity of being heard under the relevant punishment rules, must be followed. 19(3). In written statement, the respondent-State may resist liability for acts of omission and commission of its drivers in violation of the provisions of the Act. The State is vicariously liable for acts done by its employees but vicarious liability to pay compensation awarded of the State is qua the claimants and not qua the employees, viz, drivers. 19(4). The Government should not admit or deny the fault of the driver by furnishing reply in the accident claim petitions but it should itself inquire into the details of the accident and in reply to the claims before the Tribunal, contest should be made in line with result of such fact finding inquiry and not on the version of the driver submitted in this behalf to the employer. 19(5). Before filing written statement in a petition under the Act, either siding with or against the employee i.e. the driver, prior inhouse probe, at least of preliminary nature, must be undertaken so that stand of the respondents taken in their reply of the petition is not contradictory to the stand which they may take later, when recovery is sought to be effected from the errant driver. 19(6). Safe travelling is right of every passenger. This assurance from the State transport is legitimately presumed. In case of repeated acts of omission and commissions resulting in accidents giving rise to payment of compensation to victims of accidents, provisions of Article 311(2) of the Constitution of India may also be resorted to. This power is to be sparingly used. ------------------