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2015 DIGILAW 1439 (GAU)

Philemon Lalthazuala (Minor) v. Ramhlunsanga

2015-11-19

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT AND ORDER : Michael Zothankhuma, J. Heard Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. H. Lalmalsawmi, learned counsel appearing for the appellant. Also heard Mr. Aldrin Lallawmzuala, learned Addl. Advocate General, Mizoram appearing for the respondent Nos. 2 and 3 as well as Mr. C. Lalramzauva learned senior counsel assisted by Mr. Benjamin Lalthlamuana, learned counsel appearing for the respondent No.1. 2. The appellant's counsel submits that the judgment and award dated 28.3.2014 passed in MACT Case No. 26 of 2012 suffers from various infirmities and as such has filed this present appeal challenging the said judgment and award on 4 counts. The appellant's counsel submits that the Tribunal was supposed to take gross income of the deceased which was Rs. 13,634, however, the Tribunal has taken the net income of the deceased which was Rs. 9,198. The appellant's counsel further submits that the Tribunal did not take into consideration, the future prospects of the deceased in computing the income of the deceased. He submits that the future prospects @ 50% of the gross income of the deceased should have been taken into consideration by the Tribunal. The appellant's counsel also submits that the Tribunal did not take any account, the latest decision of the Apex Court wherein 1 lakh has been awarded for the loss of future guidance, care and love, etc. The appellant's counsel also submits that the funeral expense of Rs. 25,000 should have been awarded to the claimants and instead, the claimants have been awarded only Rs. 2000. The appellant's counsel submits that the impugned judgment and award dated 28.3.2014 has held that there is contributory negligence on the part of the deceased and as such payment of compensation was apportioned equally between the three parties, namely the opposite party No. 1, the unidentified bike rider and the deceased himself. The appellant's counsel submits that a perusal of the evidence shows that j there is no evidence showing the contributory negligence of the deceased in the accident. 3. The appellant's counsel has relied upon the judgment of the Apex Court passed in Manasvi Jain v. Delhi Transport Corporation, 2014 (2) T.A.C. 741 (SC) wherein para 12, it has been held as follows : "12. This court in Shyamwati Sharma and Ors. 3. The appellant's counsel has relied upon the judgment of the Apex Court passed in Manasvi Jain v. Delhi Transport Corporation, 2014 (2) T.A.C. 741 (SC) wherein para 12, it has been held as follows : "12. This court in Shyamwati Sharma and Ors. v. Karam Singh and Ors., (2010) 12 SCC 378 , while considering the issues of deduction of taxes, contributions etc., for arriving at the figure of net monthly income, held that 'while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans, etc., should not be excluded from the income. The deduction towards income tax/surcharge alone should be considered to arrive at the net income of the deceased.'" 4. The appellant's counsel has also relied upon the judgment and award of the Apex Court in Rajesh and Others v. Rajbir Singh and Others, (2013) 9 SCC 54 to support his averments that as the deceased was only 40 years of age at the time of his death, the future prospects @ 50% of the income of the deceased should have been taken into an account by the Tribunal. The appellant's counsel also relied upon paras 21 and 22 of the said case Rajesh (supra) to support his contention that Rs. 25,000 should have been awarded for funeral expenses and Rs. 1 lakh should have been awarded for loss guidance, care, love, etc. 5. The appellant's counsel has also relied upon the judgment and award of the Apex Court in Meera Devi and Another v. Himachal Pradesh Road Transport and Others, (2014) 4 SCC 511 , wherein at para 10 it has held as follows : "10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case." The appellant's counsel also relied upon the judgment of the Apex Court in Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma and Another, (2015) 2 SCC 180 which at para 14 is as follows : "14. From the evidence produced on record, the two-wheeler of the deceased was dragged up to a stretch of about 20-25 ft. on the road after the collision with the offending truck. We are of the considered view, that to be able to create this kind of enormous effect on the two-wheeler of the deceased, the offending truck must have travelling at a fairly high speed and that its driver did not have sufficient control over his vehicle. The driver of the offending truck should have been aware that he was driving the heavy motor vehicle and taken sufficient caution. We do not see any direct evidence that shows negligence on the part of the deceased that led to the accident. Therefore, as per the principles laid down by this court in the case referred to above in this aspect, the contributory negligence apportioned by the courts below on the part of the deceased is set aside." 6. The appellant's counsel thus submits that as the truck had dragged the severed left leg of the deceased for some distance, the offending truck must have been travelling at a fairly high speed. The appellant's counsel, thus, submits in view of the reasons state above, the impugned judgment and award dated 28.3.2014 passed in MACT Case No. 26 of 2012 should be set aside and the compensation should be enhanced. 7. Mr. C. Lalramzuava, learned senior counsel appearing for the respondent No.1, i.e., owner of the truck, which was involved in the accident submits that at the time of the accident, the insurance policy of the truck had expired. 7. Mr. C. Lalramzuava, learned senior counsel appearing for the respondent No.1, i.e., owner of the truck, which was involved in the accident submits that at the time of the accident, the insurance policy of the truck had expired. He however submits that at the time of the accident, the truck driver had been detained by the Police for violation of some other vehicle transgression and that the person who was driving the truck at the relevant time (accident) was the handyman (respondent No. 5) of the truck. The counsel for the respondent No.5 submits that respondent No. 5 did not have a valid driving license to drive a truck and he was not employed by the owner of the truck to drive the said vehicle at any time. The learned senior counsel for the respondent No.1 submits that the truck was carrying rice from Bairabi to Aizawl when the said vehicle was stopped at Chanmari due to infraction of rules while carrying more passengers than allowed in the cabin of the truck. The learned senior counsel further submits that as the driver of the truck, i.e., respondent No.4 was detained inside the Police Station, the other Police on duty had directed the respondent No.5 to move the truck as it was blocking traffic in Chanmari. The counsel for the respondent No. 1 further submits that as the truck was blocking the traffic, the Police had requested if any person could drive the truck. The handyman, i.e., respondent No. 5 volunteered for the same and the accident occurred soon after. The counsel for the respondent No. 1 submits that as per direction of the Police, the respondent No. 1 who did not have a valid driving license had to drive the truck on the orders of the Police. The counsel for the respondent No.1 submits that there was no master-servant relationship between the owner of the truck and the respondent No. 5 at the relevant time as the respondent No.5 was never authorised at any time by the owner of the truck to drive the truck. The counsel for the respondent No. 5, thus, submits that there was no vicarious liability involved between the respondent No. 5 and the truck owner due to the above fact situation and as such, the owner of the truck, i.e., respondent No. 5 cannot be made liable for payment of compensation to the claimants. The counsel for the respondent No. 5, thus, submits that there was no vicarious liability involved between the respondent No. 5 and the truck owner due to the above fact situation and as such, the owner of the truck, i.e., respondent No. 5 cannot be made liable for payment of compensation to the claimants. The counsel for the respondent No. 1 submits that as the respondent No. 5 had been directed by the Police to drive the truck, the control over the truck shifted to the Police and as such, the State Government was responsible for making payment of compensation to the claimant as there existed a master-servant relationship between the Policemen and the State Government. The counsel for the respondent No. 1 submits that the expression "the owner of the vehicle" must include in a given case, the person who has actually possessed control of the vehicle under whose direction and command the driver is obliged to operate the vehicle. In this respect, the counsel for the respondent No.1 has relied upon the judgment and award of the Apex Court in Rajasthan State Road Transport v. Kailash Nath Kothari and Others, (1997) 7 SCC 481 and also Sitaram Motilal Kalal v. Santanuprasad faishankar Bhatt, (1966) 3 SCR 527 . In the case of Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, (1966) 3 SCR 527 , it has been held by the hon'ble Supreme Court as follows : "The law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well-settled that if the servant, at the time of accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. But it is equally well-settled that if the servant, at the time of accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. It was negative in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de-facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner would not be liable in such circumstances." 8. The counsel for the respondent No. 1, i.e., owner of the truck submits that the respondent No. 5, the handyman of the truck was not authorised at any time by the owner to drive the truck. Thus, there is no question of there being any vicarious liability between the respondent No. 5 and the owner of the truck, i.e., the respondent No. 1. 9. Mr. Aldrin Lallawmzuala, learned Addl. Advocate General, Mizoram appearing for the respondent Nos. 2 and 3 submits that the truck was stopped by the Police as it was carrying more passengers than allowed in the cabin of the truck. He further submits that the driver of the truck, i.e., respondent No. 4 was smelling of alcohol at the time of the Police had stopped the truck. The Addl. Advocate General further submits that the evidence of the Police shows that the respondent No. 5 had stated that he was the spare driver of the truck and had asked the traffic police if he could take the vehicle. The Addl. Advocate General submits that no fault can be attributed to the Police, inasmuch as, the respondent No. 5 had said that he was the spare driver and could drive the truck. He also submits that the State Government is not liable to make payment of compensation to the claimant as the fault lies completely with the owner of the truck and his employees. The Addl. He also submits that the State Government is not liable to make payment of compensation to the claimant as the fault lies completely with the owner of the truck and his employees. The Addl. Advocate General has also relied upon the judgment of the Apex Court in State of Maharashtra and Others v. Kanchanmala Vijaysing Shirke and Others, (1995) 5 SCC 659 to support his stand that the State has no liability to pay compensation to the claimants and that the same is the liability of the truck owner and his employees. 10. I have heard the counsel for the parties and I have perused the Lower Court Records. The Apex Court in Manasvi Jain (supra) has held that while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans, etc., should not be excluded from the income. In the present case, the pay certificate dated 14.6.2010 of the deceased shows that his gross monthly salary was Rs. 13,634. Accordingly, the income of the deceased should have been calculated by the learned MACT as Rs. 13,634 and not as Rs. 9,198. The learned Tribunal has also not taken into account the future prospects of the deceased. 11. In Rajesh v. Rajbir Singh, (2013) 9 SCC 54 , the Apex Court has held that "In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years". 12. The deceased was born on 8.10.1983 and expired on 27.5.2010, i.e., at the age of 27 years. Accordingly, the learned MACT erred in not adding 50% of the actual income of the deceased as future prospects for the purpose of compensation. 13. In the case of Asha Verrnan and Others v. Maharag Singh and Others, 2015 2 TAC 299 (SC), the Hon'ble Supreme Court has held that the funeral expense should be 25,000 and that Rs. 1 lakh each should be given to the children for loss of love and affection. 13. In the case of Asha Verrnan and Others v. Maharag Singh and Others, 2015 2 TAC 299 (SC), the Hon'ble Supreme Court has held that the funeral expense should be 25,000 and that Rs. 1 lakh each should be given to the children for loss of love and affection. As the deceased had left behind two minor children, they should be paid Rs. 1 lakh each. As the deceased was 27 years at the time of his death, the multiplier of 18 has to be applied for computing the compensation applicable. One/their of the total should be calculated as the personal expenses of the deceased. Keeping all this in view, the total compensation payable to the claimants is as follows : (1) Loss of income plus 50% of future prospects = 13634 + 6817 = Rs. 20,451 20451 x 12 x 18 x 2/3 = 29,44,944 (2) Funeral expense = Rs. 25,000 (3) Loss of love and affection = Rs. 2 lakhs = Rs. 31,69,944 Thus, the amount of compensation payable to the claimants amounts to Rs. 31,69,944. 14. The next question that has to be decided by this court is with regard to whether the owner of the truck has any liability for paying the compensation amount inasmuch as it was the truck owner's handyman who is driving the truck at the time of the accident. The evidence goes to show that the driver of the truck had been stopped by the Police for carrying more passengers in the truck cabin than allowed as per law. The driver could not produce proper vehicle documents and he was also allegedly smelling of alcohol. Accordingly, the Police took him to the police station and in the meantime, the truck handyman drove the truck. The evidence shows that while the fully loaded truck was going towards the FCI Godown to deliver the rice bags carried in the truck, the taxi was coming from the opposite side. When the truck and the taxi were passing each other, the deceased who was driving a motor-cycle tried to overtake the truck between the truck and the taxi. At the same time, another motor-cycle coming from the opposite direction also tried to overtake the taxi between the taxi and the truck. When the truck and the taxi were passing each other, the deceased who was driving a motor-cycle tried to overtake the truck between the truck and the taxi. At the same time, another motor-cycle coming from the opposite direction also tried to overtake the taxi between the taxi and the truck. There was a slight clash between the two motor-cycles due to which the deceased fell beneath the rear right wheel of the truck and was killed. The truck was carrying 180 bags of rice which was to be delivered to the FCI Godown, Aizawl. The truck was doing the business of the owner of the truck and the driver, i.e., respondent No. 4 was in-charge of the truck. 15. In State of Maharashtra and Others v. Kanchanmala Vijaysing Shirke and Others, (1995) 5 SCC 659 , the Apex Court has held at paras 9 to 12 as follows : "9. The question of payment of compensation for motor accidents has assumed great importance during the last few decades. The road accidents have touched a new height in India as well as in other parts of the world. Traditionally, before the court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, it shall appear from different judicial pronouncements that the fault is being read as because of someone's negligence or carelessness. Same is the approach and attitude of the courts while judging the vicarious liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the materials produced before the court. 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 did something negligent or wrongful. 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 did 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. On the other hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside. In Salmond's Law of Torts (Twentieth Edn.) at p. 458 it has been said : 'On the other hand, it has been held that a servant who is authorised to drive a motor vehicle, and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive maybe a mode, albeit an improper one, of doing the authorised work. The master may even be responsible if the servant impliedly, and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it, at least if the driver retains notional control of the vehicle.' 10. In Halsbury's Laws of England, Fourth Edn., Vol. 16, paragraph 739 it has been stated: 'Where the act which the employee is expressly authorised to do is lawful, the employer is nevertheless responsible for the manner in which the employee executes his authority. If, therefore, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorise the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his employer.' 11. In the case of London County Council v. Cattermoles (Garages) Ltd., a workman was employed as a general garage hand, for moving cars by pushing them or giving guidance to the drivers. In the case of London County Council v. Cattermoles (Garages) Ltd., a workman was employed as a general garage hand, for moving cars by pushing them or giving guidance to the drivers. He was not competent to drive, had no licence, and had been forbidden to do so. He got into a stationary van, started the engine, drove the van and went on to the highway. On the highway he collided with the plaintiff's van. The employers were held liable. A person who is a servant has always a personal independent sphere of life and at any particular time he may be acting in that sphere. In that situation, the master cannot be responsible for what he does. When the act of the servant causes injury to a third party the question is not answered by merely applying the test whether the act itself is one which the servant was ordered or forbidden to do. The employer has to shoulder the responsibility on a wider basis. In some situation he becomes responsible to third parties for acts which he has expressly or implicitly forbidden the servant to do. 12. It was said in the case of Ilkiw v. Samuels at p. 998: 'The driver of the vehicle, Waines, was employed, as I see it, not only to drive, but to be in-charge of his vehicle in all circumstances during any such times as he was on duty. That means to say that, even when he was not himself sitting at the controls, he remained in-charge of the lorry, and in-charge as his employers' representative. His employers must remain liable for his negligence as long as the vehicle was being used in the course of their business. As I understand the authorities, the employers escape liability if, but only if, the vehicle was, at the time of the negligent act, being used by the driver for the purpose of what has been called a 'frolic' of his own. That is not this case. As I understand the authorities, the employers escape liability if, but only if, the vehicle was, at the time of the negligent act, being used by the driver for the purpose of what has been called a 'frolic' of his own. That is not this case. Here, at the material time, this vehicle was in fact being used in the course of the defendants' business.' It was further said at p. 1005: 'If, as in Ricketts' case, and in the present case, the master puts the vehicle in the charge and control of his servant to be used for the purposes of the master's business, he thereby delegates to the servant his duty so to control it that it is driven with reasonable care while being used for that purpose; and an express prohibition upon allowing any other person to drive it whilst being used for that purpose is no more than a direction as to the mode in which the servant shall perform the duty. It is a prohibition dealing with conduct within the sphere of employment.' In respect of a contention that the driver to whom the vehicle had been entrusted for driving had no authority from employer to delegate the driving of the vehicle to another person and because of that the employer cannot be made vicariously liable for the negligence of someone to whom he had purported to delegate the control of the vehicle, it was said at p. 1006: 'The duty in tort of which he was in breach was, in my view, a duty delegated to him by the defendants under his contract of employment, and for that breach the defendants are vicariously liable notwithstanding that it resulted from his breach of an express prohibition by the defendants against permitting any other person to drive, for that prohibition did not limit the sphere of his employment, but dealt with the conduct of Waines within that sphere.' It need not be pointed out that different considerations might arise if the servant or some stranger was using the vehicle for purposes other than the purpose of his master's business and the accident occurred while the vehicle was being used for that other purpose. But once it is found and established that vehicle was being used for the business of the employer, then the employer will be held vicariously liable even for the lapse, omission and negligence of his driver to whom the vehicle had been entrusted for being driven for the business of the employer." 16. The evidence given by the owner of the truck is to the effect that the respondent No. 5 was hired by the owner of the truck as a handyman and that he did not authorise the respondent No. 5 to drive his vehicle at any time. The respondent No.1 in his cross-examination has stated as follows : "From what I've heard, the police asked whether any of the persons in the vehicle could drive it after they detain Ramdinmawia, and as Lalruatsanga said that he knew how to drive, they asked him to drive the truck, but Lalruatsanga did not say that he was a spare driver or second driver." 17. The evidence of the police constable, Shri. R. Lalthazuala, posted in the traffic police station is to the effect that "The escort arrived and took the driver who was arrested by us. One of the occupants in the cabin of the truck said that he was the spare driver and asked if he could take the vehicle. We allowed him to take the vehicle as it would have obstructed traffic at Chanmari if we did not allow it to move. The spare driver said he had to carry the load of rice in the vehicle to the go-down in Ramrikawn, and left with the truck. MZ-01/C-7147. After some time we were informed that the truck had met with an accident. The spare driver had told us that he held a valid driving license but we learnt later on that he did not possess any driving license". 18. The evidence of the driver Ramdinmawia, i.e., respondent No. 4 is to the effect that he used to take his younger brother Lalruatsanga, i.e., respondent No. 5 as handyman in the truck to learn driving as they used to carry rice from Bairabi. The driver of the truck also stated that the police had directed the respondent No. 5 to drive the truck. It is also stated by him that he paid a fine in the police station. The driver of the truck also stated that the police had directed the respondent No. 5 to drive the truck. It is also stated by him that he paid a fine in the police station. The driver of the truck had also stated in his evidence as follows : "I used to asked my brother, H. Lalruatsanga to drive the truck some times to relieve me when I was tired. But I never asked him to drive within town area or where there was a lot of traffic." The respondent No. 5 in his evidence has stated that he drove the truck on the orders of the traffic police. The evidence given by the driver of the truck goes to show that he used to let the respondent No. 5 drive the truck. 19. In the present case, the truck was driven on the truck owner's business and it was the duty of the driver to ensure that everything was done as per law while driving the truck. It was due to the fault of the driver of the truck that he had to pay fine to the Police. It was also due to the fact that the respondent No. 5 used to drive the truck occasionally to relieve the respondent No. 4 that the respondent No. 5 had driven the truck on the fateful night. There is no question of a person being forced to drive the truck if he tells the authority that he does not know to drive a truck or that he does not have a license for the same. Submissions/Arguments to the contrary are matters of speculation. However, the evidence of the respondent No. 5 also goes to show that he was driving the truck to do the business of the truck owner, i.e., transporting the rice from Bairabi to the FCI Go-down, Aizawl. In State of Maharashtra and Others v. Kanchanmala Vijaysing Shirke and Others (supra), it has been in para 19 as follows : "19. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. 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." 20.1 find that the driver of the truck was negligent in not having proper vehicle papers and not following the provisions of law while carrying passengers in the truck cabin. The negligent act of the driver (respondent No. 4) is proved by the fact that he paid a fine to the Police. If the driver had not carried more passengers than was allowed in the truck cabin, then the Police would not have stopped the truck. Further, the respondent No. 5 was the handyman of the truck and he had been allowed to drive the truck on occasions by the driver, which goes to show that the driver had authorised the respondent No. 5 to drive the truck at times. Driving of the truck by the respondent No. 5 was done on the other occasions and also at the relevant time. 21. Driving of the truck by the respondent No. 5 was done on the other occasions and also at the relevant time. 21. In the present case, the respondent No. 5 has driven the truck not for his private purpose but for the truck owner's business purpose, though the initial driving of the truck was due to the traffic problem being caused by the stationary truck. The truck owner delegated the vehicle in the charge and control of the respondent Nos. 4 and 5 and due to the negligence of the respondent No. 4, the respondent No. 5 has driven the truck. The reading of evidences of the respondent Nos. 1, 4 and 5 goes to show that the respondent No. 5 was hired as a handyman and that he used to learn how to drive the truck with the help of the respondent No. 4. As held by the Hon'ble Supreme Court in Pushpabai Purshattam Udeshi v. Ranjit Gimming and Pressing Co. (P.) Ltd., (1977) 2 SCC 745 , the recent trend in law is to make the master liable for the acts which do not strictly fall within the term "in the course of employment" as ordinarily understood. In the present case, the evidence does not indicate that the respondent No. 5 had informed the Police that he did not know how to drive a truck or that he did not have a driving license to drive a truck. The evidence of the Police is to the effect that the respondent No. 5 offered to drive the truck. 22. The counsel for the respondent No. 1 had submitted that "The owner of the vehicle must include in a given case, the person who has actual possession and control of the vehicle and under whose command the driver is obliged to operate the vehicle. In this regard, the counsel for the respondent No. 1 had relied upon the case of Rajasthan State Road Transport (supra). The facts in the case of Rajasthan State Road Transport (supra) is different from the facts of this case. There was no transfer of the services of the truck by the truck owner to the Police. The Apex Court in the above case has held that: "17. The definition of owner under section 2(19) of the Act is not exhaustive. The facts in the case of Rajasthan State Road Transport (supra) is different from the facts of this case. There was no transfer of the services of the truck by the truck owner to the Police. The Apex Court in the above case has held that: "17. The definition of owner under section 2(19) of the Act is not exhaustive. It has, therefore, to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus." In the present case, the respondent No.5 was not obliged to drive the truck even if there was an alleged direction given by the Police. In Rajasthan State Road Transport (supra), it has been further held that "The general proposition of law and the presumption arising therefrom that an employer, that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC." In the case of Sohan Lal Passi v. P. Sesh Reddy and Others, (1996) 5 SCC 21 , the Apex Court has held at paras 7, 8 and 9 as follows : "7. In Salmond's Law of Torts (12th Edn.) at p. 458 it has been said : 'On the other hand it has been held that a servant who is authorised to drive a motor vehicle, and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The master may even be responsible if the servant impliedly, and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it, at least if the driver retains notional control of the vehicle.' In that connection reference can be made to the cases of London County Council v. Cattermoles (Garages) Ltd.; Ilkiw v. Samuels; Staveley Iron and Chemical Co. Ltd. v. Jones and the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. (P.) Ltd. The crucial test is whether the initial act of the employee was expressly authorised and lawful. Then the employer shall nevertheless be responsible for the manner in which the employees that is, the driver and respondent 4 executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. Then the employer shall nevertheless be responsible for the manner in which the employees that is, the driver and respondent 4 executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. This aspect of the matter has been recently examined by a Bench of this court of which one of us (N.P. Singh, J) was a member, in the case of State of Maharashtra v. Kanchanmala Vijaysing Shirke. From the facts of that case it shall appear that the jeep which caused the accident belonged to the State of Maharashtra, the appellant in that case. The regular driver of the jeep allowed respondent 4 of that appeal who was a clerk in the Department of the State Government to drive the jeep when the accident took place. The High Court in that case recorded a finding that respondent 4 of that appeal, was driving the jeep while on official duty. This court held that a master is liable even for acts which he had not authorised provided they are so connected with the acts which he had authorised. If the act of the servant on the other hand is not even remotely connected within the scope of the employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside. 8. It was said in the aforesaid case of State of Maharashtra v. Kanchanmala Vijaysing Shirke (SCC pp. 669-70, para 18): 'The High Court has also found that the respondent who was the clerk in the office of appellant 2 was driving the vehicle under the authority of the driver who was in charge of the said vehicle and as the driver had consumed more liquor on that day he permitted the respondent to drive the vehicle that night. The facts of the present case disclose and demonstrate that an authorised act was being done in an unauthorised manner. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected with "in the course of employment" - it was not an independent act for a purpose or business which had no nexus or connection with the business of the State Government so as to absolve the appellant-State from the liability.' 9....Same is the position in the present case. The appellant had authorised Gurbachan Singh to drive the vehicle, but Gurbachan Singh allowed Rajinder Pal Singh, the cleaner/conductor who was also the employee of the appellant to drive the vehicle because of which the accident took place. It is not the stand of the appellant that Rajinder Pal Singh was driving the vehicle without the knowledge or consent of Gurbachan Singh, for his personal pursuit. He was driving the bus for the business of the appellant, that is to carry the passengers. In this background, the appellant cannot escape the liability so far the third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. As it has been established that the negligent act of Gurbachan Singh and respondent Rajinder Pal Singh was 'in the course of employment' the appellant shall be liable for the same. In the present case, the accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected within the course of employment. It j, was not an independent act for a purpose which had no nexus or connection with the business of the appellant so as to absolve the appellant from the liability." A perusal of the evidence given by the respondent No. 5 in his cross-examination is as follows: "I used to work with my older brother but I am not a skilled driver. We were carrying rice from Bairabi to Aizawl. I was travelling in the truck driven by my brother, Ramdinmawia, as the handyman. We were carrying a full load. The Traffic Police asked me whether 1 knew how to drive the truck, 1 said that I was not very skilled but could drive. The Traffic Police then asked me to move the vehicle. I was travelling in the truck driven by my brother, Ramdinmawia, as the handyman. We were carrying a full load. The Traffic Police asked me whether 1 knew how to drive the truck, 1 said that I was not very skilled but could drive. The Traffic Police then asked me to move the vehicle. I started on my way to Ramrikawn but met with the accident at Dawrpui. If the Traffic Police had not asked me to take the vehicle away, I would not have driven it. I did not possess any license at all at the time, not even a learner's license." As stated earlier, the evidence nowhere shows that the respondent No. 5 had informed the Police that he did not have a driving license." For the sake of repetition, it may be stated that the respondent No. 4 used to allow the respondent No. 5 to drive the truck whenever the respondent No. 4 was tired, as reflected in the evidence of the respondent No. 4. Thus, there was an express authorisation/ permission by the truck driver (respondent No. 4) to the respondent No. 5 to drive the truck. Thus, whether there is an express authorisation by the respondent No. 4 to the respondent No. 5 to drive the truck on occasions, it can be surmised that there was an implied authorisation by the respondent No. 4 to the respondent No. 5 to drive the truck at the relevant point of time on the relevant date as the respondent No. 5 used to drive the truck on other occasions. Para 7 of Sohan Lal Passi (supra) is again reproduced below : "7. In Salmond's Law of Torts (Twentieth Edn.) at p. 458 it has been said : 'On the other hand it has been held that a servant who is authorised to drive a motor vehicle, and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The master may even be responsible if the servant impliedly, and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it, at least if the driver retains notional control of the vehicle.' 23. In the present case, however, the truck has not been seized by the Police. Also, the truck owner has not transferred the service of the driver and the handyman to the Police. The Police did not have the right to hire or fire the respondent Nos.4 and 5 and accordingly, it cannot be said that the respondent No. 5 was to act under the instruction, control and command of the Police, if it violated the law. I also hold that the driver retained notional control of the vehicle at all times. Accordingly, I hold that the respondent Nos. 4 and 5, being the employees of the respondent No. 1 and as they were doing the business of the truck owner, the respondent No. 1 is vicariously liable for the act of his employees. 24. In view of the above facts, I find that the truck owner is also vicariously liable for the accident caused during the driving of the truck by the respondent No. 5. 25. The further question that has to be decided by this court is whether there was contributory negligence on the part of the deceased and unidentified rider of the other motor-cycle which had disappeared. The Police report dated 28.5.2010 is as follows : "During inquiry, it is ascertained that while the Truck which was going towards Zodin Square and One Taxi B/R No. MZ-01D-7299 driven by Lallianmawia (25) S/o Sawithuama of Aibawk P/A Tlangnuam which was going towards Bara Bazar from Zodin Square passing each other, the Motor Cycle had passing each other just in between the Truck and the Taxi. Here the Truck ran over the victim who was fallen just in front of the right rear tyre of the Truck due to grazed with the unidentified Motor Cycle. It is also ascertained that the driver of the Truck has no driving Licence to drive any vehicle. Here the Truck ran over the victim who was fallen just in front of the right rear tyre of the Truck due to grazed with the unidentified Motor Cycle. It is also ascertained that the driver of the Truck has no driving Licence to drive any vehicle. It is also ascertained that the cause of accident is due to rash and negligence driving on the part of the Truck Driver." It has been held by the Apex Court that to prove contributory negligence, there must be cogent evidence. In the present case, the manner in which the accident took place has not been disputed by any of the parties. It is also not in dispute that the taxi driver driving the taxi at the time of the accident has also not been made a witness in the present case. A reading of the Police report along with the evidence does not show how the Police could come to a conclusion that the accident occurred due to the rash and negligent act of the driver only. The evidence of the Police Sub-Inspector in cross-examination is to the effect that "The road was wide enough for the two motorcycles to have passed each other in between the taxi and the truck. I believe that the truck was at fault because it had not kept further to the left even though there was space but had moved towards the centre, also it had dragged the severed limb of the deceased some distance, which would show that it had been driven fast. We made a search for the other motor-cycle involved, but could not trace it. Had we traced the rider of the other motor-cycle, I believe that he would also have to face some responsibility for the accident. We did not proceed against the taxi driver. The deceased might also have been negligent to 1 some extent as he was overtaking when the accident occurred." However, the facts speak for itself. The truck was carrying 180 bags of rice. Thus, the truck was having a load. There is no question of a loaded truck running at a high speed in the heart of Aizawl city which has a hilly terrain with narrow winding roads. The fact that the deceased was trying to overtake the truck shows that the deceased was driving at a higher speed than the truck. Thus, the truck was having a load. There is no question of a loaded truck running at a high speed in the heart of Aizawl city which has a hilly terrain with narrow winding roads. The fact that the deceased was trying to overtake the truck shows that the deceased was driving at a higher speed than the truck. Police report which has been exhibited as Ext. C-4 has not been disputed by anybody. To a reasonable person, the idea of two motor-cycles crossing each other between the space of a running truck and a taxi is fool-hardy. In the view of this court, the attempt by the deceased and the unidentified motor-cycle coming from the opposite direction, trying to cross each other between a running truck and a taxi has a high chance of accident as it shows their careless and irresponsible behaviour. 26. In view of the above, I am in agreement with the learned MACT who has recorded the findings that the unidentified motor-cycle rider and the deceased were not careful while trying to cross each other between the truck and the taxi. 27. Accordingly, I also find that the unidentified motor-cycle rider and the deceased are also a party to the accident by way of contributory negligence. Accordingly, the compensation calculated at the rate of Rs. 31,69,944 is apportioned equally between the respondent No. 1, the unidentified motor-cycle driver and the deceased himself. The respondent No. 1 being the owner of the truck is vicariously liable for the act of his driver and handyman, i.e., respondent Nos. 4 and 5. As such, the amount of Rs. 10,56,648 only with interest at the rate of 9% p.a. from the date of filing the claim petition, i.e., 8.5.2012 shall be paid by the respondent No. 1 to the claimants within a period of four months from the date of receipt of a certified copy of this order. 28. The judgment and award dated 28.3.2014 passed in MACT Case No. 26 of 2012 is modified to the extent quoted above. The appeal is accordingly disposed of. Send back the LCRs.