Madhya Pradesh High Court
M.P. State Road Transport Corporation ... vs Saifuddin And Ors. on 14 October, 1987
Equivalent citations: I(1988)ACC230
JUDGMENT R.K. Varma, J.
1. This is an appeal by the M.P. State Road Transport Corporation, owner and its employee, the driver of the offending bus bearing registration No. MPF 8470, directed against the Award dated 24-7-1979 passed by the Motor Accident Claims Tribunal, Ratlam in Claim Case No. 9/77 whereby the learned Tribunal has awarded a compensation of Rs. 4,000/- with interest @ 6% per annum in favour of the respondent-claimants who are the brother and the brother's son respectively of the deceased Kallu who died as a result of the accident caused by the said bus at 6.00 a.m. on 9-1-1977 at Maszid Choraha, Sailana while the bus was being taken to the bus-stand.
2. The learned Tribunal, on appreciation of evidence on record, found that the offending bus at the time of the accident was driven by one Kishore Singh respondent No. 3 and not by the driver Narain-appellant No. 2. The learned Tribunal further found that Kishore Singh was driving the but in question with the consent of the driver Narain and was bringing the bus to the bus-stand from where it used to ply on its route. The driver Narain instead of himself doing that job which was a part of his duty had assigned that task to Kishore Singh respondent No. 3. On such finding, the learned Tribunal came to the conclusion that the driver-respondent No. 2 was vicariously liable in tort for the accident caused by rash and negligent driving of the bus by Kishore Singh respondent No. 3. The learned Tribunal further found that the respondent No. 1 was also liable for the tort committed by Kishore Singh respondent No. 3. Accordingly, the learned Tribunal has awarded compensation of Rs. 4,000/- for the death of deceased Kallu as a result of the accident in question against the appellants owner and driver and Kishore Singh who were arrayed as non-applicants in the claim petition.
3. In this appeal, learned Counsel for the appellants has raised only two contentions. His first contention is that the claimants-respondents who are related to deceased Kallu brother and brother's son are not the legal representatives and dependants of the deceased and as such are not entitled to claim compensation. The second contention is that the accident was caused by respondent No. 3 Kishore Singh who was unauthorizedly driving the bus at the time of the accident.
4. The learned Tribunal has considered both these contentions raised on behalf of the owner and the driver of the bus and decided the same against them. As regards the first contention, the learned Tribunal has found that the deceased was unmarried and that he was supporting his brother's sod Zaqui Anwer-respondent No. 2 by meeting his expenses of maintenance and education etc In the facts and circumstances of this case, the brother of the deceased is certainty a legal representative of the deceased who received support from the deceased for his son's maintenance and education and as such, he is entitled to maintain a petition Under Section 110-A of the Motor Vehicles Act as has been held by their Lordships of the Supreme Court in Gujrat State Road Transport Corporation, Ahmedabad v. Rananbhai Prabhat-bhai and Anr. . It has been observed therein as under:
The brother of a person who dies in a motor vehicle accident is entitled to maintain a petition Under Section 110-A if he is a legal representative of the deceased. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sub-sections 110-A to ll0-Ft These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B and to specify the person or persons to whom compensation payable and its apportionment as required by Section 110-B amongst the legal representatives for whose benefit an application may be filed Under Section 110-A have to be done in accordance with well-known principles of law. It is to be remembered that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny their compensation relying upon the provisions of the Fatal Accidents Act, 1855 which has been substantially modified by the provisions contained in the Motor Vehicles Act in relation to cases arising out of motor vehicles accidents.
5. The second contention of the learned Counsel is that the appellant, owner and driver are not liable on account of the accident which was caused by Kishoresingh respondent No 3 who was unauthorisedly driving the bus at the time of the accident. From the evidence on record it is clear that the key of the bus which should have been in the possession of the driver Narain was actually given to Kishoresingh for bringing the bus to the bus-stand. The statement of Kallu Khan (A.W. 4) to the effect that Kishoresingh used to bring the bus at the bus-stand, which has been relied upon by the learned Tribunal, appears to be true. The driving of the bus by Kishoresingh therefore, was apparently authorised by the driver Narain appellant No. 2, who has not explained as to how Kishoresingh was in possession of the key of the bus in question which was supposed to be in possession of the driver Narain. Kishoresingh was, therefore, acting as an agent of Narain while driving the bus on its way to bus-stand when the accident occurred. Consequently, the driver Narain must be held vicariously liable for the act of his agent Kishoresingh, decision of the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt and Ors. 1966 A.C.J. 89 has been cited in this connection which lays down that the law with regard to the vicarious liability of the principal for the acts of his agents, was the same as in the case of master and servant. Their Lordships have observed thus: The law with regard to agents is the same. As was observed by Lord Atkinson in Samson v. Aitchison, it is a matter of indifference whether a person be styled a servant or agent since it is the retention of control which makes the owner or the principal responsible. Just as the tort must be committed by a servant either under the actual control of his master or while acting in the course of his employment, the act of the agent will only make the principal liable if it is done within the scope of his authority.
6. It is clear that in the instant case Kishoresingh was driving the bus at the time of the accident by authority of driver Narain and as his agent. But as regards the owner Corporation appellant No. 1, the vicarious liability cannot be extended to it because Kishoresingh was neither a servant of appellant No. 1 nor has been shown by any piece of evidence that he was driving the bus as its agent or with its consent express or implied. The appellant Corporation, therefore, cannot be held liable for the tortuous act of Kishoresingh.
7. In the result this appeal is partly allowed, in relation to appellant No. 1 the Corporation. The Award passed by the learned Tribunal is modified to the extent that the compensation amount shall be payable to the claimant-respondent No. 2 by the driver Narain appellant No. 2 and Kishoresingh respondent No. 3 who are held jointly and severally liable and not by the Corporation appellant No. 1.
8. There shall, however, be no order as to the costs of this appeal, which shall be borne by the parties as incurred.