Himachal Pradesh High Court
Managing Director, Himachal Pradesh ... vs Amra Devi And Ors. on 12 August, 1997
Equivalent citations: I(1998)ACC419, 1998ACJ1385
Author: Arun Kumar Goel
Bench: Lokeshwar Singh Panta, Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. This appeal is filed by the Managing Director, Himachal Pradesh State Forest Corporation (here-in-after referred to as 'the Corporation') against the award passed by Motor Accidents Claims Tribunal (1), Solan and Sirmaur Districts at Solan dated 25.4.1989, whereby the respondent No. 3 (hereinafter called 'the insurance company') has been exonerated for payment of compensation awarded in the favour of Amra Devi and Shashi Pal Nadda (hereinafter referred to as 'the claimants'). While passing the impugned award, Corporation has been directed for the payment of compensation awarded in terms of the award. It has been held that Corporation is liable for payment of compensation for the act of its employee Joyti Parshad (hereinafter referred to as 'the driver').
2. Facts of this case need briefly to be referred to for properly understanding the present case as well as for appreciating the submissions made on behalf of the parties. Deceased Sant Ram Nadda was working as Deputy Ranger in the Himachal Pradesh Government Forest Department. On the fateful day, i.e., 18.2.87, Sant Ram deceased was working with the Corporation. On this day when Joyti Parshad who was authorised driver of the vehicle bearing registration No. HIS 9003 engaged by the Corporation was carrying the timber from forest Kansar to Mantaruwala, deceased was also travelling in the truck. Claimants case is that deceased Sant Ram was travelling while on duty, insurance company has admitted this fact in para 10 of the reply filed by it, Corporation as well as driver while admitting the factum of the deceased being there on the truck, did not admit that he was on duty when he boarded the truck. However, when the truck had reached near Giri Nagar at about 5.30 p.m. it met with an accident after having gone out of the road and consequently having fallen into the khud. As a result of this accident, deceased received multiple injuries and died on the spot. Claimants Amra Devi is the widow whereas Shashi Pal Nadda is the son of deceased Sant Ram. According to claimants, accident took place due to rash and negligent driving on the part of the driver and thus compensation in the sum of Rs. 5,00,000/- was claimed by both of them. Corporation in its reply admitted that the vehicle in question was owned by it and Joyti Parshad was its authorised driver who was driving the vehicle at the time of accident on 18.2.1987 when Sant Ram died due to injuries sustained by him in the said accident. While further admitting the accident it was denied by the Corporation that the accident was due to rash and negligent driving on the part of the driver. Accident was further stated to be the result of danga (retaining wall) giving way and consequently the truck falling into the khud. As such accident was attributed to have taken place as an act of God. Relationship of both the claimants with the deceased was admitted.
3. In the aforesaid background parties went to trial on the following issues:
(1) Whether the deceased suffered fatal injuries on account of rash and negligent driving on the part of the respondent No. 2?OPP (2) Whether the alleged mishap took place on account of act of God? OPR (3) Whether the insurance company is not liable to indemnify the award as alleged? OPR (4) Relief.
Issue No. 1 was held in the affirmative, under issue No. 2 findings were recorded in the negative and while exonerating the insurance company under issue No. 3, compensation in the sum of Rs. 1,26,240 was granted to the claimants to be paid by the Corporation with interest at the rate of 12 per cent per annum from the date of the petition, i.e., from 14.8.87 till the time of deposit of the amount by the Corporation.
4. Another fact which may be noticed here regarding which parties are not at variance is that admittedly the truck in question was insured with the insurance company by means of a valid insurance policy which was in force on the date of accident.
5. In support of this appeal, Mr. Ajay Mohan Goel, learned Counsel appearing for the Corporation has submitted that the findings recorded by the Tribunal below thereby exonerating the insurance company of its liability to indemnify his client are erroneous both on admitted facts as well as proved facts. Not only this, but it was further pointed out by Mr. A.M. Goel that in accordance with law governing the proved facts insurance company was liable to satisfy the award that was passed by the Tribunal below or that may be passed by this Court.
6. On the other hand, Mr. R.S. Gautam, learned Counsel appearing for claimants has submitted that in view of the facts detailed in Exh. C-1 and Exh. C-2 taken on record while allowing the application under Order 41, Rule 27, Civil Procedure Code filed by his clients, cross-objections filed by the claimants deserve to be allowed and award amount was liable to be enhanced. It was also pointed out that the deceased was admittedly in the employment of H.P. State Forest Department and was working with H.P. State Forest Corporation, a wholly owned and controlled Corporation by the Government of Himachal Pradesh. Revision of pay of its staff was granted by the State of Himachal Pradesh in the month of March, 1989 with effect from 1.1.1986, which position stood established from Exh. C-1 and Exh. C-2 which were taken on record as per orders of this Court dated 1.8.1997 passed on CMP No. 463 of 1993, thus according to Mr. Gautam, compensation was liable to be enhanced.
7. On the other hand, Mr. K.D. Sood, learned Counsel appearing for the insurance company while controverting the plea of the Corporation submitted that his client has been rightly exonerated of its liability and thus while further adopting the line of reasoning as detailed in the impugned award, he prayed for upholding the same. In the alternative and without conceding the plea of the claimants it was urged by Mr. Sood that the liability of his client in no case extends beyond Rs. 1,50,000/-. It was reiterated by Mr. Sood that by making this submission he is neither admitting nor conceding the claim made in the claim petition.
8. From the record of the case as well as per admitted plea of the Corporation, Joyti Parshad was its authorised and paid driver deputed on truck bearing registration No. HIS 9003 on 18.2.1987 when it met with the accident resulting in the death of Sant Ram Nadda, the Deputy Ranger. Thereafter there are two versions as to how the deceased had boarded the truck. Joyti Parshad while appearing as RW 1 has stated that he was working under the deceased who boarded the truck when the timber was being carried from Kansar to Mantaruwala. He has tried to show that since the vehicle was under the control of the deceased which was being driven by Joyti Parshad, as such, in exercise of his authority the deceased had boarded the truck. On the other hand, stand of the Corporation is that the deceased had boarded the truck of his own at the time of accident. As already pointed out, insurance company has admitted that at the time of accident, deceased was travelling in the truck in the course of his employment.
9. In Sohan Lal Passi v. P. Sesh Reddy 1996 ACJ 1044 (SC), it has been held by the Hon'ble Apex Court that when the vehicle at the time of accident was being driven by a person not holding a driving licence and the insured had, however, appointed a duly licensed driver who had allowed the cleaner/conductor to drive the vehicle, insurance company cannot repudiate its liability for payment of compensation. Besides this, the Apex Court also observed that the provisions of Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939 are not to be interpreted in a technical sense. The Apex Court further took the view that while interpreting the contract of insurance, the Tribunals and Courts have to be conscious of the fact that the right to claim compensation by heirs and legal representatives of victims of the accident is not defeated on technical grounds. Unless of course it is established on the basis of materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly authorised to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment debtor in respect of the liability in the face of provisions of Section 96(1) of the Motor Vehicles Act, 1939. The purpose for getting the vehicle insured from insurance company is to provide an easy mode of getting compensation by the claimants otherwise they would be required to pursue their claim in the normal course from one forum to another.
10. It may further be appropriate to point out that when a driver who has been authorised by the owner to drive the vehicle and such a driver permits an unauthorised person to drive the same in his place, the act of permitting the other person to drive may result in holding the master responsible impliedly and not expressly as in such a situation the driver retains notional control of the vehicle. In addition to this, when an employee expressly authorised to do a lawful act the employer was none the less liable for the manner in which his employee executed the authority given to him, as such, if an employee does any such act in a manner so as to result in causing injury to a third person, the employer will not be exonerated of the liability simply on the plea that he had not authorised the particular manner in which the act was performed. Not only this, but even by raising the plea that the employee was acting on his own behalf and not on behalf of the employer cannot be made a ground by the employer in such a situation. Thus when once it is established that an authorised driver has committed some unauthorised act, then the insurance company as in the present case cannot be exonerated of its liability to indemnify the Corporation.
11. For taking this view, reference can usefully be made to State of Maharashtra v. Kanchanmala Vijaysing Shirke 1995 ACJ 1021 (SC) and Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC).
12. Applying the cases of Sohan Lal Passi 1996 ACJ 1044 (SC); State of Maharashtra 1995 ACJ 1021 (SC); and Skandia Insurance Co. Ltd. 1987 ACJ 411 (SC); to the facts of the present case, it is clear that Tribunal below has fallen into error while exonerating the insurance company under issue No. 3 and the findings recorded thereunder are hereby reversed and it is ordered accordingly. Consequently, it is held that insurance company is liable to satisfy the award passed against the Corporation, of course, the limit of liability is Rs. 1,50,000/- and beyond that if any compensation is assessed, then that would be payable by the Corporation.
13. Now coming to cross-objection No. 110 of 1992, with the revision of pay scales, ordered by the Government of Himachal Pradesh and consequent revision of pay scale in the case of the deceased, it is clear that monthly wages in terms of Exh. C-2, with effect from 1.1.87 come to Rs. 2,137. Now applying the well-known multiplier method, monthly dependence comes to Rs. 1,425/- or was Rs. 17,100/- p.a. By applying multiplier of 10, the total amount of compensation comes to Rs. 1,71,000/- and by adding to this amount of compensation Rs. 4,000/- as funeral expenses, the total amount of compensation to which the claimants are entitled works out to Rs. 1,75,000/-. This amount is inclusive of amount, if any, paid under no fault liability as well. Claimants are further held to be entitled to interest at the rate of 12 per cent on this sum of Rs. 1,75,000/- from the date of filing of the claim petition, i.e., from 14.8.1987 till the date of actual payment. Insurance company is held liable to pay Rs. 1,50,000/- plus interest at this rate whereas the balance sum of Rs. 25,000/- with interest is payable by the Corporation.
14. As a result of the aforesaid discussion, appeal filed by the Corporation is partly allowed thereby holding it liable for payment of Rs. 25,000/- with 12 per cent interest from 14.8.1987 till the date of deposit of the amount. Insurance company is held liable for payment of Rs. 1,50,000 with 12 per cent interest from 14.8.1987 till the date of deposit of this amount. It is further ordered that the insurance company shall deposit the amount with interest within a period of two months from today. Corporation is further held to be entitled to refund of the excess amount with proportionate interest deposited by it. Costs on the parties.