Gauhati High Court
The Officer Commanding, 82 Rcc (Gref) vs Smt. Bhanu Kanduluna And Ors on 8 April, 2014
Equivalent citations: 2014 AAC 3137 (GAU), (2014) 138 ALLINDCAS 699 (GAU), (2014) 3 TAC 828, (2016) 1 ACC 191, (2015) 4 ACJ 2311, (2014) 6 GAU LR 249
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and
Arunachal Pradesh)
Permanent Bench Kohima
Case No: MAC Appeal 1(K) of 2010
The Officer Commanding,
82 RCC (GREF)
C/O 99 APO ...... Appellant
-Versus-
1. Smt. Bhanu Kanduluna
W/O Late Habel Kanduluna,
2. Smt. Reena Kanduluna,
W/O Late Uttam Kanduluna,
3. Miss Netu Kanduluna (minor)
4. Shri Nipum Kanduluna (minor)
5. Miss Pinki Kanduluna (minor)
All the respondents are resident
Of Salupathar No. III, Golaghat,
Assam. ...... Respondents
Respondents No. 3, 4 and 5, being minors, are
represented by their mother i.e. respondent No. 2.
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellants : Mr. Yangerwati
Advocates
For the Respondents : Mr. P.B. Chetri
Advocates
Date of Hearing : 08.04.2014
Date of delivery of
Judgment and Order : 08.04.2014
MAC Appeal- 1(K) of 2010
JUDGMENT AND ORDER (ORAL)
Heard Mr. Yangerwati, learned counsel appearing for the appellant and Mr. PB Chetri, learned counsel appearing for the respondents.
2] This appeal under Section 173 of the Motor Vehicles Act is directed against the judgment and award dated 13.08.2009, passed by the learned Member, Motor Accident Claims Tribunal, Dimapur, in MAC Case No. 28/2007 awarding an amount of Rs.3,49,500/- (Rupees three lakh forty nine thousand) only as compensation against death of one Uttam Kanduluna.
3] Deceased Uttam Kanduluna was a vegetable vendor, who was travelling in a TATA tripper bearing registration No. 99E-C-69590, owned by 82 R.C.C. (GREF). The vehicle, at that time, was run by a helper of the truck and not by the driver and in the accident victim received injury on his head consequent to which he died. The accident took place on 30.09.2006 at about 6.30 p.m. at Jessami- Dimapur road. On the death of Uttam Kanduluna, his father, his wife and his three children filed claim before M.A.C.T., Dimapur demanding compensation of Rs.4,92,000/- (Rupees four lakh ninety two thousand) only for the accidental death of Uttam Kanduluna who was described to be the sole bread earner of the family. 4] During pendency of the case, father of the deceased died and in his place Smt. Bhanu Kanduluna, mother of the deceased was impleaded. As many as eight (8) issues were framed to adjudicate the case and as many as two (2) witnesses were examined by the claimant and three (3) witnesses were examined by the respondents, who are appellants herein.
Page 2 of 5 MAC Appeal- 1(K) of 2010 5] After completion of trial, the learned Trial court arrived at the finding that there was negligence on the part of the driver of the vehicle for which it was run by helper/handyman. The learned Tribunal held that there being negligence on the part of the driver, the opposite parties were vicariously liable to compensate the victim for tortious liability. Relying on the judgment of the Hon'ble Supreme Court in the case of State of Maharastra and Others Vs. Kanchanmala Shirke, reported in 1 996(1 ) T. A. C. 1 , the Hon'ble Supreme Court held the present appellants guilty for vicarious liability. With these findings, the learned Tribunal proceeded to decide the quantum of compensation. 6] Since the victim was not having any definite income and was engaged in vegetable vending, the learned Tribunal presumed the income to be Rs.2,500/- (Rupees two thousand and five hundred) only and the age was presumed to be around 30-35 years and thereupon calculated the compensation to Rs.3,49,000/- (Rupees three lakh forty nine thousand) only.
7] Mr. Yangerwati, learned counsel appearing for the appellants, submits that the present appellant cannot be liable, inasmuch as, the vehicle was not run by the engaged driver but by the helper for which driver was responsible. Per contra, Mr. PB Chetri, learned counsel appearing for the respondents, submits that if the driver would have taken adequate caution then nobody else would have been in a position to run the vehicle and thus the driver was guilty of negligence and since admittedly the driver was an employee of the present appellants, the appellants are also vicariously liable for the negligence of the employee. The present appellant, therefore, cannot escape the responsibility of compensating the victim. 8] Having gone through the aforesaid judgment of the Hon'ble Supreme Court as well as the arguments of the learned counsel for Page 3 of 5 MAC Appeal- 1(K) of 2010 the parties, I do not feel that the appellants have succeeded to make out any case for interference by this court. Admittedly, the offending vehicle belongs to the present appellants. The said vehicle was run by a duly appointed driver of the present appellants. It is also not in dispute that at the time when the vehicle met with an accident it was under custody of the lawfully engaged driver. The case of the appellants is that at the relevant time when the driver came down from the vehicle and went to respond to nature's call the helper of the vehicle made the misadventures to ply it and ill fate as it would have been, the vehicle met with an accident. Even if this factual matrix is accepted then also the driver of the vehicle is guilty of negligence. It may be mentioned here that a specific question was put to D.W.1 in course of trial as to whether it was incumbent on the part of the driver to take away the key with him when he had got down from the vehicle. Thus, it is apparent on the face of the record that either the driver allowed the helper to ply the vehicle or the driver failed in his duty to take adequate caution and care to pre-empt an accident. Under such circumstances, the element of rash and negligence action on the part of the driver is apparent. Once the driver is guilty of rash and negligence the owner cannot avoid the liability and will be bound by the conduct of the employee by way of vicarious liability.
9] Under such circumstances, the appeal is devoid of any merit. It is accordingly dismissed.
10] Mr. PB Chetri prays at this stage that although the award was passed in the year 2009 directing the appellants to make payment within a period of 60 days but the same has not yet been paid.
Page 4 of 5 MAC Appeal- 1(K) of 2010 11] Mr. Yangerwati, learned counsel appearing for the appellants, submits that an amount of Rs. 25,000/- (Rupees twenty five thousand) only was deposited at the time of presenting the appeal as required by law and subsequently 50% of the awarded amount was also deposited with the Registry of this Court as per the order. The amount, so deposited, with the Registry of this Court shall be released to the claimants on being identified by their learned counsel and the balance unpaid amount shall be paid by the appellants immediately with interest as was awarded by the learned Tribunal.
12] Considering the facts and circumstances no order as to cost.
JUDGE R. biswaS Page 5 of 5 MAC Appeal- 1(K) of 2010