Himachal Pradesh High Court
State Of Himachal Pradesh And Ors. vs Chet Ram And Ors. on 4 April, 1997
Equivalent citations: 1998ACJ438
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. This appeal has been directed against the award dated 10.12.1991 of the Motor Accidents Claims Tribunal, Shimla, whereby compensation to the extent of Rs. 80,000/- with costs was awarded in favour of respondent No. 1, Chet Ram, hereinafter referred to as the claimant.
2. Briefly stated, the facts of the pre-sent case are these. Jeep bearing registration No. HIS 519 belongs to the Medical Department of the State. It is registered in the name of the appellant No. 2, Chief Medical Officer, Shimla. Appellant No. 3 Dr. Savita Sharma at the relevant time was working as Medical Officer at Ripon Hospital, Shimla, under appellant No. 2. Babu Rain and Madan Lai were the drivers of the said jeep.
3. On 22.11.1988 at about 6-7 p.m. when the said jeep was being driven by respondent No. 2 Roop Lal it met with an accident near Durga Gas Store on Shimla- Sanjauli road. In such accident the jeep had gone off the road into a nullah. The claimant, who was travelling in the said jeep, sustained multiple injuries including the head injury.
4. The claimant accordingly approached the learned Motor Accidents Claims Tribunal (for short 'the Tribunal') under Section 110-A of the Motor Vehicles Act, 1939, seeking compensation to the tune of Rs. 3,50,000/- for the bodily injuries sustained by him. It was averred that the accident had taken place as a result of rash and negligent driving on the part of respondent Roop Lal. Further case of the claimant was that respondent Roop Lai was deputed to drive the jeep by appellant No. 3, Dr. Savita Sharma.
5. Respondent Roop Lal did not appear before the learned Tribunal to contest the claim petition. He was proceeded against ex parte.
6. The three appellants contested the claim petition. They admitted the accident but denied their liability on the ground that the jeep was being driven by an unauthorised person. The respondent Roop Lal was neither under the employment of the appellants nor was deputed and authorised by appellant No. 3 Dr. Savita Sharma to drive the jeep.
7. The learned Tribunal, on consideration of the evidence led by the parties came to the conclusion that the accident was as a result of rash and negligent driving of the respondent Roop Lal, who had been deputed and authorised by appellant Dr. Savita Sharma to drive the jeep. Claimant was held entitled to compensation of Rs. 80,000/- with costs. The three appellants and respondent Roop Lai were held liable jointly and severally.
8. The award of the learned Tribunal has been assailed by the appellants on the ground that they could not have been made liable vicariously for the acts of the respondent Roop Lai, who admittedly was not under their employment. Nor the said respondent was ever deputed and/or authorised to drive the jeep. Secondly, it has been contended that compensatien awarded on the facts and in the circumstances of the case, is excessive.
9. Admittedly, jeep bearing registration No. HIS 519 belongs to the appellant Nos. 1 and 2. It is also admitted that the said jeep was being driven on the relevant day by respondent Roop Lai and that it met with an accident in which the claimant sustained the injuries. There is also no dispute that respondent Roop Lai was not under the employment of the appellant.
10. The appellant Nos. 1 and 2 in para 14 of their reply dated 28.2.1990 have averred in the following terms:
It is further submitted that at the relevant date and time driver Madan Lal was on duty in the said vehicle. It is not known to the replying respondents that what transpired between driver Madan Lal on duty and Roop Lai respondent No. 3 and the petitioner that the vehicle No. HIS 519 was taken by respondent No. 3 without the consent of competent authority on duty at that relevant time at Ripon Hospital, Shimla.
11. In other words, as per the pleadings, the case of the appellants is that the jeep was given to respondent Roop Lal by the driver Madan Lal unauthorisedly.
12. It has come in evidence that there were two drivers for the said jeep, namely, Babu Ram and Madan Lal. It is also in evidence that on the relevant day Babu Ram was on leave and Madan Lal was on duty. Though appellants have examined Babu Ram as a witness to show that he was on leave, the other driver Madan Lal has not been examined to show as to how and in what manner respondent Roop Lal came to drive the jeep. In view of the admitted case of the appellants that Madan Lal was on duty with the said jeep on the relevant date, he was the best person to throw light as to how Roop Lai was driving the jeep. On the failure of appellants to have examined Madan Lal, the only inference is that Roop Lai respondent was given the jeep by the driver Madan Lal.
13. In 'Ad hoc' Committee, the Indian Insurance Companies Association Pool, Bombay v. Radhabai Babulal 1976 ACJ 362 (MP), where the driver in the course of his employment had entrusted control of the steering wheel to an unauthorised person, the owner was held vicariously liable for the acts of his driver.
14. The High Court of Punjab and Haryana also in Lajwanti v. Haryana State 1985 ACJ 307 (P&H), has held:
There is a presumption, rebuttable no doubt, that a vehicle is driven on the master's business and by his authorised agent or servant, and consequently the owner or master is vicariously liable for the negligence of such servant or agent committed in the course of his employment....
The above ratio stands approved by the Apex Court in State of Maharashtra v. Kanchanmala Vijaysing Shirke 1995 ACJ 1021 (SC).
15. Following the said ratio, we are satisfied that the learned Tribunal has rightly held the appellants to be jointly and severally liable along with respondent Roop Lal.
16. Next comes the question of quantum of compensation. Learned Tribunal after assessing the monthly income of the claimant at Rs. 1,000/- assessed the loss of future earning capacity at Rs. 400/- per month by taking into account that the claimant had sustained permanent physical impairment to the extent of 40 per cent. By applying the multiplier of 15, compensation payable under the head loss of future earning capacity has been assessed at Rs. 72,000/-. To this amount a further sum of Rs. 8,000/- as compensation under the composite head of pain and suffering and medical expenses, has been added. A total sum of Rs. 80,000/- has thus been awarded as compensation.
17. The claimant at the relevant time was about 35 years of age. He was working as a carpenter with the H.P. P.W.D. on daily wages at Ripon Hospital. He was drawing a daily wage of Rs. 26.20 as is evident from the statement of RW 7.
18. Though vide Exh. PW 6/A the permanent physical disability of the claimant has been assessed at 60 per cent, Dr. Shandil, PW 6, who was a member of the medical board, has stated that over all 40 per cent disability with functional impairment was there in terms of loss of earning capacity.
19. It is in evidence that the claimant continues to work on daily wages with the H.P. P.W.D. The learned Counsel for the appellant has, therefore, contended that since the claimant is continuing in his job, there has been no loss in income. Therefore, the findings of the learned Tribunal holding the claimant entitled to compensation under the head of loss of future earning capacity are wrong.
20. It is significant to note that the claimant due to the injuries sustained was unable to attend to his duties for a period of 98 days. This fact stands admitted by RW 7. Nothing has come on the record to show that wages for this period of 98 days were paid to the claimant. Therefore, the claimant is entitled to the compensation for the loss of income for this period. Nothing has been awarded by the learned Tribunal on this count.
21. May be that the claimant is still continuing to work on daily wages with the H.P. P.W.D. He is a carpenter, that is, a skilled laborers. Judicial notice can be taken of the fact that separate rates of daily wage are prescribed for skilled and unskilled labourers. Nothing has come on the record to show that the claimant is being paid daily wages as a skilled labourer. Besides, PW 6 was not cross-examined by the appellants to show that in spite of the physical impairment, the claimant was and is in a position to work as carpenter. The statement of PW 6 has in fact gone unchallenged inasmuch as he was not subjected to any cross-examination by the appellants at all. Therefore, in view of the physical impairment of a permanent nature having been sustained by the claimant, the learned Tribunal has rightly held that there would be loss in future earning capacity. Such loss in earning capacity has been rightly assessed at Rs. 400/- per month. The multiplier applied and the compensation assessed cannot be said to be excessive. The impugned award of the learned Tribunal calls for no interference.
22. Consequently, the present appeal fails and the same is dismissed with costs which are quantified at Rs. 1,500/-.