Karnataka High Court
Prabbavati vs Anton Francis Nazarath on 11 November, 1980
Equivalent citations: AIR1981KANT74, 1981(1)KARLJ257
JUDGMENT Sabhahit, J.
1. This appeal by the claimant is directed against, the judgment and award dated 20-8-1977 passed by the Member, Accidents Claims Tribunal, Karwar, Uttara Kannada, in Misc. Case (MV% No. 24 of 1975, on his file, awarding compensation of Rs., 6,000/- to the injured that Miss. Prabhavathi.
2. It is the case of the claimant that the truck bearing Registration No. MYE 4513 driven in a rash and negligent manner on 18-1-1975 at about 10.00 P. M. dashed against her, coming on the wrong side as a result of which her left leg below the knee was fractured. She is unable to stand for long, gets pain in the leg, cannot walk fast and there is deformity in her left leg. She has lost prospects of marriage with a good boy. On these averments, she claimed Rs. 24,000/- as compensation from the respondents.
3. Respondent-1 is the owner of the truck in question. Respondent-2 was the person who actually drove the vehicle. Respondent-3 is the insurer. Respoadent-1, the owner of the vehicle, took up the plea that the truck was taken away without his permission by his cleaner for his own work and that therefore, he was not liable for compensation. The contention of the owner was supported by Respondent-2. Respondent-3, the Insurance Company, contended that it was not liable to pay compensation as the vehicle was not taken for purposes of the owner and (was), without his consent by a person without driving licence.
4. The Tribunal raised the following issues as arising for its consideration (1) Whether the petitioner proves that the accident in question was due to the rash and negligent driving of the truck bearing Registration No. MYE 4513 by opponent-2?
(2) Whether the petitioner proves that she has suffered injuries as a result of the accident?
(3) What is the quantum of compensation to which the petitioner is entitled and from which of the opponents?
(4) What order?
5. During hearing, the claimant examined P. Ws. I and 2, P. W. 2 being the injured girl. As against that, the respondents examined R. W. 1 the owner and R. W. 2 Yellappa the person who drive the vehicle in question.
6. The Tribunal, appreciating the evidence on record, held that the accident was the result of the rash and negligent driving of the vehicle in question and, in that view, the Tribunal awarded compensation of Rs. 6,000/- to the injured girl. But, while fixing the liability, the Tribunal held that only respondent-2 Yellappa was responsible to pay the amount. Aggrieved by the said judgment and award, the claimant has come, up in appeal before this Court.
7. The learned Advocate appearing for the appellant vehemently contended that Rs. 6,000/- awarded as compensation was too, low. He further submitted that both the owner and the Insurance Company should have been held liable to pay the compensation.
8. As against that, the learned Advocate 'appearing for the respondents argued supporting the judgment and award passed by do Tribunal.
9. The points, therefore, that arises for our consideration in this appeal is:
(1) Whether the compensation awarded at Re. 6,000/- is just and proper?
(2) Whether the owner and the insurer are liable to pay the compensation?
10. It is in evidence that as a result of the impact, the girl suffered fracture of the lower left leg viz., of tibia. . Though the fracture is reduced, she has deposed that the suffers pain, that she cannot walk fast, that the cannot do all her house-hold duties and that the prospects of her marriage with a good boy are reduced. It is for these that the compensation has to be awarded.
11. The learned Member of the Tribunal has awarded Rs. 5,0001- towards general damages. Out of this amount of Rs. 5,0001-, she is awarded Rs., 2,000/- for pain and suffering and Rs. 3,000/- for loss of prospects of her marriage with a good boy. He 'has awarded Rs. 1,000/- towards special damages and in all he has awarded Rupees 6000/-
12. The learned Advocate appearing for the appellant vehemently contended that the general damages awarded for the injury, pain and suffering and the disability, at Rs. 2,000/- was too low. Having regard to the serious nature of the injury and the disabilities caused we are satisfied that the award made it Rs. 2,000/- is quite low. We propose to award Rs. 6,000/- under this head and confirm Rs. 3,000/- awarded towards loss of marriage prospects and Rs. 1,000/- towards special damages. In all, the girl is entitled to Rs. 10,000/-. towards compensation instead of Rs. 6,000/-.
13. The next point that consideration is: "Whether the insurer are liable to compensation?"
14. It is no doubt trues that R. W. I has #posed that the cleaner took away the vehicle without his knowledge. He has deposed that his regular driver was Balappa. He has not cared to examine Balappa. It is a matter of common knowledge that the vehicle could not be started without the ignition-key. Unless Balappa gave the ignition-key, Yellapa could not take the vehicle. There is an initial presumption that this vehicle was driven for and on behalf of the owner. In the instant case, it is evident that the ignition-key was given by Balappa to Yellappa. There are a number of decided cases to show that if the driver allows an unauthorised person without competence to drive the vehicle, it will be a matter of negligence on the part of the driver in the course of his employment and the owner becomes vicariously liable; so also the insurance company (vide K. Jayaraja Ralfal v. Alfred Quadres, . That is what has happened in the instant case. In all probability, it is the driver who allowed the unauthorised person Yellappa to drive the vehicle in question. Hence, he has committed', negligence in the course of his employment driver was not only to drive the vehicle but also he was entrusted with the vehicle. It' was his duty as part of his employment to maintain the vehicle in safe condition without allowing anybody else to tamper with it. Therefore, the fact that Yellappa drove the vehicle in. question becomes only a circumstance to, prove negligence. The regular -driver is, Balappa who is a licensed driver. Hence, we are satisfied that both the owner and the insurer would be liable to pay the compensation. We set aside the finding of the Tribunal to that extent.
15. In the result, therefore, the appeal is partly allowed. The compensation awarded by the Tribunal at Rs. 6,000/- is enhanced to Rs. 10,000/-. Under Section 110-B of the Motor 'Vehicles Act, 1939, we direct that the entire amount of compensation shall be paid over by the insurer (respondent-3) along with interest at 6% per annum from the date of the petition till payment as also the costs of these proceedings throughout.
16. Appeal partly allowed.