Madhya Pradesh High Court
State Of Madhya Pradesh Through ... vs Sushila Tripathi And Ors. on 17 July, 1998
Equivalent citations: II(1999)ACC401, 1999ACJ711, 1999 A I H C 3406, (1999) 2 ACC 401, (1999) 3 TAC 354, (1999) 1 ACJ 711
JUDGMENT V.K. Agarwal, J.
1. This appeal by the State has been preferred against the award of Rs. 1,20,000 (Rupees one lakh and twenty thousand) dated 5.5.1993 in Motor Accident Claim Case No. 134 of 1989 by Motor Accidents Claims Tribunal, Raipur.
2. The case of the claimant-respondent Nos. 1 to 4 was that deceased Police Constable Prafulla Kumar Tripathi was the husband of respondent No. 1, Sushila Tripathi and father of respondent Nos. 2 to 4. On 5.4.1989 the Police Inspector (Traffic) was checking motor vehicles at Pachpedhi Naka, Ring Road, Raipur, in connection with Traffic Safety Week. The deceased Police Constable Prafulla Kumar Tripathi, respondent No. 5 Laxmidhar Diwan and other police officials were also there on duty. During the checking, Police Inspector (Traffic) took a scooter No. CIR 7571 from its owner Prabhakar R. Ambilkar, respondent No. 6 and directed the deceased Police Constable Prafulla Kumar Tripathi to proceed on it along with respondent No. 5, Police Constable Laxmidhar Diwan for checking of the vehicles. Though the deceased Prafulla Kumar Tripathi initially was disinclined to go on the scooter, but ultimately complied with the orders of his superior and proceeded as pillion rider on the said scooter, being driven by respondent No. 5, Laxmidhar Diwan.
3. Case of claimant-respondent Nos. 1 to 4 further is that the scooter driver Constable Laxmidhar Diwan, respondent No. 5, drove the scooter at a fast speed which got out of his control near the bridge at Kashiram Nagar and slipped. The driver of the scooter, respondent No. 5 Laxmidhar Diwan and pillion rider Prafulla Kumar Tripathi fell on the road and both of them sustained injuries and were removed to D.K. Hospital, where Prafulla Kumar Tripathi, despite treatment succumbed to the injuries on 14.4.1989.
4. The claimants heirs of deceased Prafulla Kumar Tripathi have averred that the accident took place on account of rash and negligent driving of respondent No. 5 Police Constable Laxmidhar Diwan. The respondent No. 5 was the employee of the appellant and was on duty. The respondent No. 6 Prabhakar Rao Ambilkar being the owner of the scooter and respondent No. 7 the Oriental Insurance Co. Ltd. was the insurer thereof. Therefore, the respondent Nos. 1 to 4, claimants, filed the petition claiming compensation from the appellant as well as from the respondent Nos. 5, 6 and 7.
5. The appellant as well as the respondent Nos. 5 to 7, in their separate written statements, resisted the claim and denied their liability to pay compensation.
6. According to the respondent No. 5 Police Constable Laxmidhar Diwan, he was proceeding on the instructions of Sub-Inspector to chase a speeding truck No. MWY 3115 along with the deceased, which had stopped after proceeding to some distance, but when they reached near it, the truck driver dashed his vehicle against the scooter driven by respondent No. 5 and had run away along with the truck. It has also been averred that the driver, owner and insurer of the truck were necessary parties in the claim petition and since they have not been joined as parties in the petition, therefore, claim petition cannot succeed.
7. The respondent No. 6 Prabhakar Rao Ambilkar, the owner of the scooter, has averred that while he was talking to the Sub-Inspector (Traffic), who was on duty, the two Police Constables, i.e., Prafulla Kumar Tripathi and the respondent No. 5 Laxmidhar Diwan took away his scooter, whereafter it was learnt that the same had met with an accident. It has further been averred that since the scooter was taken away without his consent and knowledge, therefore, he is not liable to pay compensation.
8. The appellant State averred that the deceased had gone on scooter No. CIR 7571 of his own accord along with respondent No. 5 Laxmidhar Diwan, without any direction or orders in this regard, in order to chase truck No. MWY 3115, which did not stop at the signal of Laxmidhar Diwan and while chasing the said truck, the scooter slipped and the accident occurred. It has, therefore, been averred that the appellant is not liable to pay compensation and the liability to pay compensation is that of the owner, respondent No. 6 and the insurer, i.e., the respondent No. 7.
9. The insurer, respondent No. 7, also denied its liability and averred that the scooter of respondent No. 6 was taken away unauthorisedly and without the consent of respondent No. 6 and, therefore, the scooter, at the time of accident, was not being used for or on behalf of the owner, respondent No. 6, Prabhakar Rao Ambilkar. The accident occurred on account of rash and negligent act of driver of the truck MWY 3115 and the liability to pay compensation was that of the driver, owner and insurer of the said truck. It was also averred that the deceased being a pillion rider, was not covered by the terms of the policy.
10. The Tribunal found that the deceased was on duty as traffic constable and died during the course of his employment as such. It was also held that the accident occurred on account of the rash and negligent driving of the scooter by respondent No. 5 Laxmidhar Diwan. It was further held that the scooter was taken away for Government work with the consent of its owner, respondent No. 6 Prabhakar Rao Ambilkar. It was further held that since the scooter was in possession and control of the appellant State and it was being used for official duty at the time of the accident, therefore, its owner respondent No. 6 Prabhakar Rao Ambilkar, who had surrendered the possession of the vehicle to the State, cannot be held responsible for the accident and, therefore, not liable for payment of compensation. It was also held by the Tribunal that it was not established that the terms of the policy covered the risk of the pillion rider; and also since the owner thereof is not held liable, hence it was held that the insurer, the respondent No. 7, was also not liable to pay compensation.
11. Accordingly, after calculating the dependency at Rs. 600 per month, yearly Rs. 7,200 in which a multiplier of 15 was applied, loss was calculated at Rs. 1,08,000, in which a sum of Rs. 12,000 was added towards loss of consortium and thus a total award of Rs. 1,20,000 was passed against the appellant State and respondent No. 5, Laxmidhar Diwan, driver of the scooter. However, the claim was dismissed as against the owner of the scooter, respondent No. 6 and the insurer, respondent No. 7.
12. In this appeal, it has been urged on behalf of the appellant State that the claim for compensation can succeed only against the driver, owner and the insurer of the scooter. Since the appellant State was not the owner of the scooter and the same was not under its control at the time of the accident and since it was not being driven under its authority or direction, it could not be held liable to pay compensation. It was submitted that the scooter of respondent No. 6 Prabhakar Rao Ambilkar had been taken away of his own accord and was being driven by the respondent No. 5 Constable Laxmidhar Diwan, without there being any authority, directions or orders on behalf of the appellant State in that regard. Therefore, the learned Counsel for the appellant has urged that vicarious liability to pay compensation could not be fastened on the appellant State. It has, therefore, been prayed that the award of compensation as against the appellant be set aside.
13. Learned counsel for the claimants, however, supported the award and urged that the deceased Police Constable Prafulla Kumar Tripathi was admittedly a pillion rider on the scooter, which was being driven by Police Constable Laxmidhar Diwan and that both of them were on duty as they were proceeding to check the truck, which had escaped despite being signalled by the police party to stop. It has, therefore, been urged that the appellant State was vicariously liable for the act of its servant, Police Constable Laxmidhar Diwan and was thus liable to pay compensation.
14. The learned Counsel for the respondent No. 5 Laxmidhar Diwan, driver of the scooter, relying upon 'Adhoc' Committee, Indian Insurance Companies Association Pool, Bombay v. Radhabai Babulal 1976 ACJ 362 (MP), has urged that the State was vicariously liable as has been held by the Tribunal. It has also been urged that since the owner of the vehicle had lent the vehicle, he and consequently his insurer were also liable to pay compensation. Reliance, in this connection, has been placed on National Insurance Co. Ltd. v. Prafulla Kumar Prusty 1993 ACJ 1225 (Orissa) and Jasbir Kaur v. State of Punjab 1995 ACJ 1048 (P&H),
15. The learned Counsel for respondent Nos. 6 and 7 have supported the award and have urged that since the respondent No. 6 had not handed over the scooter of his own accord and since it was not taken with his consent, the scooter was not being used at the time of the incident with his consent, therefore, the respondent Nos. 6 and 7 are not liable for the accident and for payment of compensation. In this connection, the learned Counsel for respondent No. 7 relying upon Ram Narayan Singh v. Election Commission 1997 ACJ 67 (Patna), has also urged that the person who is in actual possession of the vehicle, shall be treated as owner and was, therefore, liable.
16. It may be noticed that during the hearing on the claim petition by the Tribunal, the claimant-respondent Nos. 1 to 4 only examined Sushila Tripathi, AW 1, the wife of the deceased Prafulla Kumar Tripathi, who has stated that her husband died on 14.4.1989 in a scooter accident. Regarding the incident, Raju Gupta, AW 2, has been examined, who has stated that the scooter on which the deceased Prafulla Kumar Tripathi was riding was proceeding very fast and that it slipped due to which Prafulla Kumar Tripathi got injured.
17. Thus, it is abundantly clear from the above evidence placed on record that the deceased Prafulla Kumar Tripathi got fatally injured in the scooter accident, which occurred on account of rash driving of the scooter by respondent No. 5. The finding as above recorded by the learned Claims Tribunal is also supported by the principle res ipsa loquitur. Hence, the finding as above of the learned Tribunal is unassailable.
18. It is not in dispute in this case that the scooter No. CIR 7571 was owned by respondent No. 6 Prabhakar Rao Ambilkar and was being driven at the time of the accident by respondent No. 5 Laxmidhar Diwan. Therefore, the question that now deserves consideration is as to what were the circumstances in which the scooter was obtained from its owner respondent No. 6 and was driven by respondent No. 5. It may be noticed that parties have made rival contentions in this regard and their pleadings regarding the circumstances in which the scooter was obtained from its owner Prabhakar Rao Ambilkar, are contrary to each other.
19. It may be noticed in the above context that the claimant-respondent Nos. 1 to 4 in their claim petition and driver of the scooter, Laxmidhar Diwan, respondent No. 5, have averred that the Police Inspector (Traffic) obtained the scooter from its owner and directed the deceased and the respondent No. 5, Laxmidhar Diwan to go on it for checking of vehicles. However, as against this, the owner Prabhakar Rao Ambilkar, respondent No. 6 and the appellant State averred that the Police Constables (the deceased and respondent No. 5 Laxmidhar Diwan) had taken away the scooter on their own accord.
20. However, none of the parties led any evidence to substantiate their averments as above. Thus, the circumstances in which the scooter was taken from its owner Prabhakar Rao Ambilkar have not been proved by leading any specific evidence in that regard. Therefore, the respondent No. 5, Laxmidhar Diwan, who was driving the scooter has failed to prove. the allecgation that the Police Inspector (Traffic) had obtained it from its owner, respondent No. 6 and had directed that the respondent No. 5, Laxmidhar Diwan and the deceased Prafulla Kumar Tripathi should go on it to chase the truck. Since Laxmidhar Diwan, respondent No. 5, was driving the scooter and was in possession thereof, he was in a position to state about it. But, he has neither examined himself nor led any other evidence to prove his averment. So is also the case with respondent No. 6 Prabhakar Rao Ambilkar, the owner of the scooter.
21. Thus, though the learned Tribunal recorded a finding that the scooter was handed over by its owner, respondent No. 6, to the State Government, but, there is no evidence or material on record to infer that the scooter was either requisitioned or acquired by the appellant State for checking of vehicles. Thus, the finding as above of the learned Tribunal is not based on any material or evidence. Moreover, even if it be assumed that the Inspector of Police (Traffic) had taken the scooter from its owner and handed it over to the Constable Laxmidhar Diwan, respondent No. 5, even then it cannot be inferred that such an action on the part of Police Inspector (Traffic) would amount to the scooter having been requisitioned or acquired by the State or under its authority. In the circumstances, it appears that the scooter of respondent No. 6 Prabhakar Rao Ambilkar was being driven by respondent No. 5 Laxmidhar Diwan with the former's consent. Therefore, it cannot be held in the absence of evidence, that the scooter was handed over for Government duty by its owner; much less that it was requisitioned by or on behalf of appellant State.
22. If that be so, the question is whether the appellant State can be held vicariously liable for the death caused on account of rash and negligent driving of the scooter by respondent No. 5?
23. In the above connection, learned Counsel for the respondent No. 5 has relied upon the case of 'Ad Hoc' Committee, Indian Insurance Companies Association Pool, Bombay v. Radhabai Babulal 1976 ACJ 362 (MP). In that case, the vehicle belonging to the State and allotted to the Primary Health Centre was allowed to be taken for bringing ailing children to the hospital. The vehicle was driven by driver 'L'. On the way, the vehicle stopped for taking petrol. When the vehicle started from the petrol depot, the control of the steering wheel was given to 'S', who had no licence, while 'L' was sitting by his side. An accident resulting in death of a person sleeping on a cot occurred, while 'S' was driving. It was contended that the State owning the vehicle was not vicariously liable as driver 'L' had permitted 'S' to drive the vehicle without any authority.
24. Following passage from Salmond's Law of Torts, 15th Edn., page 620 was quoted in the above case:
A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.
It was held in that case that at the time of accident, the vehicle was engaged in the work of going to the place where the ailing children were and bringing them in the vehicle to the hospital. All that could be said was that L's act of giving control of the steering wheel to 'S' was merely a wrongful and unauthorised mode of doing the act authorised by the master of driving the vehicle to the place where the children were and to bring them in the vehicle to the hospital and that State was vicariously liable for negligence of 'L' in permitting 'S' to drive.
25. However, in the instant case, the facts are entirely different. Admittedly, the scooter involved in the accident, in the instant case, did not belong to and was not under the control of the State. Further, the act of the two Constables in taking away the scooter at the time of the accident does not appear to be the act authorised by the master, i.e., the State. Therefore, State in the circumstances cannot be made vicariously liable.
26. The learned Counsel for the respondent No. 5 also relied upon a decision of Orissa High Court in Prafulla Kumar Prusty, 1993 ACT 1225 (Orissa). In that case, the owner of the vehicle gave his bus to a garage for repair and handed over the ignition keys to the garage owner. Somebody took the vehicle from the garage and caused the accident injuring a cyclist. It was held therein that an inference, in the circumstances, could be drawn that the owner of the bus authorised the garage owner or any other person taking the ignition keys from the garage owner to drive the vehicle and it was thus held that the owner of the vehicle is vicariously liable for payment of compensation.
27. The case of Jasbir Kaur, 1995 ACJ 1048 (P&H), relied upon by the learned Counsel for respondent No. 5 is also on entirely different context. In that case, a newly born infant was injured at night time in Government owned hospital. A presumption was drawn that there had been negligence in the exercise of proper care and caution on the part of hospital staff, which was entrusted with the job of providing medical facilities and ensuring safety of the lives of the petients. Therefore, it was held that the State would be liable to compensate the applicants, who were the parents of the unfortunate child.
28. In Ram Narayan Singh v. Election Commission 1997 ACJ 67 (Patna) relied upon by the learned Counsel for respondent No. 5, a jeep which was requisitioned for election purposes met with an accident. It was held that at the time of accident, the State Government was the owner of the vehicle and was, therefore, vicariously liable.
29. However, the above cases will have no application to the facts of the present case, because as mentioned earlier also, in the instant case the scooter was not in the ownership of the State and was not acquired or requisitioned by the State. In fact, there is absolutely no evidence, as to under what circumstances it was obtained from its owner and how it came to be driven by the respondent No. 5 at the time of accident. Thus, the said scooter could not be said to have been handed over to respondent No. 5 by the State and he could not be said to have been driving the same on behalf of or under the authority of the State. Therefore, in the above facts and circumstances of the present case, vicarious liability for the death caused in an accident, which occurred on account of rash and negligent driving of the said scooter by respondent No. 5, cannot be fastened on the appellant State.
30. It may also be pointed out that the learned Tribunal, after referring to a decision of the High Court of Punjab & Haryana in Brij Lal v. Mangal Chand Maheshwari 1987 ACJ 522 (P&H), has held that the person who is in possession and control of the vehicle would be liable to make good the compensation and, therefore, the appellant State was liable. However, it would appear that in the case of Brij Lal, jeep was taken on hire by a bank from its owner and it was under custody and control of the bank and was being used for its purposes when it met with an accident. The driver, who caused the accident, could not be identified. In the circumstances, it was held that the presumption would be that the person driving the jeep was doing so under the authority of the bank and, therefore, bank was vicariously liable to pay compensation. However, as noticed earlier also, in the instant case, there is no material to infer that the scooter was of the State or Was under its control. There is also no evidence regarding the circumstances in which the scooter was being driven by respondent No. 5 Laxmidhar Diwan when the accident occurred. Hence the appellant State could not be made liable on the authority of Brij Lal (supra).
31. In view of above, since the scooter of respondent No. 6 was being driven rashly and negligently by respondent No. 5, due to which it met with an accident resulting in the death of Prafulla Kumar Tripathi and since the scooter was admittedly owned by respondent No. 6 and was insured by respondent No. 7, hence the respondent Nos. 5, 6 and 7 would be jointly and severally liable to pay compensation. It may be pointed out in this connection that it has been averred on behalf of respondent No. 7 that since the deceased was a pillion rider, he was not covered by the terms of the policy. However, the policy document has not been produced by the respondent No. 7 and, therefore, it has failed to discharge its burden of proving the breach of any condition of the policy.
32. It is further clear that the appellant State cannot be held liable for payment of compensation in the circumstances of the case and in view of the lack of evidence indicating vicarious liability on its part. However, the respondent Nos. 5, 6 and 7 would be liable to pay compensation to the respondent Nos. 1 to 4.
33. The assessment of the amount of compensation by the trial court seems to be reasonable and proper and has also not been challenged by claimant-respondent Nos. 1 to 4. Hence, it does not call for any modification.
34. Therefore, though the appeal is allowed and the claim of the respondent Nos. 1 to 4 against the appellant State is dismissed, but the claim of compensation of Rs. 1,20,000 (Rupees one lakh and twenty thousand) is directed to be paid to respondent Nos. 1 to 4 by respondent Nos. 5 to 7 jointly and severally. The amount of award shall be distributed as has already been directed by the learned trial court. The award accordingly stands modified as above.