Karnataka High Court
Devendra Kanhaiyal Newskar vs The New India Assurance Co Ltd Ors on 11 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 2683
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IN THE HIGH COURT OF KARNATAKA
R
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
M.F.A.No.30314/2011 (MV)
C/W MFA No.30313/2011, MFA No.30315/2011,
MFA No.30841/2012, MFA No.30842/2012
In MFA No.30314/2011
BETWEEN:
Devendra Kanhaiyalal Newaskar,
Age: 38 years, Occ: Owner of vehicle,
R/o H.No.746/1, Waghai Pune Nagar Road,
Taluka Havali, Dist: Pune (M.S.)
... Appellant
(By Sri Basavaraj R.Math, Advocate)
AND:
1. The New India Assurance Co. Ltd.
Through its Divisional Manager,
Sangameshwar Colony, S.B.Temple
Road, Gulbarga.
2. Smt. Sakhubai W/o Ambujappa Havaldar,
Age: 48 years, Occ: Household,
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3. Ambujappa S/o Bheemaraya Havaldar,
Age: 58 years, Occ: Agriculture,
Both R/o C/o Bhosga Building,
Near Dr. Gachinmani Hospital,
Borabai Nagare, Brahmapur,
Gulbarga.
... Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R1;
Notice to R2 & R3 held sufficient v/o dated 16.08.2019)
This Miscellaneous First Appeal is filed under
section 173(1) of the Motor Vehicles Act, praying to call
for records and set aside the impugned judgment and
award dated 12.10.2010 passed by the I Addl. Civil
Judge (Sr.Dn.) & MACT at Gulbarga in MVC
No.1178/2008, in the interest of justice and equity.
In MFA No.30313/2011
BETWEEN:
Devendra Kanhaiyalal Newaskar,
Age: 38 years, Occ: Owner of vehicle,
R/o H.No.746/1, Waghai Pune Nagar Road,
Taluka Havali, Dist: Pune (M.S.)
... Appellant
(By Sri Basavaraj R.Math, Advocate)
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AND:
1. The New India Assurance Co. Ltd.
Through its Divisional Manager,
Sangameshwar Colony, S.B.Temple
Road, Gulbarga.
2. Rajappa S/o Amboji Shinde,
Age: 33 years, Occ: Coolie,
R/o C/o Bhosga Building,
Near Dr. Gachinmani Hospital,
Borabai Nagare, Brahmapur,
Gulbarga.
... Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R1;
R-2 Rajappa served)
This Miscellaneous First Appeal is filed under
section 173(1) of the Motor Vehicles Act, praying to call
for records and set aside the impugned judgment and
award dated 12.10.2010 passed by the I Addl. Civil
Judge (Sr.Dn.) & MACT at Gulbarga in MVC
No.1177/2008, in the interest of justice and equity.
In MFA No.30315/2011
BETWEEN:
Devendra Kanhaiyalal Newaskar,
Age: 38 years, Occ: Owner of vehicle,
R/o H.No.746/1, Waghai Pune Nagar Road,
Taluka Havali, Dist: Pune (M.S.)
... Appellant
(By Sri Basavaraj R.Math, Advocate)
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AND:
1. The New India Assurance Co. Ltd.
Through its Divisional Manager,
Sangameshwar Colony, S.B.Temple
Road, Gulbarga.
2. Nagamma W/o Hanmanth,
Age: 33 years, Occ: Household,
3. Hanmanth S/o Mahadevappa,
Age: 48 years, Occ: Coolie,
Both R/o C/o Annarao Mali Patil,
H.No.3-1008/2, Near Tirandaz,
Gazipur, Gulbarga.
... Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R1;
Notice to R2 & R3 held sufficient v/o dated 16.8.2019)
This Miscellaneous First Appeal is filed under
section 173(1) of the Motor Vehicles Act, praying to call
for records and set aside the impugned judgment and
award dated 12.10.2010 passed by the I Addl. Civil
Judge (Sr.Dn.) & MACT at Gulbarga in MVC
No.1179/2008, in the interest of justice and equity.
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In MFA No.30841/2012
BETWEEN:
Devendra Kanhaiahlal,
Age: 47 years, Occ: Agriculture,
Owner of Lorry No.MH-12/EF-8891,
Residing at 746/1, Waghaoli, Puna Nagar Road,
Pune, Haveli-412207, Tq. Haveli,
Dist. Pune.
... Appellant
(By Sri Basavaraj R.Math, Advocate)
AND:
1. Somu @ Somappa S/o Mittappa Chawan,
Age: 29 years, Occ: Coolie,
R/o Maraladinni Tanda, Tq. Lingasugur,
Dist. Raichur, now at Devi Nagar,
Raichur.
2. Tanaji Biradar S/o Bitthal Biradar,
Age: Major, Occ: Driver,
R/o Gangapur,
Tq. Udgir, Dist. Nagar, (Maharashtra State)
3. The Divisional Manager,
The New India Assurance Co. Ltd.,
Divisional Office VIII, 101 Pentagaon,
Shahu College Road, Pune,
Rep. by it's Local Br. Manager, Br. Offi.,
Rajendra Gunj Road, Opp: RDCC Bank Ltd.,
Raichur-584 101.
... Respondents
(Note to R1 & R2 are served;
By Smt. Shashikala Jahagirdar, Advocate for R3)
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This Miscellaneous First Appeal is filed under
section 173(1) of the Motor Vehicles Act, praying to call
for records and set aside the impugned judgment and
award dated 01.03.2012 passed by the Fast Track
Court-I, at Raichur in MVC No.262/2011 in the interest
of justice and equity.
In MFA No.30842/2012
BETWEEN:
Devendra S/o Kanhaiahlal,
Age: 47 years, Occ: Agriculture,
Owner of Lorry No.MH-12/EF-8891,
Residing at 746/1, Waghaoli, Puna Nagar Road,
Pune, Haveli-412207, Tq. Haveli,
Dist. Pune.
... Appellant
(By Sri Basavaraj R.Math, Advocate)
AND:
1. Mittappa Chawan S/o Rameshappa Chawan,
Age: 44 years, Occ: Agriculture & Coolie,
R/o Maraladinni Tanda, Tq. Lingasugur,
now at Devi Nagar, Raichur.
2. Tanaji Biradar S/o Bitthal Biradar,
Age: Major, Occ: Driver,
R/o Gangapur,
Tq. Udgir, Dist. Nagar, (Maharashtra State)
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3. The Divisional Manager,
The New India Assurance Co. Ltd.,
Divisional office VIII, 101 Pentagaon,
Shahu College Road, Pune,
Rep. by it's Local Br. Manager, Br. Offi.,
Rajendra Gunj Road, Opp: RDCC Bank Ltd.,
Raichur-584 101.
... Respondents
(By Sri. G.B.Yadav, Advocate for R1;
By Smt. Shashikala Jahagirdar, Advocate for R3;
V/o dated 16.08.2019 service of R2 is held sufficient)
This Miscellaneous First Appeal is filed under
section 173(1) of the Motor Vehicles Act, praying to call
for records and set aside the impugned judgment and
award dated 01.03.2012 passed by the Fast Track
Court-I, at Raichur in MVC No.263/2011 in the interest
of justice and equity.
These appeals coming on for Final Hearing this
day, the Court made the following:
JUDGMENT
These appeals are filed by the owner of the offending Truck bearing Regn.No.MH-12/EF-8891 being aggrieved by the judgments and awards dated 12.10.2010 in MVC No.1178/2008, MVC No.1177/2008 8 and in MVC No.1179/2008 by the learned MACT and I Addl. Senior Civil Judge, Gulbarga and judgment and award dated 01.03.2012 in MVC Nos.262/2011 & 263/2011 by the learned Fast Track Court-I, Raichur by which the liability to pay the compensation awarded in each of the claim petitions is fastened entirely on the owner appellant herein.
2. The facts leading up to filing of the claim petitions are that Truck bearing MH-12/EF-8891 had left Gulbarga for Pune loaded with cement bags and the driver of the lorry had also taken several labourers on board the Truck bound for Pune and other places in Maharastra for earning their livelihood. On 12.05.2008 at about 8.00 a.m. on account of rash and negligent driving of the offending lorry near K.M.Stone No.173/2, Varvade village border, it dashed against Neem trees and fell into a ditch resulting in death and personal injury to several persons. In the claim petitions filed by the dependents/injured persons, learned Tribunal 9 granted various sums of compensation as was found by it just and reasonable and fastened the entire liability to pay the compensation with interest thereon on the owner who is the appellant in these appeals.
3. The learned counsel Sri. Basavaraj R.Math appearing for the appellant in all these cases who is the registered owner of offending Truck bearing Regn.No.MH-12/EF-8991 submits before me that the owner had filed a detailed written statement in all these cases before the learned MACT taking up a specific contention that while authorizing the driver to drive the lorry, he had issued specific instructions, intera-lia, to the effect that he shall not carry any unauthorized passengers on board the Truck. He further contended that as per the very case of the claimants themselves, they were unauthorized passengers on board the offending Truck and therefore if the accident had taken place resulting in injury or death to such unauthorized passengers, the owner cannot be held liable to pay 10 compensation as there is express violation of the instructions issued to the driver. He also submitted that in spite of taking such contentions, the learned Tribunal has not framed an issue on the said plea and the learned Tribunal has not given a specific finding on the same and therefore the judgments and awards should be set aside and matters remanded to the MACT for fresh consideration.
4. The learned counsel for the insurance company, per contra, contended that the Tribunal was right and justified in fastening the entire liability to pay compensation on the owner appellant herein and there is no case made out for remanding the case as the proceedings before the learned Tribunal being summary in nature, and the owner appellant having not produced any document in support of his contention that he had issued instructions to the driver of the lorry not to carry unauthorized passenger, his plea is not supported by any material evidence and at any rate, having raised 11 such contention, he should have substantiated the same by producing document. She also submitted that appellant has not examined the driver of the lorry who was his own employee. It was her further contention that since the learned Tribunals have gone into each and every aspect of the evidence placed on record, and thereafter the awards were passed, there is no good ground to interfere with the same and the appeal is liable to be dismissed.
5. In this appeal, the involvement of the offending vehicle namely Truck bearing Regn.No.MH- 12/EF-8891 owned by the appellant herein, in the accident resulting in these claim petitions is not in question.
6. The only contention of the learned counsel for the appellant is that Tribunal ought to have framed an issue regarding the instructions alleged to have been issued by the appellant to his driver not to carry 12 unauthorized passengers. Perusal of records show that appellant has filed written statement expressly taking up a plea that he had issued instructions to the driver not to carry unauthorized passengers. He has examined himself as a witness. During his evidence he has reiterated his plea of having issued such instructions to the driver. He has not, however, produced any document in support of the said contention. Insurance policy is issued by the respondent company in favour of the appellant in respect of the offending Truck owned by him. The amplitude of coverage of risks under the policy is governed by the express terms of the contract of Insurance policy (Ex.R1). Appellant's learned counsel has not been able to demur the fact that (Ex.R1) insurance policy does not cover the risk of passengers - unauthorized, gratuitous, non gratuitous, fare-paying passengers by whatsoever name called on board the offending Truck. So long as the driver in question is an 13 authorized driver at the helm when the accident took place - which fact is not denied by the appellant - it is no answer to the claim for compensation by victims of accident for the owner to say that such driver while being the authorized driver has executed his duties in an unauthorized manner. The preposition put forth by Sri. Basavaraj R. Math is an adroit one but sans sound legal basis. The learned MACT has elaborately discussed the question of liability and thereafter come to the correct legal conclusion.
7. The proceedings under the Act is summary one and therefore non-framing of an issue on the aspect as contended by the learned counsel does not militate against the legal validity of the impugned judgments in these appeals. As appellant has led evidence on the question by examining himself, he has not suffered any prejudice on account of non-framing of an issue as well. The records disclose that no documentary evidence in proof of his assertion that he had issued such 14 instructions to his driver has been produced nor was the driver in question examined before the Trial Court.
8. The true question that arises for consideration in this case is: whether the owner of a goods vehicle like the offending Truck in this case can successfully disclaim liability to pay compensation when the injury or death has resulted from an accident on account of rash and negligent driving of the driver of the said Truck on the claim that his authorized driver had taken unauthorized passengers on board the Truck in violation of his express instructions not to carry unauthorized passengers on the Truck in question?.
9. The learned counsel for the appellant does not dispute the fact that the driver who was, at the material point of time, driving the offending Truck was his authorized driver. Therefore it is beyond the realm of dispute that the driver while so driving the offending Truck was his servant and in execution of the authority 15 to drive the offending Truck vested in him by the appellant, he was driving the said vehicle, and while doing so, if he had taken on board, as in this case, some unauthorized passengers on the offending Truck, he had only violated some instructions of appellant master while discharging his duty to the appellant which was quite legal and authorized in the first instance. Under such circumstances, it is not open to him to disown the vicarious liability fastened on him as an employer of the driver and as owner of the Truck in relation to claims by the victims of the accident caused by the offending vehicle on the specious ground that the driver had violated certain instructions issued to him. The Hon'ble Supreme Court of India in a case reported in AIR 1995 SC 2499 (State of Maharashtra and others V/s Kanchanmala Vijaysing Shirke and others) has observed as follows:
"19. the crucial test is whether the initial act of the employee was expressly 16 athorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injuries caused to third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the fact was done. In the present case, it has been established beyond doubt that the driver of the vehicle had been fully authorized to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another 17 employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was 'in the course of employment', the appellant-State shall be liable for the same."
10. It is also observed in the same decision in para 17 as follows:
"17. xxxx When even under the law of tort, Courts have held that the employer is vicariously liable for an authorised act done in an unauthorised manner taking into consideration the interest of the victims of the accident, according to us, this approach is all the more necessary while judging the liability of the owner of the vehicle under the statutory provision of the Motor Vehicles Act."
11. The facts matrix in Kanchanamala's case (supra) was that there was an authorized driver for the jeep owned by the State and on the particular day, the 18 driver of the jeep had allowed a clerk of the department to drive the vehicle for ferrying the employees of the department from their house after taking dinner back to the office in view of rush of work. One person died on account of motor vehicle accident while it was driven by such clerk and in an attempt to disclaim liability to pay the compensation, State set up a plea that the driving of its jeep by the clerk being an unauthorized act in the sense that it had not authorized the clerk to do that particular job, and the jeep at that particular point of time not being driven by the authorized driver himself, the whole series of acts resulting in accident and the death was due to the unauthorized driving by the clerk and therefore it is not liable to pay the compensation. The Hon'ble Supreme Court did not accept the said plea of the State and repelled it by upholding the principle of vicarious liability. It was specifically held in the said decision that once the original act of authorizing the driver to drive the offending vehicle is beyond question, 19 if such driver in execution of that authorized act does an unauthorized act and it results in injury to some victim, State or the owner of the vehicle cannot disown its liability to pay compensation on the principle of vicarious liability. The learned counsel for the appellant has no doubt placed reliance on decisions reported in:-
1) 1988 ACJ 417, In the High Court of Judicature at Bombay in Maimuna Begum and others V. Taju and others.
2) 2007 ACJ 2285, In the High Court of Judicature at Bombay in Babarao Tanbaji Dhale and another V. Sk. Naseer Sk, Yakub and others.
3) 1989 ACJ 489, In the High Court of Judicature at Madras in Kanniammal and another V. Prabhakar and others.
4) 1984 ACJ 653, In the High Court of
Judicature at Bombay in United India
Insurance Co. Ltd. V. Abdul Munaf Majur Hussain Momin and others.
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12. In view of the clear enunciation of the law made by the Hon'ble Supreme Court of India in Kanchanmala's case which is directly applicable to the facts of this case, I am not inclined to go into the details of the above quoted decisions.
13. Since the question regarding the liability of the owner turns on this legal principle of vicarious liability and further the actual issuance of the instructions claimed to have been issued by the owner is also not proved before the Tribunal, which in my view in any case would not have made any material difference to the final out come of the case, it is not necessary to remand this case to the Tribunal again to further prolong the agony of the victims of the accident who are waiting to receive the compensation. In view of the above, I do not find any merits in these appeals. Appeals, accordingly are liable to be dismissed. 21
14. Before parting with these cases, it is necessary to gratefully acknowledge the assistance rendered to the court by Sri. Narendra M. Reddy, a budding learned counsel at the Bar. Backed with painstaking research and articulate submissions, he made erudite submissions on the aspect of vicarious liability.
ORDER The above appeals are hereby dismissed. Smt. Preeti Patil Melkundi is permitted to take notice for respondent No.1 in MFA No.30313/2011.
Sd/-
JUDGE SMP