Madras High Court
The Oriental Insurance Company Ltd., ... vs Pandurangan (Dead) And Others on 4 November, 1996
Equivalent citations: 1999ACJ327, AIR1997MAD195, AIR 1997 MADRAS 195, (1999) 1 ACJ 327, (1997) 1 MAD LW 59, (1997) 2 TAC 307, (1997) 2 ACC 668
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. These appeals have been preferred by Oriental Insurance Company Limited Tirunelvcli, against the common award parsed by the Motor Accidents Claims Tribunal (Subordinate Judge), Tuticorin in M.A. C.T.O. Ps. Nos. 202/89, 26/90 and 22,91. The tacts leading to the filing of the above appeals are briefly stated hereunder:--
On 19-6-1989 at about 2.00 a.m. while claimant in M.A.C.T.O.P No. 22 of 91 was driving a car bearing registrtion No.T.D.T. 3939, the claimant in M.A.C.T.O.P. No. 26 of 1990 who is the owner of the said car and one Pandurangan, claimant, in M.A.C.T.O.P. No. 202 of 1989 who sustained grievous injuries (later died due to the injuries), met with an accident with another lorry and dashed against a culvert on the right side of the road. On the fateful day, in the said car, the claimant in M.A.C.T.O.P. No. 202 of 1989, Sub Inspector of Police and 2 other police constables escorted Mr. Veerappandi Arumugham, Minister, who was proceeding towards. Madurai. The car was driven by one Manthiramoorthy, claimant in M.A.C.T. O.P. No. 22 of 1991. The said car belongs to one V. Radhakrishman, claimant in M.A.C.T.O.P. No. 26 of 1990. One of the constables, who was travelling in the said car, was. examined as P.W. 2 as eye witness. The driver of the car was also examined as P.W. 6. First Information Report has been marked as Ex.P-1. After pointing out discrepancy in the oral evidence of P.W. 2 and P.W. 6 and in the ight of the other documentary evidence, the Tribunal came to the conclusion that the accident was solely due to the rashness and negligence of P.W. 6, the driver of the car T.D.T. 3939, who is also claimant in M.A.C.T. No. 22 of 1991. There is no dispute with regard to the said finding and we are also in agreement with the conclusion reached by the Tribunal on this aspect.
2. After finding that the accident had happened due to the negligence of the driver of the said car, the Tribunal after rejecting the objection of the Insurance Company, namely, that the said ear was requisitioned by the State of Tamil Nadu for their use, to provide escort to the Minister who was proceeding towards Madurai, passed an award of Rs. 10,80,000/-in M.A.C.T.O.P. No. 202 of 1989, a sum of Rs. 47,330.72 in M.A.C.T.O.P. No. 26 of 1990 and a sum of Rs. 30,000/- in M.A.C.T.O.P. No. 22 of 1991, in all the three cases, the Tribunal granted interest at the rate of 12 per cent from the date of the petition till the date of realisation of the award amount. Aggrieved by the said awards, the Insurance Company has filed the three appeals before this Court under Section 173 of the Motor Vehicle Act, 1988.
3. Mr. K.S. Narasimhan, learned counsel for the appellant has raised the following submissions:--
(1) Inasmuch as the said vehicle which involved in the accident was taken over by the Government under the Tamil Nadu Requisitioning of Motor Vehicles Act, 1970 and under those circumstance, the ownership is vested with the Government of Tamil Nadu and in view of general exception clause 7 of the Policy which is marked as Ex. R-8, if at all any compensation is to be paid, only the Government of Tamil Nadu alone is liable to pay such compensation to the victims.
(2) The claim made by the owner of the vehicle as against the insurer in M.A.C. T.O.P.No.26 of 1990 (C.M.A. 123 of 1993) is not maintainable under law, since he had not suffered any legal liability to be indemnifield by his insurer for which he relied on an unreported Division Bench decision of this court in C.M.A. No. 253 of 1991 dated 30-9-1991.
(3) The claimant in M.A.C.T.O.P. No. 22 of 1991 being a tort feasor and negligent as per the finding of the Tribunal is not entitled to claim any compensation under the law of Torts for which he relied on the decision reported in 1993 ACJ 522. The learned counsel has also relied on the following decisions in order to strengthen the above proposition:--
(i) Decision of Andhra Pradesh High Court reported in 1989 ACJ 596.
(ii) Division Bench judgment of Gauhati High Court reported in 1989 ACJ 348.
(iii) Division Bench judgment of Mysore High Court reported in AIR 1970 Mysore 13; and
(iv) Unreported decisions rendered by this court in C.M.As. Nos. 265 of 80 and 113 of 81.
4. On the other hand, Mr, S. Desikan, learned counsel appearing for the owner of the said car, Mr. S. Krishnasamy, learned counsel appearing for the claimant in M. A.C. T.O.P. No.202 of 1989 and Mrs. S. D. Jayashree, learned counsel appearing for the claimant in M.A.C.T.O.P. No. 22 of 1991 raised the following submissions: --
(1) Inasmuch as the injured claimant in M.A.C.T.O.P. No. 202 of 1989 passed away on 27-11-1992 and the appeal in C.M.A. No. 122 of 1993 having been preferred on 1-2-1993 against the dead person without im-pleading the legal heir of the deceased, the said appeal has to be dismissed.
(2) Since there was no order from the 'competent authority' as per Section 2(b) of the Tamil Nadu Requisitioning of Motor Vehicles Act, 1970, the objection raised by the learned counsel for the appellant cannot be maintained, hence in that event, the insurance Company alone would be liable to settle the award amount. We have carefully considered those submissions.
5. Before going into the other aspects, we shall first consider the maintainability of C.M.A. 122 of 1993. The said appeal is filed against the award passed in M.A.C.T.O.P. No. 202 of 1989. The claimant therein was one Pandurangan who was a Sub Inspector of Police escorting Mr. Veerapandi Aru-mugham, Minister, Government of Tamil Nadu, who was proceeding towards Madurai on 19-6-1989. The said Pandurngan was travelling in another ear T.D.T. 3939 following the Minister's car and at about 2 a.m., due to the negligence of the driver of the private car initially dashed against the right side of a lorry and thereafter dashed against the culvert. In this way, in view of the accident, he sustained multiple injuries. It is seen from the evidence of his mother, P.W. 1, who also represented as next friend and guardian in the claim petition that due to the various serious injuries, his son was unconscious from the time of the accident till the time she deposed before the court. One doctor Gajendran was also examined as P.W. 5 and various documents have been marked to show the severe injuries sustained by him. He has undertaken various operations and liquid food alone was given to him through his nose and he was completely bed ridden and unable to move his body or to do anything. His disability, according to the Doctor, is 100 per cent. Considering the serious ailment and pathetic condition and of the fact that he was only 26 years earning Rs. 2408/- per month as salary and also considering his future increments etc., the court below passed an award for Rs. 10 lakhs and 80 thousand. As stated earlier, in view of the defence taken by the Insurance Company, namely, the ownership vests with the Government of Tamil Nadu, filed the present appeal on 1-2-1993 implead-ing the claimant Pandurangan represented by next friend and mother Mangalakshmi as first respondent and V. Radhakrishnan, owner of the car as second respondent. In view of the fact that the injured claimant subsequently passed away on 27-11-1992 after passing of the award on 8-9-1992, the appeal field by the Insurance Company on 1-2-1993 against the dead person is a nullity. No doubt, after knowing the death of the claimant in the said case, the Insurance Company filed C.M.P. No. 404 of 1994 on 16-6-1993 to implead Snit. Mangalakshmi as a respondent. The respondent Smt. Mangalakshmi has also filed a petition in C.M.P. No. 13136 of 1993 to get herself impleaded as a respondent. By Order dated 17-1-1994 Bench of this Court has allowed both the said petitions and the said Mangalakshmi has been impleaded as third respondent in C.M.A. 122 of 1993. When such is the position, at the time of final hearing, it is brought to our-knowledge that inasmuch as the appeal having been filed against a dead person which is a nullity, without a proper application to condone the delay in filing the appeal, the appeal cannot be maintained and proceeded with. At that stage, the learned counsel for the appellant after realising the formal defect, took time and filed C.M.P. No. 11930 of 1996 seeking permission to condone the delay of 135 days in filing the appeal against the judgment and decree dated 8-9-1992 made in M.C.O.P. No. 202 of 1989. The first respondent, namely, Mangalakshmi alone has filed a counter affidavit opposing the said petition since it is belated.
6. In M.A.C.T.O.P. nO. 202 of 1989 the judgment was pronounced on 8-9-1992. The injured in the said case was represented by his mother since he was unable to move about. Thereafter, the injured died on 27-11-1992. C.M.A. 122 of 1993 was filed on 1-2-1993. When the notice was returned with an endorsement that the injured Pndurangan was dead, the appellant has filed a petition on 16-6-1993 in C.M.P. No.404 of 1994 to implead the mother as legal representative and bring her on record. As stated earlier, the mother of the deceased has filed another application on 27-8-1993 in C.M.P. No. 13136 of 1993. It is seen from the court proceedings that both the petitions were allowed on 17-1-1994. With the aid of Order 22, Rule 4 and 11 of the Code of Civil Procedure, the learned counsel for the appellant submits that in view of the bona fide steps taken by the appellant, the present C.M.P. No. 11930 of 1996 has to be allowed in the interest of justice for which he relied on a decision reported in Karuppaswamy v. C. Ramammurthy, . In the said decision, the Supreme Court observes that if the petition is bona fide and steps were taken in good faith, the same has to be allowed. In the light of the said pronouncement alter knowing the death of the injured in M.A.C.T.O.P. No. 202 of 89, the Insurance Company has filed a petition before this Court, and the same has been allowed by Division Bench of this court and impleadcd the mother of the deceived as the only legal representative. Likewise, the mother herself h'as also impleaded by filing a separate petition and the same was also allowed by this court. If a necessary and proper party is present in one capacity or other, the proceedings is maintainable. As rightly pointed out by the learned counsel for the appellant in this case, earlier the mother was present as guardian and next friend and later, she was brought on record in the capacity of the person representing the estate of the deceased. Likewise her presence in one capacity or other is not in dispute.
7. The learned counsel for the contesting respondent brought to our notice the decision of the court reported in Calicut Municipal Council.v. Kunhipathumma, (1933) 37 Mad LW 489 : (AIR 1933 Mad 454). It is held in the said decision thus :
"A Municipal Council brought a suit on 10th March, 1928 against one K, for recovery of property tax for the year ending 31sl March, 1929. When the summons was taken out it appeared that K had died on 2nd March, 1928. On the 21st April, the plaintiff applied under O. I. R. 10 to have the legal representatives of K impleaded and that application was allowed on 6th June. 1928. These legal representatives pleaded that the suit was barred by limitation against them under S. 22 of the Limitation Act. In reply to this it was claimed for the plaintiff that the period between 10th March, 1928 and 6th June, 1928 must be deducted under S. 14 of the Limitation Act in computing the period of limitation.
Held ; that where a plaint was filed against a person who was in fact dead at the time of its presentation no application by way of amendment or bringing on record his legal reprcsentatives could be validly made because the whole proceeding was void and had no effect whatever. That being so the Court's error in making a wrong order could not be utilised to invoke Section 14 of the Limitation Act."
The other decision relied on by the learned counsel for the contesting respondent is State of West Bengal v. Manisha, wherein it is held, (at p 461 of AIR) :
"Order 22, R. 4 of Civil Procedure Code providing for the procedure for the substitution of the heirs and legal representatives of deceased defendants, no doubt, applies to appeals and provides for substitution of the heirs of a deceased respondent. But the rule has no application when the appeal itself was preferred against a dead person. In other, words, if the appeal had been preferred against a respondent, who was alive at the time of the filing of the appeal, but dead subsequent thereto, his heirs and legal representatives may be brought on the record, by way of substitution, within the time allowed by law. If an application for substitution of the heirs of a respondent, who died during the pendency of the appeal, be not made within the time allowed by law, the appeal abates but O. 22, R. 9 of C.P.C., provides for a procedure for setting aside abatement. But if an appeal be preferred against a dead respondent, the appeal itself is still-born and is no appeal in the eye of law, Nothing in O. 22 of C.P.C. will revive, the appeal, when the death of the respondent comes to light."
However, the learned counsel for the appellant initially cited Full Bench decision of Rajasthan High Court reported in Delip Bhai Gajrota v. Contractor Lime Gotan, to show that appeal cannot be dismissed on the sole ground that it had, not accompanied a petition to condone delay in filing. While construing Order 41, Rule 3-A of the Code of Civil Procedure, the Rajastahan High Court after considering all the earlier deeisions of vaious High Courts has observed thus, (at Pp. 125 and 126 of AIR) :--
"On a careful consideration of all these decisions and the provisions of law, we are of the view that O. 41, Rule 3-A was inserted by an amendment and the sole object of the amendment was, as observed by the Hon'ble Chief Justice in , to put an end to the practice of admitting an appeal subject to the decision on the question of limitation. That being the sole object, to hold that the provisions are mandatory though procedural in nature, would be to permit injustice being caused for compliance of a procedural requirement. An appeal, as observed above, is a proceeding to bring to a Higher Court a decision for redressai of grievance against that decision. Such being the intention of making an appeal available, the entire.purpose of making it available will be frustrated if it is required to be dismissed for non-compliance of the provisions of O.41, R. 3-A of the Civil Procedure Code or Rules 132 and 134 of the Rajasthan High Court Rules. We are fortified in this view we are taking by several decisions of the High Courts noted above. We, therefore, answer the questions referred to us as under:--
(1) An appeal which is apparently barred by limitation can be filed without an application under Section 5 of the Limitation Act, 1963 and the provisions of Rules 132 and 134 requiring filing of such application are directory in nature.
(2) The provisions of Order 41, Rule 3-A of the Code of Civil Procedure are not mandatory and, therefore, filing of an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal at a later stage is permissible."
Similar view has been taken by this Court in C.W.P. 1691 of 1995 in WA SR 57554/92 holding that the provisions of Order 41, Rule 3-A of the Code of Civil Procedure are not mandatory and, therefore, application under. Section 5 of the Limitation Act for condonation of delay in filing appeal at a later stage is permissible. In view of the above said conclusion, the present petition, namely, CM.P.-11930 of 96 is maintainable.
8. With regard to the merits of the said petition, it is useful to refer an earliest Full Bench decision of this Court reported in Adusumilli Gopala Kristnayya v. Adivi Lakshmana Rao (1926) ILR 49 Mad 18 : (AIR 1925 Mad 1210), wherein it is held thus:
"If an appeal is presented against a person who is dead at the date of presentation, the court may, under Section 153 Civil Procedure Code, permit the cause title to be amended or may return the appeal memorandum for amendment and re-presentation. We think that the Bench which decided Govindu Kaviraj Purohita v. Gaurnga Saw (1923) 45 MLJ 231) went too far in dismissing the Second Appeal as incompetent and in declining to exercise its power of correcting errors under Section 153, Civil Procedure Code. If the appeal memorandum is not allowed to be amended, the party may apply for a refund of the spoint stamp and may present a fresh appeal. In any case, the Court will, if the appeal is out of time against the legal representative, have to execuse the delay in presentation before it can proceed to hear the appeal.
Although the appeal may be incompetent owing to the wrong person being named as respondent, the court which deals with it is acting in a suit and as such has full power under Section 153 to direct an amendment of the appeal memorandum."
9. In other decision reported in Subbiah Ambaiam Servaiy. Unnamalai Achi, (1941) 1 Mad LJ 580 ; (AIR 1941 Mad 609) it is observed thus :
"If a suit had been bona fide brought by the plaintiff against the person whom he reasonably thought to be the legal representatives, the estate was sufficiently represented ,by the person; therefore, if at one time in the same suit one defendant who was not the real representative was impleaded, and at another time the rightful legal representatives, the executors in this case, were also impleaded, the same estate had been represented throughout the suit. The fact that the rightful legal representatives were actually impleaded after the lime for limitation was over would not. in the circumstances, bar the suit."
10. In Mohammed Ibrahim v. Chellam-mal,, Srinivasan, J. (as he then was) has observed thus (Para 1):--
"In cases where the defendant in a suit is dead by the time the appeal is filed by the plaintiff, O.22, C.P.C. will not apply. There is no question of bringing on record the legal representatives as there was no vaild appeal. The remedy of the appellant is to get the cause title amended, if it is within time to file the appeal against the legal representatives. If it is out of time, the remedy is to apply for condonation of delay in filing the appeal against the legal representatives."
11. In Karuppaswamy v. G. Rama-murthy, the Supreme Court has also concluded thus :
"The plaintiff filed a suit against a person not knowing that he had died 6 weeks prior to filing of the suit. The plaintiff became aware of the defendant's death only from remarks on the returned summons. Immediately thereafter he filed an application under O.22, R.4 for impleading legal representatives of the dead defendant. The trial court did not attribute any neglect or contumacy to the conduct of the plaintiff. It was rather observed that the plaintiff could have known the date of death of the defendant only by the counter filed to plaintiff's application under O.22, R.4, C.P.C. Normally, if he had known about -the date of death of the defendant, he would have filed the suit in the first instance against his heirs and legal representatives. The High Court too recorded a finding that there was nothing to show that the plaintiff was aware of the death of the defendant and yet knowing well about it, he would persist in filing the suit against a dead person. Held that since the plaintiff had taken prompt action and had acted in good faith, the Proviso to Section 21(1) could be invoked in his favour and L.Rs., of the deceased defendant could be impleaded."
12. Finally, Thanikkachalam, J. in a decision reported in Loganatha Mandiri v. Seshachala Naidu, (1993) 2 Mad LJ 531 : (AIR 1994 NOC 165) has also taken the same view.
13. After analysing the catena of decisions, we are of the view that if an appeal is presented against a person who is dead at the date of the presentation, under Section 153, C.P.C., permit the appellant to amend the cause title by filing appropriate petition. If the appeal is out of time against the legal representative, the appellant has to file a petition to excuse the delay in presentation before it can proceed to hear the appeal. Inasmuch as the appellant became aware of the first respondent's death only after return of the notice from the Registry of this Court, we are satisfied that there is a good ground to condone the delay of 135 days in filing the present appeal. Consequently, C.M.P. 11930 of 96 is allowed.
14. Now we shall consider the other point, namely, whether the vehicle was requestioned by the competent authority as per the provisions of Tamil Nadu Requisitioning of Motor Vehicles Act, 1970 (hereinafter referred to as "the Act"). Mr. K.S, Narasimhan very much relied on Ex. R-6 Trip Sheet. Tn and by which the owner was directed to report on 18-6-1989 along with his vehicle (TDT 3939) to provide security for the Minister who was tourning the said area. According to him, the vehicle was taken over by the Government under the Act and under those circumstance, the principle of "Pro-Hoc-Vice" is applicable and the ownership is vested with the Government of Tamil Nadu. At this stage, the respondents pointed out that there is no 'command' or 'requisition' from the "competent authority" as per the provisions of the Act. Section 2(b) of the Act defines competent authority. It means the Commissioner of Police in the City of Madras and the District Collector elsewhere. Section 3 deals with power to requisition motor vehicle. Section 3 is hereby extracted :--
"3. Power to requisition motor vehicle :--
(1) Where the competent authority is of opinion that any motor vehicle, is needed, or likely to be needed for any public purpose, and that the motor vehicle should be requisitioned, the competent authority-
(a) shall call upon the owner or any other person who may be in possession of the motor vehicle by notice in writing (specifying therein the purpose of requisition) to show cause, within seven days of the date of the service of such notice on him, why the motor vehicle should not be requisitioned; and
(b) may, by order, direct that neither the owner of the motor vehicle nor any other person shall, without the permission of the competent authority, dispose of, or structurally alter the motor vehicle until the expiry of such period not exceeding one month as may be specified in the order.
(2) If, after considering the cause, if any, shown by any person interested in the motor vehicle or in possession thereof, the competent authority is satisfied that it is necessary or expedient so to do, it may, by order in writing, requisition the motor vehicle and may make such further order as appears to it to be necessary or expedient in connection with the requisitioning.
(3) Where the competent authority is satisfied that having regard to the immediate need for action, it will not be reasonably practicable to give a notice mentioned in clause (a) of sub-section (1), it may, after recording reasons and by order in writing, requisition the motor vehicle without such notice and may make such further orders as appears to it to be necessary or expedient in connection with the requisitioning.
In the subsequent section also, it is mentioned only the competent authority and no other Officer. Section 7 deals with principles and method of determining compensation and Section 9 deals with appeals from orders of requisitioning. Section 10 deals with appeals from awards in respect of compensation. There is no provision enabling the other authority to act as competent authority other than Commissioner of Police in the City of Madras and District Collector elsewhere. In this case, as seen from Ex. R-6 command or requisition was made only by Sub Inspector. It is useful to extract the relevant portion of Ex. R.-6:-- (Matter in vernacular Omitted --Ed.) It is not disputed by the appellant that Sub Inspector is not a competent authority as seen from Section 2(b) of the Act or he is authorised to function on behalf of the competent authority. In the absence of any such material we are unable to accept that the vehicle was requisitioned by the Government of Tamil Nadu as per the provisions of the Act. Except Ex. R-6 no other material has been placed before the court below or before us. No doubt, the learned counsel for the appellant very much pressed into service the decision reported in New India Assurance Co. Ltd. v. S. Ramulamma, 1989 Aee CJ 596 (Andh Pra). In the said decision, it is seen the vehicle in question was requisitioned by the District Collector for election purposes and the vehicle met with accident resulting in the death of one constable and injury to others. In those circumstances, relying on the provisions of the Act, the Andhra Pradesh High Court has held that the liability during the period of requisition has been spcifically excluded under the terms of the Policy; further requisition divests the liability of the insurance company during the period of requisition and further held that in those circumstance, Government alone is liable. The said decision is distinguishable for the simple reason that in the said case, the District Collector has requisitioned the vehicle involved in the accident for election purposes. As per the Notification issued by the Andhra Pradesh Government, the Collector is the competent authority, hence there was a proper requisition and the requisition made by the District Collector was in accordance with the Government Order. Here in our case only the Sub Inspector has commanded the owner to produce the vehicle and he is not a competent authority as per Section 2(b) of the Act. Hence, the Andhra Pradesh judgment may hot be useful for the appellant's case.
15. The other decision referred by Mr. K.S. Narasimhan is Government of India v. Jeevaraj Atva, AIR 1970 Mys 13. He relied on the following passages from the said decision:--
"When accident occurs by reason of the negligent driving of a vehicle hired out with its driver to another person, difficult questions may arise whether the owner or the hirer is responsible. The facts of one case can never rule another case and are only useful to fear as similarity affects and are a help and guide to decision. The general employer of servants is normally liable, as being their master, for all torts committed by them in the course of their employment and within the scope of their authority, and his liability is not affected by the existence of a contract between him and some other person for the temporary employment of the servants in work for that person or for the hiring of the servants to that person. Where, however, the relationship of master and servant has been costituted pro-hac-vice (for the turn or the occasion) between the temporary employer and the Contractor's servant, the temporary employer pr the hirer is vicariously liable for the acts of the contractor's servant committed in the Bourse of his employment and within the scope of his authority. There being a presumption against such a transfer of a servant as to make the hirer or the person on whose behalf the servant is temporarily working responsible, a heavy burden rests upon the party seeking to establish that the relationship of master and servant has been constituted Pro Hac vice between temporary employer and the contractor's servant. To succeed in discharging the burden it must be shown that Pro Hac Vice the temporary employer was in the position of a master, i.e., he not only could give directions as to what work the servant had to perform but had the right to control how the work should be done. Whether or not the temporary employer had such a right in any particular case is a question of fact.
Where, under a contract, a vehicle is hired put. with its driver to another person, the owner of the vehicle exercises his authority by delegating to his driver the discretion in regard to the manner of driving. Ordinarily when a vehicle with its driver is hired, the driver continues to exercise his own discretion which had been vested in him by his regular employer when he was sent out with the vehicle. If? however, the hirers intervene to give directions as to how to drive for which they have no authority to give, and the driver Pro Hac Vice complies with them, with the result that a third party is negligently damaged, the hirers may be liable as joint tort-feasors.
To make the hirer liable the plaintiff has to establish that the hirer had a right not only to give direction as to what work the driver of the vehicle had to perform, but also had the right to control how he should drive the vehicle. That question primarily rests on the broad effect of the agreement between the owner of the vehicle and the general employer of the driver of the vehicle on the one hand and the hirer.
Held after considering the facts and the agreement between the hirer and the owner of the vehicle that the plaintiffs failed to establish that the relationship of master and servant had been constituted Pro Hac Vice between the hirer and the driver."
As already stated, there was no proper requisition in our case as per the provisions of Tamil Nadu Act. The Mysore decision may not also be helpful to the appellant. The other decision relied on by the learned counsel for the appellant is the decision of the Gauhati High Court reported in Sita Rani Gupta v. State of Assam, 1989 Acc CJ 348. In this case the petitioner was requisitioned by the State Government to escort a N.S.A. detenu During the travel the said vehicle met with an accident and the driver was killed. In those circumstance, a question arose whether aocident was out of and in the course of. employment and the State is under a legal obligation to pay compensation to the dependents. The Gauhati High Court in the above said decision has held that for the period during which a vehicle is under requisition the driver becomes an employee of the State. In this case also it is held that if the vehicle is requisitioned by the State and if it involves in an accident, the State Government alone has to pay compensation. As stated earlier, absolutely there is no dispute regarding the above said proposition. When there is an Act and number of provisions are there, we must see that the said provisions have been strictly complied with, failing which it is not possible to derive benefits under the said Act. In those circumstance, in view of the fact that there is no proper requisition by the competent authority as per Section 2(b) of the Tamil Nadu Act (Act XXVIII of 1970), we are unable to accept the argument of the learned counsel for the appellant that the Government of Tamil Nadu alone is liable to pay compensation. Had the requisition was by a competent authority, namely, Commissioner of Police in the City of Madras and District Collector elsewhere, certainly we would accept the argument of the learned counsel for the appellant and direct the claimant to approach the Government, for appropriate relief. As pointed out by us, there is no proper requisition under the provisions of the said Act, hence we are not inclined to accept the argument of the learned counsel for the appellant. As stated earlier, except the above said objection the appellant has not seriously disputed the quantum of compensation fixed in M.A.C.T.O.P. No. 202 of 89. Consequently, C.M.A. No. 122 of 93 fails and the same is dismissed.
16, C.M.A. No. 123 of 93 is against the award passed in M.A.C.T.O.P. 26 of 90 filed by the owner of the vehicle. He has claimed a compensation of Rs. 80,000/- for the damages caused to his vehicle. According to the learned counsel for appellant, the claim made by the owner of the vehicle as against the insurer is not maintainable under law since he had not suffered any legal liability to be indemnified by his insurer. In support of his submission, he relied on a Division Bench decision rendered in M/s. National Insurance Company Ltd. v. A. N. Subramanian in C.M.A. No. 253 of 1991 dated 30-9-1991 wherein one of us is a party (Abdul Hadi, J.). The facts in the said decision is similar to our case. In that case the appeal by the Insurance Company is again the award of the Tribunal, Thanjavur, in M.A.C.T.O.P. No. 71 of 1989 for a sum of Rs. 50,000/- in favour of the claimant, respondent, who claimed in the said original petition, compensation for the damage caused to his lorry TTO 1517 in a road accident that took place at 4.30 a.m., when the respondent himself was driving the said lorry on 30-3-1988, After considering the relevant provisions of the Motor Vehicles Act in that decision, it is said, "..... Only tortious claims are made before the Claims Tribunal. Unless some tort is committed by a third party, no party can approach the claims Tribunal. If the claim is based on contract, the aggrieved party can only go before a civil Court for any redressal. Even Section 110 of the Act only deals with claims for compensation in respect of accidents involving death of or bodily injury to persons, arising out of the use of motor vehicles ordamages to any property of a third parly so arising, or both. The present claim is no doubt relating to damages to property alone, but it is not damage to property of a third party, but property of the claimant himself. In such a case, it is obvious from the very Section that no claim can be laid before the said Claims Tribunal. Therefore, the Claims Tribunal below has no jurisdiction to try the above said O.P. No. 71 of 1989. If, according to the claimant, the lorry, which was coming in the opposite direction was at fault and consequently, his lorry got damaged, he can no doubt make a claim in the Tribunal, but only against the driver and owner of the other lorry and insurer thereof. The decision in Thillai Govindan v. Karuppa-samy((1978) 2 MLJ 246) has no application to the present case since there the respondent in the claim petition was rightly the owner of_ [he other offending vehicle and this Court rightly held that the Tribunal had jurisdiction."
Since the above referred Division Bench decision is directly on this point and no contra decision cited by the respondent, we are inclined to accept the submission of the learned counsel for the appellant, consequently, the award passed in M.A.C.T.O.P. NO. 26 of 90 is set aside and O.M.A. No. 123 of 93 is allowed. However, there will be no order as to costs.
17. The other appeal, namely, C.M.A. No. 124 of 93 is filed against the award passed in M.A.C.T.O.P. No. 22 of 91 wherein the Tribunal has passed an award for Rupees 30,000/- in favour of the claimant, namely, driver of the ill-fated vehicle, who has claimed a compensation of Rs. 1,00,000/-. According to the learned counsel for the appellant, in view of the specific finding of the Tribunal that the accident was caused only due to the negligence of the driver of the ill-fated car, namely, claimant is M.A.C.T.O.P. 22/91 is not entitled to claim any compensation under the law of Torts, for which he relied on a Division Bench decision of this Court one of us is a party to the judgment (Abdul Hadi, J.) reported in New India Assurance Co. Ltd. v. Meenal, 1993 Acc CJ 522. As pointed out in the said decision, here also there is absolutely no plea in the claim petition that the owner of the vehicle has committed any tort. Not only there is no plea that the owner committed tort, but there is also no proof to that effect. In such a case no vicarious liability arose or foisted against the owner. It is well settled law that when the owner/insured is not liable, the insurer cannot be held liable. It is also not disputed in our case that the accident was caused only due to the rashness and negligence of the claimant. In the said decision, the Division Bench after considering various decisions of other High Courts almost in a similar circumstance has held that the question of vicarious liability will not arise when the claim is made by the "tortfeasor himself or any person claiming under the tortfeasor, and further held that "taking all these into account, we are quite convinced that the present claim by the claimants is absolutely misconceived and they cannot claim any compensation from the owner of the vehicle and consequently they cannot have any claim against the appellant, the insurance company. Hence the order of the Tribunal is set aside and the appeal is allowed. No costs". In view of the well considered decision referred above and in the absence of contra decision cited by the other side, we are in entire agreement with the argument of the learned counsel for the appellant, consequently, the award made in M.A.C.T.O.P. No. 22 of 91 is set aside and C.M.A. No. 124 of 93 is allowed. However, there will be no order as to costs. Not result, C.M.A. No. 122 of 93 is dismissed. C.M.As. Nos. 123 and 124 of 93 are allowed. However, there will be no order as to costs in all the 3 appeals.
18. Order accordingly.