(Prayaer: This MFA is filed under Section 173(1) of the MV Act, against the Judgment and Award dated 01-03-2007 passed in MVC No.243/2000 on the file of III Additional Civil Judge (Sr. Dn.) and CJM, Dharwad, awarding a compensation of rs.2,50,000/- with interest at 6% p.a. from the date of petition till payment.)
1. Appellant is the second respondent in MVC No.243/2000. Being aggrieved by the judgment and award dated 1st March, 2007 passed by the Motor Accident Claims Tribunal, Dharwad (hereinafter referred to as the Tribunal for short) fastening the liability on the appellant to compensate the claimants to an extent of 50%, he has filed this appeal.
2. Respondents No.1 and 2 herein had filed a claim petition contending that their son Shashikumar, aged about 7 years as on the date of accident, studying in I Standard died in the accident occurred on 15-01-2000 at about 3.00 p.m., near Salakinakoppa cross. While Shashikumar along with other persons were proceeding in a bullock cart on Dharwad-Haliyal road, when the bullock cart reached near Salakinakoppa village, all of them got down from the bullock cart to take Tea in the nearby road-side hotel. The deceased after getting down from the bullock cart proceeded towards the said hotel, at that time, a car bearing registration No.CNS-1089 driven by its driver in a rash and negligent manner dashed against the said Shashikumar. Due to the said impact, he fell down and sustained grievous injuries. Immediately after the accident, he was shifted to the District Hospital, Dharwad. However he was declared dead while on the way to hospital, due to the injuries he has sustained in the accident. After conducting the post-mortem, the dead body was handed over to the claimants. It was further contended in the claim petition that the deceased was the only son of the claimants who was very active and an intelligent student. The father and mother have lost their loving son due to the rash and negligent driving of the Car by the second respondent and sought for compensation of Rs.2,50,000/- with interest at the rate of 18% p.a.
3. In response to the notice issued by the Tribunal, though the owner of the vehicle was served with notice, he remained unrepresented.
4. The second respondent filed the written statement denying the entire averments made in the claim petition and also contended that he was not the driver of the offending vehicle involved in the accident. In the FIR and panchanama, his name has not been shown. Even the complaint lodged by one Shivappa Bhimappa Kallur does not disclose the name of the second respondent as the driver of the car. On the other hand, it was mentioned that the driver s name is not known. The specific case of the second respondent before the Tribunal is that he was a Medical Practitioner by profession; he is a permanent resident of Salakinakoppa village and he has got his own Clinic in the said village for the last 25 years. On the date of accident, he had been to Nigadi and he was waiting for the bus at Nigadi bus stop at about 3.00 p.m. At that time, the Ambassador Car bearing registration No.CNS-1089 came from Dandeli. He and other two persons boarded the car and had paid Rs.5.00 to the driver. When the car came near Salakinakoppa village, a bullock cart belonging to one Kallappa of the same village came from opposite direction and the deceased Shashikumar who was sitting in the bullock cart suddenly jumped on the car and rear wheel of the car ran over him, due to which, he sustained injuries. After seeing the accident, the second respondent came out of the car and treated him. However, condition of the boy was very critical and then he requested the driver of the Car to take the boy to the hospital. However, the driver was shivering and he could not drive the car. In view of that, the second respondent himself drove the car and took the boy to KIMS Hospital at Hubli to save his life. Even though the claimants are fully aware of the said fact, instead of impleading the driver of the said car, they have impleaded the second respondent who is a Medical Practitioner of the very same village showing him as driver of the car. The complainant Shivappa Bhimappa Kallur made a further statement, stating that the second respondent was driving the said car. On the basis of further statement, charge sheet was filed against him. The criminal case filed against him was ended with acquittal. Hence, sought for dismissal of the claim petition as against the second respondent.
5. On the basis of pleadings of the parties, the Tribunal has framed necessary issues.
6. In order to prove the case of the claimants, the first claimant got himself examined as P.W.1 and also examined two other witnesses as P.W.2 and P.W.3 and got marked the documents as Ex.P1 to Ex.P7. On behalf of the respondents, the second respondent got himself examined as R.W.1, the person who lodged the complaint was examined as R.W.2, rider of the bullock cart was examined as R.W.3 and other two passengers of Ambassador Car as R.W.4 and R.W.5 and got marked the documents as Ex.R1 and Ex.R2.
7. The Tribunal, after appreciating the oral and documentary evidence let in by the parties, taking into consideration spot panchanama, RTO report, copy of the FIR held that due to the rash and negligent driving of the Ambassador Car, the accident had occurred and the claimants are entitled for compensation. Further the Tribunal held that at the time of accident, the second respondent i.e. Dr.V.K.Satish was driving the car and due to his negligence, the accident had occurred and he has contributed for the accident. At the time of accident, the deceased was aged about 7 years. The Tribunal has awarded compensation in a sum of Rs.2,25,000/- towards loss of dependency and Rs.25,000/- towards conventional heads and the liability was fastened on the owner of the Car as well as on the second respondent Dr.V.K.Satish to an extent of 50% each. Being aggrieved by the said judgment and award passed by the Tribunal, fastening liability to an extent of 50% on the second respondent therein, he is in appeal before this court.
8. Sri.S.M.Kalwad, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. The appellant is not a driver by profession. For the last 25 years, he is running a Clinic in Salakinakoppa village. He is a well-known doctor in the said village. On 15-10-2000, he had been to Nigadi village. At about 3.00 p.m., while he was waiting for the bus at Nigadi bus-stop, the Ambassador car came there and he and other two passengers boarded the said car near Salakinakoppa Cross the deceased Shashikumar jumped from the bullock cart and rear wheel of the car ran over him and sustained grievous injuries. Since the appellant being the doctor treated the said Shashikumar, however, condition of the said boy was very serious. Since the driver of the car refused to drive the car, in order to save the life of the boy, the appellant took him to KIMS hospital at Hubli driving the car by himself. In spite of his best efforts, the boy died. Hence, at any stretch of imagination, the appellant cannot be treated as driver of the Ambassador Car. Even if the appellant were to be treated as a driver of the said car, he is not the owner of the vehicle. For the act of driver, the owner of the vehicle is vicariously liable. Hence, the owner of the Car has to compensate the claimants and fastening liability to an extent of 50% on the appellant is contrary to law. Hence sought for allowing the appeal by setting aside the judgment and award passed by the Tribunal, insofar as fastening the liability on the appellant is concerned.
9. On the other hand, Sri Mallikarjunaswamy B.Hiremath, advocate appearing for respondents 1 and 2 argued in support of the judgment and award passed by the Tribunal and contended that the evidence on record clearly discloses that on the date of accident, the appellant was driving the ambassador car and due to his rash and negligent driving the accident occurred. He contended that the complaint lodged by Shivappa Bhimappa Kallur discloses that appellant was driving the car on the date of accident and on that basis the police have charge sheeted him and hence, it is not open for the appellant to contend that he was not the driver of car. He further contended that R.Ws.2 to 5 in their evidence have stated that immediately after the accident, the driver of the ambassador car bearing registration No.CNS-1089 ran away from the spot. However, the appellant, in his evidence has stated that immediately after the accident, he got down from the car and treated the injured boy and asked the driver to take the boy to KIMS Hospital. However, as the driver was shivering, he refused to drive the vehicle, the appellant himself took the injured boy to the hospital. However, the evidence on record clearly discloses that the boy was not taken to KIMS Hospital whereas the boy was taken to Government Hospital at Dharwad. Hence, the Tribunal disbelieved the evidence and fastened the liability on the appellant to the extent of 50%, which is in accordance with law and sought for dismissal of the appeal.
10. I have carefully considered the arguments addressed by the advocates appearing for the parties. Perused the judgment and award of the Tribunal and also the oral and documentary evidence on record.
11. The point that arises for consideration in this appeal is, Whether the appellant was driving the car as on the date of the accident and whether the Tribunal is justified in fastening the liability to an extent of 50% to compensate the claimant?
12. The case of the claimant is that on 15.01.2001 at about 3.00 p.m., son of the claimant Shashikumar and others stopped the bullock cart near Salakinakoppa cross in order to have tea in the roadside hotel and, at that time, the ambassador car being driven by its driver in a rash and negligent manner came and dashed against bullock cart due to which he fell down and sustained grievous injuries. The specific allegation was that, as on the date of the accident, the appellant was driving the car. On the other hand, the appellant contended that he is not the driver of the said car; he was a doctor by profession having a clinic at Salakinakoppa village; on 15.01.2001, he boarded the ambassador car at Nigadi village; that the car met with the accident and he being a doctor by profession treated the injured boy and tried to save his life by taking him to the KIMS Hospital but he died and it is thereafter the boy was taken to the District Hospital at Dharwad. One Shivappa Bhimappa Kalloor is an eyewitness to the incident and he lodged the complaint before the jurisdictional police. In the complaint lodged by him, at the first instance, the driver s name was not mentioned but it was only stated that an unknown person was driving the said car. However, on the next day, a further statement was made before the police mentioning the appellant s name as the person driving the ambassador car. On the basis of further statement, police filed charge sheet and a criminal case was registered against the appellant. All the witnesses in the said case turned hostile. The complainant in the present case, was examined as R.W.3 and he too turned hostile. Except the further statement made by the complainant as per Ex.P.7, in none of the documents produced, the name of the appellant has been shown as the driver driving the car. The evidence on record clearly discloses that the appellant is a well-known doctor of Salakinakoppa village, he is having a clinic for over last 25 years and also own a permanent house in the said village. None of the witnesses, either in their examination-in-chief or in cross-examination, have stated that the appellant was driving the car as on the date of accident. Two of the inmates of the said ambassador car were examined as R.W.4 and R.W.5. In their evidence, they have clearly stated that the appellant along with others was travelling in the ambassador car, which met with the accident, and appellant got down from the car and treated the injured boy. The rider of the bullock cart also stated that the boy jumped from the bullock cart and the rear wheel of the ambassador car ran over the boy due to which he sustained injuries. Further, father of the deceased has also been examined. He is not an eye witness to the incident and his evidence can only be considered as an hearsay evidence. P.Ws.2 and 3 are the eye witnesses to the incident and, in their evidence, they have not stated anything as to who was driving the car as on the date of the accident. Hence, the order passed by the Tribunal cannot be sustainable. Even if the appellant is treated as driver of the said car, owned by the first respondent, the liability cannot be fastened on the driver the car. The owner of the car is vicariously liable for all wrong actions of the driver of the car.
13. The Hon ble Supreme Court, in para 21 of its judgment rendered in the case of Minu B.Mehta and another Vs. Balkrishna Ramchandra Nayan and another reported in (1997)2 SCC 441, has observed as under:
21. The liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the Law of Tort. regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent.
The Hon ble Supreme Court in a case reported in (1996) 5 SCC in the case of Sohan Lal Passi Vs. P.Sesh Reddy and Ors., while emphasizing the provisions of Motor Vehicles Act, with regard to the liability has noted as under:
.. Motor Vehicles Act, 1939, Chapter VII-A was introduced by the Motor Vehicles (Amendment) Act, 1982. Sub-section (1) of Section 92-A provides that where the death or permanent disablement of any person has resulted from an accident, the owner of the vehicle shall be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said section.
This Court in its judgments reported in ILR 2000 KAR 3286 (Patel Roadways Vs. Manish Chhotalal Takkar) and ILR 2013 KAR 4840 (R.Sharadamma and Others Vs. T.Jayaprakash and Others) have held in similar lines.
14. In the instant case, nowhere in the judgment, the Tribunal has given a finding that the appellant was driving the car as its driver or as owner of the car. Even if the appellant is treated as a driver of the car, the liability has to be fastened on the owner of the vehicle. Hence, the entire approach of the Tribunal in fastening the liability on the doctor to the extent of 50% solely on the basis of Ex.P.7 is contrary to law and evidence on record. Hence, the order passed by the Tribunal requires to be modified and the liability has to be fastened on the owner of the vehicle. Accordingly, I pass the following:
The appeal is allowed. The judgment and award dated 1st March 2007 made in MVC No.243/2000 passed by the Additional Motor Accident Claims Tribunal, Dharwad, fastening liability on the appellant to the extent of 50% is set aside. The owner of the vehicle is liable to compensate the claimant.
The amount in deposit may be refunded to the appellant.