1. This appeal is instituted by the original 1st respondent under Section 110-D of the Motor Vehicles Act, 1939 (to be hereinafter called the 'Act') against the judgment and award dated 16th Dec. 1975, passed by the Additional District Judge and Member, Motor Accidents Claims Tribunal South Kanara, Mangalore, allowing the petition and granting compensation of Rupees 5,500/- along with costs and interest to the claimant, 1st respondent.
2. The relevant facts relating to the present appeal are:
The claimant Alfred Quadres, aged about 28 years was hit by a state carriage bearing No. MYX 7247 on 21-4-1974 at about 11-00 a. m near Coondapur as a result of which he was severely injured on his left arm and on the left side head. He instituted a petition before the Claims Tribunal claiming compensation of Rs. 30,000/- from the respondents alleging that the accident was the result of rash and negligent driving of the bus in question. Respondent-1 is the owner of the bus and respondent-2 is the insurer. Respondent-1 by his statement of objections contested the claim. According to him, the bus was not driven at the time of accident by the driver in the course of this employment under him and as such he was not liable for the compensation. Similar were the contentions raised by the insurance company.
3. On these pleadings the following issues were raised by the Tribunal.
(1) Whether the accident was due to negligent driving of the bus.
(2) Was the driver in the vehicle an unauthorised driver ?
(3) What relief ?
4. During the hearing, the petitioner-claimant examined himself and two other witness on his behalf. P.W. 2 is the father of the claimant and PW. 3 is an eye-witness to the occurrence. As against that, the contending respondents examined the authorised driver Narayan as RW. 1 in addition to three other witnesses. RW. 2 Vasudev is a police head constable who brought the case diary in the criminal case to the Tribunal. According to him, a charge-sheet was placed against one Achutha, the driver. R.W 3 is S. Mohandas Prabhu, RW. 4 is Claudius Pinto, Senior Assistant in the Oriental Fire and General Insurance Company, Mangalore Branch. This witness was examined on behalf of the insurance company.
5. The Claims Tribunal on appreciating the evidence on record held that the accident was the result of actionable negligence of the driver. It further held that the claimant was entitled to compensation of Rs. 5,500/-. But the Tribunal upheld the contention of the Insurance Company that it was not liable to pay compensation and in that view awarded the amount with interest and costs against the owner respondent-1 (appellant.).
6. Aggrieved by the said award the 1st respondent, the owner, has instituted the present appeal.
The learned advocate Shri Mohandas N. Hegde, for the appellant vehemently contended that the Tribunal was not justified in awarding the compensation against the owner, as the evidence on record did not establish that the Driver Achutha was acting in the course of his employment under the owner when he caused the accident by his rash and negligent driving.
7. As against that the learned advocate for the claimant argued supporting the reasoning of the Tribunal.
8. Though the cross-objections were filed by the learned advocate on behalf of the claimant, it was found that they were not instituted as per Rr. 9 and 10 of Chap. VI of the Karnataka High Court Rules and when this was brought to the notice of the learned advocate, he volunteered to withdraw the cross-objections. Hence the cross-objections are dismissed as withdrawn.
9. The sole point therefore that arises for our consideration in this appeal is whether the Tribunal was justified in holding the owner of the vehicle vicariously liable to pay compensation.
10. It is laid down by the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishanker : 3SCR527 on which case the learned advocate for the appellant very much relied thus (at p. 1074):-
' There is a presumption that a vehicle is driven on the mater's business and by his authorised agent or servant but the presumption can be met.'
It is therefore obvious that the burden of rebutting the initial presumption that the driver who drove the vehicle was driving it in the instant case on his master's business as his authorised servant lies on the appellant. To rebut the presumption the 1st respondent in his statement of objection has averred thus:
'This respondent is aware of the fact that the bus MYX 7247 was playing in between Bangalore and Coondapur. On 21-4-1974 the bus on reaching Coondapura was stationed in from of the office of this respondent and the driver left the vehicle as usual. The office manager also went out for his personal work. It seems in the absence of the driver and the office Manager a person unauthorisedly took away the vehicle and while doing so, the vehicle met with an accident.'
If it is established, in the evidence that the vehicle was removed by one Shri Achutha or who-so-ever it may be, without the knowledge, either of the Manager RW. 3 or the Driver RW. 2, it can certainly be said that the owner has nothing to do with it. To establish these averments the 1st respondent has examined R. Ws. 1 and 3. RW. 1 in his evidence in the examination-in-chief has stated thus:
'On 21-4-1974 at about 8-15 p. m. I left Bangalore driving the bus which was named as Mamatha Bus Belonging to the said Ballal. I do not remember the registration number of the bus. It was on 21st night that I left Bangalore. The next morning at 7-30 a.m. I reached Coondapur and the went to out officer there at 8-00 am. Having left the bus near the office I took the Key and went to my room. When I so left the Bus, the conductor one Achutha was alone sitting in the Bus.........'
He has further stated thus:
'Usually the Manager in the office was not allowing the conductors to driver the buses. The conductor Had no spare key with him.......'
It is further asserted by him that at about noon a boy came to him when he was going for lunch and told him that the Bus was involved in the accident. This witness wants to deny all knowledge about the driving of the bus and the happening of the accident. In his cross-examination it is elicited that he has been the driver of the bus for the last ten years. He states that he did not know when Achutha became cleaner. He goes further and states that that was the first time that Achutha had come in their bus as a cleaner. He admits that-
'The bus was entrusted to me exclusively for driving and even now I continue as a driver of the bus.'
According to this witness, he had taken a room on rent at Coondapur for rest. Immediately after he parked the bus in front of the office, he retired to his room which is about one mile away from the office. It is further elicited in his cross-examination that he is not aware of the name of the boy, who informed him about the accident. He could not even give the age of the boy.
11. To appreciate the evidence of this witness, we have to read the evidence of RW. 3 S. Mohandas Prabhu, Manager of the Coondapur Brach Officer. He says:
'On that day the bus came to out officer at 7.45 a.m. from Bangalore. The driver was RW. 1 Narayan. Having halted the bus near our office and leaving it there the driver went for coffee. There was none in the bus when the driver left the bus but the cleaner was near the bus cleaning. That cleaner was one Achutha. I do know if the said Achutha knew driving.........'
At about 10 a.m. I had gone for coffee to a certain hotel along with my friend. In about half an hour we might have returned to our office. I saw that the bus was not near our office. No body was in a position to tell me where it had gone. Even the driver whom I met near our office told that he did not know what had happened to it.'
He has further stated:-
'A charge-sheet was filed against me by the police as per Exhibit R-1.'
In the cross-examination, it is elicited that any person in the bus is visible to the person sitting in the office. There was a coffee hotel at about a distance of 200 feet from the office. He admits that Achutha was working for some time as a conductor in the Bus. He has further deposed that he did not make enquiries whether Achutha had a driving license even till the day of his evidence. It is further elicited:-
'When I went from my office to take coffee Narayana RW. 1 was sleeping in our office. I might have returned to the office at about 10-30 a.m. Immediately on returning to the office I woke up RW. 1 Narayana, who was fast asleep due to sleepless night and asked him where was the bus..........'
Thus by reading the evidence of these two witnesses it becomes clear that according to the driver RW. 1 Narayan, as soon as he parked the bus in front of the office, he retired to his room which was a mile away and he came to know about the accident only when he was told about it at noon by a boy when he was proceeding for taking his lunch. The version of RW. 3 clearly belies it. According to RW. 3, RW. 1 Narayan was sleeping in the office. He met Narayan on his way to the hotel. He came back and woke him (Narayan) up.
12. A reading of the evidence of these witnesses makes it clear that not much importance can be attached to their evidence, since their versions contradict with each other. A sure impression is gained that they are trying to suppress the facts and to hide the truth. This has to be further appreciated in the background that Achutha, even if he was present and drove the bus, could not do so in the normal course, unless the keys of the bus were given to him. Both the witnesses are very careful in saying that keys were not delivered. They have no explanation to offer as to how the bus was started. It is not their case that the bus was damaged near the key-hold or some other devise was used in starting the bus. If that be so, the normal inference is that Achutha or whosoever it may be, took away the bus with the consent of the Manager or the driver. The learned Member of the Tribunal has rightly observed that the evidence of these two witnesses is not dependable and reliable. We see no reason to differ from the view taken by the Tribunal that the evidence of R. Ws. 1 and 3 does not inspire confidence; and that it is unreliable. The bus was taken away obviously with the consent of the Manager. Thus, it becomes manifest that the owner has signally failed to rebut the initial presumption that the person was driving the vehicle in the course of employment under him; and the owner without more is vicariously liable.
13. The learned Advocate for the appellant invited our attention to the ruling rendered by the Supreme Court in the case of Sitaram v. Santanu Prasad : 3SCR527 . In that case their Lordships have referred to the judgment of Lord Denning wherein it is stated that the vicarious liability of the owner is invoked, even when the driver takes away the vehicle with the concerned of the owner. This is what the noble Lord has observed (at p. 1706):--
'It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of this employment. This is not correct. The owner is also liable if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes.'
14. Therefore, if a person drives the bus with the consent of the manager for owner's purposes it can safely be concluded that that makes the owner liable; for as is held by the Supreme Court in the case of Pushpa Bai v. Ranjit Ginning and Pressing Co-Pvt. Ltd. : 3SCR372 there is ostensible authority in the manager to give consent. Hence that way also the owner becomes vicariously liable.
15. Even if we assume that it was the driver who allowed the bus to be taken, though we are of the firm view on the facts of this case that the manager also gave his consent, still the vicarious liability of the owner cannot be absolved. The driver in his evidence has clearly admitted that he was in exclusive charge of the bus. This is what he has stated:
'the bus was entrusted to me exclusively for driving and even now I continue as driver of the bus.'
If that be so, it becomes clear that the driver is employed not merely for driving the bus, but also he is in charge of keeping the bus. He is exclusively entrusted with the bus. In that view of the matter one of the incidence of the course of employment is to maintain the bus and to keep the bus with safety.
16. It is pointed out by Lord Eshar M. R. In the case of Engelhart v. Farrant and Co. (1897) 1 QB 240, thus:
'If a stranger interferes (with the driving) it does not follow that the defendant is liable; but equally it does not follow that because a stranger interferes, the defendant is not liable if the negligence of a servant of his is an effective cause of the accident.'
The said decision lays down the following two propositions:
(1) An owner of a car would be liable in damages for an accident caused by his servant in the course of this employment; and
(2) he would also be liable if the effective cause of the accident was that the driver in the course of his employment committed a breach of his duty in either not preventing another person from driving the car or neglecting to see that the said person drove it properly.'
In the instant case, the driver who was in exclusive charge of the bus should not have allowed any other person to interfere with the bus by driving it unauthorisedly, The immediate and effective cause of the accident in this case is a negligent act of the driver whose duty it was to see that the bus was not allowed to be interfered with by unauthorised persons. That way also the owner would be vicariously liable.
17. Professor P. S. Atiyah, in his excellent monograph on vicarious Liability, dealing with this aspect of the case at page 242, 1967 Edition has stated thus:
'Three types of cases must be distinguished:--
First, where the servant delegates the driving to a person in such circumstances that the act of delegation is itself a negligent act, the negligence is to be regarded as negligence committed in the performance of an authorised act. The authorised act in this case if the act of generally keeping charge of the vehicle which has been entrusted to the servant's care. A servant who is told to drive a vehicle from one place to another is (unless perhaps he is accompanied by a superior servant) necessarily entrusted with the custody of the vehicle as well as with the duty of driving it, and if he is guilty of negligence in safeguarding his custody of the vehicle, this is negligence in the performance of an authorised act for which the matter will be liable............... As an American Court has put it:
'If the authorised driver placed at wheel an incompetent substitute the employer is not less liable than he would be if the driver left the car on an incline without sufficiently applying the brakes.'
And in Ilkiw v. Samuels (1963-2 All ER 879) also it was held that by the Court of Appeal that it is negligent of a truck driver to allow another person to drive it without making any enquiry as to his ability to drive.
Thus even assuming that it was the authorised driver who allowed the bus to be taken, the owner would still be liable vicariously.
18. The Supreme Court in the case of Pushpa Bai : 3SCR372 referred to above has pointed out the recent trend in fixing vicarious liability at para 14 of the judgment thus:
'Before we conclude we would like to point out that the recent trend in law is to make the master liable for the acts which do not strictly fall within the terms 'in the course of its employment' as ordinarily understood.'
19. The high rate of road accidents has led to the adoption of various legal expedients which are designed to provide more effective means to compensate the victims of road accidents. Although fault is the sheet anchor of the basis of liability of injured caused by drivers of motor vehicles, yet several principles of 'vicarious liability' have been formulated to enable the accident victim to fasten upon the owner of the vehicle responsibility for the careless conduct of the driver. This is the outcome of 'Deliberate Policy' for the driver is frequently impecunious while the owner in contrast is more likely to be financially capable of bearing to carry insurance. There is definite modern trend in the decisions of Courts to rope all possible road accident victims under the penumbra of the doctrine with a view to extend them relief to the extent allowed. It would be unfortunate if this substratum of policy underlying the judicial pronouncements is really lost sight of in deciding cases. The Court should always have a pragmatic approach to these matters bearing in mind the practical import of the policy. The categories of vicarious liability are never closed. Law here, more than in nay other filed, is a living growth and never a changeless code.
20. In the result, we agree with the finding given by the Tribunal that the owner is vicariously liable for the compensation awarded in this case. In that view, we hold that the appeal is devoid of merits and we dismiss the same with costs.
21. Appeal dismissed