1. This is an appeal by the claimant in Misc. (M. A. C.) No. 126 of 1970, on the file of the Motor Accidents Claims Tribunal and District Judge, Bangalore, as against the award passed by the Tribunal dismissing his claim petition.
2. The case of the claimant was that he was a medical representative drawing a salary of about Rs. 655/- per month in addition to bonus and other perquisities, and that his duty was to go to medical practitioners, display samples and push up sales. He was, in the course of his duties, riding a motor-cycle and was carrying a bag containing samples of medicines, connected literature, order books etc. At about 4.00 p. m, on 1-5-1970, he was proceeding by the side of Congress Office in Bangalore and towards Anandarao Circle. A trailer bus was parked on the left-side of the road, but facing opposite to the direction in which he was proceeding. He was riding his motor-cycle on his proper part of the road. The motor-cycle was proceeding at an average speed and fully under his control. When he was passing by the side of the parked trailer bus, jeep belonging to respondent 1 and driven by Francies R. W. 2, came from the opposite direction and dashed against his motor-cycle. He sustained severe injuries and was admitted to the hospital on the same day. He lost two teeth and sustained fracture of the right wrist joint. His watch was damaged. His motor-cycle also was damaged. He was treated in the hospital till 6-6-1970 and his Wrist was put in plaster. As he had concussion, he was having giddiness and he was treated for that also. He had sustained multiple lacerations on his upper-lip and there was an injury on his head. Healing of that injury on his head had left a scar on the skull. That scar is permanent and its area is 2' x 3' and it is bald. It is further his case that he is unmarried and he had to spend money for getting dentures in the Dental College. He claimed damages to the tune of Rs. 70,000/-.
3. It was contended on behalf of the respondents that R. W. 2 Francies was not the regular driver of the jeep and that his driving was not in the course of his employment as he was only a mechanic engaged on daily wages and, therefore, his rash and negligent act could not bind the owner respondent 1 even vicariously in regard to damages. It was nextly contended that the driving of the , jeep by R. W. 2 was not in any way rash or negligent.
4. The Tribunal found that R. W. 2 had not driven the jeep in a rash and negligent manner and that it was the mistake of the claimant-appellant that had caused the accident. It also held that even if it was rash and negligent driving of the jeep by R. W. 2, respondent 1 the owner of the jeep was not vicariously liable to pay compensation to the claimant-appellant. In regard to the quantum of compensation, it found that the claimant-appellant had established that he had spent a sum of Rs. 2,000/- towards medical expenses and that if at all he was entitled to any more compensation, the same would be Rs. 5,000/- only.
5. Sri. M. P. Chandra Kantaraj Urs, the learned counsel for the appellant, urged that even on the evidence of R. W. 2 the driver himself, it could be safely held that the view taken by the Tribunal that the jeep was not being driven rashly and negligently at that point of time, is unsustainable. He pointed out that R. W. 2 was, at the relevant point of time, attempting to pass by the parked bus which was equipped with a trailor and while he was just passing by it by taking the jeep more towards his right-side of the road, the parked bus also proceeded to move ahead. He argued that it was the duty of R. W. 2 to watch for a convenient moment before attempting to pass by the parked bus so that while passing by the bus he would not have caused obstruction to the traffic moving in either direction. He nextly argued that on finding that the bus had also moved while R. W. 2 was attempting to pass by it, it was the duty of R. W. 2 not to make any attempt to speed up the jeep and proceed ahead, but to fall back behind the bus and then signal the driver of the bus indicating that he would be overtaking the bus and thereafter on receiving a reply signal from the driver of the bus that he could overtake, he ought to have overtaken the bus. According to him, if R. W. 2 had taken all these precautions, such an accident would not have happened. He further pointed out that the claimant-appellant had the right of way at that point of time and he, without having any knowledge of the jeep attempting to pass by the bus, proceeded at an average speed on his part of the road, but the jeep, which was being driven in a negligent manner by R. W. 2, attempted to pass by the bus and dashed against the motor-cycle ridden by the appellant-claimant.
6. Sri K. M. Jagadeesha Sastry, the learned counsel for respondent 1, contended that according to the claimant-appellant himself, he saw the jeep from a distance of about 40 ft. and, therefore he could have controlled his motor-cycle so as not to dash against the jeep. He, in this connection, pointed out from the evidence of R. W. 2 that it was the motorcycle that had dashed against the jeep and caused damage to the ball-axle of the right front wheel of the jeep and that indicated that it was the mistake on the part of the claimant-appellant that had caused the accident.
7. It is not disputed that the impact between the motor-cycle and the jeep in question took place near the extreme right-side edge of the road while considering the direction in which the jeep was being driven. R. W. 2 himself has sworn that he took a turn to the right-side as he wanted to pass by the parked bus. It is further to be noted in this (connection) that R. W. 2 has, in his cross-examination, stated that when he just took a turn to the right in order to pass by the trailor bus, the bus also began to move forward and, therefore, he slowed down and then attempted to take a turn to the left in order to follow the trailor bus and it was at that point of time that the motor-cyclist came in speed and dashed against the jeep. These facts and circumstances leave no doubt in our mind that the impact between the jeep and the motor-cycle took place while the jeep was by the side of the trailor bus when the trailor bus was moving on its proper part of the road, In other words, the accident took place when R. W. 2 was attempting to overtake the trailor bus. It goes without saying that drivers of automatically propelled vehicles, when attempting to overtake vehicles going ahead of them, ought to wait for proper opportunity viz., slackness in traffic on the same road before doing so. A duty is cast on them to exercise sufficient care and caution by looking ahead and behind in order to ascertain that it would be safe for them to overtake the vehicle moving ahead of them. A further duty is cast on them to give a proper signal to the driver of the vehicle ahead in order to indicate that they would be overtaking the vehicle and wait for a reply signal from that driver permitting them to overtake and thereby indicating that road ahead is clear and there would be no danger in overtaking. If these minimum precautions are not observed by drivers of automatically propelled vehicles while overtaking the vehicles going ahead of them, it will have to be considered that such driving is rash and negligent. We find that these precautions arc also laid down as Regulation Nos. 2 to 4 in the Tenth Schedule to the Motor Vehicles Act. Regulation No. 2 provides that a driver of a motor vehicle shall pass to the right of all traffic proceeding in the same direction as himself. Regulation No. 3 is in the nature of an exception. That provides that if the driver of the vehicle proceeding ahead shows a signal that he would be turning towards his right and commences to turn towards his right, then the driver of the vehicle attempting to overtake the vehicle going ahead, would be entitled to overtake by going ahead on his left side. Regulation No. 4 (a) reads as follows:--
'4. The driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself--
(a) If his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction.........'
It is important to note in this Regulation that while overtaking a vehicle going ahead, it is the duty of the concerned driver to sec that he is not likely to cause inconvenience or danger to other traffic proceeding in any direction i. e., either up or down. The evidence of R. W. 2, therefore, makes it abundantly clear that he did not at all exercise any caution while attempting to either pass by the parked bus or after it came to proceed further, overtake it. We, therefore, do out agree with the finding of the Tribunal below that the mistake was on the part of the appellant-claimant in driving his motor-cycle. As already pointed out, the appellant-claimant had the right of way and he was ignorant of the fact that R. W. 2 would be attempting to overtake the trailer bus and, therefore, must have in the usual course proceeded to drive his motor-cycle on his proper part of the road in order to reach his destination. We have no hesitation in holding that R. W. 2 was not only rash in the manner of driving the jeep while overtaking the trailer bus, but was also negligent.
8. The next point addressed to us by Sri Chandra Kantaraj Urs is that R. W. 2 had been asked by the Assistant Engineer Venkatachalaiah to drive the jeep to a mechanic, and get it repaired and, therefore, R. W. 2 had taken it to a machanic, got it repaired and was driving it back to the office where Venkatachalaiah was waiting, and that would go to show that R. W. 2 was driving the jeep in the course of his employment and, hence, the owner of the jeep, viz., respondent 1 was vicariously liable for the damages caused by R. W. 2 in driving the jeep rashly and negligently. Sri. Jagadeesha Sastry, the learned counsel for respondent 1 the Corporation, strenuously urged that R. W. 2 was not a regular driver while one Balakrishna was the regular driver of the jeep. He pointed out that R. W. 2 had not even a valid driving licence and, therefore, he could not be recognised as a driver employed for driving this jeep in the course of his employment, and, hence, the owner would not be liable to pay compensation. We find from the evidence of R. W. 1, who is the Administrative Officer of the Corporation-respondent 1, that the Corporation owned this jeep. The Corporation had allotted it to Venkatachalaiah, working as Assistant Engineer under the Corporation, in Mysore. Venkatachalaiah had the custody of the jeep and was in full control of it. He was required to make use of the jeep for the work of the Corporation, in the course of his employment as an Assistant Engineer of the Corporation. Balakrishna was a driver appointed and he used to drive the jeep under the Assistant Engineer Venkatachalaiah. These facts show that though the jeep was owned by the Corporation, it was in actual possession of Venkatachalaiah the Assistant Engineer, and he was the controlling authority in regard to the movements of the jeep. He was, in discharge of his duties as an employee of the Corporation, entitled to use the jeep. There is no evidence to show that any restrictions, such as the driving of the jeep by a particular driver, had been placed in the manner of using the jeep by Venkatachalaiah the Assistant Engineer. R. W. 2 Francies, who was the driver at the relevant point of time, has stated, in unequivocal terms, that he took the jeep to the mechanic as directed by Venkatachalaiah, got it repaired and was driving it back to the office where Venkatachalaiah was waiting. In the absence of any evidence contrary to this evidence of R. W. 2, it has to be in our opinion, held that it was Venkatachalaiah who had authorised R. W. 2 to drive the jeep on that occasion. As already pointed out, Venkatachalaiah had full authority in making use of the jeep in discharge of his duties as an Assistant Engineer employed by respondent 1 the Corporation. It is, therefore, clear that he, in exercise of that authority, had directed R. W. 2 to drive the jeep in order to get it repaired. It cannot be, under these circumstances, contended that the jeep was, during the relevant period in question, engaged on a purpose which had nothing to do with the discharge of duties of Venkatachalaiah in the course of his employment as an Assistant Engineer of respondent 1 the Corporation. The contention of Sri. Jagadeesha Sastry that it cannot be said that R. W. 2 was driving the vehicle in the course of his employment, therefore, does not survive. The crucial question would be whether the jeep was being driven at that point o1 time in the course of employment of Venkatachalaiah and for the purpose of the owner, viz., respondent 1 the Corporation. The answer to this question will have to be in the affirmative. In that view of the matter, the contention of Sri. Jagadeesha Sastry that the owner respondent 1 would not be vicariously liable for the damages, is not, in our opinion, sustainable.
9. Sri. Jagadeesha Sastry nextly contended that the amount of Rs. 7,000/- found by the Tribunal as adequate compensation, is excessively high. We do not consider it to be so. Out of this amount of Rs. 7,000/-, bills towards medical expenses amounting to Rs. 2,000/- have been produced and proved by the claimant-appellant. It is, therefore, seen that only Rs. 5,000/- as compensation under the head of. general damages, have been found to be adequate by the Tribunal below. P. W. 2 the Doctor has sworn to the various injuries sustained by the appellant-claimant. He has also stated that the right wrist has lost its gripping power to the extent of 30% and it is not likely to improve. Loss of two teeth of the appellant has also been established. The fact remains that the appellant must have been under great bodily pain and mental agony because he was hospitalised for a period of 35 days and thereafter also his hand continued to be in plaster for a considerable period. In view of these circumstances, we are of opinion that the contention of Sri. Jagadeesha Sastry that an amount of Rs. 7,000/- is excessive, cannot be countenanced.
10. We, therefore, allow this appeal with costs and set aside the award passed by the Tribunal below. We hold that the claimant-appellant is entitled to compensation of a sum of Rs. 7,000/- in all and that amount is to be paid by the respondents jointly and severally. We direct accordingly.