1. This appeal by the injured claimant is directed against the judgment and award, dated 14-6-1977, passed by the Motor Accident Claims Tribunal, North Kanara, Karwar, In Misc. Case No. 33/1974, on his file, awarding compensation of Rs. 10,000/- to the injured claimant against the owner and insurer of the vehicle in question.
2. It is the case of the claimant that on 5-4-1974, in the night, he boarded a lorry which was proceeding towards Bombay, near Hiregutti village and the lorry could not properly negotiate a bend in the road near Boribail, because of its speed, but dashed against a hillock, as a result of which the claimant, who was traveling in the lorry sustained injury. He further suffered fracture of the left wrist and his fore-arm below the elbow joint was amputated ultimately. He was an inpatient in the hospital for about a month. He claimed compensation of Rs. 54,300/- before the Claims Tribunal from the respondents.
3. Respondent-1 is the C. P. C. Company, the owners of the lorry in question. Respondent-2 is the driver and respondent -3 is one of the Directors. Respondent -4 is the Insurance Company.
4. The owner and insurer contested the claim contending that the claimant was a gratuitous passenger in the lorry, who was actually a trespasser so far as the owner was concerned. Hence, they denied the liability.
5. The Tribunal after holding that the accident was the result of rash and negligent driving of the lorry in question, found that the injured claimant sustained injuries as a result of the accident. In that view, the Tribunal awarded Rs. 10,000/- as compensation for the claimant only from respondent-2 the driver of the lorry, absolving his claim against owner and insurer of the lorry. Aggrieved by the said judgment and award the injured claimant has come up with the above appeal before this Court.
6. The learned Counsel Sri. M. R. Naik, appearing for the appellant claimant, strenuously urged before us that in view of the recent trend of decisions, even if the driver of a lorry permitted a person to travel in the lorry, it should be held that the driver had the implied authority to give a person a lift in the lorry and that way the owner of the lorry is vicariously liable to pay compensation and the Insurance Company is bound to indemnify the owner.
7. As against that the counsel appearing for the owner and insurer argued supporting the judgment and award passed by the Tribunal.
8. The sole point therefore, that arised for our consideration in this appeal is :
Whether on the facts and circumstances of the case the owner and insurer are liable to pay the compensation?
9. The Tribunal has held that the injured claimant was allowed to travel in the lorry by the driver. It has further held that the owner has not permitted him to take in any passenger. It also held that the act of the driver in giving lift to the passenger constitutes an offence under the provisions of Motor Vehicles Act. It is in that view that the learned Member of the Tribunal has held that the owner and Insurance Company are not liable to pay compensation.
10. The learned counsel for the appellant, however, invited our attention to a decision of the Supreme Court of India, in the case of Pushpabai Parshottam Udoshi v. Ranjit Ginning & Pressing Co., Pvt. Ltd. : 3SCR372 . He invited our attention that in the said ruling the Supreme Court has approved the dictum of Lord Denning in Young v. Edward Box and Company Ltd. (1951) 1 TLR 789 at P. 793. Lord Denning in that case had laid down:
'In my opinion, when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in a position, not only to drive it, but also to give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey, not only in the driving of it, but also in giving lifts in it, provided, of course that in so doing the servant is acting in the course of his employment.'
The Supreme Court of India discussing that aspect has observed in para 14 of the Judgment thus:
'This decision has extended the scope of acting in the course of employment to include an illegal act of asking for and receiving a premium though the receiving of the premium was not authorized. We do not feel called upon to consider whether this extended meaning should be accepted by this Court. It appears Lord Goddard, Chief Justice, had gone further in Barker v. Levinson (1950) 66 TLR (Pt.2) 717 and stated that 'the master is responsible for a criminal act of the servant if the act is done within the general scope of the servant's employment'. Lord Denning would not go to this extent and felt relieved to find that in Authorized Law Reports (1951) 1 KB 342, the passage quoted above the struck out. We respectfully agree with the view of Lord Denning that the passage attributed to Lord Chief Justice Goddard went a bit too far.'
Thus, it is clear that the Supreme Court of India has not approved the proposition that master is responsible for the criminal act of the servant, even if the act is done within the general scope of the servant's employment.
11. Section 112 of the Motor Vehicles Act reads:
'Whoever contravenes any provisions of this Act or of any rule made there under shall, if no other penalty is provided for the offence, be punishable with fine which may extend to one hundred rupees or, if having been previously convicted of any offence under this Act he is again convicted of an offence under this Act, with fine which may extend to three hundred rupees.'
Rule 161 of the Karnataka Motor Vehicles Rules, 1963 states:
'Carriage of persons in goods vehicles (1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle;
Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicles may be carried in a goods vehicle, the total number of persons to be carried in a light transport goods vehicle not being more than three and in any other goods vehicle, not being more than seven including the driver.'
Thus, it is obvious that in giving a lift to the person in question, in the present case, the driver has committed breach of Rule 161 and he is liable to be punished under Section 112 of the Motor Vehicles Act. What he has done, therefore, becomes a criminal offence and the Supreme Court of India has made it clear that when the act of a servant becomes a criminal act, the owner cannot be held vicariously liable for the act. That being so, in spite of the general trend of Courts that the scope of vicarious liability should be broadly construed so as to protect the interest of the victim, we are unable to make the owner vicariously liable on the facts of this case for the criminal act of the driver of the lorry. Hence, we are satisfied that the Tribunal was justified in not holding the owner vicariously liable and in not fastening the liability on the Insurance Company as the owner was not liable.
12. In the result, the appeal fails as devoid of merits and is dismissed.
13. No costs of this appeal.
14. Appeal dismissed.