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Vijayanagaram Narsimha Rao and ors. Vs. Ghanshyam Das Tapadia and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAndhra Pradesh High Court
Decided On
Judge
Reported inI(1987)ACC250
AppellantVijayanagaram Narsimha Rao and ors.
RespondentGhanshyam Das Tapadia and ors.
Excerpt:
.....the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of..........repairs, it must be held that the second respondent is authorised on behalf of the owner to effect repairs. testing after repairs is an incidental and integral part of effecting repairs during the course of employment and the second respondent has taken the vehicle on the road for testing during the course of which the occurrence had taken place. when the second respondent has taken the vehicle on behalf of the owner and the occurrence has taken place during the course of effecting repairs, the necessary conclusion is that the owner shall be vicariously liable for the payment of the compensation. admittedly, the vehicle is insured and the second respondent is a licenced mechanic and therefore, the insurance company is also liable to pay compensation. there are two lines of decisions in.....
Judgment:

K. Ramaswamy, J.

1. The appellants are the unsuccessful claimants. One Mr. Rama Rao, the husband of the fifth appellant and father of appellants 1 to 4 died in an accident occurred on 16-12-1979 at about 4.00 p.m. near Municipal Stadium on Kasthuribapet Road in Vijayawada town in which the car ADX 3999 driven by the Meshanic, the second respondent was involved. The Tribunal below found that the occurrence has taken place as a result of rash and negligent driving of the Mechanic, the second respondent. It found that the first respondent-owner entrusted the car for repairs to the second respondent; and accident occurred while the car was taken out for testing after repairs were effected and it is not during the course of the employment of the 2nd respondent by the first respondent. Therefore, neither the owner nor the Insurance Company is liable to pay compensation. So, a sum of Rs. 20,000/- was awarded against the mechanic second respondent. The appeal is filed against the quantum as well as the dismissal of the claim against the first and the third respondents.

2. Admittedly, the first respondent is the owner of the car. He entrusted the vehicle to the second respondent who is a licensed mechanic. He effected the repairs. He has taken out the car for testing and while he was driving the vehicle for testing, the accident has occurred. The question therefore is whether the owner and consequently the Insurance Company are liable to pay the compensation. The finding that the occurrence has taken place as a result of rash and negligent driving of the Mechanic is not assailed. Therefore, I confirm the same. The Tribunal below found that the deceased Rama Rao is a P.W.D. contractor and his monthly earnings are Rs. 500/-. It also held that he would have spent Rs. 150/- for his maintenance and Rs. 350/- would be the amount saved towards the dependence of the appellants. At that rate it applied the necessary multiplier and granted Rs. 21,000/- and deducted Rs. 3,000/- towards lumpsum payment and awarded Rs. 18,000/-. It also granted Rs. 2,000/- towards consortium and rejected Rs. 1,000/- which was claimed for mental shock and agony and medical expenses, since the deceased died about three days after the occurrence. Accepting the finding of the Tribunal below that the deceased is aged about 55 years and applying the suitable multiplier of 7 years as per the Bench Judgment of this Court, the total compensation to which the appellants are entitled is Rs. 29,400/-. The lower Tribunal has awarded Rs. 2,000/- towards loss of consortium. Though the first appellant claimed Rs. 6,000/- towards mental agony, shock and pain, I feel that Rs. 1,000/- would be the reasonable amount. Therefore, the total amount to which the appellants are entitled is Rs. 32,400/-.

3. The next question is who are liable to pay the compeniation. In view of the established facts that the owner, the first respondent had entrusted the vehicle to the licensed Mechanic to effect repairs, it must be held that the second respondent is authorised on behalf of the owner to effect repairs. Testing after repairs is an incidental and integral part of effecting repairs during the course of employment and the second respondent has taken the vehicle on the road for testing during the course of which the occurrence had taken place. When the second respondent has taken the vehicle on behalf of the owner and the occurrence has taken place during the course of effecting repairs, the necessary conclusion is that the owner shall be vicariously liable for the payment of the compensation. Admittedly, the vehicle is insured and the second respondent is a licenced Mechanic and therefore, the Insurance Company is also liable to pay compensation. There are two lines of decisions in this regard. In B.G. Chetty v. Mudaliar 1966 ACJ, 153 (Madras), a Division Bench of the Madras High Court held that the owner is not vicariously liable and the Insurance Company is also not liable. That was followed by the same court in D. Rajapathi v. University of Madras 1980 ACJ, 113 (Madras). But, that is the case of an independent contractor entrusting the vehicle to the third party. Therefore, the ratio therein does not apply. Equally, there is another decision of the Punjab and Haryana High Court in Devinder Singh v. Mangal Singh 1981 ACJ, 448 (Punjab and Haryana). In this case it was held that neither the owner nor the accident occurred as a result of rash and negligent driving of the driver after effecting repairs. Contra view has been taken in Gopalakrishnan v. Krishnakuttyi 1966 ACJ, 262 (Kerala), Shantiba v. Principal Govinram Sakseria Tech. Ins. Indore 1972 ACJ, 354 (M.P.). In Joginder Nath v. Shanti Devi 1967 ACJ, 150 (Del.), it was held that the owner is liable.

4. I have carefully considered the respective lines of decisions. I am inclined to agree with the latter view for the reasons that once the owner has entrusted the vehicle to effect repairs to a licensed Mechanic ; testing being integral part of effecting repairs and the accident has taken place during the course of testing the vehicle, the necessary conclusion is that the Mechanic acted within his limits of authority and in the course of his employment for and on behalf of the owner. Therefore, the owner shall be vicariously liable for the acts of the Mechanic. This view is consistent with the general doctrine of tortious liability of the owner for the vicarious liability of a servant. Accordingly, I hold that both the owner and the Insurance Company are also jointly and severally liable for the payment of the compensation referred to earlier. The appeal is accordingly allowed. The appellants are entitled to interest on the above amount at 6% from today till the date of payment and costs are directed to be paid to the fifth appellant and Rs. 8000/- and interest thereon shall be credited to the account to be opened by 5th appellant in a nationalised Bank or in a nearest Post Office convenient to her. The balance amount shall be equally distributed among the appellants 1 to 4 and the shares of the minor appellants shall be deposited in a nationalised Bank in Fixed Deposit and the interest accrued thereon shall be paid over to the fifth appellant.

5. The appeal is accordingly allowed with costs.


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