O.P. Sexena, J.
1. This is an appeal under Section 110-D of the Motor Vehicles Act against the order dated 11-2-78 passed by the Motor Accident Claims Tribunal (I Additional District Judge) Bareilly awarding a compensation of Rs. 80,000/- to the claimants with interest at 6 per cent annum from the date of award till the date of payment. A cross objection has been filed by claimants-respondents.
2. On 17th February 1976, at 9 A.M., on Bareilly-Pilibhit Road, near Hafizganj, P.S. Hafizganj, District Bereilly, one Din Dayal Saxena, aged 42 years, met with an accident. He was travelling in Bus No. U.S.B. 6257 on his way from Bareilly to Pilibhit. The bus belongs to U.P. State Road Transport Corporation. It was going from Bareilly to Tanakpur. The bus was involved in an accident when it struck against a tree. Din Dayal Saxena received multiple grievous injuries to which he succumbed.
3. The claimants gave an application for Rs. 2 lacs as compensation. Claimant No. 1 Smt. Raj Kumari is the widow, Claimant No. 2 Subhash Chandra Saxena and claimant No. 3 Km. Gita Saxena are adult son and daughter. Claimant No. 4 Pramod Kumar is minor son. Claimant Nos. 5 and 6 Km. Sudha Saxena and Km. Anita Saxena are minor daughters. The deceased was employed as Divisional Accountant in Sarda Sagar Division Pilibhit. He was getting a salary of Rs. 735/- per mensem. It was said that the accident was caused due to rash and negligent driving of the bus.
4. Opposite parties Nos. 1 and 2 U.P. State Road Transport Corporation, through Regional Manager, Bareilly and through General Manager, Lucknow codtested the petition. It was not disputed that Din Dayal Saxena was travelling by the ill-fated bus and that he received injuries in the accident to which he succumbed. It was denied that the accident took placed due to rash and negligent driving of the bus. It was said that it was raining at the time of accident and the accident took place due to skidding of the bus. It was further said that Amajadullah, the driver of the bus, had handed over the vehicle in an unauthorised manner to Bangali Babu mechanic and the accident took place when Bangali Babu was driving the vehicle, It was, therefore, pleaded that respondents are not liable to pay any compensation to the claimants. The amount of compensation claimed was also assailed.
5. Opposite party No. 3 Amjadullah filed a separate written statement in which it was said that he was compelled to drive the vehicle even though he had retired in 1973, that he was short of sight and was deaf, that he used to take the vehicle with the help of Bangali Bubu, that Bangali Babu was driving the vehicle at the time of accident and that he is not liable to pay any compensation.
6. The Tribunal held that the accident took place due to rash and negligent driving of the bus by Bangali Bubu, an employees of the opposite parties Nos. 1 and 2 and that the opposite parties are vicariously liable to pay compensation.
7. The Tribunal repelled the plea that Amjadullah had retired in 1973. His date of birth as given in the record was 2nd June 1920 and he was to retire in June, 1978.
8. The Tribunal repelled the plea that Amjadullah was not personally liable as Bangli Babu mechanic was driving the vehicle. It was held that even if Amjadullah asked the mechanic to check up and remove the defect which arose while the bus was in transit, it was his duty to drive the bus after the defect had been removed and he was negligent in permitting Bangali Babu to drive the vehicle.
9. The Tribunal determined the compensation as Rs. 80,000/- and passed the impugned order.
10. Sri S.K. Sharma, learned Counsel for the appellant urged that the accident was not caused due to the rash and negligent driving of the bus but due to circumstances beyond the control of any human agency as the bus skidded due to the road having become slippery on account of rains and collided with a tree resulting in the unfortunate accident.
11. Sri Bharatji Agarwal, learned Counsel for claimants-respondents referred to the statements of P W. 2 Surendra Bahadur Saxena, who was also travelling in the ill-fated bus and received injuries, that at the time of accident, the bus was being driven at a speed of 70 or 75 kms. There was no curve at the place of the accident. The road was sufficiently wide. The statement of D.W. 1 Bal Chand Conductor that a truck was coming from the opposite direction and the accident took place when the drive took a turn towards the left to avoid collision with the tree, is an afterthought. No such plea was taken in the written statement filed by the appellant Had the bus been driven at a speed of 25 or 30 kms. as deposed by D.W. 1 Bal Chand, it is not probable that the bus would have skidded on the slippery road more so when there was no curve to negotiate. If the road was slippery it was imperative on the part of the driver to drive the bus slowly so as to avoid any skidding. It was, therefore, submitted that the claimants, version is more probable and the accident took place due to rash and negligent driving of the bus.
12. We have carefully considered the submissions made before us. The Tribunal has pointed out that the opposite parties Nos. 1 and 2 did not produce or prove the departmental enquiry report which would have shown as to what was the cause of the accident. An adverse inference has rightly been raised against the version of opposite parties. Had the report been to the effect the accident was not caused due to rash and negligent driving of the bus due to skidding on a slippery road, it must have been filed. The evidence also shows that after the accident, the services of Amjadullah were terminated and Bengali Babu was placed under suspension. We find much substance in the submission of the learned Counsel for respondents and hold that the Tribunal rightly accepted the statement of P.W. 2 Surendra Bahadur Saxena and rightly held that the accident took place due to aash and negligent driving of the bus. The tribunal rightly rejected the version of D.W. 1 Bal Chand that the accident took place when the driver of the bus saw a truck coming from the opposite direction and severved the bus towards left to avoid collision. As no such plea was taken in the written statement, it was clearly an after thought. Had the bus been driven with reasonable care and caution there could have been no occasion for the bus to skid while it was being driven on a straight road which was sufficiently wide. We find no merit in the submission on the learned Counsel for appellant.
13. Sri S.K. Sharma next submitted that the accident took place due to some latent defect in the bus and as such opposite parties Nos. 1 and 2 are not liable. Sri Bharatji, Agarwal pointed out no such plea was taken in the written statement and it is not open for the appellant to take a plea of fact for the first time in appeal.
14. In Minu B. Mehta v. Bal Krishna Ram Chandra Nayan and Anr. 1977 A.C.J. 118 the Supreme Court held that in order to sustain a plea that the accident took place due to mechanical defect, the owner must take a plea that the defect was latent and not discoverable by the use of reasonable cause. No such plea was taken in the written statement. There is no evidence to show that the bus was properly maintained and regularly cheeked. There is no evidence of the mechanic or supervisor who checked the bus prior to the ill fated journey. Bangali Babu mechanic who was travelling with the bus has not been examined, There is no report to show as to what defect was found when the bus was examined after the accident. Normally a mechanic does not travel with the bus. We have serious doubts about the road-worthiness of the bus. If the bus was defective, it should have been first repaired and then allowed to leave the depot. It was highly hazardous to send as defective bus on the road along with the mechanic so that he may repair the defect as and when it occurred. In the absence of any plea or evidence, we are unable to accept the contention of the learned Counsel for the appellant that the accident took place due to some latent defect in the bus and opposite parties Nos. 1 and 2 are not liable.
15. Sri S.K. Sharma next submitted that Amjadullah was not authorised to permit any one else to drive the vehicle and as he permitted Bangali Babu to drive the vehicle, the opposite parties Nos. 1 and 2 are not vicariously liable. Sri Baharatji Agarwal submitted that the bus was being driven in due course of employment and also for the purpose of the employer. The employer provides bus service between Bareilly and Tanakpur and the bus was on transit on this route when the accident took place. Bangali Babu was also and employee of the opposite parties Nos. 1 and 2 and the latter are vicariously liable for the negligence of the former.
16. In Sita Ram Moti Lal Kalal v. Santanuprasad Jai Shanker Bhatt : 3SCR527 the Supreme Court laid the law as below:
The law is settled that a master is vicariously liable for the acts of his servant acting in the course of employment, the servant, act does not make the employee liable. In other words for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful or unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But if is equally well settled that if the servant at the time of the accident is not acting within the course of employment, but is doing something for himself the master is not liable. There is a presumption that the vehicle is driven on the master's business on servant but the presumption can be met.
17. The above decision was reaffirmed by the Supreme Court in Pushapabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 A.C.J. 348. A Manager was driving the car of the company for the business of the company. He permitted a passenger to travel with him. Car met with an accident. The passenger died. It was held that the master was liable.
18. In this case Amjadullah driver was taking the bus on its prescribed route from bareilly to Tanakpur in due course of employment of opposite parties. He, however, permitted Bangali Babu mechanic to drive the vehicle. The rash and negligent driving of the bus by Bangali Babu resulted in the accident. It was an unauthorised mode of doing an act authorised by the master when Amjadullah permitted Bangali Babu mechanic to drive the bus. It is unfortunate that Bangali Babu drove the bus in a rash and negligent manner and caused accident resulting in loss of life. Opposite parties Nos. 1 and 2 cannot escape liability merely because Amjadullah could not permit any one else to drive the vehicle. The Tribunal rightly held that the opposite parties Nos. 1 and 2 are vicariously liable to compensate the claimants.
19. Sri. S.K. Sharma lastly submitted that the compensation awarded is much too exhorbitant. Sri Bharatji Agarwal submitted that the compensation awarded is inadequate.
20. The deceased was 42 years old. He was working in the grade Rs. 425-15-500-E.B.-15-560-E.B-15-650-E.B-20-750. The basic salary of the deceased was Rs. 500/- at the time of accident. He had 16 years to serve. He could reach the maximum of Rs. 750/-. The deceased was getting Rs. 235/- as house rent. His total emoluments at the time of accident were Rs. 735/-. His maximum emoluments would have been Rs. 985/-. The average comes to Rs. 860/- per mensem. There is no evidence to show as to what death-cum-retirement benefits the deceased could have got. The deceased had to support family consisting of himself, his wife, 2 sons and 3 daughters. He could not spend more than Rs. 160/- per mensem on himself. The balance of Rs. 700/- per mensem could be available to the family. The annual dependency would come to 8400/-. For a period of 16 years the amount would come to Rs. 1,34,400/-. After 30% deduction, the amount would be reduced by Rs. 40320/- and would come to Rs. 94080/-. Rounded off it comes to Rs. 95000/-. We are unable to accept the plea of Sri Bharatji Agarwal and hold that the tribunal should have awarded Rs. 95000/- as compensation.
21. The appeal is dismissed. The cross-objections is partly allowed. The claimants will get Rs. 95000/- as compensation with interest at 6% per annum from the date of petition till the date of payment and costs of the proceedings. The amount deposited will be adjusted towards the amount found due and no interest will be payable on the amount deposited after the date of deposit. The costs of appeal and cross-objection will be easy.