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State of Madhya Pradesh Vs. Premabai and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. First Appeal Nos. 252 and 253 of 1973
Judge
Reported inAIR1979MP85; 1979MPLJ214
ActsMotor Vehicles Act, 1939 - Sections 2(19) and 110B
AppellantState of Madhya Pradesh
RespondentPremabai and ors.
Appellant AdvocateK.L. Issrani, Adv.
Respondent AdvocateS.P. Hakim, Adv. (for No. 1) and ;M.L. Jaiswal, Adv. (for No. 3)
DispositionAppeals dismissed
Cases ReferredTeoh Khoon Lim v. Lim Ah Choo
Excerpt:
- - such returns were required to be submitted as the unicef wanted to be satisfied that the vehicle was being used for the purpose it was loaned out. 10. the appeals, therefore, fail and they are dismissed with costs......them. kusum, respondent no. 2 was driving the jeeprashly and negligently, the jeep belonged to the state government and the driver was in its employment in the raipur development block. after the filing of the written statement it was pleaded in the alternative that even if the panchayat inspector, shrinivas tiwari-respondent no. 3 was driving the jeep, the state would be still liable for the two deaths. at the time of the accident, ramavtar was aged 23 years and he was a student in the final year of b.sc. while shivprasad was aged 22 years and he was matriculate and passed iti training in telephones. the appellant-state contended that as the jeep was owned by unicef and was intended to carry out their applied nutrition programme, the state government was not liable for any compensation......
Judgment:

C.P. Sen J.

1. By this Order, the connected Misc. (F) Appeal No. 253/73 (State of M.P. v. Smt. Budhi Devi) is also disposed of. Both these appeals arise out of the same accident. Two Claim Cases were consolidated and tried together by the Claims Tribunal. The State has preferred these appeals under Section 110-D of the Motor Vehicles Act, 1939 against the awards of compensation granted to the claimants amounting to Rs. 10,400/- and Rs. 12,720/- respectively.

2. The facts not in dispute are that on 3-8-1971 at 7 p.m., the jeep No. MPA 5586 which bore the emblem of UNICEF was invloved in an accident on the Rewa-Gurha road resulting in the instantaneous death of two pedestrians Ramavtar and Shivprasad. It is also not in serious dispute that the jeep in question was being driven rashly and negligently and that the two pedestrians were going by the left side of the road when they were run over. Shivprasad's widow Prembai preferred a claim before the Claims Tribunal claiming Rs. 1,26,000/- for the death of her husband, while Budhi Devi widow of Ramavtar preferred a claim of Rs. 86,000/- for the death of her husband. According to them. Kusum, respondent No. 2 was driving the jeeprashly and negligently, the jeep belonged to the State Government and the driver was in its employment in the Raipur Development Block. After the filing of the written statement it was pleaded in the alternative that even if the Panchayat Inspector, Shrinivas Tiwari-respondent No. 3 was driving the jeep, the State would be still liable for the two deaths. At the time of the accident, Ramavtar was aged 23 years and he was a student in the final year of B.Sc. while Shivprasad was aged 22 years and he was Matriculate and passed ITI training in Telephones. The appellant-State contended that as the jeep was owned by UNICEF and was intended to carry out their applied nutrition programme, the State Government was not liable for any compensation. In the alternative it was pleaded that at the time the jeep was engaged in discharge of the sovereign functions of the State Government and as such it cannot be made liable for any compensation. The driver respondent No. 2 contended that the Panchayat Inspector Shrinivas Tiwari was actually driving the jeep at the relevant time and due to his rash and negligent driving with high speed and with defective brakes, the accident had occurred, resulting in two deaths. The respondent No. 3, on the other hand, contended that he was not driving the jeep, but it was being driven by the driver-respondent No. 2 rashly and negligently. The Claims Tribunal awarded compensation of Rs. 10,400/- to Premabai and Rs. 12,720/- to Budhi Devi. The Tribunal held that respondent No. 2 was driving the Vehicle rashly and negligently. The jeep was being driven for official duty, but not in discharge of sovereign functions of the State. Technically the ownership of the vehicle was with the UNICEF, but for the purpose of Motor Vehicles Act, the State Government being in possession and in administrative control of the jeep would be deemed to be the owner and liable to pay the compensation for the acts of its driver respondent No. 2. Aggrieved by this award, the State Government has preferred these two appeals. There is no cross-objection by the claimants.

3. The questions for considerations are: (i) whether the jeep was driven by the driver respondent No. 2 rashly and negligently causing the two deaths, (ii) whether the State Government can be made liable for the acts of its driver when it was not owner of the jeep; and(iii) whether the amounts of compensation awarded are excessive;

4. There is solitary testimony of Kustun respondent No. 2 that it was Shriniwas Tiwari-respondent No. 3 who was actually driving the jeep. But, there is no corroboration to his statement. He admitted that he made no report to his superiors about the unauthorised driving by the respondent No. 3 causing the two deaths. As against this, all the other occupants of the jeep have stated that it was the respondent No. 2 who was driving the vehicle and not respondent No. 3 (Ganga Prasad, Tirath Prasad and Shriniwas Tiwari). Besides other independent witnesses, Sukraman Prasad, Jag-dish Prasad, Ramautar Barai and Rambali have corroborated their statements that it was respondent No. 2 who was driving the jeep. According to all these witnesses, respondent No. 2 was driving the jeep in a unsteady and zigzag manner with the result that the jeep, et first dashed against the road culvert and then against Ramautar and Shivprasad, both of whom were on the left side of the road and that finally the jeep turned turtle after hitting one passenger bus which was standing at some distance, In fact, Shivprasad after being hit by the jeep was entangled in the bumper and was dragged to a distance of about 20 yards, showing the excessive speed with which the jeep was moving. We, therefore, concur with the finding of the Claims Tribunal that it has been proved that the accident occurred due to rash, reckless and negligent driving of the respondent of the vehicle.

5. Admittedly, the respondent No. 2 was in the employment of the State Government in the Raipur Development Block. According to the case pleaded by the State Government, the jeep was being driven at the relevant time by the respondent No. 2 in discharge of sovereign functions of the State which amounts to an admission that the respondent No. 2 was driving the vehicle in discharge of his Official duties. The driver is primarily liable for the death of Ramavtar and Shivprasad due to his rash and negligent driving. Since at the relevant time he was driving the vehicle in discharge of his official duties, the State Government is vicariously liable for the acts of its employee. The Supreme Court in Sitaram v. Santanuprasad AIR 1966 SC 1697, has held that a master is vicariously liable for the acts of hisservant acting in the course of his employment. For the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and 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. Reiterating this principle in a recent case of Pushpabai v. Ranjit G. and P. Co. (AIR 1977 5C 1735), the Supreme Court has further held that (at pp. 1743, 1744):

'For the master's liability to arise the test is whether the act was done on the owner's business or that it was proved to have been impliedly authorised by the owner. The law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment the servant's act does not make the employer liable.

The recent trend in law is to make the master liable for acts which do not strictly fall within the term 'in the course of the employment' as ordinarily understood. The owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes'.

Therefore, the State of Madhya Pradesh is liable for payment of compensation for the acts of its driver, even if the State Government is not owner of the jeep in question.

6. Section 110 of the Motor Vehicles Act provides for constitution of Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of third party so arising or both. Sections 110-A to 110-F provide for the procedure to be followed by the Claims Tribunal in awarding compensation. Section 110-B provides that the Claims Tribunal can make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer, or owner or driver of the vehicle involved in the accident or by all or any of them, as the case maybe Section 110-F provides that where any Claims Tribunal has been, constituted for any area, no Civil Court, shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. Therefore, it is evident that once a Claims Tribunal is constituted, all claims regarding compensation in respect of accidents arising out of the Motor Vehicles Act have to be decided by the Claims Tribunal and not by Civil Court. Recently the Supreme Court in New India Insurance Co. Ltd. v. Smt. Shanti Misra, AIR 197G SC 237, has held that on the plain language of Sections 110-A and 110-F the change in law was merely a change of forum i.e., a change of adjectival or procedural law and not of substantive law. Such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. The jurisdiction of the Civil Court is ousted as soon as the Claims Tribunal , is constituted and the filing of the application before the Tribunal is the only remedy available to the claimant. Interpreting these provisions a Division Bench of this Court in Kamla Devi v. Kishanchand AIR 1970 Madh Pra 168, has held that the group of Sections 110 to 110F lays down the procedure and powers of the Tribunal and these sections do not deal with liability at all : They only provide a new mode of enforcing the liability in respect of accidents involving death or bodily injury which before the constitution of the Tribunals was being enforced by Civil Courts. The object of these sections is to provide a cheap and speedy mode of enforcing liability arising out of use of motor vehicles.

7. The Motor Vehicles Act regulates and controls the running of vehicles in public places and in other places for the purpose of carrying the passengers or goods. This has been enacted in the interests of the safety and convenience of the people and of the development of a coordinated system of transport. It does not deal with the passing of the property in and legal title to the property. The definition of owner in Section 2 (19) of the Act is not a complete definition. Niyogi, J (as he then was) in re Bhagwant Gopal, AIR 1943 Nag 22, held:

'The definition of the word 'owner' is very unsatisfactory and unhelpful forthe solution of the question arising in this case. It does not however appear that the Legislature by inserting this definition in the Act of 1939 intended to use the word 'owner' occurring in the various sections of the Act in any sense other than the sense in which it is ordinarily understood. Ownership as opposed to possession implies title with the incidental right of transfer. A person may be in possession and control of vehicle nevertheless he might not have any title or right to transfer it'.

I. D. Dua, J. (as he then was) in Shri Ram Pertap v. Punjab Roadways AIR 1962 Punj 540, has held (at p. 542):

'Sections 110 to 110-F merely deal with the subject of the substitution of the Motor Accidents Claims Tribunal in place of Civil Courts for the purpose of adjudicating on claims for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of motor vehicles. They do not deal with the question as to who is to be held liable and in what circumstances, if any injury results from an accident. In order, therefore, to discover the criterion or test for fixing liability one has, in the absence of any statutory provision fixing liability irrespective of negligence, to turn to the law of Torts'.

A Division Bench of the Madras High Court in Govindarajulu v. Govindaraja AIR 1966 Mad 332 has held (at pp. 335, 337):

'There is ample authority for the view that the lorry is not in itself a nuisance or a hazardous chattel so as to attract the doctrine of absolute liability. In the case of a motor vehicle, therefore, liability can be fastened as against a person only on proof that he was negligent and that negligence was responsible for the accident in question. When a motor lorry is entrusted to a workshop of a repairer, it cannot be held that the owner of the vehicle owed any duty or could have exercised any control or taken any precaution about the lorry. There is no law which throws a duty upon the owner to speculate and anticipate that some unauthorised person would take the lorry out from the garage of the repairer. It is not one of the necessary natural consequences that would be expected to arise in the matter of entrustment of lorry for repair'.

Hence the definition of owner in Section 2 (19) is an inclusive definition. According to this definition, owner means guardian of minor. Owner means a personin possession under hire-purchase agreement.

8. The Claims Tribunal was not right in holding the State Government to be the owner of the jeep in question. Under the general law of Torts and also under the Fatal Accidents Act, the driver is primarily liable for compensation for causing death or injuries by his rash and negligent driving of the vehicle. His master is also vicariously liable for the acts of his servant. Section 110-B only stipulates that the Tribunal shall specify the amount which shall be paid by the insurer, or owner or driver of the vehicle. It does not provide that these three persons are alone liable for the accident. The owner's liability is not absolute. If the vehicle is entrusted to an independent person and it is in the complete control of that independent person, the owner cannot be made liable for the act of that independent person or his servant. The House of Lords in Arthur White (Contractors) Ltd. v. Tarmac Civil Engineering Ltd. (1967) 3 All ER 586, has held:

'Owner of an excavator gave it on hire and provided a driver. Hire agreement stipulated that the driver would be deemed to be the hirer's servant. When an accident took place due to negligence of the driver, the hirer was entirely liable and not the owner'.

The Federal Court of Malaysia in Teoh Khoon Lim v. Lim Ah Choo 1971 Acc CJ 257 has held that when the owner gave his vehicle to another and the borrower knocked down and felled a person, the owner was not vicariously liable unless it is proved that the vehicle was being driven by the borrower as agent. The vehicle here was loaned by the UNICEF to the State Government for carrying out the various projects sponsored by the UNICEF in the State. From the memos. Ex. D-7 and D-8 of the Central Government and memos Ex. D-1, D-3, D-4 and D-6 of the State Government, it is clear that the jeep in question continued to be in the ownership of UNICEF. The Central Government allotted the same to the State Government and the State Government had further allotted it to its Raipur Development Block at the relevant time and was used under the applied nutrition programme. It was under the direct control and use of the State Government. Driver-respondent No. 2 was an employee of the State Government and he was engaged to drivethe jeep. At the time of accident, the jeep was being driven in connection with official work of the State Government and by the respondent No. 2 in the discharge of his duties as Government Servant. Simply because the State Government was required to submit regular returns about the use of the vehicle and about the purpose for which it was being used, it would not show that the UNICEF any way had control over the vehicle so long as the vehicle remained in charge of the State Government. Such returns were required to be submitted as the UNICEF wanted to be satisfied that the vehicle was being used for the purpose it was loaned out. The State Government though not the owner of the vehicle is liable under the General Law for the acts of its servant in causing the death of the two pedestrians, by his rash and negligent driving.

9. In Misc. (F) A. No. 252/73, Prembai has been given an award of compensation of Rs. 10,400/-. Deceased Shivprasad was a Matriculate and he had passed his ITI training in Telephones. In Misc. (F) A. No. 253/73, Budhi Devi has been awarded Rs. 12,720/-. Deceased Ramavtar was aged 23 years and he was a final year B.Sc., student. The Tribunal have taken their life expectancy to be 50 years and it has proceeded on the basis that these two persons would have been saving Rs. 25/- and Rs. 30/- per month i.e., Rs. 300/- and Rs. 360/- per annum. Multiplied by 28 and 27 respectively he arrived at the figures Rs. 8,400/- and Rs. 9,720/-. By adding amounts of Rs. 2000/- and Rs. 3000/- respectively towards the loss of consortium to the claimants due to the premature death of their husbands, the Tribunal gave the awards of Rs. 10,400/- and Rs. 12,720/-. The calculation is obviously faulty and the amounts awarded are bit low. The Tribunal ought to have proceeded on the basis as to what the contribution the deceased were expected to contribute for the maintenance of their wives, which could no be less than Rs. 100/- per month in each case. Total monetary loss would be Rs. 1200/- multiplied by 27 or 28. The amount would have to be rounded off to a lesser amount because of the lump sum payment. But in the absence of any cross-objection, we are unable to enhance the amounts of compensation. We, therefore, hold that the amounts ofcompensation awarded require no interference.

10. The appeals, therefore, fail and they are dismissed with costs. Counsel's fee as per schedule, if certified.


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