1. This group of first appeals arises out of an unfortunate incident which has taken lives of four ladies and injured two persons on the spot at village Kukar-vada, District Mehsana on 23rd Jan., 1977. One Tejmahmad, hereinafter called as 'driver' was working as a driver with the appellant S. T. Corporation. The driver was serving under the Himatnagar Division of the appellant-Corporation in Jan., 1977. He was required to take one painter in trainee bus of the S. T. Corporation, at Vijapur and Mansa Depots for painting the sign-boards at places under those two Depots. Yasinmiya was the painter. The bus was bearing No. GJJ 7366. After completing the work of painting at Village Umiyauagar at about 2.15 p.m., the driver and the said painter Yasinmiya went to Kukarwada for doing painting work, if there was a pick-up stand at Village Kukarwada. Near the banyan tree they stopped the bus and there they had not found any pick-up stand which was required to be painted. According to the say of the driver, they stopped thereafter the bus near 'Bajrang' Hotel and at that place there is one Akbarmiya's cabin. Said Akbarmiya is related to the driver. The bus was left unattended and it is the say of the driver and the painter Yasinmiya that one Prahladji had boarded the bus and started the same. At that time some females were passing near the hotel of Jojtaram Kamdas Patel, as father of one Shantaben had expired on that day and the females were going towards the well of the village for taking bath. The said S. T. bus came towards the outskirts of the village and went towards the females who were passing and the said accident had occurred by which four females expired and two persons were injured. The injured persons and heirs of the deceased had filed the Motor Accident Claim Petitions before the learned Motor Accident Claims Tribunal at Mehsana. Against the judgments and awards passed by the said Tribunal on 30th Jan., 1977, the S. T. Corporation had preferred the aforesaid appeals before this Court. The following list of the said appeals would show, who were the claimants, what amount was claimed, and what amount was awarded by the learned Tribunal, etc.
F. A. No
Name of the claimant(s)
Amount claimed Rs.
Amount awarded Rs.
Darji, & Ora.
Heirs of deceased Chanobalbeo,mother of Haribhal Vallabhbhai DatjI.
Cbaganbliai PurshottamdsePrajapati & Ore. Heirs of deceased Puriben.
Joitaram Ramdaa Patel (Damage to Hotel)
Bhantaben Chagaabhal Frajapati.
Ravabhai BecharbhaiPrajapati-Huaband of deceased Amtiben.
Naniben Joitaram Prajapati(injured)
Sbankerlal Dwarbadas Prajapati(Husband of deceased Sakuben)
Kashiben Yitbaldai Prajapati(injured) wife of Purshottamdas Prajapati.
2. The claim petitions filed by the claimants were resisted by the driver and the appellant-S. T. Corporation by filing a joint written statement Ext. 13. It was contended on behalf of the driver and the S. T. Corporation that there was no negligence on the part of the driver and that accident had occurred because one Prahladji Chavda took away the said bus to Kukarvada and drove it without the permission of the driver. It was also contended in the written statement that the said bus was stopped near Bajrang Hotel near one cabin belonging to one Akbarmiya, who is the son of sister-in-law of the driver. That Akbarmiya was asked by the driver to keep a watch over the said bus till he came after taking tea and snacks. As the said bus was driven by a third person without authority it was contended that the opponents were not liable to pay any compensation. It was furher contended that the mechanism of the said bus was stopped and said Akbarmiya was asked to keep a watch over the bus, so that no person unauthorisedly touched the said bus and that the driver had taken necessary precautions so that any third person might not drive the vehicle. Thus, there was no negligence on the part of the driver and, therefore, the opponents were not liable to pay any compensation.
3. In view of the aforesaid contentions the learned Claims Tribunal had raised the following common issues in all the claim petitions:
Whether the claimants prove that opponent No. 1 drove the S. T. Bus of opponent No. 2 rashly and/or negligently and thereby caused death, injury or damage ?
Whether the opponents prove that the S. T. Bus was driven by one Prahladji Navuji Chavda unauthorisedly and by his ad, whether the accident took place? The other issue which was raised by the learned Claims Tribunal was with regard to the amount of compensation.
4. After recording necessary evidence, the learned Tribunal came to the conclusion that the claimants had failed to prove that the said S. T. Bus was driven at the time of accident by the driver, i. e. Tajmahmad Noormiya Sheikh. The learned Tribunal further held that the said bus was driven by somebody else and very probably by Prahladji Navuji rashly and negligently by which the said accident had occurred. He also held that the say of the opponents that Akbarmiya was asked to keep a watch over the said bus could not be believed and as the driver had left the bus unattended the driver and the S. T. Corporation were liable to pay the compensation. As the bus could be started by simply pressing the push-button and as there was no mechanism of starting the bus by pressing ignition key and as there was no lock or there was no shutter on one side, the learned Tribunal came to the conclusion that there was gross negligence on the part of the driver in placing the bus unattended at the Village Kukarvada in a thickly populated locality. After considering the details regarding death and loss to the claimants, the learned Tribunal bad awarded compensation as stated above.
5. Mr. G. N. Desai, the learned advocate appearing on behalf of the appellant has contended that there was no negligence on the part of the S. T. Driver in placing the bus near the cabin of Akbarmiya. He also contended that as the bus was driven unauthorisedly by Prahladji, the S. T. Corporation and/or the driver were not liable to pay compensation. He had further contended that the driver was not discharging the work of the S. T. Corporation when he went to take meals at his sister-in-law's place by placing the bus near Akbarmiya's cabin and therefore, also the S. T. Corporation was not liable to pay compensation. He lastly contended that the amounts awarded by the learned Claims Tribunal were on a higher side.
6. After going through the evidence on record it is amply clear that there was gross negligence on the part of the driver of the said bus in placing the bus unattended near Akbarmiya's cabin, opposite to Bajrang Hotel owned by Joitaram Ramdas Patel. The contention of the appellant that the driver Tajmahamad had asked Akbarmiya to keep a watch over the bus and thereafter he along with Yasinmiya and Akbarmiya went to the house of his sister-in-law for taking meals cannot be believed. The driver Tajmahamad was examined at Ext. 53 wherein he had stated that after finishing the work at Umiyanagar they went to Kukarwada, but as there was no painting work which was required to be done at any pick-up stand, they stopped the bus opposite to Bajrang Hotel where there is a cabin of Akbarmiya. According to him Akbarmiya is the son of his wife's sister. He had stated that he along with Yasinmiya, the painter and Akbarmiya went to the house of Bhikumiya and thereafter he had asked Akbarmiya to go back to keep a watch over the said bus and they were waiting at the house of Bhikumiya (husband of his sister-in-law) to take meals. After some time Akbarmiya came running and informed him that the said bus had met with an accident, as the said bus was driven by one Prahladji in spite of the fact that Akbarmiya took objection. According to Akbarmiya, he saw two ladies lying below the wheels of the said bus and the bus was standing touching the corner of Bajrang Hotel. The driver had filed a complaint Ext. 54 at Vijapur Police Station.
7. Now we refer to Ext. 54 it is amply clear that the say of driver Tajmahamad that he had asked Akbarmiya to keep a watch over the bus is absolutely false. In the complaint Ext. 54 he had stated that after finishing the painting work at about 2.30 p. m. they went to Kukarvada for taking tea and snacks. At Village Kukarvada the bus was kept at one side of the road and he along with the painter Yasinmiya went for taking tea and snacks. Thereafter he came to know that one Prahladji Navuji drove the said bus after unauthorisedly taking away the same and had caused the accident in question The said complaint Ext. 54 was produced by him in his examination-in-chief. From the said complaint it is amply clear that the story deposed to by him that he had asked Akbarmiya to keep a watch over the said bus is subsequently concocted. Even Akbarmiya also admitted that along with Tajmahmad he had gone to his house, but he immediately came back to keep a watch over the said bus. This also would show that the bus was kept unattended for some time. It was the say of the driver that Akbarmiya had accompanied him for going to the place of his sister-in-law and subsequently he had asked Akbarrniya to go back to keep a watch over the said bus. He had also admitted that they took 4 to 5 minutes to reach the house of Bhikumiya from the cabin of Akbarmiya. Now, in this set of circumstances, it is clear that driver Tajmahmad left the bus unattended.
It is admitted by Tajmahmad that there was no shutter on the left side of the driver's seat in the said bus and that no key was necessary to start the said bus. According to his say, only by pushing a button the bus could be started and any person boarding the bus could push the button and start the bus. As the bus could not be locked and as there was no shutter or a door on one side of the bus and if the bus could be started by merely pressing a push button, it was a gross negligence on the part of the driver of the bus to place the bus unattended in a thickly populated locality, where any person could enter the bus and start the same. Even for the sake of curiosity children may also enter the bus and accident may occur. In our view, therefore, placing of this type of bus in a thickly populated locality by the driver of the bus is itself a negligent act.
As per Section 84 of the Motor Vehicles Act, no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. It can be said that the driver had not taken any reasonable care or precautions while leaving the bus for taking tea and snacks or as deposed by the driver, to take meals. We do not believe the say of the driver that he had asked Akbarmiya to keep a watch over the said bus for which we have already given reasons. It can be said that the driver ought to have anticipated that some one might start the bus in his absence and that too a bus which was not having any shutter on the left side and ought not to have left the bus unattended on the road in a thickly populated locality of the village. We, therefore, arrive at a conclusion that the learned Tribunal was right in holding that there was gross negligence on the part of the driver and therefore, the driver and the S. T. Corporation were liable to pay compensation.
8. With regard to the second contention of the learned Advocate appearing for the appellant that the driver was not discharging the work of the appellant, S. T. Corporation when he went to take meals : we may say at this stage that a joint written statement was filed by the S. T. Corporation and the driver. In the written statement it is nowhere contended by the S. T. Corporation or the driver that the driver was not in the employment of the appellant, S. T. Corporation when he left the bus at village Kukarvada. No such issue was raised by the learned Tribunal, but in any view of the matter the contention of the learned Advocate that when the driver left the bus for taking meals at his sister-in-law's house, he was not in the employment of the appellant-S. T. Corporation and therefore, the S. T. Corporation was not liable to pay any damages is without any substance. Without any hesitation it can be said that the accident had occurred within the course of his employment, because after painting the sign-boards at village Umiyanagar, the driver along with the painter had gone to village Kukarwada and as they found that there was no pick-up stand for painting they went near the Bajrang Hotel and left the bus unattended. When they went to Kukarvada the driver was in the employment of the S. T. Corporation and that he had gone there for the master's work. It was not his personal work. He was acting within the course of his employment and that he was not doing anything for himself. When he went to Kukarvada he left the bus unattended and that itself is an act of gross negligence and because of this negligence on the part of the driver the accident had occurred.
9. The learned Advocate appearing for the appellant has drawn our attention to the judgment in the case of Life Insurance Corporation v. Kasturben Najanbhai, AIR 1973 Guj 216. We fail to understand, how the ratio of the said judgment helps the appellant. In the said case, the learned Judges relying upon AIR 1966 SC 1697 have held in para 10 as under:
'10. Applying these tests it is obvious that when the owner did not make a mere bailment of the car to the father but there was an entrustment of the car along with ignition key for being used for the purpose of the family, and when the family was taking the car for going to the temple, it was obviously driven at the time 'for and on behalf' of the son. It is hardly material that the son at that time may be at Limbdi Hospital because, his physical presence is hardly necessary. What is material is the fact that what the son himself, could have done by taking the family for the temple visit on the New Year Day was being done by this driver, opponent No. 9, who was acting as the servant of the father. Therefore, the father in the case of such a family car was obviously agent of the son and the car on the actual occasion was being used for a family purpose in which the son was obviously interested. In fact, even the use cannot be said to be a totally independent use but only for and on behalf of the son because the very act of driving the family for family purposes had been specifically authorised by the son by giving this car to the father, and therefore, the insurance company of the Fiat car could not, in any event escape liability both at the common law and also under the Act.'
By no stretch of imagination it can be said that the driver was not discharging his master's business when he was allowed to go from Himmatnagar to Kukarvada for painting pick-up stands. The only question would be, when he left the bus unattended whether the said act can be said to be grossly negligent act on his part for which there would be vicarious liability on the part of the appellant, S. T. Corporation. When the driver went to Kukarvada it was his master's business and the driver was authorised agent or was servant of the S. T. Corporation. The S. T. Corporation i.e. the owner of the bus would be liable for the negligence on the part of the driver and the owner cannot escape from the liability for the compensation.
10. The learned Advocate for the appellant has also relied upon the judgment reported in AIR 1966 SC 1697 in the case of Silaram Motilal v. Santanuprasad Jaishanker. There in that case Sitaram, who was the defendant No. 1, was owner of one taxi which was entrusted to one Mohammed Yakub Haji who was plying the taxi at Ahmedabad. After collecting the fare and meeting the expenditure incurred, he was remitting the balance amount to Sitaram Mohammed Yakub Haji appointed one third person as a cleaner for the taxi and subsequently he gave the said car for driving during his absence to the cleaner and when the cleaner was driving the said car the accident had occurred. The Supreme Court held that there was no evidence on record that Mohammed Yakub Haji had any authority to coach the cleaner, so that the cleaner may become driver and drive the taxi. The evidence of the owner that he had not given any such authority to Mohammed Yakub Haji was also believed by the Supreme Court. In that set of circumstances me Supreme Court held that the owner of the said tan was not liable. In the said case in para 29 a case of Engclhart is referred which is as under:
'(29) Similarly, in Engelhart's case, 1897-1 QB 240 two servants were engaged upon their master's business. One was to drive a cart and mind the horses and the other--a boy--travelling in the cart was to deliver parcels. The driver left the cart unattended and the boy drove it to deliver the parcels and caused the accident. The master was held responsible. The driver ought to have known that if he left the cart the boy would drive it in the fulfilment of the work of the master. When the driver left the cart in the charge of the boy he acted negligently in the course of his master's business. No doubt, 'the effective cause' was the negligence of the servant which made the master responsible but that is not the whole of the matter.'
In that case it was held that when the driver left the cart in charge of a boy, he had acted negligently in the course of his master's business. This would clearly show that when the driver left the bus unattended, he had acted in a gross negligent manner which was the 'effective cause' for the accident. We consider that the stopping of the bus at Kukarvada and leaving it unattended was during the course of employer's business and it was not something outside it. The said negligent act was committed by the driver during the course of his employment of the appellant, S. T. Corporation. In the said judgment in para 33 Lord Denning's (then Lord Justice) judgment is quoted, which is as follows :
'It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. This is not correct. The owner is also liable if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes.
..... The law puts a special responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. It is being used wholly or partly on the owner's business or for the owner's purpose, the owner is liable for the negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern.'
The aforesaid dictum has been approved by the Supreme Court in the said case. From the said dictum it is clear that the owner is liable for negligence on the part of the driver when the vehicle was allowed to go on the road in charge of driver or being used for the owner's business or for owner's purposes. The appellant S. T. Corporation can escape the liability as per the aforesaid dictum, if it is proved that the driver has lent or hired the said vehicle to a third person to be used for the purpose in which the owner had no interest or concern. We, therefore, do not consider that the said decision in any way helps the appellant in their contention that the S. T. Corporation is not liable to pay compensation.
11. From the above discussion it is clear that the S. T. bus was without any shutter. It could be started by any person merely by pushing a button. We also consider that the driver was discharging his master's function when he left the bus unattended at village Kukarvada. He has not taken precaution as prescribed under Section 84 of the Motor Vehicles Act. Hence, it can be said that the driver had left the dangerous bus which was powerful engine of death and destruction, which was likely to be used by other and particularly by young persons for which he could have reasonably foreseen the resultant injury. In the present case the ghastly accident took lives of four women, who were proceeding to the village well for taking bath, because the husband of Puriben had expired on that day. Unfortunately, Puriben herself died because of this accident. The S. T. Corporation ought to have taken a reasonable care to see that the bus was having shutter which could be locked. It could have reasonably been seen by the S. T. Corporation that the driver, who was sent on duty from 7.00 a. m. till 2.30 p. m. would at least stop the bus some where to take tea and snacks. It cannot be presumed that driver would continuously remain present in the bus. Therefore, the contention of the learned Advocate for the appellant that as the driver had gone to take meals was not during the course of employment is of no substance.
12. With regard to the contention on merits, the learned Advocate was not in a position to point out, how the awards passed by the learned Tribunal were on higher side. We have gone through the whole evidence in its entirety and we consider that the awards passed by the learned Tribunal in all the claim petitions are reasonable and just. We entirely agree with the reasoning of the learned Tribunal and we do not find any reason to disturb the findings of the learned Tribunal on quantum. We do not discuss the evidence on quantum in details as we concur with the findings of the learned Tribunal. We consider that the learned Tribunal could have awarded some more amount as compensation.
We, therefore, dismiss the aforesaid appeal filed by the appellant, S. T. Corporation with costs.