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Smt. Gyarsi Devi Vs. SaIn Das and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 55 of 1976
Judge
Reported inAIR1982Raj30; [1983]54CompCas333(Raj)
ActsMotor Vehicles Act, 1939 - Sections 96 and 110B; Fatal Accidents Act, 1855 - Sections 1A and 2; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 33
AppellantSmt. Gyarsi Devi
RespondentSaIn Das and ors.
Appellant Advocate H.C. Rastogi, Adv.
Respondent Advocate H.M. Bhargava and; R.M. Lodha, Advs.
DispositionAppeal partly allowed
Cases ReferredH. P. Road Transport Corporation v. Pandit Jai Ram
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....s.c. agrawal, j.1. this appeal has been filed under section 110-b of the motor vehicles act. 1939 (hereinafter referred to as 'the act'), by smt. gyarsi devi (hereinafter referred to as 'the claimant' against the award, dated 18th december, 1975, made by the motor accidents claims tribunal (hereinafter referred to as the 'claims tribunal') in civil miscellaneous (m. a. c.) case no. 2 of 1971. in the case aforesaid, the claimant had claimed a sum of rs. 50,000/- as compensation on account of death of her son. om. the claims tribunal has awarded an amount of rs. 30,600 as compensation to the claimant against bashir ahmed, respondent no. 2, but has dismissed the said claim as against sain das, respondent no. 1, and the new india assurance company limited, respondent no. 3.2. the aforesaid.....
Judgment:

S.C. Agrawal, J.

1. This appeal has been filed under Section 110-B of the Motor Vehicles Act. 1939 (hereinafter referred to as 'the Act'), by Smt. Gyarsi Devi (hereinafter referred to as 'the Claimant' against the award, dated 18th December, 1975, made by the Motor Accidents Claims Tribunal (hereinafter referred to as the 'Claims Tribunal') in Civil Miscellaneous (M. A. C.) Case No. 2 of 1971. In the case aforesaid, the claimant had claimed a sum of Rs. 50,000/- as compensation on account of death of her son. Om. The Claims Tribunal has awarded an amount of Rs. 30,600 as compensation to the claimant against Bashir Ahmed, respondent No. 2, but has dismissed the said claim as against Sain Das, respondent No. 1, and the New India Assurance Company Limited, respondent No. 3.

2. The aforesaid claim relates to an accident which took place on 16th Aug. 1970 at about 5.15 p. m. at Ramganj Chopar in Jaipur City. The case of the claimant is that at the time of the accident, the deceaced Om and Om Kishan were sitting at Ramgani Chopar on the footpath and were selling 'Rakhees'. A truck bearing No. RSL 2367, driven by respondent No. 2, came from the side of Char Darwaia. The said truck was being driven at a high speed and it first collided with a city-bus and thereafter hit a cyclist and ultimately it went on the footpath, where the two boys. Om and Kishan, were selling 'Rakhees', and crushed them. Om, the son of Smt. Gyarsi Devi. died on the spot as a result of the injuries sustained by him, whereas the other boy. Kishan died in the Hospital. On 7th July, 1971. the claimant filed the claim petition, wherein, she claimed Rs. 50,000/- Rs. 25,000/-as compensation for the loss of benefit of the support of her only son, and Rs. 25,000/- as compensation for nervous shock pain, mental agony and buffering. In the said claim. Sain Das, respondent No. 1. the owner of the truck, Bashir Ahmed. respondent No. 2. the driver of the truck, and 'the New India Assurance Co.. Ltd.; respondent No. 3, the insurer of the truck, were impleaded as opposite parties.

3. The said claim was contested by respondents Nos. 1 and 3, who filed a joint written statement, wherein, it was stated that respondent No. 2, Bashir Ahmed. who was driving the truck at the time when the accident look place, had not been employed by respondent No. 1 as a driver, and that he was only a cleaner, and that at the time of the accident, respondent No. 2 was not working during the course of business and employment of respondent No. 1. According to the said written statement, on the date of the accident, the truck had brought stones from Kota and the driver of the truck had taken the truck to Jhetwara Road, near T. B. Sanitorium, for the purpose of unloading the stones at the godown of the consignee of the said stones, and as the unloading was likely to take some time, the driver of the truck had gone away to take his meals etc., and respondent No. 2, was left near the truck to keep a watch over the truck and that during the absence of the driver of the truck, respondent No. 2 took away the truck without the permission of the driver and went to Amer, and that on the way, he consumed alcohol and while returning, he caused the accident at Ramganj Chopar. According to the aforesaid written statement, the said act of respondent No. 2 was wholly unauthorised and unwarranted and was not connected with his employment and job, and that neither respondent No. 1. nor respondent No. ?, were liable for the wrongful action of respondent No. 2. In the said written statement, respondents Nos. 1 and 3 have also submitted that the amount for compensation, claimed by the claimant was highly excessive.

4. On the basis of the aforesaid pleadings, the Claims Tribunal framed the following issues :--

1. Whether Om Prakash died on 16-8-1970 because of the rash and negligent driving of the truck RSL 2367 by Bashir Ahmed opposite party No. 2 ?

2. Whether Bashir Ahmed was only a cleaner of the truck and was not driving the truck RSL 2367 at the time of the accident during the course of business and employment of non-applicant No. 1 ?

3. To what amount of compensation is the applicant entitled ?

It appears that another claim was made by Smt. Bhonri Bai. the mother of the other boy. Kishan. on behalf of himself and the minor brothers of Krishan, in which. Rs. 60,000/- was claimed as compensation from the respondents. Both the cases were tried together by the Claims Tribunal, and common evidence was recorded in both the cases.

5. The claimants in support of their cases, examined six witnesses, out of them, the witnesses, whose evidence is relevant to the present case, are police Constable. Babulal (A. W. 1); Nathu Ram (A. W, 2); Narain Lal (A. W. 4); and the claimant, Smt. Gyarsi Devi (A. W. 5) who are the eye-witnesses of the accident and Satya Prakash (A. W. 5). the Head-Constable attached to Police Lines, Jaipur, who inspected the truck and prepared the inspection report. The respondents, in support of their case, examined Saindas, (O. P. W. 1) the owner of the truck; Dharam Chand (O. P. W. 2), the driver of the truck; and Ram Singh (O. P. W. 3), who was the driver of another truck.

6. The claims Tribunal decided issue No. 1 in favour of the claimant and held that the accident was the result of rash and negligent driving of the truck by respondent No. 2. who was driving the truck at that time. The Claims Tribunal has further held that respondent No. 2 was only employed as a cleaner of the truck and that the driver of the truck had not entrusted the driving of the vehicle to respondent No. 2, and therefore, at the time of the accident, respondent was not driving the truck in fulfilment of his master's business. and that the owner of the truck could not be held liable for the wrongful acts of respondent No. 2. The Claims Tribunal further held that if the owner of the truck could not be held liable for the wrongful act of respondent No. 2, the Insurance Company was also not liable for the same inasmuch as the liability of the insurance Company is co-extensive with that of the owner of the truck. The Claims Tribunal assessed the compensation payable to the claimant at Rs. 36,000/- on the basis that at the time of the accident, deceased Om was earning Rs. 200A per month, out of which, he was keeping Rs. 50/- for himself and was giving Rs. 150/- per month to the claimant and that the age of claimant was 35 years and she was likely to survive for another 20 years, and therefore, the claimant was entitled to a compensation at the rate of Rs. 150/-per month for a period of 20 years. The Claims Tribunal, thus, assessed the loss of the pecuniary benefit to the claimant at Rs. 36,000/- and after deducting 15%, i. e., Rs. 5,400/- on account of lump sum payment and uncertainties of life the Claims Tribunal awarded Rs. 30,600/-to the claimant against respondent No. 2, but dismissed the claim petition as against respondents Nos. 1 and 3.

7. Being aggrieved by the award given by the Claims Tribunal, the claimant has filed this appeal. The appeal has been contested by respondents Nos. 1 and 3. Respondent No. 2 has not appeared to contest the appeal.

8. Shri H.C. Kastogi. the learned counsel for the claimant, has submitted that the Claims Tribunal has erred in dismissing the claim petition as against Respondents Nos. 1 and 3. The submission of Shri Rastogi was that the accident resulting in the death of the son of the claimant was caused due to the negligence of Respondent No. 2, who was an employee of Respondent No. 1 and that respondent No. 1 is vicariously liable for the wrongful act of his employee inasmuch as at the time of the accident, respondent No. 2 was acting in the course of his employment. In the alternative. Shri Rastogi has submitted that even if it be held that at the time of the accident, respondent No. 2 was not acting in the course of employment and that Respondent No. 1 cannot be held vicariously liable for the wrongful act of Respondent No. 2, there was negligence on the part of the driver of the truck in leaving the truck in the charge of Respondent No. 2 and that but for the said negligence on the part of the driver of the truck the accident would not have occurred and that respondent No, 1 is vicariously liable for the said negligence on the part of the driver of the truck, who was an employee of Respondent No. 1. Shri Rastogi has further submitted that if Respondent No. 1 is held to be liable for payment of compensation for the loss suffered by the claimant. Respondent No. 3, as the insurer, would also be liable to the extent of the liability of Respondent No. 1.

9. Shri R. M. Lodha, the learned counsel for respondent No. 3 and Shri H. M. Bhargava, the learned counsel for Respondent No. 1, have, on the other hand, submitted that Respondent No. 1 cannot be held to be vicariously liable for the wrongful act of respondent No. 2 because while driving the truck at the time of the accident. Respondent No. 2 was not acting in the course of his employment. As regards the liability of respondent No. 1 on the ground of negligence of the driver of the truck, the submission of the learned counsel for respondents Nos. 1 and 3 was that the driver of the truck had not acted negligently in leaving the truck in the charge of respondent No. 2.

10. At the outset, it may be observed that in view of the provisions contained in Section 96 of the Act the liability of the insurer is coextensive with the liability of the insured. If Respondent No. 1 is held liable for payment of compensation to the claimant that Respondent No. 3. as the insurer, would' also be liable to the same extent to which Respondent No. 1 is found liable. Thus, the main question which arise for consideration in this appeal is whether Respondent No. 1, can be held to be liable for payment of compensation to the claimant for the loss suffered by her on account of the death of her son. In the present case, the liability is being fastened on Respondent No. 1, in respect of the acts of respondent No. 2 and the driver of the truck. It will therefore, be necessary to examine the, law with regard to vicarious liability for the wrongful acts of the persons.

11. Primarily a person can only be held responsible for the consequences of his own action. But in certain circumstances, by reason of the particular legal relationship to the wrongdoer, a person may be held liable for the wrongful acts of another person. Such a liability, which is shown as vicarious liability in the law of torts, arises when there is relationship of master and servant or principal and agent between the person held liable and the person who has committed the wrongful acts, in order that a master may be held vicariously liable for the wrongful act of hi* servant, it is, however, necessary that the wrongful act of the servant must! fall within the course of the servant's employment. Similarly, the principal Scan be held to be vicariously liable for the wrongul act of the agent provided that the wrongful act falls within the scope of his agency. FOE the principle underlying the doctrine of vicarious liability, reference may be made to Hern v. Nichols (17011 1 Salk 289 wherein while holding a merchant liable for the deceit of the factor employed by him. Holt C. J.. has observed that 'for seeing somebody must be a laser by this deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver should be a loser than a stranger'. Another explanation that has been put forward for the doctrine of vicarious liability is that 'the master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it.' (Lord pearce in Imperial Chemical. Industries Ltd. v. Shatwell. 1965 AC 656 at p. 685).

12. In Lloyd v. Grace, Smite & Co., 1912. AC 716 Lord Macnaghten has observed that the expressions 'acting within his authority', 'acting in the course of his employment' and 'acting within the scope of his agency', speaking broadly, mean one and the same thing and, that the said expressions must be construed liberally. A wrong is said to fall within the scope of employment it it is expressly or implledly authorised by the master or is an unauthorised manner of doing something which is authorised or is necessarily incidental to something which the servant is employed to do. There are, however, no criteria to deride when or why an act, is within or outside the scope of employment and no single test is appropriate to cover all cases. The current tendency in England is to apply a very broad description to the expression 'course of employment'. The master is liable for the wrongful acts of the servant if the said wrongful act is committed while the servant is employed in an, activity for furthering the master's business, and the fact that the servant has acted in disregard of an express prohibition by the master is of' no avail. The master is, however, not liable where the servant was carrying on an activity, intended to benefit himself, alone. (See : Winfleld & Folowicz' on Tort, 11th Edition, pages 588 and 503-564).

13. The law in India is not very different. In Sita Ram. v. Santanu Prasad. AIR 1966 SC 1897 Hidayatullah. J. (as he then was), speaking for the majority, has observed that the scope of employment of a servant need not. be viewed narrowly. Subba Rao C. X. in his minority judgment has stated, that the doctrine of constructive liability is in a process of evolution' and that 'it is a great principle of social Justice'. In Sita Ram v. Santanu Prasad (supra) the Supreme Court has considered the law relating to the vicarious liability of the master for the wrongful act of his servant, in the particular context of motor accidents, and has laid down as under : (Para 27)

'The law is settled that a master is vicariously liable for the acts of his servant 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, In other words, 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. But it is equally well settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There Is a presumption that a vehicle is driven On the master's business and by his authorised agent or servant but the presumption can be met.'

In the facts of that particular case, the Supreme Court held that the presumption had been negatived because the vehicle involved in the accident was proved to be driven by an unathorised person and on his own business. iB that case, the de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from the servant of the master and the Supreme Court held that the owner would not be liable in such circumstances.

14. From the aforesaid decision of the Supreme Court, it is clear that the master is vicariously liable for the wrongful act of his servant in cases where the wrongful act was authorised by the master or it is a wrongful and unauthorised mode of doing some act authorised by the master. The master would be liable if the driver of a car, taking the car on master's business, commits on accident. The master would, however, not be liable if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself. The aforesaid decision also shows that a uresumption to be drawn that she vehicle is driven on the master's business and by his authorised agent or servant and that it is for the master to rebut the said presumption.

15. As noticed earlier, the claimant in the present case, is seeking to fasten the liability on respondent No. 1 on the following basis :

(1) The accident was caused due to rash and negligent driving of the truck by Respondent No. 2 and the said wrongful act was committed by Respondent No. 2 in the course of his employment by Respondent No. 1; and

(2) Dharam Chand, the driver of the truck, had acted negligently in leaving the truck in the care of Respondent No. 2 with the knowledge that Respondent No. 2 might drive the vehicle and the aforesaid wrongful act of the driver of the truck was done by him in the course of his employment as the driver of the truck by respondent No. 1,

16. It is not disputed that, at the relevant time. Respondent No. 2, Bashir Ahmed. as well as Dharam Chand were employees of Respondent No. 1. Respondent No. 1 can, therefore, be held to be vicariously liable for the payment of compensation for the loss sustained by the claimant on account of the death of her son in the accident provided that the said accident was caused due to the negligence of any of the aforesaid employees of Respondent No. 1 and the said negligence was committed by the employees during the course of their employment. In order to decide whether Respondent No. 1 is vicariously liable for the payment of compensation, it will be necessary to determine whether the accident, which resulted in the death of the son of the claimant was caused toy the negligence of Respondent No. 2 or Dharam Chand and whether the said negligence was committed by the employee concerned during the course of his employment.

17. In so far as Respondent No. 2 is concerned there is the finding recorded by the Claims Tribunal that the accident which had resulted in the death of the son of the claimant had been caused fey the rash and negligent driving of the truck by Respondent No. 2. The said finding has not been challenged before me by the respondents. Thus the only question which requires consideration is whether the aforesaid negligent act was committed by Respondent No. 2 during the course of his employment. In view of the decision of the Supreme Court in Sita Ram v. Santanu Prasad (AIR 1966 SC 1697) (supra) it will have to be presumed that the truck involved In the accident was driven on the business of Respondent No. 1 and by his authorised agent or servant and it was for Respondent Nos. 1 and 3 to rebut the said presumption. It is, therefore, necessary to examine whether the aforesaid presumption has been rebutted by Respondents Nos. 1 and 3.

18. In support of their case. Respondents Nos. 1 and 3 have examined Sain Das, Respondent No. 1, as (O. P. W. 1), Dharam Chand (O. P. W. 2), the driver of the truck and Ram Singh (O. P. W. 3), the driver of another truck. Sain Das (O. P. W. 1) has stated that Dharam Chand had been employed by him as the driver of the truck on a monthly ralary of Rs. 300/- and that Bashir Ahmed. Respondent No. 2, was only employed as a cleaner on a monthly salary of Rs. 150/- and he had not been authorised to drive the truck. He has further stated that at the time of the accident Respondent No. 2 was not driving the truck on his behalf or on behalf of the driver. Dharam Chand (O. P. W. 2) has deposed that he had been working as the driver of the truck since 1965 and that Bashir Ahmad was working as cleaner and his duty was to clean the vehicle and to check oil and water in the same. Dharam Chand has further deposed that on 16th Aug. 1970 he had brought stones from Kota and the same were to be unloaded at the shop of Bhola Ram Murlidhar near T. B. Hospital but as the unloading of the truck was to be done after 3 to 4 hours, he had gone to his home for taking meals and that when he returned after 3 to 4 hours he found that the stones had been unloaded and that the truck was missing. The said witness has further stated that he had neither instructed nor authorised Respondent No. 2 to drive the truck and that he had taken the key with him. Ram Singh (O. P. W. 3). who was the driver of the truck which was standing behind the truck driven by Dharma Chand, has stated that Dharam Chand had told Respondent No, 2 that he was going to his home for taking his meals and he had instructed Respondent No. 2 to have the truck unloaded. The said witness has also stated that generally the cleaner is allowed to drive the vehicle and in course of time the cleaner becomes the driver.

19. The aforesaid evidence produced by the respondents shows that Respondent No. 2 had been employed as a cleaner and that he had not been authorised to drive the truck and that before leaving the truck, the driver of the truck had instructed Respondent No. 2 to have the truck unloaded. There is, however, nothing on record to show that the truck was to be unloaded at the place it was parked and that it was not necessary to move the truck for the purpose of unloading it. The said evidence also shows that a cleaner often drives the vehicle.

20. There are cases where the master has been held vicariously liable even though the servant has usurped the job of another provided what he does is sufficiently clearly connected with his master's business and is not too gross a departure from the kind of thing he is employed to do. In Kay v. I. T. W. Ltd (1968) l QB 140 a storekeeper employed by the defendants needed to return a fork-lift truck to a warehouse but finding his way blocked by a large lorry belonging to a third party, he attempted to move that lorry himself without first inquring for the driver of the lorry, and by his negligence in doing so caused an injury to the plaintiff. Taking into account the fact that it was clearly within the terms of the storekeeper's employment to move certain obstacles out of the way if they blocked the entrance to the warehouse, the Court of Appeal held that his act of trying to move the lorry was not so gross and extreme as to take it outside the course of his employment. Similarly, in L. C. C. v. Cattermoles (Garages) Ltd., (1953) 1 WLR 997 a garage-hand was not. allowed to drive vehicles but it was part of his duty to move them by hand. In spite of the said prohibition he drove a vehicle. His employers were held liable for his negligence while driving the vehicle.

21. On the basis of the evidence adduced in the present case, it is not possible to hold that driving of the vehicle is too gross a departure from the kind of thing and a clearner is employed to do and that Respondent No. 1 can be held liable for the negligence of Respondent No. 2 while driving the vehicle provided what he was doing was sufficiently closely connected with the business of Respondent No. 1 and the mere fact that Respondent No. 2 was only employed as a cleaner and was not authorised to drive the truck would not take it outside the course of employment. Since there is a presumption that the truck involved in the accident was driven by Respondent No. 2 on the business of Respondent No. 1 it was necessary for the respondents to rebut the said presumption by adducing the necessary evidence to show that the truck was not being driven by Respondent No. 2 on the business of Respondent No. 1 but for the benefit of Respondent No. 2 alone. In their written statement Respondents Nos. 1 and 3 did raise the plea that Respondent No. 2 along with one of his friends had gone to Amer in the truck and that on the way back he consumed alcohol and caused the accident. In other words, the case of the respondents was that at the time of the accident Respondent No. 2 had taken the vehicle-'on a frolic of his own.' No evidence has, however, been adduced by the respondents in support of the aforesaid plea. In the circumstances, it must be concluded that the respondents have failed to rebut the presumption that the truck involved in the accident was driven by Respondent No. 2 on the business of Respondent No. 1. Once, it is held that at the time of the accident the truck was driven by Respondent No. 2 on the business of Respondent No. 1 the conclusion is inevitable that negligent act of Respondent No. 2 in causing the accident had been committed in the course of his employment and Respondent No. 1 would be vicariously liable for the payment of compensation for the loss sustained by the claimant on account of the aforesaid negligent act of Respondent No. 2.

22. As regard the second ground for fastening the liability on Respondent No. 1. viz., negligence on the part of Dharam Chand, the driver of the truck, in leaving the truck in the charge of Respondent No. 2, it may be observed that there is no dispute that at the time when Dharam Chand had left the truck and had Rone to his home for taking his meals, he was engaged in an activity for furthering the business of his master, i. e. Respondent No. 1. and, therefore, the said act of Dharam Chand would fall within the scope of his employment. Thus, the only question which requires determination is whether in leaving the truck in the charge of Respondent No. 2, the driver Dharam Chand can be said to have acted negligently and the said negligence of the driver was the effective cause of the accident resulting in the death of the son of the claimant. Before referring to the evidence on record for the purpose of deciding this question, it would be convenient to take note of some of the cases in which a similar question has arisen for consideration.

23. In Engelhart v. Farrant & Co., (1897) 1 QB 240 two servants were engaged upon their master's business, one was to drive a cart and the horses and the other -- a boy -- travelling in the cart for the purpose of delivering the parcels. The driver left the cart in order to get oil for the lamp and in the meanwhile drove the cart with a view to turn it and in doing so he caused an accident. The master was held liable on the ground that the driver had acted negligently in the course of his master's business. It was held that the driver should have made the boy get out and get the oil and he himself should have remained looking after the horse and cart and that instead of doing that he left the duty he was employed to do to the boy and that the aforesaid act of the driver in leaving the boy in the cart with the means of driving oft at any moment made what the driver did an effective cause of the damage caused to the plaintiff.

24. In Ganga Sugar Corporation Ltd. v. Sukhbir Singh, 1973 ACJ 449: (AIR 1974 All 113) the driver of a jeep, finding that his way was blocked by a Barat Party, left the jeep on the road and went to the Police Station. The ignition key was left in the jeep and someone drove the jeep and caused an accident. It was held that the driver was guilty of negligence in leaving the keys in the jeep and that he should have reasonably anticipated that someone would get into the jeep and try to drive it and therefore, the master was held liable to pay the compensation.

25. In Kilari Mammi v. Barium Chemicals Ltd. 1979 ACJ 58: (AIR 1979 Andh Pra 75), the driver of a jeep parked the jeep and went to a shop but he left the ignition key in the jeep. Another person who was also an employee of the defendant company, which owned the jeep, started the jeep and drove it into a shop causing damage to the articles in the shop and causing injuries to some persons in the shop. It was held that the driver had acted negligently in leaving the ignition key in the ieep and that it was the real and effective cause of the accident and that the master was liable for negligence of its servant, viz., the driver of the jeep.

26. 'In the present case. I find that Ram Singh (O. P. W. 3) has stated that while leaving Dharam Chand had left instruction with Respondent No. 2 to have the truck unloaded. This means that Dharam Chand had directed Respondent No. 2 to take all the steps necessary for having the truck unloaded. This would include moving the truck from the place it was standing to some other place for the purpose of unloading the stones. It is true that Dharam Chaud (O. P. W. 2) has deposed that he had taken the keys with him but he has not specified the keys which were taken by him. Moreover, no reliance can be placed On the said statement of Dharam Ghand because the truck was actually started by Respondent No. 2. and there is nothing on record to show that it was possible to start the truck in the absence of the ignition key. In my view the duty of having the truck unloaded was cast on the driver Dharam Chand but instead of doing that he left the duty he was employed to do to Respondent No. 2 and that the aforesaid act of Dharam Chand in leaving Respondent No. 2 with the truck with the means of driving off at any moment made what Dharam Chand did an effective cause of: the damage caused to the claimant. The present case thus falls within the ambit of the law laid down 'in Engel hart v. Farrant & Co., (1897) QB 240 (supra) and the Respondent No. 1 would be liable for the loss suffered by the claimant on account, of the aforesaid negligent act of Dharam. Chand committed during the course of his employment.

27. The result is that Respondent No. 1 is vicariously liable for payment of compensation to the claimant for the loss suffered by her on account of the death of her son for the reason that, the said damage was caused by the rash and negligent act of Respondent No. 2 during' the course of his employment and also for the reason that the said damage was caused due to the negligence of Dharam Chand; the driver of the truck, during the course of his employment. If Respondent No. 1 is held vicariously liable for the payment of compensation to the claimant. Respondent Nor 3 must also be held liable to the same extent to which Respondent No. 1 is found liable. In my opinion, therefore, the claims Tribunal was in error in holding that Respondents Nos. 1 and 3 were not liable for payment of compensation to the claimant and the award of the claims Tribunal dismissing the claim as against Respondents Nos. 1 and 3 cannot be upheld,

28. The next question which arises for consideration is as to amount of compensation that, should be awarded to the claimant. The Claims Tribunal has assessed the compensation at Rs. 30,600/-on the basis that the deceased was earning about Rs. 200/- per month out of which he must be spending about Rs. 50/- per month over himself and was giving Rs. 150/- per month to the claimant. The Claims Tribunal has observed that the age of the claimant at the time of accident was 35 years and she is likely to survive for another 20 years and that the deceased, notwithstanding his marriage, would have continued extending financial help to the claimant at the rate- of Rs. 150/- per month for a period of 20 years. The Claims Tribunal held that because of the death of her son as a result of the accident the claimant has been deprived of reasonable expectation of pecuniary benefit to the extent of Rs. 36,000/- and after deducting Rs. 5,400/-. 15% for lumpsum payment and uncertainties of life, the Claims Tribunal assessed the amount of compensation at Rs. 30,600/-. In making the aforesaid assessment, the Claims Tribunal failed to notice that in the claim petition, the claimant has claimed Rs. 25,000/- only on account of deprivation of benefit of the support from her son and the loss on account of expectation of life of the deceased. In the claim petition, the claimant has claimed a sum, of Rs. 25,000/- for nervous shock, pain and menial agony suffered by her on account of the accident resulting in the death of her son. I find that the Claims Tribunal has not recorded any finding with regard to second head of the claim based on nervous shock, pain and mental agony suffered by her. The law to, however, well settled that in the event of a fatal accident, compensation can be claimed by the relatives of the deceased for the loss of their dependency under Section 1A of the Fatal Accidents Act, 1855 and the legal heirs of the deceased can claim compensation for the loss caused to the estate of the deceased under Section 2 of the Fatal Accidents Act, 1855. The dependents are not entitled to any compensation for sentimental damage, harassment or pain and suffering. (See Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601. per Lord Wright; Lachman Singh v. Gurmit Singh. 1979 ACJ 170: (AIR 1979 Punj & Har 50) H. P. Road Transport Corporation v. Pandit Jai Ram (1980 ACJ 1): (AIR 1980 Him Pra 16).) The claimant could not, therefore, be awarded any compensation under the second head and the claims Tribunal has not committed any error in not awarding any compensation to the claimant under that head. As regards compensation for loss of dependency and loss to the estate on account of expectation of life, the claimant cannot be awarded more than the sum of Rs. 25,000/- claimed by her in the claim petition and the Claims Tribunal has committed an error in awarding compensation in excess of the amount claimed by the claimant in the claim petition. The compensation that can be awarded to the claimant as against Respondents Nos. 1 and 3 can only be to the extent of Rs. 25,000/- claimed by the claimant in the claim petition.

29. As regards the award of Rs. 30,690/- given by the Claims Tribunal as against Respondent No. 2, it may be observed that Respondent No. 2 has not filed any appeal challenging the said award. But in view of the fact that a sum of Rs. 25,000/- is being awarded as compensation to the claimant as against Respondents Nos. 1 and 3, I am of the opinion that an award for an amount in excess of Rs. 25,000/- could not be given as against Respondent No. 2 also. In order to avoid inconsistent decrees it would be appropriate to exercise the power under Order 41, Rule 33 CPC and to reduce the amount of compensation awarded as against Respondent No. 2 from 30,600/- to Rs. 25,000/-.

30. The appeal is therefore, partly allowed and the award gives by the Claims Tribunal dismissing the date petition as against Respondents Nos. 1 and 3 is set aside and the claimant is awarded a sum of Rs. 25,000/- as compensation against Respondents Nos. 1 and 3. In case this amount is not paid within two months it shall carry interests @ 6% per annum. The award given by the Claims Tribunal as against Respondent No. 2 is modified to the extent that instead of Rs. 30,600/-the amount of compensation awarded to the claimant is Rs. 25,000/- (Rupees twenty five thousand only). In the circumstances of the case, the parties are left to bear their own costs in this appeal.


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