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Venkatachalam Vs. Sundarambal Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Company
CourtChennai High Court
Decided On
Case NumberC.M.A. No. 3 of 1981
Judge
Reported inAIR1983Mad197; [1987]61CompCas339(Mad); (1983)2MLJ361
ActsMotor Vehicles Act, 1939 - Sections 84 and 110B
AppellantVenkatachalam
RespondentSundarambal Ammal and anr.
Appellant AdvocateV.T. Gopalan and ;Radha Gopalan, Advs.
Respondent AdvocateR. Balasubramaniam, Adv.
Excerpt:
.....parking of bus - leaving of key intact in bus fascilated and assisted in occurring of accident - vehicle left unattended by driver and conductor - negligence of driver primary cause of accident - evidence on record showed accident as outcome of negligent act on part of driver - appellant being owner of vehicle liable for damages sustained by respondent - award of tribunal upheld. - - the driver of the bus belonging to the appellant as well as the conductor had left the bus with the key of the bus in position and had gone to take their meal. during their absence, the bus in question was started and driven by one sengodan in a rash and negligent manner, with the result that the bus came out of the exit gate of the bus stand and went straight into the shop of the first respondent and..........for that accident. in other words, according to the appellant, the unauthorised driving of the vehicle by sengodan would not enable the first respondent to claim compensation by way of damages against the appellant, but that such a claim will have to be made only against him who drove the vehicle in that manner.3. the second respondent insurance company in its statement took the stand that the driver as well as the conductor of the bus had left the bus in the bus stand and had gone out for the purpose of taking their meal and that taking advantage of their absence, the bus had been driven by sengodan without any permission and without holding a valid driving licence for driving the vehicle and that was responsible for the accident and, therefore, as the vehicle had been driven by an.....
Judgment:

1. This appeal, at the instance of the owner of a bus, is directed against the award of the Motor Accidents Claims Tribuna, Cuddalore in C. P. 346 of 1978. The first respondent had been carrying on the business of running a cycle shop and selling spare parts under the name and style of `Golden Cycle Stores' at No. 87-B Lawrence Road, Cuddalore 2, just opposite to the bus stand at Cuddalore. For the purpose of lending cycles on hire, she had purchased 9 cycles in all and it was the practice to park the cycles in front of the shop during night time. On 17-6-1978 at about 9-50 p.m. the driver of the bus belonging to the appellant as well as the conductor had left the bus with the key of the bus in position and had gone to take their meal. During their absence, the bus in question was started and driven by one Sengodan in a rash and negligent manner, with the result that the bus came out of the exit gate of the bus stand and went straight into the shop of the first respondent and stopped after hitting the shop and causing damage to the buildings, rolling shutter, spare parts as well as the cycles kept there. The first respondent stated that she sustained damages only on account of the rash and negligent driving of the bus belonging to the appellant and that, therefore, the appellant was liable to pay her compensation in a sum of Rs. 12,810 comprised of (1) a sum of Rs. 3000 towards the value of the 9 cycles, (2) Rs. 3500 towards damages to rolling shutters, (3) Rs. 1500 towards the expenses incurred for repairing the top portion of the building and the name board, (4) Rs. 150 for provision of tube lights, (5) Rs. 1500 for damages to the show case, spare parts etc., and (6) Rs. 3160 towards loss of income between 18-6-1978 and 27-11-1978 on an average of Rs. 20 per day.

2. Resisting this claim of the first respondent, the appellant stated that the driver of the bus had parked the bus inside the bus stand and had gone out for taking his meal and that there was no separate ignition key for starting the bus. At that time Sengodan (who was impleaded as the third respondent in C. P. No. 346 of 1978), who was not in any manner connected with the appellant and was not expressly or impliedly authorised either by the driver or the conductor of the bus, started the vehicle and had involved it is an accident so that neither the driver nor the conductor nor even the appellant would be in any manner responsible for that accident. In other words, according to the appellant, the unauthorised driving of the vehicle by Sengodan would not enable the first respondent to claim compensation by way of damages against the appellant, but that such a claim will have to be made only against him who drove the vehicle in that manner.

3. The second respondent Insurance Company in its statement took the stand that the driver as well as the conductor of the bus had left the bus in the bus stand and had gone out for the purpose of taking their meal and that taking advantage of their absence, the bus had been driven by Sengodan without any permission and without holding a valid driving licence for driving the vehicle and that was responsible for the accident and, therefore, as the vehicle had been driven by an unauthorised person, no liability can be fastened upon the Insurance Company. It was also the further plea of the Insurance Company that Sengodan, who drove the bus, was convicted and sentenced to pay a fine and that in any event the liability of the Insurance Company in respect of damage to property cannot exceed Rs. 2000.

4. Sengodan, who, according to the first respondent, drove the vehicle was impleaded as the third respondent in the court below and the driver of the vehicle as the fourth respondent. But both of them remained ex parte.

5. Before the Motor Accidents Claims tribunal, on behalf of the first respondent. Exs. A-1 to A-5 were marked and P. Ws. 1 and 2 were examined, while, on behalf of the appellant, Exs. B-1 to B-7 were filed and R. Ws. 1 and 2 were examined. On a consideration of the oral as well as the documentary evidence the Tribunal found that Sengodan should have been the broker of the appellant, that the driver should have asked him to take the bus and leave it at the Pondy platform in the bus stand and also should have left the ignition key to enable him to do so and that while Sengodan was acting on behalf of the drive, ignorant of taking the bus on reverse, he should have cause the accident by driving it straight into the cycle shop belonging to the first respondent. It was also further found that even if Sengodan had not been the broker of the appellant, still the conduct of the driver and the conductor in leaving an utter stranger in the bus and also the ignition key in the dash board and going out for taking meal would amount to negligence on their part in respect of which the owner of the vehicle would be liable. Adverting to quantum of compensation claimed by the first respondent, the Tribunal fixed that a sum of Rs. 10,000 would be just and adequate compensation in respect of the damages sustained by the first respondent as a result of the accident. On these conclusions, an award was passed by the Motor Accidents Claims Tribunal in favour of the first respondent herein for a sum of Rupees 10,000 with interest at 6 per cent per annum from 27-11-1978, when the petition was filed, till the date of payment. The petition was dismissed as against the second respondent-Insurance Company. It is the correctness of this award that is challenged in this appeal.

6. The learned counsel for the appellant submitted that sengodan who drove the vehicle was an utter stranger and had nothing to do with the appellant and, therefore, there was no relationship of master and servant between the appellant and Sengodan and as such, the appellant could not have been made liable for the damages sustained by the first respondent. The further contention of the learned counsel for the appellant is that even assuming that Sengodan had acted as the broker in respect of the bus belonging to the appellant, there was nothing to indicate that he had been authorised either by the owner or even by the driver of the vehicle to drive the same and in the absence of any such authorisation, the appellant cannot be fixed with the responsibility for the accident and also the liability for damages. Attention was also drawn by the learned counsel to the circumstances that no suggestion even was made to the driver examined as R.W. 2, to show that the ignition key had been kept by him in the vehicle itself and that since an overt act is required to move a stationary bus, the mere leaving of a vehicle even with the keys intact would not be per se objectionable and, therefore, the appellant cannot be held responsible for the accident or for the sustaining of damages by the first respondent as a result thereof. A faint attempt was also made by the learned counsel for the appellant to submit that the quantum of damages assessed and awarded by the court below is excessive.

7. On the other hand, the learned counsel for the first respondent submitted that whatever be the capacity of the person who drove the vehicle at the time of the accident, the driver of the bus had not taken care to see to it that the vehicle could not be moved in his absence and had, therefore, not conformed to the provisions of S. 84 of the Motor Vehicles Act, but had left the key in the vehicle, which was a violation of the statutory duty as well as an improper discharge of his duties as a driver and, therefore, the appellant should bear the consequences of the negligent act of his driver. The learned counsel would also submit that in respect of an act flowing out of the negligence of the driver who had not discharged his duties properly, the appellant would undoubtedly be vicariously liable and cannot avoid such liability. Regarding the quantum of compensation awarded by the Tribunal, the learned counsel drew attention to the entries in the account books and the vouchers and bills to support the expenditure incurred by the first respondent on several heads and contended that the quantum fixed by the Tribunal was just and reasonable and cannot at all be characterised either as excessive or exorbitant.

8. With reference to the manner in which the accident took place, we have the first information report Ex. B-6 dated 17-6-1978, given by the driver of the vehicle examined as R. W. 2, to the police. That was given after an interval of about an hour and a half after the accident. Therein, R. W. 2 has stated that while the bus was plying between Pondy and Cuddalore, on 17-6-1978 at about 7-50 p.m. one Sengodan got into the bus at Manjakuppam and that after reaching Cuddalore, the bus was parked in the Cuddalore bus stand on the right side near the exit gate and thereafter the conductor Puthirasami and himself got down from the bus to go for taking tiffin and tea leaving behind the key in the witch board of the bus and that was at about 9-50 p.m. Ex B-6 further states that Sengodan did not leave the bus and that one Arumugham came running and informed that somebody was starting the bus and that thereafter he went and saw that the bus had dashed against the cycle shop next to Ananda Bhavan as a result of which the front portion of the bus was damaged and all the 9 cycles parked in front of the cycle shop had also been damaged. Thereafter R. W.2, the conductor and Arumugham and others are stated to have caught Sengodan and handed him over to the police, Thus, the contents of Ex. B-6 given almost immediately after the accident without any occasion for refinement or embellishment clearly shows that the key of the vehicle even according to the driver of the vehicle, had been left intact. Ordinarily, when a vehicle is parked and the driver is desirous of going away from the place where the vehicle is so parked, certain elementary precautions have to be taken to see to it that the vehicles is stationed in such a manner that nobody can attempt to move or drive the vehicle from the place where it is parked. In this case Ex. B-6 clearly indicates that R. W. w the driver of the vehicle did not take all the necessary precautions for parking the bus in such a manner as to rule out the possibility of some body meddling with the bus during his absence and thereby causing and accident. The driver of the bus R. W. 2, in this case, has facilitated and assisted the occurring of the accident by leaving the key in the vehicle itself. The negligence of the driver in having so left the key in the vehicle was the primary cause of the accident. If R. W. 2 while leaving the bus, had taken care to remove the starting key and has also taken other precautions to ensure that the vehicle could not be moved during his absence, then different considerations may arise. But such is not the case here. The leaving of the ignition key by R. W. 2 had facilitated the person who drove the vehicle at the time of the accident, to start the vehicle and also drive the same. The accident could have been averted or avoided if R.W. 2 had not left the ignition key in the bus. In other words, this would be case to which the principle of res ipsa loquitur would apply. The accident in this case had taken place only on account of the key taken place only on account of the key of the bus having been left in the bus when the bus was not attended to either by the driver or by the conductor. Under those circumstances the appellant as the owner of the vehicle would undoubtedly be liable for the accident that had been caused by the negligence of his own servant R. W. 2. In this view, it is really unnecessary to deal with or examine whether the person who drove the bus was broker or not and whether even if he was not such a broker, he was driver to drive the bus or not and whether on that basis the appellant could avoid his liability.

9. Turning now to the quantum of damages, it is seen that even in Ex. B-6, R. W. 2 had admitted the damage to the 9 cycles kept in the shop of the first respondent. Though P.W. 2 would state that the cycles where about a year or two old, and that they would be valued at Rs.300 each, the fixation of compensation at Rs 2500 for all the 9 cycles does not appear to be excessive.

10. It is seen from Ex. A-1 that the first respondent had purchased rolling shutters on payment of Rs.2000 and has also fixed the same by incurring an expenditure of Rs.750 as shown by Ex. A-2,. This expenditure is also borne out by the entries made in Ex. A-4 at pages 13 and 14. Under this head, the Tribunal was quite correct in awarding Rs.2750 towards compensation for damage to the rolling shutters.

11. Regarding the claim of Rs.1500/-towards damage to the building and the name board P. W. 2 had stated that the name board had been damaged and had also been replaced at a cost of Rs.1500/- and that tube lights had been fixed at a cost of Rs.150/-and the damage to the show case and the cycle spares parts would amount to Rs.1500/-. The bill Ex. A-3 show s that angle, zinc sheets, tube lights, paint etc., had all been purchased by the first respondent for Rs.750/-. The entry in the day book Ex. A-4 shows the expenditure of this amount. Another sum of Rs.575/-had been incurred by the first respondent towards the cost of cement, tiles, pipes etc. A sum of Rs.1200/- had been paid as wages etc, and this amount has also been entered in the accounts. there is no material to show the damages to the cycle spare parts or even the lights. The Tribunal was justified in awarding a sum of Rs.3150/-towards compensation for damage to the building lights and the show case.

12. That leaves for consideration the loss of income from the cycles claimed by the first respondent between 18-6-1978 and 17-11-1978. Though there is no clear evidence either oral or documentary to show the exact income realised by the first respondent by the hire of the cycle, yet, the Tribunal had proceeded to arrive at the income on the basis of an average per day and held that taking Rs.10/- as the average income for all the cycles and this cannot be stated to be either unreasonable or otherwise excessive. On this basis, the Tribunal had fixed a sum of Rupees 1600/-, as the loss sustained by the first respondent on account of the loss of income. This also appears to be very reasonable and cannot be characterized to be high.

13. Thus, on a consideration of the oral as well as the documentary evidence, it is established beyond doubt that the accident was the outcome of the negligent act on the part of the driver (R. W. 2) of the appellant in having left the key in position when the vehicle was parked, and, therefore, the appellant would be liable in respect of the damages sustained by the first respondent as a result of the accident involving the vehicle of the appellant. No case for interfering with the quantum of damages awarded by the Tribunal is so shockingly high. Having regard to these considerations, the award of the Tribunal is upheld and the appeal is dismissed. But there will be no order as to costs in this appeal.

14. Appeal dismissed.


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