Dalip Singh vs Smt. Mukand Kaur and others

Rajendra Nath Mittal, J.—This appeal has been filed by Dalip Singh, owner of truck No. PNT 3795 against the judgment of the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal), dated June 14, 1972, by which an award for the recovery of Rs. 20.000/- has been passed against him and Jagir Singh.

Briefly the case of Mukand Kaur, widow and Jit Singh and Balbir Singh, minor sons of Ujagar Singh, was that Jagir Singh, cleaner, was driving truck No. PNT 3795, belonging to Dalip Singh in a negligent manner between 2 and 3 P.M. on October 8, 1968, near Bus Adda, Samana. It is alleged that Ujagar Singh deceased was standing near the bus stand on the katcha portion of the road where he was run over by the truck. He received multiple injuries on different parts of the body and consequently died while he was being taken to Rajendra Hospital, Patiala. The petitioners filed a petition claiming Rs. 80000/- as damages from Dalip Singh, Jagir Singh and the Hindustan General Insurance Company Ltd., the insurance of the truck.

The petition was contested by the respondents. Dalip Singh inter alia pleaded that Jagir Singh was not in his employment, but in fact, was an employee of Ram Singh and Siri Ram and he drove the truck in his absence and without his authority. The Insurance Company contested the same on the ground that Jagir Singh did not hold any licence and consequently it was not liable to pay any damages.

On the pleadings:--

Whether the occurrence of this case took place due to the fault and negligence of Jagir Singh. If so, with what effect ?

To what amount the claimants are entitled and from whom ?

Whether Jigir Singh respondent was driving the truck without obtaining any authority to do so from the owner of the truck, namely, Dalip Singh. If so, with what effect ?

It is not disputed that Jagir Singh was not holding any licence on the date of the accident. The learned Tribunal held that the accident took place on account of the negligence of Jagir Singh, but he was driving the truck on behalf of the owner of the truck with his authority and that both of them were liable to pay Rs. 20000/- as damages. Consequently the claim of the petitioners to the extent was allowed. Dalip Singh has come up in appeal against the judgment of the Tribunal to this Court.

The first question that arises for determination is whether Dalip Singh is a liable for the negligent act of Jagir Singh. It is contended by the learned counsel for the appellant that the appellant left the truck at the canal at Samana under the charge of Mukhtiar Singh, Cleaner, for being washed. He further argues that he had told Mukhtiar Singh to inform him after having washed the truck so that he could take it back. The learned counsel submits that Jagir Singh, without any authority from the appellant, took the truck in the absence of Mukhtiar Singh, we had gone to inform Dalip Singh appellant that the truck had been washed and met with the accident. It is also submitted by him that in fact the keys of the truck were with Dalip Singh and Jagir Singh started the engine without the keys. In the circumstances he submits that no liability regarding the accident can be fixed upon the appellant.

I have heard the learned counsel for the parties, at a considerable length. In order to decide the question, it is to be first seen whether Jagir Singh was the Cleaner of Dalip Singh, appellant, or not ? Dalip Singh in his statement, denied that Jagir Singh was his cleaner. He stated that Mukhtiar Singh was his Cleaner and he left the truck with him at about 12 noon on the canal at Samana for washing. He also deposed that Jagir Singh was employed as a Cleaner by Siri Ram Ram Singh. In support of his version, he produced Siri Ram, R.W. 1, who affirmed the aforesaid facts. He stated that he and his brother Ram Singh owned three trucks and Jagir Singh was a Cleaner on one of his trucks for about 4� years. He also deposed that Mukhtiar Singh was the Cleaner of the truck driven by Dalip Singh. In cross-examination, he was not put any question challenging the aforesaid facts. Rameshwar Dass, R.W. 2, is the Manager of the Truck Operators Union, Samana, and he supported Siri Ram, R.W. 1, Vir Singh, R.W.3, says that about three years back, Mukhtiar Singh, Cleaner was washing truck No. PNT 3795, of Dalip Singh was at first washing the truck of Dalip Singh. From the statement of this witness also it follows that Mukhtiar Singh was Cleaner of Dalip Singh appellant. Bant Singh, A.W. 9, has been produced by the claimant-respondents to show that Jagir Singh was the Cleaner of the truck of the appellant. He stated that he had gone to wash his truck on the canal at Patiala-Samana road. One more truck was being washed there. He was washing his truck while a boy was washing the other truck. The owner of that truck came and handed over the key of the truck and asked the boy to bring that truck as he was going. The boy took the truck. He further states that he learned subsequently that the truck had met with an accident and on reaching the spot he found that truck No. PNT 3795 was involved in the accident. He gave the name of the deceased as Ujagar Singh. In cross-examination, he said that he did not know the name of the boy who drove the truck and did not remember his description. The witness, not to speak of giving the name of the Cleaner, could not even give his description. He belongs to Nabha. His presence at the canal appears to be highly improbable. His statement also does not inspire confidence. The witnesses produced by the appellant are independent and there are no grounds to reject their testimony. After taking into consideration the aforesaid statements, I am of the opinion that Jagir Singh was a Cleaner of Siri Ram Ram Singh and not that of the appellant.

Now it is to be seen that if Jagir Singh was not the Cleaner of the appellant, whether the appellant can be held responsible for the negligent act of Jagir Singh ? It is not disputed that when the truck met with the accident, it was being driven by Jagir Singh. The case of Dalip Singh respondent is that he left the truck with Mukhtiar Singh at the canal for being washed a and that he had gone to a place two or two and a half furlongs from there along with the keys of the vehicle, after instructing Mukhtiar Singh to call him after the truck had been washed. He had not authorised Jagir Singh to drive the vehicle. He, however, admitted in his cross-examination that the truck could not be started without a key. Bhagwan Das. A.W. 2 and Pal Singh A.W. 7, are the witnesses in whose presence the occurrence took place. They were not questioned that Jagir Singh was driving the truck without the keys. It appears from the aforesaid circumstances that the key of the truck were left by Dalip Singh with his Cleaner, Mukhtiar Singh, and he allowed Jagir Singh to drive the truck from the canal upto place where it was to parked. It is not disputed that Jagir Singh did not hold any driving licence at that time. The statements of Bhagwan Das and Pal Singh, A.Ws., also establish that Jagir Singh was driven the truck rashly and negligently and consequently he was responsible for the accident.

The question to be settled now is that if Jagir Singh had been allowed to drive the truck by Mukhtiar Singh and not by Dalip Singh. Can Dalip Singh be liable for praying the compensation to the legal heirs of the deceased? It is a well-settled proposition of law that a master cannot be vicariously liable for the act of his servant unless the act was done in the course of his employment. Reference may be made to a judgment of the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 1966 ACJ 89. In that case the owner of a car had entrusted the car to another person for plying it as a taxi. The driver gave it to a third person who was engaged by him as a Cleaner for the purpose of taking a driving test. While the Cleaner was taking the test, he knocked down and injured a person. It was held by the Supreme Court that the owner was not liable to pay compensation to the legal representatives of the deceased, Hidayatullah, J., while speaking for the majority, observed as follows:--

The law is settled that a master if 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. 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 make 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.

The above observations are fully applicable to the present case. As already observed above. In this case the keys of the truck were entrusted to Mukhtiar Singh, the Cleaner of the truck and he authorized Jagir Singh to drive it from the site of the canal up to the place of parking of the truck. Mukhtiar Singh had no authority to entrust the keys to Jagir Singh for driving the truck. The owner of the truck had no control over the acts of Jagir Singh. Consequently he cannot be held responsible for his acts and omissions. Reference may also be made with advantage to the observations of this Court in Bisban Devi and Others Vs. Sirbakhsh Singh and Another, wherein it was held that the owner of a vehicle cannot be held responsible for the acts and omissions of a person over whom he had no control, it was further observed that the owner would not allow a person to drive his vehicle, who does not hold a licence. After taking into consideration the aforesaid circumstances I am of the opinion that Dalip Singh is not liable to pay the compensation to the legal representatives of the deceased. Jagir Singh shall, however, be liable to pay compensation to the claimants as has been held by the Tribunal.

It has been faintly argued by the learned counsel for the appellant that the compensation had not been correctly assessed in the present case. The claimants examined Babu Singh, A.W. 3 and Pal Singh, A.W. 7, for proving the age of the deceased. Pal Singh, A.W., stated that the deceased was 35 years of age at the time of his death. Babu Singh, A.W. gave as 40 years. The doctor in his post-mortem report gave the age of the deceased as 35 years. The learned Tribunal after taking into consideration the aforesaid statements and the report of the doctor, came to the conclusion that the deceased was 35 years of age at the time of his death. In my view, the conclusion of the Tribunal on this matter is unassailable and I affirm the same. According to Nihal Chand, A.W. 1, the total salary of the deceased was Rs. 271/- per mensem. In addition, he was entitled to get bonus at the rate of 4% per annum. After adding the amount the bonus, the Tribunal worked out the total salary of the deceased as Rs. 283/- per mensem, Out of the said amount, he deducted Rs. 150/- as his personal expenses end Rs. 30/- as house rent, and held that he must be contributing Rs. 100/- per mensem towards his family expenses. After holding that he would have worked at least till the age of 60, the total compensation of Rs. 30,000/- was awarded to the legal representative of the deceased The Tribunal further gave deductions of Rs. 10,000/- on account of the Provident Fund which was likely to go to the hands of the legal representatives and the uncertainties of life, and reduced the compensation to Rs. 20,000/-. In my view the compensation assessed in the present case is correct and there is no scope for its reduction.

For the reasons recorded above, I accept the appeal of Dalip Singh and modify the order of the Tribunal to the extent that the claimants shall not be entitled to recover the amount of compensation from Dalip Singh appellant, but they shall be entitled to recover the amount from Jagir Singh. In the circumstances of the case I, however make no order as to costs.