Pritam Chand vs Himachal Road Transport Corporation and Another

Deepak Gupta, J.—This appeal hasbeen filed u/s 173 of the Motor Vehicles Act against the award of theMotor Accidents Claims Tribunal, Shimla dated 8.9.1997 dismissing the claim petition filed by the appellant.

The facts necessary for disposal ofthe petition are that one Pritam Singh wasthe driver of jeep No. HIM 537 owned bythe Himachal Road Transport Corporation,hereinafter referred to as the H.R.T.C. Hehad gone on official duty with Kanshi RamVerma, Chief Inspector of the H.R.T.C.According to the version of the respondentas stated by Kanshi Ram Verma, they hadreturned from tour on 26.3.1995 at 9.45p.m. He had instructed the driver PritamSingh to park the vehicle at the Main BusStand and to get the same repaired nextday at Tara Devi Workshop. The driverPritam Singh, admittedly, was residing atJunga which is about 25 km. away fromShimla. This witness also admitted that atthe relevant time no bus left for Junga after6-7 p.m. in the evening. Pritam Singh tookthe jeep towards his residence and on theway he gave a lift to the present appellantwho is also employed as a driver with theH.R.T.C. The jeep met with an accident inwhich the driver Pritam Singh died. Theappellant suffered injuries in the said accident and filed a claim petition for grant ofcompensation. This petition has been dismissed by the Tribunal on the ground thatvehicle at the relevant time was not beingdriven by the driver in connection with thebusiness of the respondent and, therefore,owner respondent is not vicariously liable.

Mr. Rakesh Jaswal appearing on behalf of the claimant has argued the matterat length and submitted that the Tribunalhas not appreciated the law cited beforehim especially the judgment of the ApexCourt rendered in Pushpabai Purshottam Udeshi v. Ranjit Ginning and PressingCo., 1977 ACJ 343 (SC). According tohim, the master is vicariously liable for theacts of his servant even if the servant actsin a manner that does not comply with the mandate given by his master. Mr. Jaswalsubmits that the third party can claim compensation from the owner on the principleof vicarious liability.

On the other hand, Mr. D.S. Parmar,appearing on behalf of the respondentH.R.T.C. has supported the award of theTribunal and has submitted that since thedriver was not on duty and he had beenspecifically directed to park the vehicle atMain Bus Stand and had unauthorisedlytaken the vehicle to his residence, H.R.T.C.cannot be held responsible for payment ofcompensation.

The law with regard to the vicanousliability is evolving and developing. Overthe years, the approach of the courts isbecoming more liberal and the trend ismoving towards making the master liablefor the acts of the servant. The concept ofno fault liability has been introduced inmotor accident cases. Even in such casesof no fault liability the trend is to makethe master responsible for the acts of theservant.

In Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, 1966 ACJ 89(SC), the owner of the vehicle entrusted itto person A for plying as a taxi. B used toclean the taxi. He was either employed bythe owner or by A. A trained B to drive thevehicle and took B for obtaining licencefor driving. While taking the test B causedthe accident. A was not present when theaccident occurred. By a majority view, theSupreme Court held that the owner wasnot liable since the person who borrowedthe taxi and the driver had not acted in thecourse of the business of the owner. Thecourt held that test was-Whether the actwas done on the owner''s business or thatit was proved that it has been impliedlyauthorised by the owner. It was furtherheld that unless the act is done in thecourse of his employment, the servant''sact does not make the employer liable.

This judgment was considered by theSupreme Court in Pushpabai PurshottamUdeshi v. Ranjit Ginning and PressingCo., 1977 ACJ 343 (SC). In this case one''P'' was travelling in the car being drivenby the Manager of respondent company.The car dashed against the tree resultingin the death of ''P''. The widow of ''P'' filedclaim petition under Motor Vehicles Act against the company, the owner of the car.The High Court following the decision ofSitaram Mot Hal Kalal''s case, 1966 ACJ 89 (SC), held that the owner cannot beheld to be vicariously liable in taking Purshottam as a passenger as the said act wasneither in the course of employment norunder any authority of the owner. The Supreme Court upset the findings of the HighCourt and held that the owner was liableto pay the compensation. The Apex Courtin Pushpabai Purshottam Udeshi v. RanjitGinning and Pressing Co., 1977 ACJ 343(SC), held thus:

"(14) Before we conclude we wouldlike to point out that the recent trend inlaw is to make the master liable for actswhich do not strictly fall within the term''in the course of the employment'' asordinarily understood. We have referredto Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, 1966 ACJ 89(SC), where this court accepted the lawlaid down by Lord Denning in Ormrodv. Crosville Motor Services Ltd., (1953)2 All ER 753, that the owner is not onlyliable for the negligence of the driver ifthat driver is his servant acting in thecourse of his employment but also whenthe driver is, with the owner''s consent,driving the car on the owner''s businessor for the owner''s purposes. This extension has been accepted by this court."

Lord Justice Denning in Young v.Edward Box and Co. Ltd., (1951) 1 TLR 789 has made the pertinent observations:

"The next question is, how far the employers are liable for their servant''sconduct. In order to make the employersliable to the passenger it is not sufficientthat they should be liable for their servant''s negligence in driving. They mustalso be responsible for his conduct ingiving the man a lift. If the servant hasbeen forbidden, or is unauthorised, togive anyone a lift, then no doubt the passenger is a trespasser on the lorry so faras the owners are concerned; but that isnot of itself an answer to the claim.V.Inmy opinion, when the owner of a lorrysends his servant on a journey with it,thereby putting the servant in positionnot only to drive it, but also to give people a lift in it, then he is answerable for the manner in which the servant conductshimself on the journey not only in thedriving of it, but also in giving lifts init, provided, of course, that in so doingthe servant is acting in the course of hisemployment."

In Salmond''s Law of Torts, it hasbeen said thus:

"On the other hand it has been held thata servant who is authorised to drive amotor vehicle, and who permits an unauthorised person to drive it in his place,may yet be acting within the scope ofhis employment. The act of permittinganother to drive may be a mode, albeitan improper one, of doing the authorisedwork. The master may even be responsible if the servant impliedly and notexpressly, permits an authorised personto drive the vehicle, as where he leavesit unattended in such a manner that it isreasonably foreseeable that the third party will attempt to drive it, at least ifthe driver retains notional control of thevehicle."

In Halsbury''s Laws of England, ithas been stated:

"Where the act which the employee isexpressly authorised to do is lawful, theemployer is nevertheless responsible for the manner in which the employee executes his authority. If, therefore, the employee does the act in such a manner asto occasion injury to a third person, theemployer cannot escape liability on theground that he did not actually authorisethe particular manner in which the act was done, or even on the ground that theemployee was acting on his own behalfand not on that of his employer."

A Full Bench of Punjab and Haryana High Court dealt with the questionof vicarious liability of the owner in Pirthi Singh v. Binda Ram, 1987 ACJ 167(P&H). After considering the aforementioned authorities of the Apex Court and alarge number of English authorities on thepoint, the Full Bench held as follows:

"The vicarious liability of the masterdoes not depend on the lawful or unlawful nature of the acts of the servant andthe master would be liable for the allegedact of the servant which had taken placein the course of his employment eventhough the servant may have acted incontravention of some of the provisionsof the statute or the Rules made there under....It follows that in a motor accident case the determining factor so faras the liability of the owner is concernedis whether the act was committed by thedriver in the course of his employmentor not. If the driver was acting in thecourse of his employment then the ownerwould be liable even though he acted against the express instructions of theowner or in violation of the Rules framed under the statute."

This question had also come up forconsideration before a Division Bench ofKarnataka High Court in M.S. Rayta and Another etc. Vs. Gowrawwa Channabasappa and Another etc., It was held that the master is vicariously liable even if the act ofthe driver is in violation of the departmental instructions. In that case, the vehicle inquestion belonged to the defence department. The defence taken was that driverwas not in the master''s employment nordriving the vehicle on the master''s instructions. Driver had been asked to taksiTthevehicle to a particular place and to bring itto the garage; but the driver did not returnto the garage and instead unauthorisedlyhe on his own went in an altogether different direction on a joy ride. On the way hepicked up some civilian passengers. Anaccident occurred and the claim petitionwas filed.

The High Court rejected the defence of the State and held that despitedepartmental instructions and the specificinstructions to the driver, it cannot be saidthat the driver was not driving the vehiclein connection with his duties and functionsas a driver.

In State of Madhya Pradesh v.Ratna Devi, 1991 ACJ 166 (MP), whileconsidering a similar plea held the ownerState of Madhya Pradesh vicariously liable to pay compensation even though thedriver of the government jeep took thevehicle without permission and unauthorisedly gave lift to two passengers who diedin the accident.

A similar point came up before theApex Court in State of Maharashtra v.Kanchanmala Vijaysing Shirke, 1995 ACJ 1021 (SC). The Supreme Court held asfollows:

"(15) On behalf of the appellants reliance was placed on the judgment inthe case of Sitaram Motildl Kdlal v.Santanuprasad Jaishankar Bhatt, 1996 ACJ 89 (SC). In that case the owner ofthe vehicle entrusted it to A for plyingas a taxi. B used to clean the taxi. Hewas either employed by the owner or byA. A trained B to drive the vehicle andtook B for obtaining the licence fordriving. While taking the test B causedbodily injury to the respondent. At thetime of the accident, A was not presentin the vehicle. On the question whetherthe owner was liable, it was held in themajority judgment that the owner wasnot liable because evidence did not disclose that owner had employed B todrive the taxi or given him the permission to drive the taxi. However, SubbaRao, J., (as he then was), held that theowner was liable because A did not exceed the authority conferred on him bythe owner in employing B as a servantand permitted him to drive the vehicle inorder to obtain the licence for assistinghim as a driver. This case was considered by this court in the case of PushpabaiPurshottam Udeshi v. Ranjit Ginningand Pressing Co., 1977 ACJ 343 (SC),and it was said that recent trend in lawis to make the master liable for actswhich do not strictly fall within the term''in the course of employment'' as ordinarily understood. The learned counselfor the appellants sought to distinguishPushpabai''s case by contending thattherein this court accepted the authorised act of the driver being within thecourse of employment because of hisoccupying ''high position of Manager'',whereas in the case at hand AppellantNo. 3, the driver, was a class IV employee. We do not think that the ratio of the case turns on the position occupied by the driver. The real thrust of thedecision is acceptance of the trend tomake the master liable for acts which donot strictly fall within the term ''in thecourse of employment'' as ordinarilyunderstood.

xxx xxx xxx (17) Incidentally, it may be pointedout that in Motor Vehicles Act, 1939,Chapter VII-A ''liability without faultin certain cases'' has been introduced(Chapter X of the Motor Vehicles Act,1988). Sub-section (1) of Section 92-Aprovides that where the death or per-manent disablement of any person hasresulted from an accident arising out ofthe use of a motor vehicle, the owner ofthe vehicle shall be liable to pay compensation in respect of such death ordisablement in accordance with the provisions of the said section. Sub-section(2) specifies a fixed amount for suchliability without fault. In view of Sub-section (3), the claimant is not requiredto plead and establish that the death orpermanent disablement in respect ofwhich the claim has been made was dueto any wrongful act, neglect or defaultof the owner of the vehicle. Sub-section(4) of that section says in clear and unambiguous words that a claim for compensation under Sub-section (1) of thatsection shall not be defeated by reasonof any wrongful act, neglect or defaultof the person in respect of whose deathor permanent disablement the claim hasbeen made. Section 92-B clarifies thatthe right to claim compensation underSection 92-A in respect of death or permanent disablement of any person shallbe in addition to any other right, i.e., theright to claim compensation on principleof fault. The introduction of provisionscreating liability without fault givesout that Parliament has provided for payment of compensation within certainlimits, ignoring the principle of fault.When even under the law of Tort, courtshave held that the employer is vicariously liable for an authorised act donein an unauthorised manner taking intoconsideration the interest of the victimsof the accident, according to us, this approach is all the more necessary whilejudging the liability of the owner of thevehicle under the statutory provisions ofthe Motor Vehicles"Act."

A Division Bench of this court hasconsidered in detail the law with regard tothe vicarious liability in New India Assurance Co. Ltd. v. Lachhmi Devi, 1996 ACJ 496 (HP). In that case several persons sustained injuries when they were travelling ina truck. The owner of the truck contendedthat the driver had allowed the passengersto board the truck against his instructionsand, therefore, he was not liable. Aftertaking into consideration the entire law,the Division Bench of this court negativedthe plea of the owner and held that theowner was responsible and liable for theconduct of his driver even if the same maybe unauthorised.

From a reading of the various judgments noticed hereinabove it is clear thatthe law with regard to the vicarious liability has been made more liberal and the ruleof vicarious liability has been expanded byjudicial pronouncements. One cannot losesight of the fact that the State has thoughtit fit to even introduce the concept of nofault liability. After the amendment of1994 in the Motor Vehicles Act, 1988, thelegislature has enacted Section 163-A inthe Act. Claimants can claim compensationwithout having to prove negligence. Eventhe insurance companies are held liable incases where the owner is not at fault on theground that since the owner has not committed a breach of the policy, the insurance company is liable. The State Governmentsand the State owned transport Corporationshave been exempted from getting theirvehicles insured and they cannot be placedon better footing than the insurance companies. They must take the responsibilityfor the acts of their employees and as suchthey are liable to pay compensation forany tortious act of the employee. Even ifthe act of the employee may be beyond thescope of his duties or he may have actedin violation of the instructions or mandateissued to him, the employer cannot escapethe liability.

In the present case, admittedly thedriver was on duty and according to therespondents, he had been asked to park thejeep at the Main Bus Stand. This appearsto be afterthought. The driver could nothave been expected to walk to his nativeplace which is about 25 km. away from theMain Bus Stand. It is a known fact that thedrivers do take the government vehicles totheir residences especially when they finishtheir duties at odd hours as happened inthe present case.

However, assuming that the driverhad taken the vehicle unauthorisedly, thiswould not help the case of the respondent,H.R.T.C. He was admittedly the driver ofthe vehicle and the vehicle had been putin his charge by the owner. In view of thelaw laid down by the Supreme Court, theowner is also liable for acts of the driverwhich he may have unauthorisedly done.Therefore, the finding of the Tribunal below on this point is set aside and it is heldthat respondent H.R.T.C. is responsible fortortious act of the driver.

With regard to negligence from theevidence on record, it is apparent that thevehicle rolled down into the khud. It hasalso come in evidence that the vehicle wasbeing driven rashly and negligently. In fact the Tribunal has also given this findingwhich has not been challenged. Therefore,it is held that the accident had occurreddue to the negligence of the driver.

Now comes the question of theamount of compensation to which claimantis entitled. As per the statement of PW 1Dr. R.S. Yadav, appellant Pritam Chandremained admitted in the NeurosurgeryDepartment with effect from 27.3.1995 to4.4.1995. He has suffered compressionfracture of lumbar spine No. 1. After thedischarge from the hospital, the appellantPritam Chand remained as outdoor patientin the Orthopaedics Department. According to this witness, the appellant has beenunder treatment though as an outdoor patient right from May, 1995 and he was stillunder treatment when the statement of thedoctor was recorded on 5.3.1997.

According to the expert witness,the claimant-appellant has suffered permanent disability to the extent of 25 per centas per the disability certificate Exh. PA.He has stated that the claimant-appellanthad to wear belt at least for a period ofthree years and he cannot carry heavy loador do heavy manual work. He cannot alsobend his body easily. However, he hasadmitted that the claimant-appellant cancontinue his job as a driver. From theabove evidence, it is clear that no financialloss has been caused to appellant-claimantwith regard to loss of his pay since he continues to be employed as a driver in theH.R.T.C. However, he remained in hospital for about a week. He has not claimedany medical expenses since the same were being reimbursed to him. However, heremained on leave for about 3 months andkeeping in view the fact that his salarywas Rs. 5,085, therefore, he is entitled toRs. 15,000 on account of leave due to theaccident. He is also entitled to an amountof Rs. 5,000 for special diet etc. It may betrue that the salary of appellant-claimantis not affected. However, the fact remainsthat he has suffered a permanent disabilityto the extent of 25 per cent. He will haveto bear with his disability throughout hislife and the earning capacity of claimantappellant after retirement would definitelybe adversely affected.

Keeping in view all these factors,a sum of Rs. 30,000 is awarded to theappellant-claimant on account of pain andsuffering as well as future loss, discomfortsand loss of amenities. The total compensation thus payable to the claimant-appellantis Rs. 50,000. He is also entitled to interestat the rate of 9 per cent per annum witheffect from 8.9.1997 the date of institutionof the petition till the date of deposit ofthe amount. The respondent, H.R.T.C, isdirected to deposit the amount within eightweeks from today failing which the rate ofinterest shall stand enhanced to 12 per centper annum.

The impugned award of the ClaimsTribunal is set aside and the appellant isheld entitled to compensation and interestas detailed above. Appellant-claimant isalso entitled to costs which are quantifiedat Rs. 2,000.