IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 OP.No. 15841 of 2001(J) --------------------------------- PETITIONER: ------------------- SRI. M.K. DILIP KUMAR, AGED 50, S/O. KANDANKORAN, MARATHARA HOUSE, APPANGAD, NARAKKAL.P.O., ERNAKULAM. BY ADVS. MR.K.S.MADHUSOODANAN, MR.C.P.PEETHAMBARAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA TO BE REP. BY SECRETARY, LABOUR DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. GENERAL MANAGER, DISTRICT INDUSTRIES CENTER, ERNAKULAM. R1 BY SR.GOVERNMENT PLEADER SMT. N. SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 15841/2001-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN C.C. NO. 579/91 OF J.F.M.C. KOLENCHERRY DTD. 29/07/93. EXT.P.2: COPY OF THE AWARD IN O.P. (M.V).149/95 OF K.A.C.T., MUVATTUPUZHA DTD. 28/12/95. EXT.P.3: COPY OF THE MEMO NO. A3-11637/97 ISSUED BY THE R.2. DTD. 09/05/2001. EXT.P.4. NIL. EXT.P.5: COPY OF THE AWARD IN O.P.(MV) 199/95 DTD. 30/12/05 OF M.A.C.T., MUVATTUPUZHA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 15841 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th November, 2009. J U D G M E N T At the time of filing this original petition, the petitioner was a driver attached to the office of the 2nd respondent in the service of the Government of Kerala. Originally, he was appointed in another department in 1989. He joined the 2nd respondent's office by inter- departmental transfer on 1-4-1991. He was the driver of a jeep of the office of the 2nd respondent. On 23-7-1991, the jeep driven by the petitioner was involved in an accident, which caused injury to a lady. She filed O.P(MV) No. 149/95, seeking compensation, against the 2nd respondent and the petitioner. There was a criminal case also in respect of the same accident. In the criminal case, the petitioner was acquitted, since there was no evidence to prove negligence on the part of the petitioner. But, by Ext. P5 award, the MACT, Muvattupuzha awarded compensation to the tune of Rs. 14,750/- with interest and costs. It appears that although the vehicle was originally covered by an insurance, the insurance was not renewed and therefore, the respondents could not get the benefit of insurance in the case before the Tribunal. Subsequently, Ext. P3 memo was issued to the petitioner directing the petitioner to pay an amount of Rs. 29,805/- being the compensation paid by the respondents pursuant to Ext. P3 award in the motor accident claim. In the same, the reason stated is that it was the duty of the petitioner to renew the insurance, which he failed to do and therefore he is liable to make good the compensation amount, which was paid by the respondents to the claimant. The petitioner is challenging Ext. P3 order. 2. According to the petitioner, he joined duty only on 1-4-1994 in the particular office and the accident occurred on 23-7-1991. As such, he was not aware of the non-renewal of the insurance policy in respect of the jeep and therefore he cannot be made liable for the O.P. No. 15841/2001 -: 2 :- lapse on the part of the 2nd respondent in keeping the insurance policy current. 3. A counter affidavit has been filed controverting the contentions of the petitioner. According to the learned Government Pleader, as the driver of the jeep, it was the duty of the petitioner to keep all papers of the jeep current including the insurance policy. As such, he was negligent in the matter of keeping the insurance policy current. The fact that the accident occurred just after three months of his joining duty in the office is no defence for the petitioner, is the contention raised. According to the learned Government Pleader, as soon as the petitioner takes charge of the jeep, he had a duty to ascertain whether all the papers of the jeep are current and take appropriate steps to see that all papers are current. The learned Government Pleader would raise another contention that even otherwise, the petitioner is liable. According to her, in Ext. P5 award, it was found that the accident occurred because of the rash and negligent driving of the petitioner, which finding has become final. The petitioner has not chosen to give evidence before the Tribunal to dispute the claimant's case of negligence, nor did he choose to challenge the award in an appeal. Therefore, the findings regarding negligence of the petitioner in causing the accident has become final. The respondents became liable to pay the compensation because of vicarious liability for the petitioner's conduct as a servant of the respondents. It is settled law that a master is entitled to recover any damages paid by the master for the negligent conduct of the servant, from the servant. Applying that law, the petitioner is liable to make good the compensation paid by the respondents for the negligent conduct of the petitioner, is the contention raised. 4. I have considered the rival contentions in detail. O.P. No. 15841/2001 -: 3 :- 5. The petitioner has not chosen to state as to till which date the insurance policy of the jeep was current. But, it cannot be disputed by him that as the driver in charge of the vehicle, it was the petitioner's duty to see that the insurance policy was current. The fact that the insurance policy was not current is not disputed by the petitioner. That being so, he was negligent in the matter of keeping the insurance policy current. I am also of opinion that because of the second contention of the learned Government Pleader also, the respondents are entitled to succeed. As rightly pointed out by the learned Government Pleader, the Tribunal has found that the accident occurred due to the rash and negligent driving of the petitioner. The petitioner has not chosen to give evidence before the Tribunal. He has also not chosen to challenge the award in appeal. Therefore, that finding has become final. It is because of the negligence of the petitioner that the respondents became liable to pay compensation to the injured on account of vicarious liability. It is settled law that a master is entitled to recover the damages paid on account of the negligent act of the servant, from the servant. Therefore, on both counts, the petitioner is liable to lose. Accordingly, the original petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/