51 CR No2775 of 2008 1 91 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRN02775 of 2008 Date ofDecision2l122009 C 0 Ram Kumar 7etitioner 3 I Vs C5 AjayKumar c Anr Respondents I Z Coraml Honble Mre Justice Vinod KSharma l I C45 Presen Msahish Pahwa DudejaAdvocate for thepetitioner 7 MrParminder SinghAdvocate for No1 m Vinod KeSharmaJe The petitioner has invoked thejurisdiction of this court under Articc 227 of the Constitution of lndia to set aside the recoveo7certiOcate datet12752006 attachedas Annexure Pl and the orderspasscd bythc IearnedExecuting Court The petitioner was driver on Truck bearingNolil29438505 which was owned byAjay Kumar No1 The truck met wilh an Rani Anita 2013.01.30 10: 45 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 52 1 CR No2775 of 2008 2 Il accidenton 172001 In the accident No2 Mahesh Kumar sufferedinjuries No2 filed a claim petitionbeforethe learned MotorAccident Claims Tribunal Ambala or shorttheTribunall Claim was allowed and vide award dated262004 No2 was granted to the tune of Rsl490001 6Rupees one lac andfortynine thousandonlylalongwith interestat the rate of6 per cent 0 perannum from the dateofthe filingofclaim till realization C I bythe learnedTribunal readsas under 9 61 In view of the tlndingsreturnedon the material issues I theclaim petitionis herebypartlyallowed in favour ofclaimant Z MaheshKumar to the extent ofRsl490001 6Rupees one lacs 2 CC forty nlne thousandonlyl alongwith interest at the rate of 6 I perlcent per annum from the date of the Olingof present a5 petition till the realization from No and 2 who W2 shallbejointlyandseverally liable to pay thesame 57 The decree holder Mahesh Kumar flled execution application under Order 21 Rule 11 of the Code of Civil Procedure againstthe petitioner and No By way of impugned order Annexure P certiflcateofrecoverv has been issued by the learned Tribunal for effectingthe recoveryof Rsl490001 Rupees one lacs fortynine thousandonly9alongwith interest under section 174 of the Motor Vehicles Ac Libertywas granted to the Executing Agencyto recover the amount as auears ofland revenue In pursuance to the order passedby the learned Executing Rani Anita 2013.01.30 10: 45 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 53 CRN0775 of 2008 3 n 4 Courtthe learned Collector Kaithal attachedthe land belonging lo the and put the same to auctiOIl but as no bidderhad come present therefore learned Collector soughtfurther direction in the matter The learnedcourt found that the Collector was not takingadequate stepsto effecltherecovery ofamount m r Byway oforder Annexure P2 the leamed Tribunal orderedthe 0 recovery of amoUnt alongwith interesttill date and sent the file back to the C I learnedCollector C5 By way of order Annexure P3 theleamed court noticed that the I leamedCollector sent failurereport but the matter was againsent to the Z Collectorwith a direction to effect recovery r Learned counsel for thepetitioner haschallenged the execution I primarily on the groundthat the petitioner is merelya driver a5 and recovery is flrst requiredto be made from Nol Ajay 7 Kumar the owner of the truck lt is thereafterthat the recovery can be Z effectedfrom thepetitioner In supportof this contention learned counsel for the petitioner placedreliance on the judgment of Honble Supreme Court in the caseof State ofMaharashtra and Ors Vs Kanchanmala VijaysingShirke and others AIR 1995 SC 2499 wherein Court was pleased to laydown as underl C6 In the instant case the dayof the accident the year was endingday i 3131980 and lhe clerks and ofcers were requiredto work duringnighttime The direction had been Rani Anita 2013.01.30 10: 45 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 54 ICR No2775 of 2008 4 1 given bythe incharge of the office that afternormal working hoursof the oftlce the gone to lheir homes were required to come backafter takingdinner The jeepwas used for bringingsuch to the office In this it couldbe said thatjeep was beingused in connection with the r affairsof the State and for offlcial purpose The 0 who was the clerk in the offlce was drivingthe vehicle at C I relevanttime under the authority of the driver who was ine C5 chargeofthe said vehicle and as the driver had consumedmore Iiquoron lhat dayhe to drive the vehicle that night Thus the facts disclose and demonstratethat an 2 r authorised act was beingdone in an unauthorisedmanner The accident took placewhen the act authorised was being a5 in a mode which may not bc proper bul nonetheless 7 it was directlyconnectedwith in the course it Z was not an act for a purposeor businesswhich had no nexus or connection with the business of the state Government so as to absolve the appellant State from the liability If the disputerevolves around the mode or manner of execution of the authorityof the master by the scrvant lhe master cannot escape the liabilitySO far third particsare concemed on thegroundthat he had not actuallyauthorisedthe particular manner 111which the act was done In the instant Rani Anita 2013.01.30 10: 45 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 55 CR No2775 of 2008 5 6 case it hasbeenestablishedbeyonddoubt that the driver ofthe vehicle had been fullyauthorisedto drive thejeepfor a purpose connectedwith the affairsofthe Stateand thedispute is onlyin respectof the manner and the mode in which the said driver his dutiesbyallowing anotheremployee ofthe State 1 C Government who was also goingon an offlcial duty to drive 0 thejeep when the accident took placeOnce it is established C I that act of the driver and was in the C5 I course of the Stateshall be liable for the same and cannot escapelts vicarlOUS liabilityto pay compensation to Z theheirs ofthe victim 22 Reliance had alsobeenplaced on a judgment of this court in the I case 01CharanjitKaur and Ors Vs Prem Singh Ors 2008 ACJ 715 08 wherein againthis court was pleased to hold that the State Government 7 beingliable was also to pay the under the Z principleofvicariousliability Reliance was also placedon the judgmentof Honble High Court of Rajasthan in the case of State of RajasthanVse SmteShekhu Sc Ors 1 22051ACC 156 wherein Honble HighCourt was pleased to hold that it is settled and principleof law of torts that master 1S answerablefor every wrongof his servant committed in course of his serv There can be no disputewith the propositionof law laid down in thc authoritiesrelied upon by thepetitionerHowever the lawlaid doivn Rani Anita 2013.01.30 10: 45 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 56 tl v CR No2775 of 2008 6 in the authoritiesdoes not supporlthe contention raised by the 1earned counsel for the petitionerThe learnedTribunal byfollowing the principle of laiv laid down in these authorities passedan award in favour of the decreeholder againstthepetitioner as well as owner ofthe vehicle and the liabilitywas flxed jointand severa 1 r It is well settled law that in case of decree beingjointand 0 several it is open to the decreeholder to execute the decree againstany one C I out of lhe Judgment debtors The debtoris not competentto raise C5 objection that the decreeshould be executedagainstthe other lirst and not I against him The contention raised bythe leamed counsel for thepetitioner Z beingagainstwell establishedprinciple of law deservesto be noticed to be r rejeclecl I tlndingno merit ln the revision petition it 1S c6 orderedto bedismissed but with no order as to costs W19 Z 8e12 2009 Vinod KSharmal Ll rp Judge I Rani Anita 2013.01.30 10: 45 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document