1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 254 OF 1996 Ramu s/o Mhasu Shirsath age major, oc. truck – owner and service, r/o Kundewadi Tq. Niphad, Dist. Nasik .. APPELLANT VERSUS 1 Najma Nurkha Shaikh age 18 years, occ. household 2 Latif Nurkha Shaikh age 8 years, minor through his guardian respondent no. 1. 3 Samsuddin Mohiddin Shaikh age 47 years, occ. labour 4 Aminbi Shamsuddin Shaikh age 42 years, occ. labour 5 Salma Shamshuddin Shaikh age 10 years, occ. education minor through her guardian respondent no. 4 All r/o Khuntephal, Pot Tajnapur Tq. Shevgaon, Dist. Ahmednagar 6 Rajendra s/o Nilkanth Deshmukh age major, occ. driver r/o behind State Bank of India Chandwad, Dist. Nasik 7 Deepak Shahadu Sonawane age major, occ. driver 2 r/o Sudhakar Shahadu Sonawane Ramwadi, in the Chawal of Board Second Last House, Panchawati Nasik 8 Ranwad Parisar Vikas Pratisthan through manager, Ranwad Parisar Vika Pratisthan, r/o Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. Ranwad, Tq. Niphad Dist. Nasik. 9 Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. through its Managing Director Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd Ranwad, Tq. Niphad, Dist. Nasik 10 The United India Insurance Co. Ltd., The Branch Manager, United India Insurance Co. Ltd., Laxmi Karanja Akkaya Mandir, Ahmednagar. .. RESPONDENTS Mrs. C.S. Gaikwad, Advocate for the appellant. Shri N.K. Kakade, Advocate for respondent nos. 8 and 9. Shri Kadam, Advocate for respondent no. 6. ===== WITH FIRST APPEAL NO. 255 OF 1996 Ramu s/o Mhasu Sirsath age major, occ. truck owner & service r/o Kundewadi Tq. Niphad, Dist. Nasik .. APPELLANT VERSUS 3 1 Abbas Subhedar Shaikh age 22 years, occ. labourer r/o Kuntephal, Post Tajnapur Ta. Shevgaon, Dist. Ahmednagar. 2 Rajendra s/o Nilkanth Deshmukh age major. occ. driver r/o Behind State Bank of India Chandwad, Dist. nasik. 3 Deepak Sahadu Sonawane age major, occ. driver r/o c/o Sudhakar Sahadu Sonawane Ramwadi, In the Chawal of Board Second Last House, Panchawati Nasik. 4 Ranwad Parisar Vikas Pratisthan through manager, Ranwad Parisar Vika Pratisthan, r/o Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. Ranwad, Tq. Niphad Dist. Nasik. 5 Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. through its Managing Director Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd Ranwad, Tq. Niphad, Dist. Nasik 6 The United India Insurance Co. Ltd. The Branch Manager, United India Insurance Company Ltd. Laxmi karanja Akkaya Mandir, Ahmednagar. .. RESPONDENTS Mrs. C.E. Gaikwad, Advocate for the appellant. 4 Shri N.K. Kakade, Advocate for respondent nos. 4 and 5. Shri Kadam, Advocate for respondent no. 2. ===== WITH FIRST APPEAL NO. 256 OF 1996 Ramu s/o Mhasu Shirsath age major, occ. truck owner and service r/o Kundewadi Tq. Niphad, Dist. Nasik .. APPELLANT VERSUS 1 Janabai Tukaram Hulmukhe age 13 years, occ. labourer r/o Khuntephal, Post Tajnapur through her guardian Drupadabai Tukaram Hulmukhe age 35 years, occ. labourer, r/o Khuntephal Post. Tajnapur, Tq. Shevgaon Dist. Ahmednagar. 2 Rajendra s/o Nilkanth Deshmukh age major, occ. driver r/o Behind State Bank of India Chandwad, Dist. Nasik. 3 Ranwad Parisar Vikas Pratisthan through manager, Ranwad Parisar Vika Pratisthan, r/o Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. Ranwad, Tq. Niphad Dist. Nasik. 4 Kakasaheb Wagh Sahakari Sakhar 5 Karkhana Ltd. through its Managing Director Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd Ranwad, Tq. Niphad, Dist. Nasik 5 The United India Insurance Co. Ltd., The Branch manager, United India Insurance Co. Ltd., Laxmi Karanja Akkaya Mandir, Ahmednagar. 6 Deepak Shahadu Sonawane age major, occ. driver r/o Sudhakar Shahadu Sonawane Ramwadi, an the Chawl of Board Second Last House, Panchawati Nasik. .. RESPONDENTS Mrs. C.E. Gaikwad, Advocate for the appellant. Shri N.K. Kakade, Advocate for respondent nos. 3 and 4. Shri Kadam, Advocate for respondent no. 2. ===== WITH FIRST APPEAL NO. 257 OF 1996 Ramu s/o Mhasu Shirsath age major, occ. truck owner and service, r/o Kundewadi Tq. Niphad, Dist. Nasik .. APPELLANT VERSUS 1 Yusuf Subedar Shaikh age 19 years, occ. education. 2 Rajendra Subedar Shaikh age 12 years, occ. education. 6 3 Miss Jmrut Subedar Shaikh age 15 years, occ education. 4 Abbas Subedar Shaikh age 25 years, occ. labourer work 5 Jubeda w/o Abbas Shaikh age 20 years, occ. household All r/o Khuntephal, Post. Tajnapur Tq. Shevgaon, Dist. Ahmadnagar. 6 Rajendra /so Nilkanth Deshmukh age major, occ. driver r/o Benind State Bank of India Chandwad, Dist. Nasik 7 Deepak s/o Sahadu Sonawane age major, occ.d rier r/o c/o Sudhakar Sahadu Sonawane Ramwadi, In the Chawal of Board Second Last House, Panchawati Nasik 8 Ranwad Parisar Vikas Pratisthan through manager, Ranwad Parisar Vika Pratisthan, r/o Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. Ranwad, Tq. Niphad Dist. Nasik. 9 Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. through its Managing Director Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd Ranwad, Tq. Niphad, Dist. Nasik 10 The United India Insurance Co. Ltd. The Branch Manager, United India 7 Insurance Company Ltd. Laxmi Karanja, Akkaya Mandir Ahmadnagar. .. RESPONDENTS Mrs. C.E. Gaikwad, Advocate for the appellant. Shri N.K. Kakade, Advocate for respondent nos. 8 and 9. Shri Kadam, Advocate for respondent no. 6. ===== WITH FIRST APPEAL NO. 258 OF 1996 Ramu s/o Mhasu Shirsath age major, occ. truck owner and service, r/o Kundewadi Tq. Niphad, Dist. Nasik .. APPELLANT VERSUS 1 Drupadabai w/o Tukaram Hulmukhe age 35 years, occ. household work 2 Namdeo Tukaram Hulmukhe Appeal abated against age 14 yerars, occ education. respondent no. 2 as per Court order dt. 7­12­1999 3 Dnyandeo Tukaram Hulmukhe age 8 years, occ. education. 4 Janabai Tukaram Hulmukhe age 12 years, occ. education. 5 Laxmibai Vithal Hulmukhe Appeal abated against age 65 years, occ. nil respondent no. 5 as per Court order dt. 7­12­1999 8 All r/o Khuntephal, Post Tajnapur Tq. Shevgaon,Dist. Ahmadnagar. 6 Rajendra /so Nilkanth Deshmukh age major, occ. driver r/o Benind State Bank of India Chandwad, Dist. Nasik 7 Deepak s/o Sahadu Sonawane age major, occ.d rier r/o c/o Sudhakar Sahadu Sonawane Ramwadi, In the Chawal of Board Second Last House, Panchawati Nasik 8 Ranwad Parisar Vikas Pratisthan through manager, Ranwad Parisar Vika Pratisthan, r/o Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. Ranwad, Tq. Niphad Dist. Nasik. 9 Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. through its Managing Director Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd Ranwad, Tq. Niphad, Dist. Nasik 10 The United India Insurance Co. Ltd. The Branch Manager, United India Insurance Company Ltd. Laxmi Karanja, Akkaya Mandir Ahmadnagar. .. RESPONDENTS Mrs. C.E. Gaikwad, Advocate for the appellant. Shri N.K. Kakade, Advocate for respondent nos. 8 and 9. Shri Kadam, Advocate for respondent no. 6 ===== 9 WITH FIRST APPEAL NO. 259 OF 1996 Ramu s/o Mhasu Shirsath age major, occ. truck owner and service, r/o Kundewadi Tq. Niphad, Dist. Nasik .. APPELLANT VERSUS 1 Bapu nagu Salve age 35 years, occ. labourer 2 Mangla d/o Bapu Salve age 6 years, occ. student through her guardian applicant no. 1 Both r/o Khuntephal Post Tajnapur, Tq. Shevgaon Dist. Ahmadnagar. 3 Rajendra /so Nilkanth Deshmukh age major, occ. driver r/o Benind State Bank of India Chandwad, Dist. Nasik 4 Deepak s/o Sahadu Sonawane age major, occ.d rier r/o c/o Sudhakar Sahadu Sonawane Ramwadi, In the Chawal of Board Second Last House, Panchawati Nasik 5 Ranwad Parisar Vikas Pratisthan through manager, Ranwad Parisar Vika Pratisthan, r/o Kakasaheb Wagh Sahakari Sakhar Karkhana 10 Ltd. Ranwad, Tq. Niphad Dist. Nasik. 6 Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd. through its Managing Director Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd Ranwad, Tq. Niphad, Dist. Nasik 7 The United India Insurance Co. Ltd. The Branch Manager, United India Insurance Company Ltd. Laxmi Karanja, Akkaya Mandir Ahmadnagar. .. RESPONDENTS Mrs. C.E. Gaikwad, Advocate for the appellant. Shri N.K. Kakade, Advocate for respondent nos. 5 and 6. Shri Kadam, Advocate for respondent no. 3. ===== CORAM : P. R. BORKAR, J. DATE : 28t h JUNE, 2010. ORAL JUDGMENT : 1 These are appeals filed by the owner of Truck No. MWN 581, who was original respondent no. 3 in MACP Nos. 8/1986 to 13/1986 and MACP no. 180/1987, being aggrieved by the common judgment and awards passed by the Member, MACT, Ahmednagar in abovesaid claim petitions on 31­5­1994 whereby he alongwith driver Rajendra Deshmukh were held responsible for payment of compensation amounts to various claimants, and thereby respondent – insurance company so also respondent Ranwad Parisar Vikas 11 Pratishthan (hereinafter referred to as “Ranwad Parisar Pratishthan”) and Kakasaheb Wagh Sahakari Sakhar Karkhana Ltd., (hereinafter referred to as “the sugar factory”) are discharged from liability to pay compensation. 2 Brief facts giving rise to these appeals may be stated as below :­ . On 27­4­1985 at about 4 a.m. near village Apegaon some labourers and members of their families were being carried in truck no. MWN 581 driven by Rajendra Deshmukh. On a curve, the truck driver could not control the truck and it fell on the side. As a result, six persons died and several others were injured. Original opponent nos. 1 and 2 were driver in employment of the present appellant who was original opponent no. 3 and owner of the vehicle. Ranwad parisar Pratisthan was a trust established by the sugar factory. It is alleged by the claimants that the only intention for creating Ranwad Parisar Pratisthan was to frustrate the provisions of law and escape liability of the sugar factory under various laws as employer of the labourers. It is also case of the claimants that the truck owner had entrusted truck no. MWN 581 to Ranwad Parisar Pratisthan and the sugar factory. By letter dt. 15­1­1985, they were allowed to carry labourers as passengers in the truck and the truck was duly insured with opponent Insurance Company 12 and, therefore, all the opponents were liable to pay compensation for the deaths and injuries caused in the accident in question. Original claim petition nos. 8/18, 11/86, 12/86, 13/86 and 180/87 were filed by the legal representatives of deceased persons and rest were by injured claimants. 3 Opponent nos. 1 and 2 did not appear though duly served. Opponent no. 3 who is the present appellant filed written statement admitting that he was owner of the vehicle involved in the accident and the truck was insured with the opponent Insurance Company. Opponent Ranwad Parisar Pratisthan was established for transport of sugarcane in command area of opponent sugar factory. In crushing seasons of 1984­1985, the appellant had entrusted the vehicle in custody of opponent Ranwad parisar Pratisthan and the sugar factory. Both have obtained permission of the Government to transport labourers on certain conditions. It is denied that the vehicle was driven rashly and negligently. It is stated that the liability is of Ranwad Parisar Pratisthan and the insurance company. 4 Opponents Ranwad Parisar Pratisthan and the Sugar factory filed separate but identical written statements. Both stated that the passengers travelling in the vehicle were not in their employment. They have entered 13 into contract with one Sardar Dilawar Khan Pathan to supply labourers. There was no contract between the labourers and the opponents. Their wages were paid by Sardar Dilawar Khan Pathan. Sardar Dilawar Khan Pathan requested Ranwad Parisar Pratisthan to make arrangement for taking the labourers to their respective villages and, therefore, they were taken in the truck. No fare or reward was collected from any of the labourers travelling in the truck. The claim was bad for non­joinder of Sardar Dilawar Khan Pathan. 5 Opponent Insurance Company filed written statement and stated that though vehicle was insured with it, there is breach of terms and conditions of the policy in as much as the goods vehicle was used for carrying passengers which was not allowed and the risk of such passengers was not covered under the policy. There is no privity of contract between labourers on one hand and Ranwad Parisar Pratisthan and the Sugar factory on the other. Thus, insurance company is not liable to pay compensation to any of the claimants. It is further stated that the owner of the vehicle has suppressed material fact though within his knowledge that Government granted permission to Ranwad Parisar Pratisthan on 15­8­1984 to carry passengers in the goods vehicle. The policy was obtained for a period 14 between 27­9­1984 to 26­9­1985 and in this view it is not liable to pay compensation. 6 Tribunal accepted the defence taken by the insurance company. It also held that original opponents Ranwad Parisar Pratisthan and Sugar factory were not liable. It held driver Rajendra Deshmukh and present appellant liable for payment of compensation. It is this judgment and the consequent awards passed which are challenged in these appeals. 7 Heard Mrs. C.R. Gaikwad, advocate for the appellant and Adv. Mr. N.K. Kakade for respondent nos. 4 and 5. Adv. Shri Kadam argued for respondent no. 6 / driver Rajendra Deshmukh. None present for the remaining respondents though the matter was partly heard in the last week and was again adjourned and heard today. 8 So far as the insurance company is concerned, the provisions of Motor Vehicles Act would be applicable. It is not case of either present appellant or original opponents Ranwad Parisar Pratisthan or the Sugar factory that any of them had informed the insurance company regarding the permission obtained from Government for carrying sugarcane labourers in the truck. So 15 the case of the insurance company that said fact which was material was suppressed from it stands undisputed. Truck is admittedly a goods vehicles and passengers were carried in the truck. It has come in cross examination of one Narhari Chavan who was witness of claimants that it was Ranwad Parisar Pratisthan which had made payment to the owner of the truck to carry labourers to their respective villages. In any case, even carrying gratuitous passengers in a goods truck is not legal. This act of carrying passengers in the goods truck is not covered by the policy. Thus, respondent insurance company cannot be held liable for the compensation payable to the claimants as there is clear breach of terms and conditions of the policy.. 9 The main argument centered around the responsibility of Ranwad Parisar Pratisthan and the Sugar factory. Adv. Mrs. Gaikwad relied upon the case of Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari and others reported in 1998(1) Bom.C.R. 466. As can be seen from paragraph nos. 14 to 16 of the judgment, the admitted fact undisputedly shown that the vehicle in question (bus in that case) was in possession and under the actual control of Rajasthan State Road Transport Corporation (hereinafter referred to as “RSRTC”) for the purpose of running on the specified route and was being used for carrying, on hire, the passengers by 16 RSRTC. The driver was to obey instructions, orders and directions of the conductor and other officers of RSRTC for the operation of the bus on the route specified by RSRTC. In paragraph no. 17 following ratio is laid down :­ . The definition of owner under section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the mean of “owner” to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the “owner” is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. ..................................................................................... The general proposition of law and the presumption arising therefrom that an employer, that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. 17 10 Adv. Mrs. Gaikwad argued that the ratio applied to the facts of the present case and Ranwad Parisar Pratisthan and the Sugar factory are responsible. Adv. Mrs. Gaikwad drew my attention to the written statement filed by the said opponents in the trial court. In MACP no. 8/1986 written statement filed by present appellant is at exh. 33. Therein it is stated that the opponent is owner of the truck and the same truck was insured at the relevant time. Ranwad Parisar Pratisthan is a trust mainly established for transport of sugarcane in the area of operation of the sugar factory. The truck in question was engaged by Ranwad Parisar Pratisthan and the sugar factory for the aforesaid purpose in crushing season of 1984­1985. The truck was also engaged in transporting labourers at the time of beginning of the crushing season. Ranwad Parisar Pratisthan and the Sugar factory had obtained permission of the State Government for transport of labourers. It is also stated that usually 75 trucks are engaged by said opponents for each crushing season. In paragraph no. 7 it is stated that the truck was purchased by raising loan from Bank of India. The truck was hypothicated to the bank and thus bank was the owner of the truck. If we see the written statement, it is not stated specifically anywhere that the truck was given in custody and was under control of Ranwad Parisar Pratisthan and the Sugar factory. 18 11 Claim petitions made before the tribunal were necessarily under the provisions of Motor Vehicles Act and not under the Workmen’s Compensation Act. So whether the labourers who died or who were injured in the accident were employees of Ranwad Parisar Pratisthan and the Sugar factory is not an issue to be considered in these appeals. Had it been the case that compensation was claimed under the Workmen’s Compensation Act, definitely issues would have arisen as to whether the labourers were employees of either Ranwad Parisar Pratisthan or the Sugar factory and whether their death occurred or injuries to them were caused in the course of employment. In this case, as the claim petitions being under the Motor Vehicles Act, 1939, we have to find out whether the driver of the truck was rash or negligent and who is liable vicariously as an employer. In the case of Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari and others (supra) it was proved to the satisfaction of the court that the owner of the bus could not ply bus on particular route for which he had no permission. He infact was not plying the bus on that route. The services of the driver were transferred alongwith complete control to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill­fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. The owner of the vehicle Shri Sanjay Kumar was 19 therefore not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. In this case, oral evidence is laid down only by the claimants. Neither driver nor the owner of the truck is examined. Agreement which was entered into by the appellant with the sugar factory or with Ranwad Parisar Pratisthan is not produced in the court nor there was any attempt to prove the same. So in absence of any oral or documentary evidence to establish the terms and conditions of the contract under which the truck was hired, it cannot be said that the ratio of the above referred case is applicable to the facts of the present case. 12 No doubt learned advocate wanted to rely on certain statements made in written statements filed by respondent nos. 4 and 5 ( in MACP no. 8/1986 at exh. 50 and 51 respectively). It is denied that opponent Ranwad Parisar Pratisthan was created just to avoid responsibility of the sugar factory under various laws towards employees and labourers. It is also denied that permission for transporting labourers in truck was obtained by the sugar factory. It is further contended that Sardar Dilawar Khan Pathan had 20 entered into contract with opponent Ranwad Parisar Pratisthan to provide labourers and there was no contract between the labourers on one hand and Ranwad Parisar Pratisthan or the sugar factory. The entire responsibility of transporting labourers was of Dilawar Khan Pathan. In paragraph nos. 22 and 23 of the written statement we find some important statements. In paragraph no. 22 it is stated by both the opponents that Sardar Dilawar Khan Pathan had made request to Ranwad Parisar Pratisthan to make arrangement for carrying labourers to their villages and on such request, Ranwad Parisar Pratisthan has made arrangement through the concerned truck. However, Ranwad Parisar Pratisthan had not taken any amount of hire or reward from the labourers. In paragraph no. 23 it is stated that Ranwad Parisar Pratisthan is registered under the Public Trust Act and its object was to help weaker sections and farmers and labourers and, as part of the same, opponent Ranwad Parisar Pratisthan had done (undertaken) the work to carry labourers alongwith their goods to their villages and, for that purpose the trust had also incurred some expenses. It is argued that these statements in paragraph no. 23 clearly indicate that at the behest of Ranwad Parisar Pratisthan the labourers were carried in the truck and the trust has also spent some amount on such transport. But even assuming that this was done by Ranwad Parisar Pratisthan, still question is whether Ranwad Parisar Pratisthan 21 would be in a position of owner and whether the ratio of Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari (cited supra) applies. In my consideration, these admissions by themselves are not sufficient to hold that the truck was under control and command of opponent Ranwad Parisar Pratisthan or the Sugar factory. We cannot say that the ratio of the case referred above applies to the facts of the case. In my considered opinion, it is not proved that the vicarious liability shifted from appellant to Ranwad Parisar Pratisthan or Sugar factory. 13 In abovesaid circumstances, these appeals deserve to be dismissed. Hence, appeals dismissed. Parties to bear their own costs. ( P. R. BORKAR, J.) dyb/office/fa254.96.odt