Case: Indarjeet Singh &amp; Company Vs. Kamal Prakash Pawar and Others

This appeal is preferred by original Opponent No. 3, a partnership firm Inderjeet Singh and Sons which carries on a transport business, against the judgment and order dated April 9, 1984 passed by the Member, Motor Accidents Claims Tribunal, Pune (hereinafter referred to as the Tribunal) in Application No. 120 of 1981 filed by respondents Nos. 1 to 4 against the appellant and respondent Nos. 5 to 7. Respondents Nos. 5 and 6 are original Opponents Nos. 1 and 2 and respondent No. 7 is the Insurance Company which was Opponent No. 4 in the application. The Tribunal passed an award directing the appellant and respondents Nos. 5 to 7 to pay Rs. 1,50,000/The accident took place on January 15,1981 at about 4.35 p.m. on Range Hills Corner Road at Karkee, District Pune. The motor vehicle involved in the accident is a goods truck bearing Registration No. MHF 6906 belonging to the appellant. At the material time. Respondent No. 6 was serving as a driver on this truck in the employment of the appellant. The truck with itsused to remain in the custody of respondent No. 6 .At the time of the accident, however, the truck was being driven by respondent No. 5, who is the brother of Respondent No. 6. In the accident, one Prakash Anandrao Pawar, aged about 28 years and serving as a helper in the employment of the Maharashtra State Road Transport Corporation, died. respondent No. 1 is his widow; respondent No. 2 is the minor daughter and respondents Nos. 3 and 4 are the parents of the deceased Prakash. A claim for compensation as stated above was filed by respondents Nos. 1 to 4 on June 25, 1981 before the Tribunal. It is not necessary to state the facts showing the negligence on the part of the driver as the finding recorded by the Tribunal in that behalf has not been challenged before us. The Tribunal has held, on appreciation of evidence, that Prakash Anandrao Pawar died an accidental death due to rash and/or negligent driving of the said truck by respondent No. 5. Similarly, the finding as regards the quantum of compensation is also not challenged before us.

Reasoning:
We are unable to accept this argument for the simple reason that the liability of the Insurance Company is incurred on the date of the accident. The judgement merely determines the quantum of compensation payable to the claimants arising out of theaccident. It is the date of the accident, therefore, which in the relevant date for the applicability of section 95(2) of the Act which provides for the liability of the Insurance Company incurred in respect of any one accident. It would, therefore, be not correct to say that the liability of the Insurance Company arises on the date of the judgement. Section 96(1) of the Act only deals with the obligation of the Insurance Company to satisfy the judgement, whereas the liability of the Insurance Company is dealt with by section 95(2) of the Act.In the present case, the accident took place, admittedly, prior to the commencement of the Amending Act No. 47 of 1982. Therefore, the provisions of section 95(2) as they stood on the date of the accident, which is the date of the accrual of the cause of action, must be applied. Learned Counsel tried to contend that the Supreme Court did not take into consideration the effect of section 96(1) of the Act. The contention is not tenable, firstly, because the binding nature of the decision of the Supreme Court is not affected merely because a particular provision is not referred to or considered by the Supreme Court. Moreover, as held by us above, the provisions of section 96(1) of the Act must be read in the light of section 95(2) of the Act. Section 96(1) of the Act will have no relevance as regards the question as to the date on which the liability of the Insurance Company in respect of the accident arises. Reliance was placed by the learned Counsel on another decision of the Supreme Court in the case of (Commr. E.P.T., W.B. v. Ruby Gen. Insc. Co.)2, A.I.R. 1957 S.C. 669. That was a case under a different statute altogether and has no relevance to the interpretation of the provisions of the Act with which we are concerned. The question before us is squarely covered by the decision of the Supreme Court in the Padma Shrinivasans caseTribunal held that the driving of the truck by respondent No. 5 was, therefore, with the permission of respondent No. 6 and that the truck being in possession of respondent No. 6 in the course of the employment of the appellant, thewas liable, even though respondent No. 6 may not have been authorised by the appellant to hand over or allow respondent No. 5 to take thefor driving the truck at the relevant material time. As the unauthorised act on the part of respondent No. 6 was during the course of his employment with the appellant, the latter held to be vicariously liable for the negligence of respondent No. 6 in handing over the truck in the possession of respondent No. 5. In his evidence, Jaspalsingh Inderjeetsingh Arora, who is a partner of the appellantfirm, has admitted that the possession of the truck used to remain with respondent No. 6 opponent No. 2. He also admitted that the firm did not take any action against respondent No. 6 for allowing respondent No. 5 to drive the truck and that respondent No. 6 is still in their service. The evidence of Jaspalsingh Inderjeetsingh Arora clearly establishes the fact that the possession of the truck by respondent No. 6 at the material time was in the course of his employment. If that be so, the handing over of theof the truck by respondent No. 6 to respondent No. 5 or allowing respondent No. 5 to drive the truck was a negligent act on the part of respondent No. 6 in the course of employment and therefore, in our opinion, the Tribunal correctly held that the appellant was vicariously liable to the claim along with Respondents Nos. 5 and 6.In the present case, the evidence clearly establishes that the possession of the truck was allowed by the Appellant to remain with respondent No. 6. The possession of the truck by respondent No . 6 at the material time, therefore, was in the course of the employment. If that be so, the handing over of theby respondent No. 6 to respondent No. 5 or Respondent No. 6 allowing respondent No. 5 to take charge of the truck amounted to negligent act on the part of respondent No.6in the course of employment. It is, therefore, not possible to accept the contention of learned Counsel that the unauthorised act on the part of Respondent No. 6 was not in the course of his employment or that the accident had not occurred while the truck was being driven by respondent No. 5 in the course of employment. Once it is found on the facts of the case that the wrongful act committed by respondent no.6, was during the course of employment, then it follows that the appellant cannot escape the vicarious liability.