Baldeo Raj v. Smt. Deowati And Others

1. This is a first appeal against the judgment and decree dated 5-12-1978 of the learned II Additional District Judge, Bulandshahr arising from the accident claim petition, filed by the kith and kin of the deceased before the Motor Accident Claims Tribunal (for short the Tribunal). The facts are that on 28-6-1977 at about 7.30 a.m the deceased, namely, Kishanpal was travelling in a Rikshaw along with Natthu Singh who deposed as PW 4 before the Tribunal. The Rikshaw was proceeding from Railway Station towards Sabzi Mandi. The truck No. UPP 4395 which was coming from the city side i.e from opposite direction dashed into the Rikshaw causing injuries to Kishanpal, who succumbed to them in the hospital. His co-passenger Natthu Singh was also injured. The claimants claimed compensation of Rs. 60000/-, but the Tribunal decreed the claim of Rs. 24000/- only. The Tribunal found that at the time of accident the truck was being driven by one Dalchand son of Umrao. Dal Chand was the conductor of the aforesaid truck at the relevant time and one Veerpal was the driver of the truck. The case of the claimants was that at the time of the accident the truck was being driven by Dalchand and Veerpal was sitting by the side of Dalchand in the truck. The Tribunal accepted the case of the claimants that the vehicle was being driven by Dalchand at the time of the accident; that the accident was caused by the rash and negligent driving of Dalchand and not due to any mechanical defect beyond the control of the driver. Since Dalchand was not a licensed driver, the Tribunal held that the insurer was not liable and the truck-owner alone was liable to pay the compensation.

2. Aggrieved by the said order, this appeal has been filed by the truck-owner. The points for determination in this appeal are:—

1. Whether the Tribunal was right in holding that at the time of accident the truck was being driven by Dalchand (conductor) and not by Umrao, who was also, admittedly, a driver of the appellant?

2. Whether the Tribunal was right in holding that the insurer was not liable to pay the compensation?

3. Whether the appellant is liable to pay compensation on account of the accident caused by Dalchand (Conductor)?

3. First, I take up the question whether the Tribunal was right in holding that the truck was being driven at the relevant time by Dalchand and not by Umrao. Umrao examined himself as DW 2 and he stated that the Rikshaw was coming from behind the truck and that the truck was proceeding towards Railway Station from the city side. PW 4 Natthu Singh who was a co-passenger of the deceased in the Rikshaw and who was himself, injured, deposed that the truck was coming from roadways side to Railway Station and that the Rikshaw was proceeding from Railway Station to Sabzi Mandi. Whereas, according to DW 2 Umrao the truck and the Rikshaw both were coming from the same direction, according to PW 4 Natthu Singh the Rikshaw and the truck both came from opposite direction and dashed into each other.

4. The testimony of PW 4 Natthu Singh, who himself was injured at the time of accident and who travelled in the same Rikshaw in which the deceased was travelling, cannot be disbelieved. It shows that Umrao DW 2 does not have any idea of the direction in which the Rikshaw and truck were proceeding and, therefore, the, Tribunal was right in holding that he was not the driver of the truck that caused accident, but he was misrepresented to be the driver of the truck by the truck-owner. The Tribunal is also right that he is a interested witness being the father of Dalchand and, therefore, his testimony has to be seen with a great caution. Umrao DW 2 having given contradictory statement as to the direction of the Rikshaw and the truck, his testimony is not at all credit worthy. The Tribunal rightly held that the truck was being driven by Dalchand at the time of the accident Admittedly, Dalchand did not possess any licence. Therefore, the Tribunal held that the insurer was not liable for the act of the: person who did not possess even the licence to drive the truck. Therefore, the finding of the Tribunal in this regard cannot be assailed.

5. Then comes the question whether the truck-owner is liable to pay compensation for the wrongful act of Dalchand conductor. The submission of learned counsel for the appellant is that the conductor was not authorised to drive the vehicle and, therefore, he could not be said to have acted in the course of employment while he caused accident with the Rikshaw in which the deceased was travelling. In this connection, Halsbury's Laws of England, (Simonds Edition) Volume 25, page 541 can be usefully referred to and that is as under:—

“The master may be responsible for the default of his servant acting in the course of the servant's employment, even though the act which caused injury was performed by a stranger or by another servant acting outside his employment, provided that the servant for whose default it is sought to make the master liable allowed the act to be performed, for example, where he permitted a vehicle of which he was the driver to be driven by or left in charge of another person. In such case the master is not liable unless the servant for whose default it is sought to make the master liable was himself guilty of a breach of duty in allowing the act to be done and his breach of duty was in fact the effective cause of the injury.”

6. Veerpal, admittedly, the driver of the truck in question was sitting by the side of Dalchand, when the truck dashed into Rikshaw. It is, therefore, implicit that Veerpal allowed the truck to be driven by Dalchand in breach of his duty. It was the duty of the driver to drive the truck himself but he committed a breach of the duty and permitted the conductor who may not be authorised to drive the truck, to drive and it is this breach of duty on the part of the driver for whose wrongful act the appellant is liable, which in fact was the effective cause of the accident. I do not see any force in the submission of learned counsel for the appellant that the appellant cannot be held liable for the wrongful act of the conductor who was not authorised to drive the vehicle. The appellant is not only liable when the accident is caused by the driver himself but also when the accident is caused by a person who was authorised to drive the vehicle by the driver in breach of his duty. The same view was taken in the case of Behari Lal Hari Chand Khatri v. Surinder Singh, 1958-65 Acc CJ 574 : (AIR 1965 Punj. 376) by the Punjab High Court. In fact, the Punjab High Court also relied on the aforesaid material reproduced from Halsbury's Laws of England. For appreciating the principle of vicarious liability, the relevant English law may be seen. In Norton v. Canadian Pacific Steamships Ltd., (1961) 2 All ER 785 at p. 790, Pearson, J. observed thus:—

“The owner of a car, when he takes or sends it on a journey for his own purposes, owes a duty of care to other road users, and if any of them suffers damage from negligent driving of the car, whether by the owner himself or by an agent to whom he had delegated the driving, the owner is liable.”

7. A valuable test to ascertain whether a servant was negligent or not is found in Ricketts v. Thos Tilling Ltd., (1915) 1 KB 644 at 646-650. There the facts were: the conductor of an ominous belonging to the defendants, in the presence of the driver, who was seated beside him, for the purpose of turning the omnibus in the right direction for the next journey, drove it through some by-street so negligently that it mounted the foot pavement and knocked down and seriously injured the plaintiff. The Court of Appeal held that there was evidence of negligence on the part of the driver in allowing the omnibus to be negligently driven by the conductor. In so holding Buckley, LI laid down the following test:—

“It is a question for the jury whether the effective cause of the accident was that the driver committed a breach of his duty (which was either to prevent another person from driving or, if he allowed him to drive, to see that he drove properly), or whether the driver had discharged that duty.”

8. Approving the view taken in Ricketts case, (1915) 1 KB 644 (supra) the Supreme Court in the case of Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt , AIR 1966 SC 1697 observed in para 28 as follows:—

“The master was held liable vicariously, because the driver was negligent in the performance of the master's work. The driver in fact seated by the side of the conductor at the time when the omnibus was turned round. In other words, the turning round of the vehicle was an act within the employer's business and not something outside it. When the driver asked the conductor to drive the omnibus for his master's business, he did the master's work in a negligent way. The master was, therefore, rightly held responsible.”

9. From the aforesaid observations of the Supreme Court, it is clear that the owner of the vehicle will be vicariously liable not only when the accident is caused by the driver himself but also when it is caused by the conductor, if the driver asked the conductor to drive the truck for his master's business and if the driver carried out master's business in a negligent way. In the case in hand the driver namely Veerpal who permitted the conductor to drive the vehicle at the relevant time acted in breach of his duty which was direct cause of the injury and thus was negligent and, therefore, the truck-owner is liable for his wrongful act.

10. In the result the appeal fails and is dismissed with costs.

11. Appeal dismissed.