C.M Nayar, J. (ORAL)— This judgment will dispose of FAO Nos. 177/96, 161/96, 166/96, 168/96, 178/96 and 179/96 respectively. All these appeals have been filed against the Award dated 1st December, 1995 passed by Shri Charanjii Jawa, Judge Motor Accident Claims Tribunal, Delhi. The Award related to three cases arising out of the same accident.

The brief facts are that on 30th April, 1984 Bhanu Pratap, since deceased with his father, Rajinder Pal, petitioner in claim petition No. 360 and Susheel Kumar, petitioner in claim petition No. 359 were going on Motor cycle No. DIW-6 driven by Susheel Kumar. It was about 4.20 p.m when the motor cycle was proceeding on the main University Road from Mall Road for going towards Shakti Nagar. When the Motor cycle was on the crossing of the main road with Flag Staff road, main gate of university, at that time a car No. DHA-3861, came from Flag Staff Road and took abrupt right hand turn at a high speed for going towards Mall Road. In that process, right hand side of the front portion of the car struck against the motor cycle. As a result of the impact the motor cycle alongwith the occupants thereon were thrown away on the road. All the three persons' received injuries. Bhanu Pratap remained admitted in the hospital from 30th April 1984 to 3rd June, 1984. He died thereafter due to injuries received as a result of the accident. He was 16 years of age and was a student. It is alleged that he had a bright career and was the only son of his parents who are claimants Rajinder Pal and Ved Kumari. It was contended that he was likely to do business with high expectations and could have drawn Rs. 3000/- per month. Susheel Kumar as well as Rajinder Pal who were also injured claimed compensation for the injuries sustained by them in the accident. In all the cases it was alleged that the accident happened due to rash and negligent driving of the car by its driver, respondent No. 1 Kishan Lal. The car was owned by respondents 2 and 3 under whom the driver was employed. The respondents in their written statement admitted the factum of accident but pleaded that the accident did not take place due to the rash and negligent driving of the car but that the accident took place after the car emerged from the Flag Staff road at slow speed and crossed Vishv Vidhyalaya road and took the proper lane and started moving towards Mall Road. There were three persons on the motor cycle which was alleged to be in violation of the, traffic rules. There was no scope for the car to gain high speed in the area, due to the restriction imposed by the Delhi Development Authority with regard to the movement of the traffic in that area. Further it was pleaded that the car crossed the eastern lane of the Vishv Vidhyalaya Marg from the gate of the Flag Staff road and reached the proper traffic lane, a truck was going from North to South i.e from Mall road and towards Chouburze near the crossing, the truck slowed its speed when the car took the western lane for its movement towards Mall Road, a motor cycle DIW-6 which was going just behind the truck tried to overlake the truck from the right side at a high speed and it dashed against the car. The occupants were also not using helmets.

On the pleadings of the parties the following issues were framed:—

“In Case No. 356:

1) Whether the petitioners are the L.Rs of the deceased, late Sh. Bhanu Pratap?

2) Whether the deceased sustained fatal injuries in the accident, dated 30.4.84 caused on account of rash and negligent driving of the car No. DHA-3861, on the part of resp. no. 1?

3) To what amount of compensation, if any, are the petitioners entitled and from whom?

4) Relief.

In case No. 359:

1) Whether the injured sustained the alleged injuries on account of this accident, dated 30.4.84, caused on account of rash and negligent driving of Car No. DHA-3861, on the part of resp. no. 1?

2) To what amount of compensation, if any, is the petitioner entitled and from whom?

3) Relief.

In case No. 360:

1) Whether the injured sustained the alleged injuries on account of this accident, dated 30.4.84 caused on account of rash and negligent driving of Car No. DHA-3861, on the part of resp. no. 1?

2) To what amount of compensation, if any, is the petitioner entitled and from whom?

3) Relief.”

The evidence relating to the above issues was examined. PW-1 proved the postmortem report of Bhanu Pratap, PW-2 proved the date of birth from the school register of Bhanu Pratap and certificate, Ex.PW-2/1. PW-3 is from Hindu Rao Hospital, brought the record of treatment given to Bhanu Pratap as well as Susheel Kumar. PW-4 is Rajinder Pal, claimant in petition No. 360 and PW-5, Susheel Kumar, claimant in petition No. 359. They are the eye witnesses as they were riding the motor cycle at the time of accident.

The main points which have been urged by learned counsel for the appellant are that the findings with regard to the contributory negligence of the motor cycle driver was against the evidence, the liability was held as joint and several in paragraph 27 of the judgment and it has been wrongly held in paragraph 29 that the respondent-driver was also liable to pay 50% of the awarded amount with interest. Out of the awarded amount 60% of the amount as awarded was wrongly put in the Fixed Deposit Receipts for a period of 7 years with liberty to draw interest quarterly. The question whether the liability of the respondent is joint and several or it can be apportioned in the manner that respondent No. 1 shall pay 50% of the amount and the balance shall be paid by respondents 2 and 3 may now be examined. Reliance is placed on the judgments reported as Vanguard Fire and General Insurance Co. Ltd. v. Sarla Devi and Others AIR 1959 Punjab 297; Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt AIR 1966 Supreme Court 1697; U.P State Road Transport Corpn. v. Raj Kumari and others 1986 ACJ 699 and Radha Kishan Sachdeva and others v. Flt. Lt. L.D Sharma and another 1994 ACJ 109. The Division bench of the Punjab High Court in Vanguard Fire and General Insurance Co. Ltd. v. Sarla Devi and Others (supra) has clearly held that joint wrong doers are jointly and severally responsible for the whole damage. The person injured may sue anyone of them separately for the full amount of the loss or he may sue all of them jointly in the same manner. Even in the latter case the judgments obtained against all of them may be executed in full against anyone of them. Paragraphs 34 and 35 of the judgment may be reproduced as under:—

“34. This brings me to the next contention of the learned Counsel that the driver was primarily responsible for his conduct and the suit for damages was not maintainable in his absence. This point was not raised in the trial Court and no case nor any principle was cited before us in support of it for the simple reason that none exists. The legal position is well established and has never been challenged. It has been described in “Salmond on Torts (11th Edition) in these words:

“Where the same damage is caused to a person by two or more wrongdoers those wrongdoers may be either joint or independent tortfeasors. Persons are to be deemed joint tortfeasors within the meaning of this rule whenever they are responsible for the same tort that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases-namely, agency, vicarious liability and common action,…. In order to be joint tortfeasors they must in fact or in law, have committed the same wrongful act…..The injuria as well as the damnum must be the same.

Joint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any of them separately for the full amount of the loss; or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any of them.”

In section 30 of the same commentary it is then stated:

“A master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment. This is by far the most important of the various cases in which vicarious responsibility is recognised by the law. The justification for the rule is public policy. Were the master not liable for his servant's torts a vast number of injured persons would be without effective remedy.”

35. This legal position is stated in “Shaw-cross on Motor Insurance (Second Edition)” thus:

“Joint tortfeasors, that is, those persons who together incur responsibility in respect of the same wrongful act, whether by way of vicarious responsibility or by way of common action in a wrongful activity were at Common Law jointly and severally responsible for the whole of the damages sustained by the injured party. At Common Law, this gave the latter the right to choose whether he should seek to take one or all of the join wrongdoers liable in an action, but once he had obtained judgment against those sued he could not proceed against the others…….”

In Brooke v. Bool, (1928) 2 KB 578 and in Johnson v. Hill, (1945) 2 All ER, 272, the person who was directly and primarily responsible for the damage was not impleaded and the suit was filed by the injured person only against the one who was held to be vicariously liable. In these cases compensation was awarded and the suit did not fail for not impleading the person primarily responsible for the damage. In the former case observations of Scrutton L.J in Re Koursk, (1924 P. 140, 155) were cited with approval. These observations read:

“The substantial question in the present case is ‘What is meant by joint tortfeasors?’ and one way of answering it is: ‘Is the cause of action against them the same?’ Certain classes of persons seem clearly to be ‘joint tortfeasors’. The agent who commits a tort within the scope of his employment for his principal, and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tortfeasors; there is one tort committed by one of them on behalf of, or in concert with another”.

Therefore, a decree passed in the present case against Malik Chand In the absence of Ishwar Dass is in accordance with law.”

The Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt (supra) has also stated the principles of law in paragraph 27 to reiterate that a master is vicariously liable for the acts of his servant acting in the course of his employment. This paragraph reads as under:—

“27. The law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the masters liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner would not be liable in such circumstances.”

The Division Bench of the Allahabad High Court in U.P State Road Transport Corporation (Supra) relied upon the judgment of the Supreme Court in Sitaram Motilal Kalal case (supra) and affirmed the position of law with regard to the vicari ous liability of the master for the work carried out during the course of his employ ment.

Usha Mehra, J. of this Court in Radha Kishan Sachdeva and others v. Flt. Lt. L.D Sharma and another (supra) stated the law in paragraph 5 of the judgment which makes the following reading:—

“5. The authorities cited by respondent No. 1 are of no help to him because in all these cases the courts were dealing with the question as to whether there was any breach of the condition of the insurance policy? Whether the driver of the offending vehicle was having a valid driving licence? Nor it was the case of the respondent that his scooter was stolen and, therefore, he was not liable. The plea of vehicle being stolen and used by unauthorised person could have served the respondent from vicarious liability. But that is not his case. His case is, scooter remained parked at his house. Hence none of the authorities cited by him is applicable to the facts of this case. In the case in hand, there is no evidence led by the respondent that the vehicle was stolen and driven by an unauthorised person. In the absence of any such pleadings and proof it cannot be said that the offending scooter was driven by an unauthorised person having no valid licence. It has been specifically pleaded in the claim petition that the driver of the vehicle drove it negligently and this fact has been proved by the testimonies of Baldev Raj, PW 4, Daljit Singh, PW 5 and S.S Srivastava, PW 6, who had stated in no uncertain words that the driver of the vehicle came on the kacha side where the deceased was walking and after hitting him dragged him for almost four or five feet. Scooterist also fell down but immediately got up and lifted the scooter and ran away from there. To my mind, the claimants have proved negligence on the part of the driver of the scooter. From the facts narrated above the negligence of the scooter driver can be inferred and, therefore, the decisions relied by the respondent are of no help to him. Mr. Bhardwaj's contention that petition must fail because name of the driver was not given is also without force. It is now well settled that claimant may not know the name of the driver and it is not necessary to mention the same or implead the driver of the vehicle as a party. Similar case came up before the Karnataka High Court in the case of Basavaiah v. N.S Ashok Kumar, 1985 ACJ 789 (Karnataka), where the driver was found guilty in a criminal case. He was absent in claim proceedings still the court held him guilty of rash and negligent driving. The vicarious liability of the principal was held on the ground that the principal will be liable for the act of the agent and agent in this case being the driver of the vehicle. In that case the owner pleaded that his car was stolen and later after search he found the car parked on roadside at some other place. Police was not informed. There was no damage to the car. The court presumed the owner gave the key of the car and it was driven with his knowledge and permission, therefore, he was held liable. In the present case also the vehicle in question i.e HRG 1975 was involved in the accident. It belongs to respondent No. 1. It was being driven as witnessed by Baldev Raj and Daljit Singh, therefore, presumption is that it must be with the consent and knowledge of respondent No. 1. He is, therefore, vicariously liable. To arrive at this conclusion, I am supported by the decision of the Andhra Pradesh High Court in the case of Oriental Insurance Co. Ltd. v. S.A Gafer, 1989 ACJ 938 (AP). Non-mentioning of the name of the driver is not fatal.”

The above judgments will clearly establish that the master is vicariously liable for the acts of his servant acting in the course of his employment. The facts of the present case will establish that respondent No. 1 was driving the above vehicle which belonged to respondents 2 and 3 and was inducted in official duties at the time when the accident took place. The Tribunal, accordingly, held in paragraph 27 of the Award that the awarded amount in each case shall be payable by the respondents jointly and severally to the claimants. The learned Judge, however, committed an error in paragraph 29 by apportioning the Award and directing respondent No. 1 to pay 50% of the amount and interest thereon and the remaining to be paid by respondents 2 and 3. This finding is liable to be set aside and it is ordered accordingly. The amount shall now be paid by respondents 2 and 3.

The next point which arises for consideration is as to whether the facts of the present case will establish any contributory negligence on the part of the driver of the motor cycle. The learned Judge analysed the evidence on record and came to the following conclusion:

“It shows that the motorcyclist was not exactly being driven on it's correct side of the road but he was somewhat in the centre of the road. Had the speed of the motor cycle been reasonable and controllable, the impact of this accident would not have been so severe, that after striking against the car motor cyclist took exactly about turn and fell down behind the car itself where it was lying after the accident.”

Similarly in the same manner it was held that the car struck against the motor cyclist from its right side while taking a sharp turn and on appreciation of evidence it was held as follows:—

“It has been explained by the 2 RWS that they had gone to the office of Meteriologist to distribute the salary to the employees there and there is a gate which remains closed, they stopped the car, opened the gate, took out the car on the road, then closed the gate and they started in the car. The distance of the gate and the place of accident is small, and the car could not have picked up high speed while taking turn on its right. Therefore, according to the learned counsel for the respondents, the car was not in high speed but it was due to the motorcyclist's high speed that the accident took place.”

In paragraph 9 of the judgment the provisions of Regulation 7 of the Motor Vehicles Act have been noticed and the following findings are recorded:—

“It is admitted that the motorcyclists had been coming from the right side of the car. Therefore, under the Regulation No. 7 of the M.V Act, the car should have given way to the vehicles coming from it's right side, which car driver in this case violated this Regulation but the point is that had the car driver seen the motorcyclist, approaching from it's right side? Had he seen the motorcyclist, it was supposed that he would have stopped and allowed the motorcyclist to pass. While considering the evidence brought on record, it should be appreciated that no vehicle driver on the road desires to cause any accident. Rather, it is always tried to be avoided in any circumstances. In this case the position is, presence of the truck is pleaded by the respondents, is not established and the accident is admitted. It is possible that the motorcyclist was also rash, that he did not care for the car which was taking turn for reaching it's correct side of the road on the other end. So, in this process he caused this accident. So, my conclusion is that both the drivers of vehicles, that is motorcycle and car were responsible of the rash driving and causing this accident but the responsibility of the car driver was more in comparison to the motorcyclist.”

The learned counsel for the appellant has vehemently argued that there was no contributory negligence on the part of the driver of the motor cycle and the riding of three persons on the motor cycle would not establish the factum of negligence ipsofacto. He has relied upon the judgment reported as Oriental Fire & Genl. Ins. Co. Ltd. v. Sudha Devi and others 1991 ACJ 4 to reiterate the proposition that the driver of the motor cycle cannot be held to be guilty of contributory negligence mainly because the motor cycle carried three persons though permissible limit was two including the driver. The Tribunal, however, has relied upon the judgment reported as Santosh Kanwar and others v. Om Prakash and others 1986 ACJ 799. Paragraph 16 of this judgment reads as follows:—

“16. However, one more undisputed fact shows that there were 3 persons riding on the motor cycle at the time when the accident took place. The motor cycle is meant for 2 persons and when 3 persons sit on it, it is in itself an act, which shows that the driver of the motor cycle was careless and negligent regarding the safety of the vehicle and the persons sitting on the same. Overloading of any vehicle, more so of a two wheeler is a matter which involves danger to the safety of the persons riding on the same. Therefore, even though the motor-cyclist slowed down his motor cycle, still he was careless and negligent in putting 3 persons on his motor cycle and is, therefore, liable to contributory negligence to some extent. Even though the contributory negligence has not been pleaded by the opposite parties in their pleadings, still the court from the evidence on record can itself draw conclusion regarding this aspect of the matter. In these circumstances of the case and in view of the fact that the motor-cyclist slowed down the motor cycle on seeing the truck and the truck did not slow down while entering the intersection, I feel that the motor-cyclist should be held liable for contributory negligence to the extent of 30% and the truck driver to the extent of 70%.”

The admitted facts, therefore, on the above basis which will emerge are that the motor cycle was being used by three persons including the driver and that was not within the permissible limit as laid down by Section 85 of the Motor Vehicles Act, 1939 which is also incorporated in section 128 of the 1988 act. The carrying of more persons on a vehicle will certainly make the ride somewhat unstable which may contribute to the accident. Moreover the Tribunal has considered the other evidence on record also to arrive at a conclusion that there was some contributory negligence on the part of the driver of the motor cycle and I am not inclined to reverse that finding in the facts and circumstances of the present case. The same is accordingly affirmed.

The Tribunal lastly directed that the 60% of amount in one case and 50% in the other two cases as awarded shall be put in the fixed deposit receipts in scheduled bank for a period of 7 years with liberty to draw interest quarterly. This direction is usually given in the nature of each case when the parties interest is required to be protected. In the present case the claimants are well educated and are in a position to handle the awarded amount in the best possible manner they deem proper and appropriate. Moreover the accident took place as far back as on 30th April, 1984 and it will be in the interest of justice to release the awarded amounts in favour of the claimants. The entire amounts including the amounts lying in the fixed deposit receipts shall be released to the claimants by the respective banks within four weeks from today. This will also include balance amounts including interest till date @ 15% as awarded by the Tribunal as due in terms of the Award dated 1st December, 1995 from respondents 2 and 3 which will be disbursed within two months from today.

In view of the aforesaid, the FAO Nos. 177/96, 178/96 and 179/96 are allowed and FAO Nos. 161/96, 166/96 and 168/96 filed by the Union of India are dismissed with consolidated costs which are quantified at Rs. 5000/-.