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High Court of Karnataka
THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
Mallamma & Others
Versus
Mahaboob Ali & Others
M.F.A No. 6092 of 2002 (MV) connected with M.F.A Nos. 6093 to 6095 of 2006, 6097 to 6110 of 2006 and 6112 to 6123 of 2006
Decided on : 16-06-2009
MOTOR VEHICLES ACT, 1988 - Section 149: [A.N. Venugopala Gowda, J] Liability of insurer - Third party risk - Rash and negligent driving on part of a driver causing death and injuries to passengers -Driver was carrying gratuitous passenger in a goods carrier which was insured - Held, Insurer and insured were held jointly and severally liable for compensation - However, since insurance policy covers indemnity only in respect of 5 persons, insurer is liable only for risk of 5 persons. Claim by other gratuitous passengers are not tenable.
MOTOR VEHICLES ACT, 1988 - Section 168: [A.N. Venugopala Gowda, J] Compensation - Vicarious liability of owner of vehicle - Driver of a lorry unauthorisedly carrying gratuitous passengers in a goods carrier - Accident occurred due to rash and negligent driving of driver resulting in death and injuries to said passenger -Held, The Courts and tribunals direct payment of compensation, on the claimant establishing the fault of the person causing the injury or the damage i.e. on account of actionable negligence while judging vicarious liability of employer for negligence of employee same is approach. In the given set of facts and circumstances of a case, whether person causing injury to other was negligent or not, has to be examined on basis of evidence before Court. The ordinary rule is that, an employer though guilty of no fault of himself, he is liable for damage done by the fault or negligence of his servant acting in course of his employment. In some case it can be found that an employee was doing authorised act in unauthorised, but not a prohibited way. The employer shall be liable for such act, because such employee was acting within scope of his employment and in so acting, done something negligent or wrongful. A master is liable even if acts which he has no authorised, provided they are so connected with acts which he has been so authorised. Therefore, the crucial test is, whether the initial act of the employee was expressly authorised and lawful. Where owner had employed the driver to drive his goods vehicle, he shall be responsible for the manner in which employee i.e. driver performed his duty. This is necessary to ensure so that, the injured third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant, are not deprived from getting compensation for the wrongful acts on the part of the employee acting in the course of his employment, if the dispute resolves around the mode or manner of performing the duty on the ground that the employer had not actually authorised the particular manner in which the act was to be done by the employee. As it is established from record, driver of goods lorry had allowed several people to board vehicle along with their goods had exceeded his authority and carried more people with goods that the one permitted when accident took place, it is an inter se matter between the first respondent and his driver, and the third parties, cannot be deprived from getting the compensation.
MOTOR VEHICLES ACT, 1988 - Section 149 & 168: [A.N. Venugopala Gowda,J] Passengers Travelling in Goods Vehicle - Victims boarded a lorry along with their paddy bags by paying hire charges - Driver drove it at high speed in rash and negligent manner and lorry met with accident - consequently few persons travelling in it died and others seriously injured - Tribunal fixed liability on insurer in respect of only 5 passengers who had accompanied goods, with respect to other claimant liability not fastened on insurer - Due to lack of proof, liability also not fixed on owner of vehicle - Held, In respect of others, the Insurance Company is not liable. Owner of the Vehicle is vicariously liable for the act of Driver, in the course of employment, irrespective of the fact that he exceeded his authority. Matter remitted to Tribunal to determine the compensation.
These appeals arise out of a common judgment and consequential awards passed by the learned member, Motor Accident Claims Tribunal – II (for short ‘the tribunal’) Chitradurga, whereby the claim petitions have been rejected.
2. The appellants filed claim petitions before the tribunal under Section 166 of Indian Motor Vehicles Act, 1988, (for short ‘the Act’). The appellants are either the injured persons or the legal representatives of the deceased, who had gone to coolie work in Davanagere or in Nittur village and had boarded lorry bearing registration No.CNT-8786 on 08.06.1995 at Davanagere, to return to their villages, namely Chinnobanahally or Hirehally alongwith their paddy bags by paying in all Rs.1,100/-as hire charges to the driver of the said lorry and when the said lorry was going near Lokikere cross, its driver drove the same at high speed in rash and negligent manner, as a result of which, the lorry toppled down and capsized and the accident took place, as a result of which, few persons travelling in the lorry died and the others sustained grievous injuries, who were all shifted to the District Hospital, Chitradurga, wherein they took treatment. The said lorry belonged to the first respondent and the same was insured by the second respondent. According to the appellants, in view of the actionable negligence on the part of the driver of the lorry and the resultant loss to them, the respondents are liable to pay the compensation. The driver of the lorry was impleaded in few petitions. However, he was subsequently given up. Though the 1st respondent – owner of the lorry entered appearance through an advocate, he has not filed objections to the claim petitions. The second respondent – insurance company has filed objections inter-alia contending that, the injured petitioners and the deceased were traveling in the lorry as unauthorized or gratuitous passengers; the accident was not due to the rashness or negligence of the driver; the vehicle was a goods vehicle and the passengers were not entitled to travel or to be carried in the vehicle; the lorry though was insured by it, the same was subject to the condition that the vehicle shall be used as private goods carrier with liability of the insurance company to indemnify the third party, driver, third party property damage and the said policy did not cover the risk of unauthorized or gratuitous passengers and therefore the petitioners cannot claim any compensation from it.
3. Based on the pleadings of the parties, the issues, which are more or less similar in nature, were framed separately in all the petitions. Some of the petitioners got themselves examined as PWs 1 to 9 and Ex.P-1 to Ex.P-68 were marked. The owner of the vehicle did not cross-examine PW-1 to PW-9 and did not get himself examined nor any other evidence. On behalf of the second respondent – insurance company, RW-1 deposed and Ex.R-1 and Ex.R-2 were marked. After appreciation of the evidence on record with regard to issue No.1 in all the claim petitions, the tribunal has held that, the accident in question has occurred due to rashness and negligence of the driver of the lorry, resulting in injuries to many persons and death of few persons.
4. However, taking into consideration the delay of about 4 years in filling the claim petitions, absence of proof of the deceased and the injured transporting paddy bags and the judgment at Ex.R-2 fixing the liability on the insurer in respect of only 5 passengers who had accompanied the goods, it has held that, the travel of the injured persons and the deceased persons in the vehicle was illegal and unauthorized and hence the insurer cannot be fastened with the liability. Examining the question, whether the respondent – owner can be made liable to pay compensation to the petitioner, it has held that, the owner cannot be made liable to pay compensation, since proof has not been produced by the petitioners establishing the fact, that the owner had permitted the d
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