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2004 Supreme(Guj) 627
Gujarat High Court
Judgename :Bhawani Singh, H.K.RATHOD
Morvi Taluka Panchayat - Appellant
Versus
Vikramsinh Gambhirsinh - Respondent
First Appeal 1104 of 1988
Decided On : 09/29/2004
Headnote:
Motor Vehicles Act, 1939 - section 2 (19) - Appeal, judgment of District in Case is challenged - Claimant was cleaner in Revenue Department government of Gujarat earning - Accident took place at about Driver was driving offending tanked had been engaged - Tanker belonged to revenue Department Government of Gujarat - Allegation is that tanker was being driven at excessive speed rashly and negligent thereby endangering human life on road - It turned turtle and claimant sustained injuries - Ultimately, his right leg was imputed was year old at time of accident Consequently compensation is claimed - Opponent states that it is not possessing various details as to age injuries etc of claimant therefore not admitted - Offending vehicle was registered in name of Collector - In RTO and it was taken by Rajkot water Tanker Sub Division and it was given on hire as per Government Rules and regulations to Toluca Development Officer as per document - It was exclusively in possession and use of Development Officer at time of accident - All expenses of repairs pay of driver etc were also borne by it - It was insured with new India Assurance Which denies contentions raised and states that vehicle was insured in name of Director of Relief revenue Department Government of Gujarat c/o Executive Engineer Water tanker Division - It is alleged that vehicle is owned by Revenue Department Government of Gujarat and insured with New India assurance Co. Ltd - It is denied that it was being driven rashly and negligently at excessive speed without taking care of persons on the road - Fact that it turned turtle therefore claimant suffered injuries resulting in amputation of right leg is denied – Held, It is crystal clear that vehicle was entrusted to licensed mechanic for repairs testing being integral part of effecting repairs - During this period, accident took place - Court found that testing was part of repairs mechanic acting within limits of authority in course of employment for and on behalf of the owner to ply it - Since accident took place during this period owner was liable for act of mechanic vicariously - Owner had not parted with possession of vehicle which remained with him and participation by mechanic was only for repairs as an agent acting on instructions of owner of vehicle therefore facts of this case are different and this judgment does not help appellant - In former case State transport Corporation hired bus from its owner for being plied on its route - It committed accident - Passengers sustained injuries - Question was which of the two -the owner or Corporation was liable to pay compensation to claimants - It was held that bus was not in custody of owner at time of accident - It was control of corporation - Vehicle was insured therefore corporation and insurance company have been held liable jointly and severally - Similarly in latter case vehicle causing accident was taken on hire by dairy development corporation from owner though owner driver was driving it at the time of accident - Appeal dismissed (Para 8)
( 1 ) THROUGH this appeal, judgment of mact (Main) Rajkot District (District Judge) rajkot District in MAC Case No. 382/85 dated 9. 5. 88 is challenged.
( 2 ) SHORTLY stated, claimant was cleaner in the Revenue Department government of Gujarat, earning Rs. 450. 00 per month apart from Rs. 8/- to Rs. 10/-from the tea hand cart in his free time, total earning Rs. 700. 00. Accident took place at about 12. 30 p. m. (noon ). Driver (Opponent no. 1) was driving offending tanker He had been engaged by Morbi Taluka Panchayat (Opponent No. 4 ). Tanker belonged to revenue Department, Government of gujarat (Opponent No. 2 ). It was insured with M/s. New India Assurance Co. Ltd. (Opponent No. 3 ). Allegation is that tanker was being driven at. excessive speed, rashly and negligently, thereby endangering human life on the road. It turned turtle and claimant sustained injuries. Ultimately, his right leg was amputed. He was 22 year old at the time of accident Consequently, compensation o (" Rs. 2. 00,000 00 is claimed.
( 3 ) OPPONENT No. 2 states, inter alia, that it is not possessing various details as to age, injuries etc. of the claimant, therefore, not admitted. Offending vehicle was registered in the name of Collector, surat. In RTO and it was taken by Rajkot water Tanker Sub Division and it was given on hire as per Government Rules and regulations to Taluka Development Officer, morbi as per document dated 21. 6. 1985. It was exclusively in possession and use of the taluka Development Officer, Taluka panchayat, Morbi, at the time of accident. All expenses of repairs, pay of driver etc. were also borne by it. It was insured with new India Assurance Co. Ltd. Which denies contentions raised and states that the vehicle was insured in the name of Director of Relief, revenue Department, Government of gujarat c/o Executive Engineer, Water tanker Division, Gandhinagar. Further, offending tanker is a private carrier given on hire to the Taluka Development Officer, morbi by insured when the accident took place. Insured had totally surrendered control of the offending vehicle to the Taluka development Officer, Morbi and had no control over it, in terms of section 2 (19) of the Motor Vehicles Act, 1939. Claimant was not in the employment of the insured at the relevant time. Therefore, claim is not covered under the policy of insurance. Private carrier was handed over to TDO morbi, therefore, insurer is not liable to indemnify the claim. Taluka Development officer, Morbi denies allegations in the claim. It is alleged that the vehicle, is owned by the Revenue Department, Government of gujarat and insured with New India assurance Co. Ltd. It is denied that it was being driven rashly and negligently at excessive speed without taking, care of the persons on the road. Fact that it turned turtle, therefore, claimant suffered injuries resulting in amputation of right leg is denied.
( 4 ) ACCORDINGLY, Claims Tribunal framed following issues at Exh. 40 : (1) Whether the applicant proves that he sustained injuries as a result of rash and/ or negligent driving of Tanker No. GTC 5423 by Opponent No. 1? (2) If so, whether the applicant proves that he is entitled to recover Rs. 2, 00,000:00 or any part there of from the opponents or any of them ? (2a) Whether the liability of opponent No. 3 insurance Co. , if any, is restricted and limited as per Workmens compensation Act, 1923, applicant being a cleaner and policy of insurance being of TP risk only ? (2b) Whether the Employer opponents are liable to pay penalty of 50 per cent on the amount of compensation to the applicant ? (3) What order ?
( 5 ) AFTER recording evidence, hearing parties, findings recorded are, claimant suffered injuries as a result of accident caused by rash and negligent driving of offending truck by its driver. Claimant is held entitled to compensation of rs. 1,25,800. 00 from opponent driver and tdo, Taluka Panchayat, Morbi. Respondent no. 2 and 3 have been exonerated from
