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High Court Of Madhya Pradesh
G. P. Singh and S. M. N. Raina, JJ.
ad HOC COMMITTEE, THE INDIAN INSURANCE COMPANY - Appellant
Versus
RADHABAI - Respondents
Misc. Civil Appeal 191 Of 1971
Decided On : 02/21/1976
The person driving the vehicle had no driving licence. The manner in which the accident happened itself shows that the vehicle was negligently driven. On these facts the maxim of res ipsa locuitur applies. The case of negligent driving is made out. [Para 5
(2) Tort - master and servant - vicarious liability of master - when arises act must be in the course of the employment - act authorised by the master done in wrongful and unauthorised manner - vicarious liability arises.
A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (i) a wrongful act authorised by the master, or (ii) a wrongful and unauthorised mode of doing some act authorised by the master. [Para 8
Vehicle of the Primary Health Centre was sent to fetch some ailing children. The driver was taking the vehicle. In the way he allowed the vehicle to be driven by a person who had no driving licence, and by his negligent driving the accident took place. The act authorised by the master was the act of driving the vehicle and taking it to the place where the children were, for bringing them to the hospital. The driver's act of giving control of the steering wheel to another person was merely a wrongful and unauthorised mode of doing the act authorised by the master. The master was vicariously liable for the negligence of the driver. (1915) 1 KB 644, (1949) 2 KB 208 & (1963) 1 WLR 991 relied on. AIR 1966 SC 1697 referred to. [Para 10
(3) Tort - liability of State for action of servants - plea of sovereign function - when available - what are sovereign functions - work of running health Centre - is not sovereign function.
Traditional sovereign functions are the making of laws, the administration of justice, the maintenance of order, the repression of crime, carrying on of war, the making of treaties of peace and other consequential functions. Whether this list be exhaustive or not, it is at least clear that the socio economic and welfare activities undertaken by a modern State are not included in the traditional sovereign functions. AIR 1965 SC 1039, AIR 1960 SC 610, AIR 1960 SC 675, AIR 1965 SC 933 & AIR 1974 SC 890 relied on. [Para 12
The medical relief work undertaken by the State through the Primary Health Centre, Nainpur, in which the vehicle in question was engaged at the time when the accident happened, is not a sovereign function in the traditional sense. The defence of immunity must, therefore, fail. [Para 13
(4) Civil P.C., 1908 - O. 41, R. 27 - additional evidence in appeal - no reason given why the evidence not produced in the lower Court - evidence not required by the appellate Court to decide the appeal - additional evidence cannot be allowed to be produced. [Para 15
(5) Tort - negligence - compensation - death by negligent driving - principle to calculate compensation.
(6) Fatal Accidents Act, 1855 - S. 1-A - principle for calculating compensation.
In awarding compensation, the principle is to estimate what amount must be set aside so that its income supplemented by drawings on capital from year to year will cover the amount of annual dependency during the remaining period of dependency or the estimated remainder of the working life of the deceased whichever may be shorter. Growing inflation has led to the caution of emphasising that the sum be awarded should be assumed to be invested in 'growth' stocks carrying a low rate of interest. This, is effect, is the same thing as saying that the valuation should be made of an annuity on the basis of low interest rates such as 4 to 5 per cent which assume that the money values are steady but involve a higher number of years of purchase. 1975 JLJ 30 relied on. [Para 16
(7) Fatal Accidents Act, 1855 - S. 2 - damages for pain and suffer in, etc. - may be claimed.
The claimants are entitled to recover pecuniary loss to the estate of the deceased under section 2 of the Act. Under this head, the claimants can recover the damages for pain and suffering and loss of expectation of life which the deceased could have recovered had he not died only moderate and conventional sums are awarded under these heads. [Para 17
( 1 ) THIS order shall also dispose of Miscellaneous First Appeal No. 191 of 1971 and Miscellaneous First Appeal No. 16 of 1972.
( 2 ) THE facts leading to these appeals are that a motor vehicle bearing registration number MPJ 9132 was involved in an accident on 3rd June 1965 at nainpur in which one Babulal died. Babulal's widow and son, namely, Radhabai and Ravishankar, applied to the Motor Accidents Claims Tribunal for award of compensation. The Tribunal by its award, dated 18th September 1971, has allowed the claim for compensation to the extent of Rs. 9,486/ -. Interest from the date of the claim petition upto payment at the rate of 4% per annum has also been allowed. All these appeals have been filed against the award.
( 3 ) THE facts found are that the vehicle involved in the accident belonged to the state and that at the relevant time it was allotted to the Primary Health Centre, nainpur. At about 10 P. M. , one Satyanarayan approached Dr. Tiwari, Assistant civil Surgeon, Nainpur, with a request that the vehicle be allowed to be taken to a place at a distance of 12 miles from Nainpur where some children were seriously ill with a view to bring them for treatment at Nainpur. This request was allowed by Dr. Tiwari. The vehicle was entrusted to Lallu, who was a driver in Government employment, for bringing the ailing children. When the vehicle left the hospital premises, it was being driven by Lallu. Satyanarayan was also in the vehicle. Lallu stopped the vehicle near the Petrol Depot of Narendra kumar Jain and got down to take petrol in a petrol can. After taking petrol, when the vehicle left the depot of Narendra Kumar Jain, it was driven by satyanarayan, who was on the steering wheel and Lallu was sitting beside him. After some distance from the petrol depot, the accident happened. The vehicle first struck an empty cot belonging to one Pande which was on the right hand side of the road. The vehicle then swerved towards the left and hit the cot on which Babulal was sleeping. Babulal, it appears, died on the spot. The Tribunal has found that the road was sufficiently wide and had the vehicle been properly driven, the accident would not have happened. The Tribunal further found that although Satyanarayan was actually driving the vehicle, Lallu was negligent in permitting Satyanarayan, who had no driving licence, to drive the vehicle. The tribunal held that the accident happened in the course of employment and the state was vicariously liable for the negligence of Lallu. The Tribunal also held that apart from the State, Satyanarayan, Lallu and the Insurance Company were also liable. The claim was, however, dismissed against the Civil Surgeon who was also joined as a party before the Tribunal.
( 4 ) IN the appeal preferred by Satyanarayan (Misc. First Appl. No. 16 of 1972), the only argument addressed to us is that at the time when the accident happened, Satyanarayan was not driving the vehicle and the vehicle was being driven by Lallu. In our opinion, there is no merit in this argument The most important evidence in this connection is the evidence of Narendra Kumar Jain (3-4-O. P. W. 4) who is the owner of the petrol depot from where petrol was taken in a can by Lallu. The witness is definite that at the time when the vehicle started after taking petrol, Satyanarayan was on the steering wheel and Lallu was sitting beside him in the front. It is clear from the evidence of Narendra kumar Jain that after the vehicle left the petrol depot, it was being driven by satyanarayan. Radhabai (P. W. 1) and Bhikamlal (P. W. 4) have also stated that at the time when the vehicle dashed against the cot on which Babulal was sleeping, Satyanarayan was on the steering wheel and Lallu was sitting beside him. It has been stated by Bhikamlal that there was light in the vehicle. The Tribunal has relied on the evidence of these witnesses and we do not find any good reason to take a different view. S
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