Vicarious liability of the State arises during the lawful seizure of a vehicle, absolving the registered owner of responsibility.

1. The driver and the registered owner of a jeep involved in a road traffic accident occurred on 05/05/1987 are before us in appeal.

2. Though this Court by judgment dated 18th July, 2011 had modified the impugned award, the said judgment was recalled after condoning the delay as per order dated 11th April, 2012 on RP Nos. 698 of 2011 and 365 of 2012 filed at the instance of the 6th respondent Insurance Company. Thus, the matter has come up before us for fresh consideration.

3. The facts in brief are as follows:
The jeep belonging to the 2nd appellant which appears to have been involved in a crime relating to the carriage of cashew nut (it was an offence as per the then existing law) was seized along with the contraband articles by the police on 30/04/1987. It had to be produced before the Revenue Divisional Officer under the relevant law. As the seized vehicle and the articles could not be produced on the date of seizure or on any subsequent dates, the vehicle which was available at Bedakam Police Station was being taken to the office of the Revenue Divisional Officer on 05/05/1987. Enroute, the jeep capsized and a Police Constable who was coming by that vehicle met with his death. The legal heirs of the deceased constable filed the claim petition alleging that the first appellant was the driver at the relevant time and it was due to his negligence, the accident had occurred. The State was also arrayed as the 7th respondent on the plea that the vehicle after its seizure was under the complete control of the State at the material time. The insurer of the vehicle disputed liability. The 7th respondent did not opt to file any written statement.

4. The learned Tribunal after considering the evidence found that it was the first appellant who was driving the vehicle at the time of the accident and the accident occurred only due to his negligence. After quantifying the amount of compensation, the liability was fastened with the appellants and the 7th respondent State. The 6th respondent Insurance Company was exonerated on the ground that the liability for a non - fair paying passenger was not covered by the policy document which was marked as Ext. B1.

5. In this appeal, the appellants are challenging the finding of the learned Tribunal saddling them with the liability of paying compensation.

6. We have heard Mr. Jawahar Jose, the learned counsel for the appellants, Mr. Jamal, the learned Senior Government Pleader appearing for the 7th respondent State and Mr. Mohammed Usman, the learned Standing Counsel for the 6th respondent Insurance Company. The impugned award was also perused.

7. When the matter was taken up for hearing, it was informed by the learned Senior Government Pleader that the State has already paid the amount under the award to the claimants and steps are being initiated to recover the same from the appellants herein.

8. There are serious disputes as to who was at the driving seat at the relevant time. According to the appellants, the deceased Police Constable who was coming by the jeep was at the wheels when the accident had occurred. However, they do not dispute that when the journey started, it was the first appellant who was driving the vehicle. Half way through there was allegedly, a change of personnel at the wheels. The first appellant requested and the deceased Police Constable agreed to drive the vehicle after the journey commenced. While the claimants allege that it was the first appellant who was driving the vehicle at the material time, the appellants would contend that it was the deceased who was at the driver's seat at the ill - fated moment. The learned Tribunal has chosen to place reliance on the oral evid