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Judgment
V. Periyakaruppiah, J.—This appeal is preferred against the award passed by the lower Court in M.C.O.P. No: 767 of 1993 dated
23.04.1998 by the aggrieved respondents 5 and 6.
The brief facts submitted by both the parties before the lower Court are as follows:
(a) The claimants are the legal representatives of the deceased Janarthanan. Janarthanan was working as cleaner in the lorry bearing Registration
No: KRT 1767. On 31.10.1994 at about 8.30 p.m., the driver of the said lorry drove the vehicle in a rash and negligent manner and near
Neelakarai, he dashed against another lorry bearing registration No: TN 28 7116 coming in the opposite direction. In the said accident,
Janarathanan suffered grievous hurts and was admitted to Coimbatore Medical College Hospital. On 06.11.1994, he succumbed to his injuries.
The deceased was aged 40 years at the time of the accident and was earning a sum of Rs. 2,000/- per month and hence, the claimants are entitled
to a sum of Rs. 4,00,000/- as compensation.
(b) The counter filed by the 6th respondent it is stated that the accident occurred due to the negligence of the 1st respondent therein. 4th
respondent is no way connected with the accident. The police had filed a F.I.R. as against the 1st respondent. The respondents 1 to 3 are only
liable to pay compensation and that the respondents 4 to 6 are not liable to pay any compensation. In any event, the amount claimed is very high
and the claimants have to prove the income of the deceased was Rs. 2,000/- and hence, this petition has to be rejected.
After a full fledged enquiry, the lower Court had, appraised the evidence and passed an award in favour of the claimants/respondents for a sum
of Rs. 1,41,500/- with 12% interest per annum and proportionate costs against all the respondents. Aggrieved by the fastening of the liability
against the respondents 4 to 6, the respondents 5 and 6 have preferred this appeal.
Heard the arguments on both sides.
Learned Counsel for the appellants/respondents 5 and 6 would submit in his arguments that the lower Court has seriously erred in fastening the
liability against the respondents 4 to 6 which is not in accordance with law. He would further submit that the lower Court has come to the
conclusion that the accident occurred due to the rash and negligence on the part of 1st respondent and therefore, it should have fixed the liability
against the respondents 1 and 2 and their insurer the 3rd respondent alone. He would also submit that the direction given to the respodnents 4 to 6
by the lower Court to pay the award amount along with respondents 1 to 3 was wrong on the face of it and, therefore, the appeal has to be
allowed setting aside the award passed against the respondents 4 to 6.
The learned Counsel for the respondents 1 to 5/claimants would submit in his argument that the lower Court had, without going through the First
Information Report, and the allegations made therein had decided the issue of rash and negligence and this Court can independently come to the
conclusion about the rash and negligence on the part of respondents 4 and 5 in committing the accident and the rash and negligence may also be
fixed against respondents 4 and 5 and the lower Court had considered the allegations made in F.I.R. and had come to a conclusion of fixing the
responsibility against respondents 4 to 6 also. He would further submit that the award passed by the lower Court need not be set aside and the
findings of the lower Court regarding the rash and negligence may be corrected accordingly and the appeal may be dismissed.
I have given anxious consideration to the arguments advanced by both sides. The appeal has been preferred by respondents 5 and 6 of the
lower Court, who are the owner and insurer of one of the vehicles involved in the accident. According to the claimants, the driver of the lorry
belonging to the 1st respondent in which he was working as a cleaner was driving the lorry in a rash and negligent manner and the accident had
occurred and, therefore, the compensation has to be paid by the insurance company of both the vehicles. According to the F.I.R. - Ex.A.1, it had
been alleged that the lorry belonging to the 2nd respondent, bearing registration No: KRT 1767 was driven by its driver in a rash and negligent
manner and dashed against the lorry belonging to the 5th respondent bearing registration No: TNL 28 - 7116 and caused the accident. The lower
Court, had after going through the evidence had come to a conclusion that the driver of the 2nd respondent lorry bearing Registration No: KRT
1767 i.e. the 1st respondent before the lower Court had driven the lorry and caused the accident and the driver of the 5th respondent i.e. the 4th
respondent, was not responsible for the cause of the accident. The said finding was neither questioned by the claimants nor by respondents 1 to 3
by way of separate appeal or by filing a cross objection in this appeal. In these circumstances, the said finding had become final and it cannot be
gone into in this appeal. Even the allegations in the F.I.R. would go to show that the 1st respondent driver was negligent for causing the accident.
Therefore, the finding of the lower Court regarding the rash and negligence cannot be questioned nor altered here.
As regards the next contention of the appellants that the lower Court should not have passed an award directing the respondents 4 to 6 to pay
compensation to the claimants concerned, it has already been seen that the driver of the 5th respondent namely the 4th respondent was not
responsible for the accident. The concept of fixing the liability requires that the respondents 2 to 4 alone are liable to pay compensation. There
could not be any vicarious liability against the 5th respondent since 4th respondent was not responsible for the cause of accident. In this regard the
judgment of the Apex Court reported in M.S. Grewal and Another Vs. Deep Chand Sood and Others, would guide us as follows:
In recent years, the tendency has been however, towards more liberal protection of the third party and so in establishing a particular ""course of
employment"" the court should not dissect the employee''s basic task into component parts but should ask in a general sense: what was the job at
which he was engaged for his employer? And it is on this perspective Lord Wilberforce in Kooragang Investments Pty. Ltd. v. Richardson &
Wrench Ltd. stated: All ER p. 69a-e
Negligence is a method of performing an act: instead of it being done carefully, it is done negligently. So liability for negligent acts in the course of
employment is clear. Cases of fraud present at first sight more difficulty, for if fraudulent acts are not directly forbidden, most relationships would
carry an implied prohibition against them. If committed for the benefit of the employer and while doing his business, principle and logic demand that
the employer should be held liable, and for some time the law rested at this point. The classic judgment of Willes, J. in Barwick v. English Joint
Stock Bank Exch at p. 266 stated the principle thus:
In all these cases it may be said ... that the master has not authorized the act. It is true, he has not authorized the particular act, but he has put the
agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business
which it was the act of his master to place him in.
That was a case where the wrong was committed for the master''s (viz. the bank''s) benefit, and Willes, J. stated this as an ingredient of liability,
viz.
... the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master''s benefit,
though no express command or privity of the master be proved.
As per the dictum laid down by the Apex Court, the Master alone is liable and there cannot be any order to fasten the liability against the 6th
respondent/insurance company as per the contract of indemnication with the 5th respondent. Therefore, the lower Court ought to have fixed the
liability of paying the compensation only against the respondents 1 to 3. However, the lower Court had fixed the liability against the respondents 4
to 6 also. The said decision of the lower Court is erroneous and is not sustainable in law. Therefore, it has become necessary for this Court to
allow the appeal and thereby modify the award in such a manner that the award amount should be paid by respondents 1 to 3 alone in favour of
the claimants. Accordingly, the appeal is allowed. The award passed y the lower Court has been modified to the effect that claimants are entitled to
the compensation as found by the lower Court which is liable to be paid by the respondents 1 to 3 alone and the claim against respondents 4 to 6
is dismissed.
In fine, the appeal is allowed to the extent stated supra. There shall be no orders as to the costs in this appeal.