Municipal Committe, Sonepat and others vs Khushi Ram and others

J.V. Gupta, J.—This order will dispose of F.A.OS. Nos. 61 and 62 of 1976 as both of them arisse out of the same judgment of the Motor Accident Claims Tribunal, Sonepat, (hereinafter called the Tribunal), dated January, 2, 1976

The undisputed facts are that on the fateful day i.e. August 7, 1973 Krishan Kanhya (since deceased) went to the office of the Municipal Committee, Sonepat, at about 10-30 A.M. to enquire about the house-tax due from his father. When he was returning after making the necessary enquiries, he was crushed to death under the rear wheels of the fire brigade vehicle bearing registration No. PNU-8722, which was being reversed to be taken out from the compound of the committee by Chander Singh, driver. According to the claimants, the accident had taken place on account of the rash and negligent driving of the vehicle by the driver. The two claim petitions were filed; one on behalf of the widow of the deceased, Krishna Devi, and the other on behalf of the parents of the deceased viz., his father Khushi Ram and his mother Lajwanti. In the claim petition filed by Krishna Devi, she claimed a sum of Rs. 25,000/- by way of compensation. According to her, at the time of his death, the deceased was 28 years of age, she had married him about a week earlier to the accident and that she had become widow in the prime of her life and was rendered destitute It was fufther stated that at the time of the accident, the vehicle was under the control of the appellant though the State of Haryana was its registered owner. Thus,in the claim petitions, the amount of compensation was claimed jointly and severally from all the respondents i.e. the appellant the respondent driver and the State of Haryana. Admittedly, the driver was in the employment of the appellant at the relevant time. Both the claim petitions were hotly contested on behalf of the respondents. It was pleaded that the deceased was himself responsible for the accident. The State of Haryana took up the plea that the vehicle was handed over to the appellant as grant-in aid and that it was not liable for the compensation arising out of the claims. The defence taken on behalf of the appellant was that the driver was employed by it, but he was governed by the General order issued by the State Government and that he was under the superintendence and control of the officer incharge of the fire brigade. Thus, it was pleaded that it was not vicariously liable for the act of the driver. On the pleadings of the parties the Tribunal framed the following issues :

Whether the accident took place due to rash and negligent act of respondent No 2 ?

2.To what amount of compensation, if any, is the petitioner petitioners entitled and from whom ?

Whether the claim petition is barred by limitation ?

Whether any notice was required to be served on the respondent Municipal Committee before filing of the claim petition and if so, what is the effect of non-service of such a notice?

Relief.

Under issue No. 1, the Tribunal found that the accident had taken place due to the rash and negligent driving of the vehicle by the driver. Under issue No. 2, a sum of Rs. 25,000/- was determined as compensation payable to the widow of the deceased whereas a sum of Rs. 10,800/- was held to be payable to his parents. Issues Nos. 3 and 4 were not contested before the Tribunal and were, therefore decided in favour of claimant. Ultimately, the appellant and the driver were held liable for payment of the amount of compensation awarded and the claims qua the State of Haryana were dismissed. Dissatisfied with the same, the appellant had filed these two appeals. In F.A.O. No. 61 of 1976 cross-objections have been filed on behalf of the parents of the deceased, i.e. Khushi Ram and his wife Lajwanti, for enhancement of the amount of compensation. In F.A.O. No 62 of 1976, the appellant moved Civil Miscellaneous Application No. 565-CII of 1982 in which it has been prayed that the appellant may be permitted to place on the record the affidavit to show that Krishna Devi, widow of the deceased, who was allowed compensation to the tune of Rs. 25,000/- by the Tribunal, had re-married as per the application made by Khushi Ram, the father of the deceased. Notice of this application was given to Krishna Devi, respondent. The learned counsel for the respondent sought several adjournment to file a reply to the said application, but did not do so in spite of those adjournments. Thus the allegations made in the said application remain uncontroverted. Under the circumstances, it would be presumed that Krishna Devi, respondent, has re-married during the pendency of the appeal though no particular date of her re-marriage has been brought on the record either by the appellant or by the respondent herself.

The learned counsel for the appellant, contended that there was no rashness or negligence on the part of the driver and that at the time of the accident when he was reversing the vehicle he was being guided by the cleaner of the vehicle Kanhya Singh. Resides, according to the learned counsel, the claimants have not examined any eyewitness in regard to the alleged accident and therefore, the only evidence produced by the appellant should have been relied upon by the Tribunal.

After going through the evidence on the record, I do not find any merit in this contention. The tribunal has discussed the entire evidence on the record and has rightly come to the conclusion that Krishan Kanhya had died on account of negligence of the driver. Admittedly, in the present case, the taking place of the accident as such is not denied. It is admitted that Krishan Kanhya died in that very accident. It is further clear that none else than the driver and Kanhya Singh, the leading Fireman (cleaner) were present at the spot. Under those circumstances, it was for them to explain in what manner Krishan Kanhya was knocked down. There is absolutely no explanation forth coming in the statement of Kanhya Singh RW2 though he was the best witness in this case. According to him, he was helping the driver in reversing the vehicle Meanwhile a person named Krishan Kanhya, came there and be (Kanhya Singh) told him to stop because the vehicle was being reversed, but he did not do so. After a short while, according to him, he found that the victim was lying crushed under the vehicle He also stated that he could not say if the deceased was over run under the vehicle due to the negligence of the driver. Under these circumstances, no meaningful argument could be raised on behalf of the appellant to contest the finding of the Tribunal under issue No. 1 and, therefore, the same is affirmed.

The learned counsel for the appellant, further contended that in any case, admittedly, the registered owner of the vehicle was the State of Haryana and, thus, the vicarious liability on account of the negligence, if any on the part of the driver will be that of the owner of the vehicle. Hence the appellant could not be held vicariously liable for the said act of the driver. Reference was made to the definition of the term "owner" as provided under Sub-Section (19) to section 2 of the Motor Vehicles Act.

It is the common case of the parties that the vehicle belonged to the State of Haryana and was registered with the transport authorities in the name of the Haryana State. It is farther admitted that at that time, the vehicle was in possession and under the control of the appellant and that the driver was in its employment. If once it is held that the driver was in the employment of the appellant at the time of the accident, then the vicarious liability for his wrongful act will be that of his employer and not that of the owner of the vehicle simply because the vehicle was registered in the name of the owner. The owners of the vehicles are held vicariously liable when the defaulting driver is or is deemed to be in their employment and is thus under their control at the time of the committing of the wrongful act. The definition of the term "owner" as provided under sub-section (19) of section 2 of the above-said Act, read, thus.

''Owner'' means where the person in possession of a motor vihicle is a minor the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement

An owner of a vehicle is held vicariously liable for the wrongful acts committed by has servant during the course of his employment. Since the Haryana State had no control over the driver and he was not in its employment, but on the other hand, was acting in the course of the employment of the appellant at the time of the accident, the vicarious liability would be that of the employer i.e. the appellant Thus it has been rightly held by the Tribunal that the liability for the amount of compensation awarded was that of the driver and his employer, the appellant.

It was also contended on behalf of the appellant that since Krishna Devi, the widow of the deceased has remarried and she had failed to controvert this fact and the exact date of her re marriage is in her own personal knowledge, it would be presumed that she had re-married at the earliest after obtaining the award from the Tribunal. Under these circumstances, it was urged that the claimant Krishna Devi having re-married after the death of her previous husband in the accident, she was no more entitled to any amount of compensation. In support of the contention, the learned counsel relied upon Manjula Devi Bhuta and Another Vs. Manjusri Saha and Others, and Siti Halijah Binti Yahya v. Hei Su Ha 1977 A.C.J. 427. On the other hand, the learned counsel for the claimant Krishna Devi, contended that once a right vests in a person, he cannot be divested of the same subsequently. In support of his contention, the learned counsel placed reliance on Rameshwar v. Jot Ram 1975 P. L. J. 454.

After hearing the learned counsel for the parties, I am of the considered opinion that in a case like the present one, the factum of the re-marriage of the widow is a factor to be considered at the time of the awarding of the compensation. The appeal being in continuation of the proceedings, the appellants Court is certainly entitled to take the subsequent event into consideration. It is unfortunate that no affidavit has been filed on behalf of widow Krishna Devi to show as to when she re-married. During the pendency of the appeal against the widow stay was granted to the appellant, provided it deposits a sum of Rs. 10,000/- with the Tribunal for being paid to her. Thus, under the changed circumstances, Krishna Devi widow will be entitled to a sum of Rs. 10,000/- he had remained unmarried for some time after the death of her previous husband Krishan Kanhya.

In the cross objections filed on behalf of the parents of the deceased, it was contended that the deceased was earning about Rs. 500/- per month whereas his basic salary was Rs. 428/- per month, at that time. Besides the basic salary, he was also entitled to the dearness allowance at the rate of six per cent, and the house rent allowance. The Tribunal allowed a sum of Rs. 10,800/- to his parents by way of compensation on the basis that the dependency of the parents was to the extent of Rs. 75/- per month and since his father was sixty yeas of age and no evidence bad been brought on the record in regard to the age of his mother, taking the normal expectancy of life at 70 years, they were entitled to that sum for 12 years at the rate of Rs. 75/ per month. After considering the totality of the circumstances of the case and the fact that the widow of the deceased is not now entitled to the compensation for more than Rs. 10,000/-due to her re-marriage, it is held that bis parents would be entitled to a sum of Rs. 10,000/- more in addition to the amount of Rs. 10,800/- allowed by the Tribunal.

As a result of the above discussion F.A.O. No. 61 of 1976 fails and is dismissed. The cross-objections filed therein are allowed to the extent indicated above F.A.O. No. 62 of 1976 is partly allowed to the extent that Krishna Devi, respondent would be entitled to a sum of Rs. 10,000/- only, by way of compensation Since the Award was given by the Tribunal in January, 1976, and the full amount awarded, by it has not been paid except a sum of Rs. 15,000/- so far in both the appeals it is directed that the balance amount of compensation as awarded above he deposited with the Tribunal within three months; failing which the claimants will be entitled to interest at the rate of six percent, per annum from the date of the Award till realisation.