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Judgment
K.P. Mohapatra, J.—These eight miscellaneous appeals arise out of a common judgment passed by the learned Claims Tribunal in eight claim petitions tried analogously. Common questions of fact and law arise in all these miscellaneous appeals and so they were heard analogously. This common judgment will govern all of them.
The case of the claimants relevant for disposal of the miscellaneous appeals are stated in a nutshell. The claimants and some others belonging to two families were returning to their village, Malihata, in a bullock cart after witnessing the sivaratri mela at village, Deosul, in the evening of February 21, 1974, on Amarda-Baripada Road. At about 7.30 p. m. near village, Sasa, they noticed the headlights of a motor vehicle coming from behind. The occupants of the bullock cart asked the cartman to get down and stop it so as to control the bullocks till the passing of the motor vehicle. The cartman did so. The motor vehicle came with a great speed without blowing the horn and dashed against the bullock cart from the rear. As a result of the impact, the bullock cart with its occupants was pushed to a great distance resulting in its complete damage, instantaneous death of five occupants and severe injury, such as fractures and disfigurement of others. The accident occurred due to the rash and negligent driving of the motor vehicle bearing registration No. ORM 1063 of which the registered owner was the respondent, Padmalochan. The motor vehicle had been given on hire to the respondents, Neelratan and Jyotiprakash, and at the time of accident it was being driven by Laxmidhar Bindhani, driver of the respondents, Neelratan and Jyotiprakash, who were in possession and management of the motor vehicle and were plying the same on their route. The appellant-insurance company had insured the motor vehicle against third party risk. The claimants claimed different amounts of compensation.
The respondent, Padmalochan, in his written statement, admitted that the motor vehicle belonged to him and he was its registered owner. He had entered into a contract for management of the motor vehicle with a registered firm named and styled as "Nananda Bhauja" of which the respondents, Neelratan and Jyotiprakash, were partners. The route permit was obtained by the partnership firm, N. P. Shaw and Sons, which was dissolved in the year 1970 and the route was allotted to the respondent, Jyotiprakash. The motor vehicle was given to the respondent, Jyotiprakash, on hire by the registered firm, "Nananda Bhajua". Gopinath Sahu was the driver of the motor vehicle engaged by the registered firm and Laxmidhar Bindhani was not its employee. Laxmidhar Bindhani got, into the motor vehicle at Deosul as a passenger. He was serving under the respondent, Jyotiprakash, and was on leave since April 22, 1974, on grounds of illness. Finding the driver, Gopinath Sahu, absent from the driver''s seat, Laxmidhar Bindhani unauthorisedly and without any authority from the driver, Gopinath Sahu, drove the motor vehicle and caused, the accident within a short distance. At the place of the accident, the motor vehicle was not running at a high speed, but when the driver blew the horn to warn a cyclist who abruptly crossed the road from left to right, the bullocks of the ill-fated cart got frightened and dragged the cart to the middle of the road in front of the bus and dashed against it. It happened so quickly that although the driver stopped the motor vehicle immediately, he could not avoid the accident. So the accident was not on account of rash and negligent driving of the motor vehicle.
The respondents, Neelratan and Jyotiprakash, filed separate written statements and took identical defences with the addition that the respondent, Jyotiprakash, denied that Laxmidhar Bindhani was employed by him.
The insurance company filed a separate written statement and took the defence that the driver who caused the accident was not the employee of the insured, Padmalochan, nor was he driving the motor vehicle for his business. He was a passenger of the motor vehicle and drove the same without any authority or consent of the owner or anybody else. Therefore, the insurance company is not responsible for any tortious act committed by Laxmidhar Bindhani.
The Claims Tribunal held that the accident was caused due to rash and negligent driving of the motor vehicle by Laxmidhar Bindhani. The driver, Gopinath Sahu, permitted Laxmidhar Bindhani to drive the motor vehicle, The respondent, Padmalochan, is vicariously liable for the accident and is bound to pay compensation to the claimants. The insurance company is liable to indemnify to the extent of Rs. 50,000. The other respondents were not liable to pay compensation. The Claims Tribunal further assessed the compensation in respect of each case and gave the award against the respondents, Padmalochan and the appellant-insurance company. The claim cases were dismissed against the respondents, Neelratan and Jyotiprakash.
Mr. S.S. Basu, learned counsel appearing for the appellant, urged that Laxmidhar Bindhani was not employed as the driver of the motor vehicle by the registered owners, Neelratan and Jyotiprakash. He was only a passenger and taking advantage of the temporary absence of the driver Gopinath Sahu, he drove the motor vehicle and caused the accident. In these circumstances, there is no vicarious liability of the insured respondent, Padmalochan and so the appellant-insurance company is not liable to indemnify to the extent of Rs. 50,000.
The facts, admitted, proved and not controverted are as follows :
The respondent, Padmalochan, is the registered owner of the motor vehicle. He had insured the motor vehicle with the appellant-insurance company. He had entered into a contract with a registered firm named and styled as "Nananda Bhauja" of which the respondents, Neelratan and Jyotiprakash, were partners for management and plying of the motor vehicle. The registered firm "Nananda Bhauja" gave the motor vehicle on hire to the respondent, Jyotiprakash, who was plying the same on an approved route which he had obtained in his favour. On February 21, 1974, the motor vehicle was plying on Amarda-Baripada Road with Gopinath Sahu as its driver. At the Deosul stopping, Laxmidhar Bindhani entered into the motor vehicle and drove it. The driver, Gopinath Sahu, did not raise any objection and allowed Laxmidhar Bindhani to drive. The accident was caused near village, Sasa, due to rash and negligent driving of the motor vehicle by Laxmidhar Bindhani causing the instantaneous death of five persons and severe injuries to the rest of the occupants of the ill-fated bullock cart which was completely damaged The respondent, Padmalochan, who was held vicariously liable to pay damages assessed by the Tribunal has accepted the claim and has not preferred appeals to this court. So far as he is concerned, the Tribunal''s order has become absolute. The respondents, Jyotiprakash and Neelratan, were exonerated and were held not liable to pay compensation. Accordingly, the claim cases against them were dismissed.
The owner of the motor vehicle, respondent Padmalochan, was the insured. The Tribunal held him vicariously liable to pay compensation to the claimants. He has accepted the claim by not preferring appeals to this court. Since the order has become absolute as against the insured, the insurer, namely, the appellant is bound to cover the contractual liability to the extent of Rs. 50,000 according to Section 95(2)(b)(ii) of the Motor Vehicles Act, Nevertheless, when a question has been raised that, in the facts and circumstances of the case, the insurance company is not liable to indemnify, it is necessary to examine the point with reference to the settled position of law.
PW-4 was a passenger in the motor vehicle on the date of the accident and was an eye witness. According to his evidence, Laxmidhar Bindhani who was the regular driver of the motor vehicle was driving the same when the accident occurred. To his knowledge, Laxmidhar Bindhani was working as a driver under the respondent, Neelratan, for about 5 to 10 years. He had seen him driving the same motor vehicle ten days before the date of accident. From the aforesaid evidence of an independent witness, it is pretty clear that Laxmidhar Bindhani was neither a stranger nor an impostor, but was one of the regular drivers to drive motor vehicles on the route either on behalf of the respondent, Neelratan, or the respondent, Jyotiprakash, either of whom was managing and plying the motor vehicle. The respondent, Padmalochan, having made a contract with the registered firm "Nananda Bhauja" of which the respondents, Neelratan and Jyotiprakash, were partners, must be deemed to have implied consent for the arrangement that the motor vehicle be run on an approved route belonging to the respondent, Neelratan, or the respondent, Jyotiprakash, which, in this case, was the Amarda-Baripada route, admittedly belonging to the respondent, Jyotiprakash. The above arrangement was for the business, financial benefit and gain of the respondent, Padmalochan. The above fact finds support from the evidence of O. P. W. 1, an employee of the respondent, Neelratan, who stated that on the date of accident, the respondent, Jyotiprakash, had brought the motor vehicle from the respondent, Padmalochan, to ply on his route. He was borrowing the passenger bus to meet a contingency when required. The conclusion is, therefore, inescapable and there is little doubt that Laxmidhar Bindhani was driving the motor vehicle in the course of his employment and for the business of its owner-respondent Padmalochan.
The law on the subject has been laid down in Sitaram Motilal Kalal Vs. Santanuprasad Jaishankar Bhatt, . It was held (at page 1704) :
"The law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servant''s act does not make the employer liable. In other words, for the master''s liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master''s business makes him vicariously liable if he commits an accident. But it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable.
There is a presumption that a vehicle is driven on the master''s business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner would not be liable in such circumstances."
In this connection, it would also be relevant to quote the opinion of Lord Denning from Ormrod v. Crosville Motor Services Ltd. [1953] 2 All ER 753 (CA).
". . . . It is well-settled that a master is vicariously liable for the act of his servant acting in the course of his employment The scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of employment should always be present. It is not essential always that the act of the servant or agent should be for the master''s benefit."
The above principle was followed in Prabhu Dayal Agarwalla v. Smt. Saraswati Bai [1975] 1 CWR 432 : [1975] ACJ 355 (Orissa). There are also other decisions on the subject. In Carberry v. Davies [1968] ACJ 414 : [1968] 1 WLR 1103 : [1968] 2 All ER 817 (CA), it was observed that if the vehicle was being used wholly or partly on the owner''s business or for the owner''s purposes, the owner is liable for any negligence on the part of the driver. The owner escapes liability only if he lends the vehicle or hires it to a third person for use for a purpose in which the owner has no interest or concern (see also A. Harsha V. Rai v. Dr. K.V. Karna AIR 1973 Mys 162 and Kesava Murthy Vs. V. Amurthammal and Others, .
In view of the settled position of law and the facts of this case, the only conclusion which can be derived is that the respondent, Padmalochan, the registered owner of the motor vehicle which caused the accident and the insured, was vicariously liable, as rightly found by the Tribunal. If the vicarious liability of the insured is established, the insurance company is liable to indemnify to the extent of its limited liability of Rs. 50,000 according to Section 95(2)(b)(ii) of the Motor Vehicles Act If such a view is not taken on the basis of law and facts, then as rightly observed in Narcinva V. Kamat v. Alfredo Antonio Doe Martino [1985] 58 C C 383 (SC) the following undesirable and unethical result will follow (at page 389) :
"... If in every such situation where the person driving the vehicle is not shown to be the insured himself or someone in his employment, the contract of insurance would afford no protection and the insurance company having collected the premium would wriggle out of a loophole."
In the ultimate analysis, I hold in agreement with the Tribunal that, the appellant-insurance company is liable to indemnify to the extent of its legal liability in all the claim cases. So the appeals have no merit which are accordingly dismissed with costs. Advocate''s fee in each case is assessed at Rs. 32.