Pritam Kaur and Others vs Pal Singh and Others

A.S. Bains, J.—Pritam Kaur, widow of Harbans Singh, and Harprit Singh, minor son of Harbans Singh deceased, through his mother, have filed this appeal against the order of the learned Motor Accidents Claims Tribunal, Sonepat dated 30th March, 1976.

The claim application of the Appellants is pending in the Court of the Tribunal. The allegations are that Respondent No. 1 was driving the truck and the accident took place due to his rash and negligent driving and as a result Harbans Singh was killed. This application was resisted by the Respondents and one of the issues framed was, "whether Respondent No. 1 was working under the control and authority of Respondent No. 2 ?". Onus of proof of this issue was put on the claimant-Appellants. Admittedly, Respondent No. 2 is the owner of the vehicle involved in the accident. An application was made by the Petitioners before the Tribunal that the onus was wrongly placed on them and that it be shifted on Respondent No. 2 as it is he who is to prove as to how Pal Singh Respondent was driving his vehicle. This application was rejected by the learned Tribunal vide his order dated 30th March, 1977. Hence this appeal.

Mr. Maharaj Baksh Singh, learned Counsel for the Respondents has raised a preliminary objection that this appeal does not lie as there is no provision under the Motor Vehicles Act for an appeal against such an interim order. This is a technical objection. No doubt, the appeal does not lie but this appeal can be treated as an application under Article 227 of the Constitution. Hence this objection is over-ruled. Mr. Ashok Kumar Aggarwal, learned Counsel for the Petitioners, has contended that the allegation in the claim application is that Respondent No. 1 was driving the vehicle, which was owned by Respondent No. 2, at the time of the accident. Once it is proved that Respondent No. 1 was driving the vehicle at the relevant time the onus of proof of the next question whether Respondent No. 1 was not working under the control and authority of Respondent No. 2 would be on Respondent No. 2. It is he who is to prove that Respondent No. 1 was not working under his control. I find merit in his contention. It is settled law that if a person is found to be driving the vehicle he shall be presumed to be so doing with the lawful authority of its owner and if the owner alleges that he had not authorised that person for driving of his vehicle then the onus is on him. In Sitaram Moti Lal Kalal v. Santanuprasad Jaishankar Bhatt and Ors. 1966 A.CJ. 89 , their Lordships of the Supreme Court in para 6 of the judgment have observed: "There is a presumption that a vehicle is driven on the master''s business and by his authorised agents or servants, but the presumption can be met." In this view of the matter, the impugned order is set aside and the onus of proof of the issue "whether Respondent No. 1 was working under the control and authority of Respondent No. 2 ?" is shifted on Respondent No. 2. Consequently, the application is allowed and the impugned order is set aside. The parties are directed through their counsel to appear before the Tribunal on September 18, 1976.