State vs Sarwar Begum & others

Janak Raj Kotwal, J.—Challenge in this appeal is to the award rendered by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to

as the 'Tribunal') dated 13-5-2011 in claim file No. 873, whereby the learned Tribunal, while awarding compensation of Rs. 13,04,232 in favour

of herein respondents-1 to 3 (hereafter referred to as the 'claimants') has foisted the liability of paying the compensation on the appellants and

respondent No. 4 (therein respondents).

Heard, I have perused the record.

Background facts in a nutshell are these; Shafat Hussain Shah (hereafter referred to as the 'deceased') who was a member of the Jammu and

Kashmir Police force was travelling from Srinagar towards Jammu by Maruti Car bearing registration No. JKU/6762 (hereinafter referred to as

'offending vehicle'). Respondent-4, Maharaja Krishan, Head Constable, was driving the offending vehicle. The offending vehicle met with an

accident on the National Highway at Pampore. The deceased lost his life due to this accident. Claimants filed claim application against herein

appellants and the driver of the offending vehicle/respondent-4 before the Tribunal. They contended that the deceased was travelling by the

offending vehicle on official duty along with other police personnel and that accident occurred due to negligent driving of respondent-4. Learned

Tribunal vide impugned award allowed the claim application and awarded aforementioned compensation in favour of the claimants and directed

that the award shall be satisfied by the respondents therein (herein appellants and respondent).

Appellants' grievance relates only to the foisting of the liability of paying the compensation on them. It is contended that the appellants are not

owners of the offending vehicle, which admittedly was being driven by respondent-4. It is also contended that the deceased was on a private visit

to his home on duly sanctioned station permission leave and not on official duty.

Mr. W.S. Nargal, learned AAG appearing for the appellants submitted, briefly, that the learned Tribunal has fallen into error by foisting liability

of paying compensation to the claimants on the appellants along with driver of the offending vehicle, who may be its owner as well, even though

respondents have no concern with the offending vehicle, which was a private car.

Counsels for respondent, however, supported the award maintaining that the deceased was on official duty.

It has been noticed that the learned Tribunal has directed the respondents therein to satisfy the award without stating as to how even the

appellants are liable to pay the compensation. It needs to be stated that a claim for compensation under Section 166 of the Motor Vehicles Act is

based on the principles of the tortuous liability of the tortfeasor, that is, the driver of the offending vehicle and vicarious liability of its owner. The

driver is liable to pay compensation to a person injured in an accident, or legal representatives of a person dying due to an accident if it is proved

that the accident occurred due to a tortuous act of the driver, like rash or negligent driving by him. Once the driver is found liable to pay

compensation, the owner may also be jointly and severally liable, incurring the vicarious liability of the employer.

It is admitted that the offending vehicle was a private car. It has been proved before the learned Tribunal that the accident causing death of the

deceased occurred due to negligence of the person driving the offending vehicle, that is, respondent No. 4 (respondent No. 3 in the claim

application). It is no body's case that the offending vehicle was owned by the appellants or that respondent No. 4 was under employment of

appellants as driver of the offending vehicle. In such a situation, no way any liability is incurred by the appellants nor they could have been asked to

pay the compensation or satisfy the award along with the offending driver. No liability under Motor Vehicles Act is incurred by the appellants even

if it is presumed for the sake of argument that the deceased was on official duty. The learned Tribunal, therefore, has fallen into error to the extent

of foisting liability of paying compensation on the appellants along with the offending driver. The impugned award to the extent of foisting liability on

the appellants, therefore, is bad in law and liable to be set aside.

After the judgment in this case was reserved after hearing the parties on 5-11-2015, respondent No. 4 (Driver) has produced a certificate

issued by the Regional Transport Officer, Jammu giving particulars of offending vehicle showing, inter alia, that as per record of the office of the

Regional Transport Officer, Jammu, the offending vehicle was owned by M/s. Palla Ram Parshotam Lal, Rajinder Bazar, Jammu. An attempt

seems to have been made by him to show that he was not the owner of the vehicle at the time of accident. It is, however, noticed on perusal of

record on the file of the Tribunal that he (therein respondent No. 3) was served with a notice of the claim application but he did not contest the

application. He did not even opt to assail the award whereby the liability of paying the compensation was foisted on him, besides the appellants',

even though he contested this appeal in his capacity as respondent No. 4. In a claim for compensation primary liability of paying the compensation

is that of the driver of the offending vehicle for his tortious act of negligence committed by him though liability may percolate to the owner of the

vehicle on the principle of vicarious liability as explained herein above also. The driver in this case having not contested his primary liability before

the Tribunal nor having assailed the award by filing any appeal in spite of having been impleaded and causing appearance before this Court as

respondent No. 4 to this appeal, now' cannot escape his primary liability by just disclosing the particulars of a person who according to him is the

owner of the offending vehicle.

For all that has been said and discussed above, this appeal is allowed and the impugned award to the extent of foisting liability of paying

compensation on the appellants is set aside.

Disposed of.