The District Medical and Health Officer, Khammam and Others vs Boddupallivenu and Others

B.S. Raikote, J.—These two appeals are filed by the District Medical and Health Officer, Khammam and the State Health Transport Organisation and the Government of Andhra Pradesh, being aggrieved by common judgment and two separate awards passed by the Motor Accident Claims Tribunal (Additional District Judge, Khammam), dated 29.12.1990, on its file in MAT.O.P. Nos. 113 and 192 of 1990. In these two appeals, common questions of facts and law arise. Therefore, I am also, disposing of them by this common judgment.

On 30.1.1990 the claimant in O.P. No. 113/90, Baddula Srinivasu and another claimant in O.P. No. 192/90 by name Boddupalli Venu were coming on cycle from SSRJ College, Khammam. When they reached NSP auditorium, a jeep bearing No. ABL 9216 belonging to the 1st appellant herein was being driven with high speed by Shaik Ghouse Khan, the 1st respondent in the above original petitions (and the 2nd respondent herein). The said jeep dashed against the cycle and as a result both the claimants, who were on the cycle, fell down, and after hitting these two claimants the jeep went ahead beyond foot-path and stopped near the hillock and as a result of this accident both the claimants sustained injuries. On the basis of these facts, two claim petitions were filed contending that the jeep was being driven rashly and negligently by the 1st respondent in the original petitions (2nd respondent herein). The claim petitions were resisted by the respondents therein by filing counters. Even the driver of the vehicle also filed separate counter. They denied that the jeep was driven rashly and negligently. It is further stated that on the requisition of the Medical Officer, MPHC, Bayyaram, the jeep in question alongwith the driver, G. Balaswamy, was given to MPHC, Bayyaram in connection with tubectomy camp from 27.1.1990 to 29.1.1990 and accordingly it was to be sent straight from Bayyaram to PHC, Sulthannagar where the camp was being conducted. But, G. Balaswamy, the official driver of the department, who was deputed for the said purpose, had sent a casual leave application requesting for grant of leave from 28.1.1990 to 31.1.1990 and the same was rejected by the department. In the counter it was stated that Balaswamy submitted his explanation stating that when he was ready to go over to Bayyaram as per the deputation orders, he developed pain in the abdomen and sent leave application through one M.A. Sami, attender of the office and the keys of the vehicle were handed over to one Sk. Abdul Rahman who handed over the same to the department. Having regard to these circumstances, it was argued on behalf of the department that this Shaik Ghouse Khan who was made as respondent No. 1 in the original petitions was not an authorised driver of the department and therefore the department was not liable. It was further contended that this Shaik Ghouse Khan was not an employee of the department. On this ground, the department prayed that the claim petitions should be dismissed against them. The department also further stated that the claim amount awarded was highly excessive. On the basis of these facts, the learned Counsel for the appellants submitted that the impugned award is liable to be set aside.

On the other hand, the learned Counsel for the respondent-claimant submitted that according to the version of the department itself the vehicle was given to the official driver of the department, by name G. Balaswamy, who in turn has handed over the keys to some other person and ultimately the same have been handed over to the 2nd respondent herein who was driving the vehicle rashly and negligently and ultimately caused the accident. Therefore, the department is liable. He further submitted that the compensation awarded in the circumstances of the case cannot be said to be excessive.

Let me first take up the legal contention urged on behalf of the appellants that the vehicle was being driven by the 2nd respondent herein and he was not an official driver nor an authorised driver of the department and therefore, the department is not liable. The learned Counsel for the appellants submitted that according to the evidence on record it was only G. Balaswamy who was the official driver and Shaik Ghouse Khan, 2nd respondent herein, was not an official driver of the department. Therefore, if he was negligent for any reason the department cannot be held vicariously liable. As against this contention, the learned Counsel for the respondents relied upon number of rulings of this Court and other High Courts in support of his proposition that if the vehicle is given to an authorised official driver and in turn if that driver entrusts the vehicle to some other driver, in that event the master would be liable for the negligent act of its servant i.e. the driver. Even handing over the key of the jeep to some other unauthorised person by the driver itself constitutes negligence on the part of the driver and if that third person drives the vehicle rashly and negligently and ultimately if the accident is caused, the master would be vicariously liable. In support of his contention he relied on the decision of the Bombay High Court in Kanchanmala Vijaysing Shirke and Others Vs. Government of Maharashtra and Others, and the decision of the Punjab and Haryana High Court in Paro Vs. Prem Singh and Others, . He also relied upon the decision of the Rajasthan High Court in Sita Bai v. Purshottam 1986 ACJ 503 In all these decisions it is field that for the negligent act of the driver, the master is liable. It is further held that even if the authorised driver was negligent in handing over the key of the vehicle to some other third person and if that third person causes an accident by his rash and negligent driving then the master would be liable. This matter is also covered by the decisions of this Court. This Court has held in Kilari Mammi v. Varium Chemical Limited 1979 ACJ 58 , that when the driver acted negligently in the course of his employment by leaving the key and another person drove the vehicle and caused the accident, the master is, liable and accordingly the Insurance Company is also liable. This decision of this Court has been approved by the Supreme Court in Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, . In the said decision of the Supreme Court, a truck driver left the truck with engine in motion after handing over the control of the truck to the cleaner who was not duly licensed person and the cleaner drove the truck and caused the accident. The Hon''ble Supreme Court held that the master was liable. Approving the judgment of this Court the Supreme Court held that the principle of exclusion pleaded by the Insurance Company could not be accepted. To quote:

In our opinion, therefore, the High Courts of Gujarat and Andhra Pradesh are right and the High Courts of Orissa, Patna and Madhya Pradesh are in error. The exclusion clause does not exonerate the insurer.

The same principle has also been reiterated by this Court in another reported decision in Sampath Reddy Vs. Gudda Meddi Suchi Venkatamma and Others, By the principle of law declared by this Court and also by the Supreme Court it is clear that the contention of the appellants is not tenable. Therefore, I hold that the finding of the Motor Accidents claims Tribunal, that the appellant department was liable for the rash and negligent driving of the 2nd respondent herein is proper and correct and accordingly the same is confirmed.

Next I consider the issue regarding the quantum of compensation. In O.P. No. 113/90 against which C.M.A. No. 1375/91 is filed, the claimant examined himself as PW 1. He stated that he was a student aged 21 years at the time of the accident and he was studying II year B.A. He suffered fracture of spinal cord and cut injury at his right ear. Immediately after the accident he was taken to the Government hospital, Khammam for treatment. He was in the hospital for about two months. According to his evidence, due to the injuries that he sustained he is not able to sit for a long time and he is not able to gass urine freely. For passing stools he has to use wooden stool. He further stated that due to these injuries he suffered lot of pain and he could not attend the college after the accident and he had to lose one academic year. He had to purchase a belt for Rs. 200/- as per the advice of the doctor. He was advised to keep the belt for two to three years. He testified that without the belt he could not walk. He deposed before the Court that he spent about Rs. 10,000/- towards medical expenses, etc. Accordingly, he claimed compensation at Rs. 20,00,000/-. He produced Ex. A 4, the injury certificate and Exs. A 6 and A 7, the admission and discharge certificates. He produced other certificates of his academic career like intermediate certificate, marks cards, etc. He submitted that he could not appear for the EAMCET examination because of the injuries he suffered in this accident. He also examined the doctor, PW 3, in support of his case. PW 3, by name Dr. G. Narayana, stated that on 30.1.1990 the claimant was admitted for multiple injuries to the vertebra and retention of urine. He stated that on the same day X-rays were taken and according to the X-ray report, the claimant suffered fracture of sublaxation of L 1 vertebra and over the dorsal vertebra. He stated that the claimant was discharged on 24.4.1990. During the treatment, the claimant recovered from urinary problem. The fracture of vertebral column was united with deformity. The claimant could walk with the support of corset and he was advised to take out-patient treatment and that, now and then he used to come for such treatment. He stated that deformity still persists. The claimant can walk in bending forward position. Knuckle deformity also persists. He deposed that with this disability he will always get pain if he walks and it is a permanent disability. Though the claimant can play games but efficiency may not be there as before and he is unfit for posts in military and police. He produced Ex. X 1, a xerox plate and Ex. X 2, the case sheet. On the basis of this evidence the Motor Accidents Claims Tribunal awarded Rs. 5,000/- towards medical expenses. Having regard to the injuries suffered and the evidence on record, I do not think that awarding Rs. 5,000/- towards medical expenses is excessive from any point of view.

Towards loss of earnings the Tribunal, by taking the age of the claimant at 21 years, adopted the multiplier of 17.95 and awarded a total compensation of Rs. 86,160/-. Having regard to the evidence on record, even this finding is also liable to be confirmed.

Towards the non-pecuniary damages, the Tribunal has awarded Rs. 40,000/- i.e. towards loss of the amenities of life and loss of expectation of life. So far as the pain and suffering is concerned, this Court has always been awarding Rs. 15,000/-. In the instant case where a person has suffered permanent disability, I think that the Tribunal was right in awarding Rs. 20,000/- towards pain and suffering and Rs. 20,000/- towards loss of amenities in life. Thus the Tribunal awarded in all Rs. 1,31,200/- with 12% interest and having reassessed the entire evidence on record I am of the opinion that this finding also does not call for interference.

In O.P.No. 192/90 against which C.M.A. No. 1346/91 was filed, the claimant was a student in the II year B.Sc by examining himself as PW 2, he stated that due to the accident he received injury on the chest. Ex. p13 is the injury certificate. According to his evidence he was in the hospital for 11 days. He was admitted to the Osmania General Hospital. Due to this accident he stated that his hearing ability is very much damaged and puss is oozing out from the ear. For that purpose he has been taking, treatment. He produced the treatment prescriptions, Ex. A 14 to A 19. On the basis of this evidence, he claimed in all Rs. 10,000/- towards medical expenses and Rs. 1,00,000/- towards compensation. According to his evidence he was aged 20 years at the time of the accident. The Tribunal awarded compensation amount of Rs. 20,000/- on all counts. PW 2 filed Ex. A 13, an injury certificate, which showed that he suffered irregular contusions 4" � 3" on the right side of the neck, irregular abrasion over the lateral part of the right eyebrow, irregular contusion over head left side in the occipital region bleeding from the ear and irregular abrasion over right elbow region. These injuries were described as simple in nature. The claimant took treatment at Hyderabad and Khammam and he stated that he spent huge amounts towards medical expenses. Having regard to the entire circumstances, awarding a total compensation of Rs. 20,000/- with interest @ 12% p.a. to the claimant in O.P. No. 192/90 cannot be said to be unreasonable. Therefore, this finding is also confirmed.

For the foregoing reasons, both the appeals are dismissed but, in the circumstances, without costs.