2005(1) ALL MR 618
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

N.V. DABHOLKAR, J.

Abdul Umrao Raje Vs.Jijabai Dashrath Khedkar (Deceased Through Lrs.)

First Appeal No.793 of 1989,Appeal No.740 of 1982,First Appeal No.794 of 1989,First Appeal No.741 of 1982,Writ Petition No.3853 of 1989,Petition No.2910 of 1982

14th June, 2004

Petitioner Counsel: Shri. A. K. GAWALI
Respondent Counsel: Shri. SACHIN DESHMUKH,Shri. V. S. BEDRE
Other Counsel: Shri. A. B. DHONGDE,Shri. P. K. JOSHI

Motor Vehicles Act (1988), S.168 - Claim Petition - Little defective recital in cause title - Accident caused by motor vehicle of State Road Transport Corporation - Corporation not made as party - Driver and Divisional Controller impleaded as party - Divisional Controller impleaded in his official capacity as a Divisional Controller of Maharashtra State Road Transport Corporation attached to a particular division and not in his individual capacity - Corporation vicariously liable to pay compensation as employer/master of the driver - Pleadings in mofussil required to be construed liberally.

In the present case, it is evident that the driver had not tendered any independent written statement. In all the matters, the Divisional Controller is impleaded as party in his official capacity and as a Divisional Controller of Maharashtra State Road Transport Corporation, attached to a particular division. Certainly, the Divisional Controller is not impleaded in his individual capacity and even by the defective title, to some extent, it is evident that the Divisional Controller is impleaded as a representative of MSRTC. On perusal of the written statement, he has filed the same by putting his official stamp below his signature. Thus, it is evident that the Divisional Controller contested the litigation in his capacity as a representative of the MSRTC. and neither as an individual nor as merely a friend or immediate superior of the appellant-driver. The State Road Transport Corporation thus having been properly represented and competently defended, it was not proper on the part of the Tribunal to exonerate the Divisional Controller form the liability. On the contrary, it needs to be clarified that the Divisional Controller is liable as a representative of the State Road Transport Corporation, nay the State Road Transport Corporation, is liable to pay the amount as employer/master of the appellant-driver, since it is vicarious liability of the corporation as a master of the driver. It is settled position that the pleadings in the mofussil are required to be construed liberally. [Para 5]

JUDGMENT

JUDGMENT :- The two appeals and Writ Petition by the driver in the Motor Accident Claims Petition Nos.21 of 1980, 19 to 1980 and 20 of 1980, decided by learned Member, Motor Accident Claims Tribunal, Ahmadnagar, on 14-6-1982, 8-3-1982 and 8-3-1982, challenge all the three judgments on a common question and, therefore, all the three matters are being considered and disposed of by this common judgment. In all the three mattress, Divisional Controller, State Transport Division, Kothala Road, Ahmednagar was cited as other Respondent.

2. Heard Advocate Shri. A. K. Gawali for Appellant and Writ Petitioner, Advocate Shri. Sachin Deshmukh, holding for Advocate Shri. V. S. Bedre for claimants/respondents in all three matters and Advocate Shri. A. B. Dhongde, holding for Advocate Shri. P. K. Joshi for Divisional Controller in all three matters.

3. The only contention raised by the appellant - driver is that the learned Tribunal was at an error in totally exonerating the Divisional Controller and, in turn, his employer/master i.e. Maharashtra State Road Transport Corporation, from the liability.

4. All the claims arose out of an accident dated 20-2-1980. Admittedly on that day, the three claimants were travelling by MSRTC bus No.MHD-9832, which was on its trip from Parner (Taluka Ahmednagar) to Shirpur (District Beed) via Pathardi. The bus reached at Ahmadnagar at about 3.45 p.m. and left Ahmednagar at 4.00 p.m.. The claimants had boarded the bus at Ahmadnagar. When the bus passed Nivdunge and was nearing Pathardi, it tilted and fell in the ditch along right side of the road (keep left). The Tribunal has awarded compensation of Rs.15,000/- to claimant Jijabai in claim petition No.21 of 1980, accepting her plea that she had suffered permanent disability due to fracture of right forearm. Claimant in MACP No.19 of 1980, namely, Mohan, is awarded compensation of Rs.5000/- only, because the Medical Officer has opined the claimant having not suffered any permanent disability. In the third matter, MACP No.20 of 1980, claimant Namdeo is granted compensation of Rs.2000/-.

5. It appears that, in all the matters, learned Member framed an issue, whether the application is maintainable against opponent No.2 and answered the same in the negative, by observing that the applicant has not involved State Road Transport Corporation as party. It is this finding, which is under challenge. As rightly pointed out by Advocate Shri. Gawali, the judgment merely indicates that the driver and the Divisional Controller had engaged a common lawyer, namely, Advocate Shri. V. S. Khedkar. On perusal of the record of the tribunal in claim petition No.21 of 1980, it is evident that the driver had not tendered any independent written statement. In all the matters, the Divisional Controller is impleaded as party in his official capacity and as a Divisional Controller of Maharashtra State Road Transport Corporation, attached to a particular division. Certainly, the Divisional Controller is not impleaded in his individual capacity and even by the defective title, to some extent, it is evident that the Divisional Controller is impleaded as a representative of MSRTC. On perusal of the written statement, he has filed the same by putting his official stamp below his signature. Thus, it is evident that the Divisional Controller contested the litigation in his capacity as a representative of the MSRTC. and neither as an individual nor as merely a friend or immediate superior of the appellant-driver. The State Road Transport Corporation thus having been properly represented and competently defended, it was not proper on the part of the Tribunal to exonerate the Divisional Controller form the liability. On the contrary, it needs to be clarified that the Divisional Controller is liable as a representative of the State Road Transport Corporation, nay the State Road Transport Corporation, is liable to pay the amount as employer/master of the appellant-driver, since it is vicarious liability of the corporation as a master of the driver.

It is settled position that the pleadings in the mofussil are required to be construed liberally and here it was a technical error in the cause title. Moreover, by exonerating State Road Transport Corporation, if the view of the Tribunal is to be accepted, the driver has to be punished for error on the part of the claimants who impleaded Divisional Controller. Had the Divisional Controller been shown in the cause title somewhat as "Divisional Controller for State Road Transport Corporation", instead of "State Transport Division", issue as framed by the learned Member of the Tribunal, would not have been framed at all. However, I am of the view that, in spite of little defective recital in the title, the State Road Transport Corporation was properly represented and defended. The finding of the Tribunal to the effect that, the other Respondent is not liable, is required to be quashed and set aside, with a clarification that, the Divisional Controller was on record and has represented the State Road Transport Corporation on record and, therefore, the Corporation is vicariously liable to pay to the claimant, through the Divisional Controller.

6. Appeals and Writ Petition are thus allowed in above terms and disposed of.

Appeals and Writ Petition allowed.