First Appeal No.254 of 2002

11th February, 2014

Petitioner Counsel: Mr. M.A. KADU
Respondent Counsel: Mr. Y.R. SONKUSARE

Cases Cited:
State of Maharashtra and others Vs. Kanchanmala Vijaysing Shirke and others, AIR 1995 SC 2499 [Para 6]

JUDGMENT

JUDGMENT :- This appeal is preferred against the judgment and award delivered on 11th January, 2002, in Claim Petition No.347 of 1993 by the Member, Motor Accident Claims Tribunal, Nagpur. The respondent No.1 is the original claimant. He had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the loss occasioned by him owing to his sustaining of serious injuries leading to his suffering from a permanent disability, in the accident caused by rash and negligent driving of one water tanker truck bearing registration No.MTF-7022. At the time of accident, this truck was being driven by respondent No.2, who was in the employment of appellants, and the truck was insured with the respondent No.3. The accident occurred at about 7.00 p.m. on 6.2.1993 near Ajani over bridge. In that accident, the said vehicle gave a dash to the bicycle rode by respondent No.1 and one Bahoran Singh. While respondent No.1, who was a labourer, suffered grievous injuries which led to suffering of permanent disability by him, Bahoran Singh died. The petition that was filed against both the appellants and respondent Nos.2 and 3, claimed compensation of Rs.1,20,000/- jointly and severally from them. The petition was partly allowed and the compensation of Rs.52,000/- was awarded to the respondent No.1 by the Tribunal by its judgment and award delivered on 11.1.2002.

2. According to the appellants, who were the employers of respondent No.2, as the accident occurred due to an act beyond the scope of employment of respondent No.2, no liability for compensation could have been fastened upon them. Therefore, they have preferred the present appeal against the said judgment and award.

3. I have heard Mr.M.A. Kadu, learned A.G.P. for the appellants and Mr.Y.R.Sonkusre, learned counsel for the respondent No.1. The respondent Nos.2 and 3 are absent though duly served.

4. With the assistance of learned A.G.P. and learned counsel for the respondent No.1, I have carefully gone through the impugned judgment and award and the record of the Tribunal. Now, the only point which arises for my determination is :

"Whether the appellants were vicariously liable to pay compensation for the negligent act of respondent No.2 ?"

5. Learned A.G.P. for the appellants has taken me through the evidence adduced by the parties and submitted that this is a case in which the present appellants could not have been even remotely held as vicariously liable for the negligent act of respondent No.2. He submits that the respondent No.2 was directed to take offending truck to a workshop at Pipri, district Wardha, from Taroda, district Wardha, in the afternoon of 5th February, 1993 and respondent No.2, exceeding his authority, took the vehicle to Nagpur, in another direction and caused the accident on 6th February, 1993. He submits that the respondent No.2 was never authorized to take the vehicle to Nagpur and, therefore, the accident which occurred in this case fell out of the scope of employment and as such these appellants could not have been held to be responsible vicariously for the negligent act of respondent No.2.

6. Mr. Sonkusre, learned counsel for the respondent No.1 has relied upon the decision of the Hon'ble Apex Court in the case of State of Maharashtra and others vs. Kanchanmala Vijaysing Shirke and others, reported in AIR 1995 SC 2499, which is the case also followed by the Tribunal, and submitted that once the evidence established that initial act fell within the scope of employment of the driver, the subsequent act, may be unauthorised in a way, would also have to be considered as connected with the performance of the duty and within the scope of the employment and, therefore, the appellants have been rightly held to be vicariously liable for the damage in the nature of loss arising from suffering of grievous injuries of respondent No.1. He, therefore, submits that the appeal deserves to be dismissed.

7. Before turning to the evidence available on record, it would be necessary to consider the guiding principles laid down in the aforestated case of Kanchanmala by the Hon'ble Apex Court in order to determine which acts fall within the meaning of the expression 'in the course of employment' and which acts do not. The Hon'ble Apex Court has held that the crucial test would be whether the initial act of the employee was expressly authorized and lawful. If the dispute is about the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far as third parties are concerned on the ground that he had not authorised the particular manner in which the act was done. If the accident occurs while performing an authorised act in a manner not authorised, the employer cannot be absolved of his liability for the damage resulting from the accident, as the unauthorised manner of performance of an authorised act is so intimately connected with the latter that it cannot be separated from the authorised act. In other words, the negligent act should be such that it cannot be segregated from the official business of the employer so as to absolve the employer from the liability. If the initial entrustment of the vehicle to an employee is for the purposes of the business of the State and later on the employee uses the vehicle for some unauthorized purpose, the use of the vehicle cannot be held to be an independent act of the initial entrustment. Such use of the vehicle, though unauthorized or though in a manner not approved of by the employer, would be within the scope of the term 'in the course of employment' as ordinarily understood.

8. Now, in the light of these principles let us see whether the negligent act performed in this case fell within the scope of the expression 'in the course of employment' of respondent No.2 or not. It is true, as rightly pointed out by the learned Assistant Government Pleader, the appellants have proved in evidence some reports about missing of the tanker and its driver. These reports and letters are in the nature of office papers exchanged between the officers of Taroda site and Police. They show that respondent No.2 did not take the vehicle straightaway from Taroda site to Pipri workshop as was directed by the appellants and instead he took it to Nagpur. This would make it necessary for us to examine the question-whether the vehicle was initially handed over to respondent No.2 for official business ? If the answer is negative, the appellants would be absolved of their liability, but if it is positive, the appellants cannot escape from the liability. The established facts show that on 5th February, 1993, the vehicle was initially entrusted to respondent No.2 for being driven to Pipri workshop which was within the scope of business of the appellants and while the vehicle was under the official entrustment of respondent No.2, the accident occurred at a place where respondent No.2 was not supposed to take it But, his such act was so intimately connected with his initial authority under which he had taken the charge of the vehicle and was driving it, that it could not said to be an independent act having no nexus with the official purpose of the Government. Things would have taken a different turn had it been the case that the driver (respondent No.2) had, after his duty was over, gone to the office, had taken out the vehicle from its parking slot there and had driven it to Nagpur without having been authorised to take it out and drive it anywhere. In such a case, there being no initial entrustment for any official business, the employer or the government would not liable for the damage or loss resulting from rash and negligent driving of the vehicle. In this illustration, the negligent act stands on it's own footing and has no nexus with the official business of the Government. This being not so in the instant matter, the appellants cannot escape from their liability so far as third parties are concerned. Therefore, I am of the opinion that the Tribunal has rightly held that for the negligent act of the respondent No.2, which resulted into causing of accident in which one person Bahoransingh died and another person i.e. present respondent No.1 sustained grievous injuries leading to sustaining of permanent disability, the appellants are vicariously liable to pay damages to the present respondent No. 1. I find no error in the findings so recorded in this regard by the learned Member of the Tribunal.

9. In the circumstances, I see no merit in this appeal and it deserves to be dismissed with costs. Both the points are answered accordingly. Appeal stands dismissed with costs.

10. The respondent No.1 is permitted to withdraw the amount deposited in this Court in terms of impugned judgment and award without furnishing any surety.

Appeal dismissed.