Gurbakshi Rai vs Chandgri Ram And Ors.
1995 Latest Caselaw 921 Del

JUDGMENT

C.M. Nayar, J.

(1) The present appeal is directed against the Award dated August 27,1981 passed by Shri R.K. Sain, Judge, Motor Accident Claims Tribunal, Delhi, by which the claim petition of the appellant was dismissed.

(2) The appellant Gurbaksh Rai filed a petition under Section 110-A of. the Motor Vehicles Act against the respondents on the plea that on 24th September, 1971, at about 10 p.m. he was traveling in a Mobile Court Van No. DLP-4081 driven by Chandgi Ram, respondent No. I and it was coming from Alipur side towards Delhi. The appellant along with his officers had arrested few persons at G.T.Road for committing an offence under the Prevention of Corruption Act and at that time the appellant was escorting all those arrested persons to Police Station Civil Lines, Delhi. He was sitting on the left side of the driver but when the van had covered about 5 miles from Alipur side towards Delhi, it was alleged, that the accused started crying, shouting and creating nuisance inside the van. The appellant in order to listen to the arrested persons for the purpose of having a talk with them and to avoid distraction to the driver got up from his seat and walked to the back of the bus. When he moved in the bus and had come in the middle of it, then the floor of the bus suddenly broke up with the result that the right leg of the appellant came out from the floor of the bus and came into contact with the road. The appellant allegedly received multiple injuries as a result of his leg striking the road. It was contended that the accident took place on account of rash and negligent act on the part of the respondents. Respondent No. I did not check the Van properly to find out, whether, the same was road-worthy or not. Respondent No. 2, i.e. Registrar, Delhi High Court, it was alleged, was equally negligent and careless as he did not care to look after the proper maintenance of the van. It was the duty of the respondents to have regular inspection of the vehicle so that it did not endanger the safety of passengers in question. The registered owner of the vehicle was the Deputy Commissioner, Delhi, respondent No. 3 herein. Therefore, respondents 3 and 4 were imploded in the claim petition. The vehicle was, however, owned by Delhi Administration i.e. Respondent No. 4, who has also been imploded as a party. It was further alleged that the accident was caused on account of negligence and careless act on the part of respondents I and 2 though respondents 3 and 4 were also stated to be equally liable for riot providing road-worthy and proper vans to the staff. Thus, all the respondents were individually and vicariously liable for the tort committed by respondent No. I who was their employee. The appellant, as a consequence, received multiple injuries and compound fracture on his right leg besides lacerated wounds on the leg. He bleed profusely from these injuries and same have caused great pain, shock, agony and mental torture. The wound was immediately stitched in the hospital and plaster was applied on the fractured leg which was alleged to be reduced and settled down before the application of the first plaster. The plaster was removed on the next day as the bleeding could not be stopped and the fractured bone was not correct. The appellant had to be plastered again and to undergo X-rays which reflected that the bone was not united properly. The leg remained completely under plaster till 30th January, 1978 and even after the removal of the plaster the appellant was advised complete rest for a period of one month. The appellant allegedly was admitted in hospital on the date of accident and remained there as indoor patient till 7th October, 1971. He was confined to bed as he was not in a position to move nor he was advised to do so up to 29th February, 1972. He spent huge amount on his treatment, medicines and diet etc. and was likely to spend considerable amount in future as well. The injuries caused permanent disability and it was apprehended that the appellant might not be able to live an active life in future as well. The appellant was working as Inspector in Anti-Corruption Department, Delhi Administration, Delhi, on a monthly salary of Rs. 700.00 . In the above background, a sum of Rs. one lakh was claimed as compensation.

(3) The respondents contested the petition. Respondent No. 1 alleged that the appellant had no cause of action against him and he was not liable to pay any compensation inasmuch as the appellant did not suffer any injury on account of any act attributable to him. The alleged injury, if any, was sustained on account of his own act and conduct and due to his own negligence. The appellant, it is contended, did not board the van in question either with the consent or permission of respondent No. I or any other officer owning the said vehicle or in charge thereof at the relevant time. He was self invited licensee/person and, therefore, was not entitled to claim any compensation from respondent No. 1. The said respondent further alleged that he was on duty and acting in the course of his employment under his employer and, therefore, was not liable. The appellant thrust his foot by force while shouting at the accused persons whom he was carrying and it was out of his own initiative and volition as well as negligence that he put his foot in such a manner that he damaged the floor of the van which gave way under his violent pressure. Respondent No. 2 maintained that the claim was outside the meaning, object and scope of provisions of Section 110-A of the Motor Vehicles Act and there was no cause of action against the said respondent. The appellant suffered due to his own carelessness and negligence.

(4) The following issues were framed : 1. Whether Gurbaksh Rai sustained injuries due to rash and negligent driving of Vap No. 4081 on the part of respondent No. 1 ? 2. To what amount of compensation, if any, is the petitioner entitled and from whom? 3. Whether the application is within time? 4. Whether there is any cause of action against the respondents. 5. Whether the petition is bad for misjoinder of parties? 6. Relief.

(5) On issue No. 1, the Tribunal assessed the evidence on record and held that respondent No. 1 was not driving the vehicle in rash and negligent manner at the time of accident. Issue No. 4 was next considered and it was held that the respondents were not responsible for creating circumstances leading to the accident. They were, therefore, not liable. The learned Judge rejected the contention that it was the bounden duty of the owner of a transport vehicle running on the road to see that the vehicle was mechanically sound and was of road-worthy condition. The Tribunal took note of the fact that the appellant along with other members of the raiding party huddled themselves in the Mobile Court van which was not meant either to carry so many persons or to transport the officials of the raiding party. The findings in this regard may be reproduced as follows : "THE driver of the Mobile Court Van was asked by the officers of the raiding party to drive the vehicle to a destination of their choice. This shows that the members of the raiding party intruded into the van and forced the driver to drive the vehicle to a particular destination to which destination the driver was neither obliged to drive in discharge of his duties nor he drove in obedience to any command of his master. The van which was meant to carry only the staff of Mobile Court was forced to be driven with persons double than the number of persons which the van was supposed to carry. In such circumstances if the plank on the base of the vehicle gives way cither under over load or otherwise master or the driver can hardly be held responsible for such a misuse of the vehicle and such misuse hardly gives petitioner any cause of action against respondents. It were the members of the raiding party themselves who are responsible for creating circumstances leading to this accident and not the respondents."

(6) The claim petition, as a consequence, was dismissed.

(7) The learned Counsel for the appellant has assailed the above findings and contended that it was the duty of the driver and the owner of the vehicle to keep the same in good shape and road worthy condition. The van was not over-loaded. In fact, it was only carrying very few passengers which included the appellant and other members of the raiding party. The owner of the vehicle, which was alleged to be respondent No. 2, was vicariously liable for the act of negligence of the driver, respondent No. 1. In this context, reference may be made to the judgments, as reported in Pushpabai Parshottam Udeshi and Others v. M/s Ranjit Ginning & Pressing Co. Pvt. Ltd. and Another ; Pirthi Singh and Another v. Binda Ram and Others and State of Maharashtra & Others v. Kanchanmala Vijaysing Shirke & Ors., Jt 1995 (6) S.C. 155. The trend in law as is reported in the judgment of the Supreme Court in Pushpabai Parshottam Udeshi and Others (supra) "is to make the master liable for acts which do not strictly fall within the term "in course of the employment" as ordinarily understood. The owner is not only liable for the negligence of the driver if the driver is his servant acting in the course of his employment but also when the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes." Similar view is upheld in the latest decision in the case of State of Maharashtra & Others v. Kanchanmala Vijaysing Shirke & Ors. (supra) wherein it is clearly held that the State cannot escape its vicarious liability to pay compensation to the heirs of the victim.

(8) The question now arises, as to whether, any negligence can be attributed to the driver of the vehicle, respondent No. 1 - The flooring gave way allegedly on the mere thumping by the appellant. The vehicle was a Mobile Court van and registered in the name of the respondent No. 3 i.e. Deputy Commissioner, Delhi at the time of accident. Of course, it was being used as a Court van, therefore, it was mentioned that it was under the control of respondent No. 2 i.e. Registrar Delhi High Court. The duty is cast on the driver as well as the owner to maintain the vehicle in good road-worthy condition and the accident would not have occurred, if those who had the management, used proper care. The van ought not to have been used if its flooring was so weak that it could give way merely by a weight of a passenger. In this view, it is established on record that the accident took place due to the poor maintenance on the part of respondent No. I as well as the owner of the vehicle. The finding in this regard of the Tribunal is, accordingly, reversed.

(9) The next point which requires consideration is with regard to the compensation as payable to the appellant and from whom. The van was being used by the Mobile Court staff which was under the care of District & Sessions Judge. Respondent No. 2 i.e. the Registrar of Delhi High Court has filed written statement and denied its liability to pay any compensation on the ground that the van though under the control of District & Sessions Judge, Delhi, was registered in the name of the Deputy Commissioner, Delhi. The Tribunal has categorically held that the Mobile Court van was not the case property and was being taken to Police Station, Civil Lines under the orders of the officer who organized the raid i.e. Dsp Shri Katoch. The appellant as well as the other members of the raiding party took control of the van and without appropriate orders from the alleged owner utilised the same for the purpose of transporting the persons apprehended. This action being illegal, was taken by the officers including the appellant and in this background no responsibility can be fixed on respondent No. 2. The Van was utilised by the members of the raiding party without either the authority of respondent No. 2 or of the District & Sessions Judge and used it for their own purpose. In this background, the vehicle having been registered in the name of respondent No. 3 can be legitimately held to be owned by respondent No. 4. i.e. Delhi Administration. They are, accordingly, liable to pay the amount as compensation for the injuries sustained by the appellant as it was their duty to keep the vehicle in good road-worthy condition while it was being used by their own officers. In the facts, as enumerated above, I hold that respondents 3 and 4 are liable.

(10) The question now arises as to what amount the appellant is entitled for the award of compensation. The claim petition indicates the following injuries sustained by the appellant in paragraph 11.

(I)Compound fracture of the right leg above ankle; both bones. (ii) Deep lacerated wounds on the right leg; (iii) Bruises and injuries on the other parts of the body.

The appellant has claimed a sum of rupees one lakh but has not claimed the amount of compensation under separate heads which is required under the settled law. He has, however, contended in paragraph 13 of the petition that he was still under treatment at the time of filing the petition, as the injuries had not healed. He spent about Rs. 3000.00 so far on his treatment, medicines and special diet etc. and he was likely to spent huge amount in future as well.

(11) PW4 Dr. Avinash Chander Khosia was examined. He deposed that the appellant had fractured both bones of the right leg in the lower part near the ankle joint with a wound about I" x " on the inner side of the ankle. He was subjected to X-ray which revealed fractured both bones of the right leg. The appellant was admitted in the ward and was discharged on 6th October, 1971. He continued to come to hospital for subsequent treatment as an outdoor patient. The plaster was removed on 30th January, 1972 and the appellant was advised to walk with crutches and not to bear weight and active movements of knee and ankle. He was advised to get physiotherapy in the Physiotherapy Department of Willingdon Hospital. The appellant himself appeared as PW9 and reiterated the injuries suffered by him and produced the latest hospital card as Ext.PW9/l. Dr. Arun Goel, Head of the Department of Willingdon Hospital advised the appellant to wear rubber cushions under the heals as the treatment to the injuries had not been able to cure the pain. In the ankle of the right leg joint arthrIT is is said to have developed From the perusal of the evidence it is clearly indicated that the appellant suffered disabilities and was in continuous pain for quite a long period. Medicines and physiotherapy are always required with injuries of this nature. There is obvious inconvenience, discomfort and hardship which result from the accident of this kind. The treatment continued for quite a while and some amount has to be awarded for medicines, special diet, conveyance etc. Taking an over all view of the facts and circumstances of the case, the appellant is entitled to the following amounts: 1. Pain and suffering undergone by the appellant Rs.20,000.00 2. Injuries suffered including permanent disability Rs. 20,000.00 3. Medical expenses Rs. 3,000.00 (as claimed) 4. Future treatment and medicines Rs. 3,000.00 Rs. 46,000.00

1 accordingly assess the total amount of damages to the appellant/claimant at Rs. 46,000.00 . The appellant shall also be entitled to interest @ 12% per annum from the date of petition till realisation and costs which are quantified at Rs. 2,500.00 .