Jharkhand High Court
Bishnu Kumar Bagaria vs (A) Md. Shah Jahan on 14 November, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 11 of 2004
Bishnu Kumar Bagaria ..... ..... Appellant
Versus
1. (a) Md. Shah Jahan
(b) Shama Parbin
(c) Ruksar Parbin
(d) Nazmin Parbin
(e) Md. Afroz
2. National Insurance Co. Ltd., Deoghar Branch, Deoghar.
3. R.A. Himmatsingka & Company, Post & Dist- Dumka.
4. Shankar Prasad Yadav
.... .... Respondents
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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Sidhartha Roy, Advocate
For the Respondents : Mr. Atanu Banerjee, Advocate
Mr. Alok Lal, Advocate
CAV ON 19.04.2022 PRONOUNCED ON 14 .11. 2022
1. This appeal is preferred by the son of the owner of the offending
vehicle against the judgment and award dated 27.02.2003 passed by 3rd
Additional District Judge, Dumka in Title Claim Suit No. 15/97 whereby and
whereunder a compensation of Rs. 1,54,000/- has been awarded for death of
one Firoj in a motor vehicle accident.
2. Himmatsinghka & Company is the authorised agency of TELCO
for the servicing of Tata vehicle at Dumka. On the date of incidence Tata
Sumo bearing registration no. BR-12-8182 met with an accident when it was
taken out of the workshop for trial run. As per the claimant's case the accident
took place due to rash and negligent driving by Shankar Yadav who was
driving the vehicle and the deceased being a mechanic of the workshop was
also in the same vehicle.
3. The claim case has been preferred against the owner, driver and
insurer of the vehicle.
4. Owner of the vehicle O.P. No.1/appellant and the insurer of the
vehicle O.P. No.2 appeared and contested the claim inter alia on the ground
that the vehicle had been handed over to the workshop for servicing and the
accident took place during course of trial therefore the workshop owner was
liable and should have been impleaded in the case. Vehicle was taken out of
the workshop by some un-experienced mechanics resulting in the accident. In
order to save itself from liability one Shankar Prasad Yadav was framed by
filing Dumka (M) P.S Case No. 14/97 against him. It is averred that the
appellant has no concern with the said driver and he was not under his
employment. Appellant also filed Dumka Town P.S Case No. 65/97, under
sections 406, 120 B, 177 of the I.P.C against the owner and manager of M/s
R.A. Himmatsinghka. It is contended that vehicle was being driven by the
deceased himself.
5. The driver of the vehicle was not having a valid and effective
licence therefore the liability for paying the compensation amount has been
fastened on the owner of the vehicle by the Tribunal.
6. The appeal has been preferred mainly on the ground that the
accident took place when the offending vehicle had been entrusted to the
Himmatsinghka Company and the deceased died during the course of his
employment, therefore the claim should have been preferred against
Himmatsinghka Company, employer of the deceased. Reliance has placed on
the following authority:
V.J. Acharya v. Ratilal Fulchand Shah, 1984 SCC OnLine Bom 82 : It is
trite law that a person who procures work to be done for him by an
independent contractor is in general not liable for the negligence or other
torts committed by the contractor or the servants of the contractor in the
course of the execution of the work. There are no doubt certain exceptions to
this general rule but they are predicated upon the finding that an employer
himself was in the course of some duty which he transferred to the employee
or the employer himself committed the tort by so hiring an incompetent
contractor or employing an insufficient number of men or interfering with
the manner of carrying out the work resulting in damage. Such exceptional
situations are rare and not relevant for the present purpose. Further on, it is
also well settled that the principle of vicarious liability is also extended to
the tort committed by a person who cannot in ordinary usage be called a
servant but could be called an agent. When the owner of a vehicle gets a
friend to drive it for him, the friend cannot appropriately be called a servant
but being an agent, the owner will be vicariously liable.
7. The true test for determining the liability, when the offending
vehicle is not in possession of the vehicle of its owner, is to see whether the
owner of the vehicle was in effective control of it or not? In Rajasthan SRTC
v. Kailash Nath Kothari, (1997) 7 SCC 481 at page 487 where the bus was
hired by Rajasthan State Transport Corporation Hon'ble the Apex Court held
that the definition of owner under Section 2(19) of the Act is not exhaustive. It
has, therefore to be construed, in a wider sense, in the facts and circumstances
of a given case. The expression owner must include, in a given case, the
person who has the actual possession and control of the vehicle and under
whose directions and commands the driver is obliged to operate the bus. To
confine the meaning of "owner" to the registered owner only would in a case
where the vehicle is in the actual possession and control of the hirer not be
proper for the purpose of fastening of liability in case of an accident. The
liability of the "owner" is vicarious for the tort committed by its employee
during the course of his employment and it would be a question of fact in each
case as to on whom can vicarious liability be fastened in the case of an
accident.
8. Deceased was a mechanic employed in the garage of the show
room. The accident took place when the Tata Sumo bearing Regd. No. BR 12-
8182 overturned resulting in death of the deceased who was in the vehicle at
the relevant time. As per the FIR, Charge-sheet and other evidence, the
vehicle was being driven by one Shankar Yadav at the time of accident during
the trial of vehicle. The vehicle in question was insured at the relevant time
but, the driving licence of the driver was not produced, therefore the owner of
the vehicle has been held liable to pay the compensation amount.
9. Main point for determination is when the vehicle was sent for
servicing in the workshop and the accident took place during course of trial
run of the vehicle, can the owner of the vehicle be held liable for payment of
the compensation amount for the accidental death of the employee of the
workshop?
10. This Court is of the view that owner of the vehicle cannot be
saddled with liability in the fact situation of the present case for two reasons.
Firstly, after investigation final form was submitted in this case showing the
driver to be driving the vehicle at the relevant time of accident. The
cognizance was later taken by the Magistrate on the basis of the statement of
the informant and other witnesses recorded under Section 164 Cr. P.C. The
plea of the appellant is partly vindicated by the finding of the investigation
that the deceased himself was driving the vehicle.
Secondly, even if it is assumed that the said Shankar Pd. Yadav
was driving the vehicle at the relevant time there is no finding of the Tribunal
that he was the employee of the owner of the vehicle.
Lastly, even if it is assumed that Shankar Pd. Yadav was the
driver of the vehicle, the appellant was the owner of the vehicle who had
entrusted it to Respondent No.3 for servicing of the vehicle and it was the
duty of the owner of the workshop to ensure the safety of the vehicle at the
time of the trial run. Trial run of the vehicle was part of the servicing and it
was under the control of the owner of the servicing agency. Liability cannot
be fastened on the owner of the vehicle at the time of its accident when it's
under the control of the Servicing Agency.
11. To expect an owner who sends his motor vehicle for servicing to
stand in the workshop and himself check the use of the vehicle or the licence
of the workshop employees will be a wrong reading of the law. Law in its
interpretation is to accord with business, commercial and social realities.
When the vehicle was taken in the workshop for servicing for price, it is
assumed that duty of ensuring that the safety of the vehicle is on the Servicing
Agency.
Under the circumstance the Judgment and award of
compensation passed by the Court below is set aside.
The appeal is allowed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 14th November, 2022
AFR / AKT
