Rajasthan High Court

Distt Election Officer Th Collector vs Smt Kailashi Devi And Others on 14 February, 2024

Author: Praveer Bhatnagar

Bench: Praveer Bhatnagar

   [2023:RJ-JP:41427]

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

                S.B. Civil Miscellaneous Appeal No. 244/2011

    District Election Officer through the District Collector, Sawai
    Madhopur
                                                             Respondent-Appellant

Versus

1. Smt. Kailashi Devi W/o late Shri Girraj, resident of Falodi, Police Station Ravanjana Dungar, Tehsil & District Sawai Madhopur.

2. Mukesh S/o late Shri Girraj, resident of Falodi, Police Station Ravanjana Dungar, Tehsil & District Sawai Madhopur.

3. Rajesh S/o late Shri Girraj, resident of Falodi, Police Station Ravanjana Dunger, Tehsil & District Sawai Madhopur.

Claimants-Respondents

4. Pappu Ram S/o Gyarsya, resident of Todi Khehra, Police Station Toda Bhim, Tehsil Toda Bhim, District Karauli (Driver of Vehicle No.29/T.0211).

5. Rajesh Kumar S/o Babu Lal, resident of 97, Todi Khohra, Tehsil & Police Station Toda Bhim, District Karauli (owner of Vehicle No.RJ 29/T 0211).

6. United India Insurance Company Limited through the Divisional Manager, Divisional Office, Bajaria, Sawai Madhopur (Insurer of Vehicle No. RJ 29/T-0211) Respondents.

    For Appellant(s)         :     Mr. Sameer Sharma for
                                   Dr. Ganesh Parihar - AAG
    For Respondent(s)        :     Mr. Rishipal Agarwal with
                                   Mr. Vimal Kumar Yadav
                                   Mr. Sagar Jindal



             HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

                                    Judgment

REPORTABLE
   14/02/2024

1. The instant appeal under Section 173 of the Motor Vehicles

Act, 1988 (afterwards referred as 'Act of 1988') has been filed by

the appellant against the judgment and award dated 18.10.2010

passed by the Motor Accident Claims Tribunal, Sawai Madhopur

(afterwards referred as 'Tribunal') in MAC Case No.46/2009,

[2023:RJ-JP:41427] (2 of 9) [CMA-244/2011]

whereby, the Tribunal while allowing the claim petition awarded a

sum of Rs.3,37,000/- as compensation alongwith interest @ 6%

per annum in favour of complainants and while fastening the

liability to pay the compensation upon the appellant - District

Election Officer exonerated the Insurance Company to pay the

compensation.

2. Brief facts of the case are that on 05.12.2008 at about 05:00

PM deceased Giriraj Bairwa, after doing mechanical (mistri) work

he was going to his village, when he reached opposite Police Line

Jail, Dausa Road, Bajariya, Sawai Madhopur a Marshal Jeep

bearing registration No. RJ29/T 0211, being driven rashly and

negligently by its driver respondent No. 1, hit the deceased, as a

result of which, he sustained injuries and became unconscious.

The deceased while taking to the hospital succumbed to the

injuries.

3. In pursuance of the said accident, an FIR was lodged at

Police Station Mantown, Sawai Madhopur against respondent No.1

- driver of the erring vehicle and the police after investigation filed

challan against respondent No.1.

4. A claim petition to this effect was filed by the claimants for

award of compensation to the tune of Rs.22,62,200/- alongwith

interest @ 18% per annum.

5. Respondent Nos.1 & 2 contested the claim petition by filing

joint written statement and denied the averments contained in the

claim petition. It was contested that the deceased fell down on

account of his own mistake and no accident has taken place by the

vehicle in question. It was also contested that since the vehicle in

question had been requisitioned by appellant - District Election

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Officer and was insured with Insurance Company, therefore,

respondent Nos.3 and 4 are liable to pay the compensation.

6. Respondent No.3 - Insurance Company filed its written

statement and admitted that fact of issuance of insurance policy in

the name of registered owner i.e. respondent No.2. It was

contested that since the possession and control of the insured

vehicle was given to the respondent No.4 by registered owner -

respondent No.2, the insurance contract between the registered

owner and Insurance Company had itself come to an end and

there was no contract of insurance with the respondent No.4

under the insurance policy, therefore, Insurance Company is not

liable to pay any compensation. It was further contested that the

accident took place on account of negligence on the part of

deceased himself. It was contested that the driver of the vehicle

in question was not having valid driving licence at the time of

accident. It was prayed that the claim petition may be dismissed.

7. The Tribunal after hearing the parties, vide judgment &

award dated 18.10.2010 while allowing the claim petition awarded

a sum of Rs.3,37,000/- as compensation in favour of the

claimants alongwith interest @ 6% per annum from the date of

filing claim petition i.e. 11.02.2009 and while fastening the liability

to pay the compensation upon the appellant - District Election

Officer exonerated the Insurance Company to pay the

compensation.

8. Learned counsel appearing for the appellant argued that the

Tribunal committed a grave error in fastening the liability to pay

compensation for the alleged accident. He argued that on

05.12.2028 the vehicle in question was released at 11:00 AM and

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the accident had taken place much thereafter at 05:00 PM, thus,

the vehicle in question was not being used by the appellant. He

further argued that the ownership of the vehicle in question was

never transferred in favour of the appellant and the insurance

policy issued in the name of owner of the vehicle in question did

not come to an end and even if the vehicle in question was under

the control of the appellant but it cannot be said that the appellant

had become owner of the vehicle. He argued that the vehicle in

question was insured for carrying the passengers and thereby the

risk of the passengers travelling in the vehicle in question was

covered under the insurance policy, hence the Insurance Company

cannot be exonerated from the liability to pay the damages

covered under the insurance policy.

9. On the other hand, learned counsel appearing for

respondents supports the judgment and award passed by the

Tribunal.

10. Heard learned counsel for the parties and perused the

material available on record.

11. As far as the factual element regarding the occurrence of an

accident by rash & negligent act of the driver of the erring vehicle

resulting in the death of deceased Giriraj is concerned, this fact

was proved by the oral evidence of AW-1 Kailashi (wife of the

deceased) and AW-2 Mukesh (son of the deceased) coupled with

the documentary evidence Exhibits-1 to 10.

12. The Tribunal in its conclusion has given convincing reasons

and scrutinized the evidence led by the parties at length in Issue

No.1. The factum of the accident due to an erring vehicle and rash

& negligent act of the driver Pappu Ram gets validated from the

[2023:RJ-JP:41427] (5 of 9) [CMA-244/2011]

investigation conducted on the filing of the FIR Exhibit-1 resulting

in the charge sheet against the Driver - Pappu Ram. This fact

remained uncontroverted and unrebutted. The Insurance

Company as well as the driver of the vehicle did not examine

themselves to disavow the incident as narrated in the claim

petition. Therefore, I don't find any perversity in the findings

arrived by the Tribunal.

13. The appellant has mainly disputed the findings arrived at by

the Tribunal concerning Issue No.3, whereby the Tribunal after

appreciating the entire evidence of NAW-1 - Bhagwati Prasad

Prajapat and NAW-2 - Shambhu Dayal Meena coupled with

documentary evidence Exhibit Article-1 disregarded the defence

put forth by the appellant and dispelled the defence version that

the erring vehicle was not in their effective control and released

from the Election Duty. NAW-1 Bhagwati Prasad in his

examination-in-chief has deposed that said vehicle was on Election

duty from 30.11.2008 to 05.12.2008. He further stated that on

05.12.2008 the erring vehicle was released from election duty at

11:00 AM and at the time of the accident the vehicle was not in

their possession. To validate the above fact the witness has relied

upon the log book register Exhibit-A1. He further deposed that in

Exhibit-A1 log book the time of releasing the vehicle is entered as

11:00 AM, which is verified by the concerned in-charge

Transportation Election. On confronting, the witness stated that he

is ignorant to the fact that on 05.12.2008 precisely at what time

the vehicle was released by the officer in-charge Transportation.

The witness further demonstrated his obliviousness to the time of

the accident.

[2023:RJ-JP:41427] (6 of 9) [CMA-244/2011]

14. AW-2 - Shambhu Dayal Meena was an officer in-charge of

Transportation Election Sawai Madhopur for requisitioning and

releasing the vehicles. He substantiated the version of AW-1 -

Bhagwati Prasad Prajapat in his examination-in-chief that the

vehicle was released at 11:00 AM on 05.12.2008. To substantiate

this fact he took the support of Exhibit-A1 and Exhibit-A2. On

cross-examining he admitted that the said vehicle was allotted to

ACM, Khandar and he did not come to hand over the vehicle. He

also acknowledged that he did not receive any letter from ACM,

Khandar indicating the release of the vehicle on 30.12.2008 at

11:00 AM. He also conceded that in the vehicle log sheet cum hire

bill Exhibit-A1 at A to B portion, some overwriting seems to exist.

15. After perusing Exhibit-A1 it is apparent that in the marked

portion at "A to B", the release time of the vehicle has been

mentioned as "08:00 AM" on 05.12.2008 and some interpolation

on mark portion "08:00 AM" is noticeable and it seems that after

writing PM "AM" has been done. Similarly, the time mentioned as

"8" has also been interpolated. It seems that the vehicle release

time was initially inserted as "08:00 PM" and later on at both

places, some overwriting was executed. The above interpolation in

the time itself creates suspicion and fortifies the defence plea that

the erring vehicle was under the effective control of the officer in-

charge Transportation Sawai Madhopur and the accident occurred

during the election duty.

16. Similarly, Exhibit-A2 is the Register of Private Vehicles

Requisitioned for poll duty. It bears the signatures of the owners

or drivers in column No.11 which were released from Election

Duty. Admittedly, Rajesh Kumar (Respondent No.5) and Pappu

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Ram (Respondent No.4) were the owner and driver respectively, of

the erring vehicle. In Exhibit-A2 column No.11 is barren and the

signature of either the driver or owner is missing. This

circumstance also bolsters the plea taken by the Insurance

Company that at the time of accident the vehicle was under the

control of the officer in-charge of Transportation Election.

17. This fact is undisputed that the said vehicle was requisitioned

by the appellant for Election purposes. The Tribunal has discussed

the evidence led by the appellant in detail. The findings given by

the Tribunal are based upon the sound principles of appreciation of

evidence and have assigned strong and cogent justifications for

discrediting the fact that the erring vehicle was already handed

over and released to the owner/driver from the Election duties

before the occurrence of the accident.

18. The Tribunal after scrutinizing the evidence of both the

material witnesses and documentary evidence is also of the

opinion that the appellant manipulated and interpolated the time

in the document Exhibit-A1 to circumvent their liability. Therefore,

I also concurred with the finding arrived at by the Tribunal about

issue No.3.

19. The utmost question now hangs around before us is whether

in the event the erring vehicle was requisitioned by the appellant,

the Insurance Company is liable to pay the compensation?

20. Before Hon'ble Apex Court, in the matter of National

Insurance Co. Ltd. V. Deepa Devi & Ors. on 11 December 2007 :

AIR 2008 SUPREME COURT 735, an identical controversy was

raised. After referring to precedential judgments Hon'ble Apex

Court held that:-

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"We, therefore, are of the opinion that the State shall be liable to pay the amount of compensation to the claimants and not the registered owner of the vehicle and consequently the appellant herein."

21. In the matter of Rajasthan State Road Transport Corporation

V. Kailash Nath Kothari and Ors. : (1997) 7 SCC 481 Hon'ble Apex

Court held that when an accident takes place when the bus was

plied under the control of the Corporation, it was the Corporation

alone who would be liable for payment of compensation, stating:-

"Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption of the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the concerned employee in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC."

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22. Thus in the light of the above, I do not find merit in the

appeal. The appeal is, therefore, dismissed.

(PRAVEER BHATNAGAR),J

ASHWINI KUMAR CHOUHAN /680