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2008 DAILYLAW 1310 (DEL)

M. C. D. v. Raj Kishore Tiwari

2008-08-04

Kailash Gambhir

body2008
JUDGMENT :- The present appeal arises out of the award dated 1-8-2006 of the Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 4,80,000/-along with interest @ 6% per annum to the claimants. 2. The brief conspectus of the facts is as follows : On 24-3-2005 at about 10:00 p. m. the deceased Smt. Prabha Tiwari was returning to her house along with her friend Smt. Kulawati after easing out. When they reached in front of Jhuggi No. 908, Lohia Camp, Ambedkar Nagar, Haiderpur, a scavenging van bearing registration No. DL 1M 0871 being driven in a rash and negligent manner by Sh. Karamveer came from behind and hit Smt. Prabha with a great impact. As a result, she fell on the road and sustained fatal head injuries. Sh. Karamveer stopped the aforesaid vehicle at a distance from the accident spot and made an attempt to flee but was caught by the people gathered there. Smt. Prabha was taken to BJR Hospital from the accident spot, where she was declared as 'brought dead' by the doctors. A claim petition was filed before the Motor Accident Claims Tribunal resulting into passing the Award dated 1-8-2006. Aggrieved with the said award, the present appeal is preferred by the appellant respondent. 3. Mr. O. P. Saxena, counsel for the appellants assailed this award on the ground that the tribunal has erred in holding appellant MCD liable for payment of compensation when there was sufficient material on record to show that Sh. Karamveer, respondent No. 6 herein, was not the driver of MCD at the time of the accident. The counsel urged that the said respondent No. 6 was driving the vehicle unauthorisedly and therefore, liability cannot be fastened on the appellant MCD merely because the vehicle belonged to MCD. The counsel further submitted that MCD in its written statement, stated that the Slum and JJ Department of MCD had received a suction machine from Jan Suvidha Complex No. 504 to clean sludge from the septic tank. The driver of the vehicle bearing registration No. DL 1M 0871 Sh. Satinder Kumar and helper Sh. Ravi were engaged in the process to remove the sludge from the septic tank so as to discharge the same in the nearby running Ganda Nalla. The driver of the vehicle bearing registration No. DL 1M 0871 Sh. Satinder Kumar and helper Sh. Ravi were engaged in the process to remove the sludge from the septic tank so as to discharge the same in the nearby running Ganda Nalla. The counsel further contended that it was also the case of the appellant that when its employees were busy in the dumping process then all of a sudden somebody drove the aforesaid vehicle of the Department and ran away with the purpose of stealing the said suction machine. The counsel maintained that the appellant MCD lodged a written report with the P. S. Shalimar Bagh in this regard. The counsel further averred that even the driver of the vehicle, respondent No. 6 herein, who was arrested on the spot had taken the plea before the trial Court that he was neither the employee nor the driver of MCD slum Department. 4. Per contra, Mr. A. Bhattacharjee, counsel for Respondent Nos. 1 to 5 vehemently refuted the submissions made by counsel for the appellant. The counsel maintained that the award does not suffer from any infirmity and therefore, this Court may not give any indulgence in the matter. The counsel contended that the version of the appellant that the respondent No. 6 committed theft is a concocted story developed by MCD to escape responsibility. The counsel raised doubts regarding the parked vehicle being taken away when the authorised driver and helper were in vicinity. The counsel urged that there appears to be some connivance/ collusion between the authorised driver as well as the unauthorised driver respondent No. 6. The counsel urged that the appellant has not approached this Court with clean hands and the appeal suffers from misrepresentation of facts and therefore, deserves to be dismissed. The counsel submitted that the appeal has been filed by the appellant MCD with mala fide so as to delay the execution of the award. The counsel further contended that even if it is assumed that the respondent No. 6 was not the authorised driver of the offending vehicle but since the authorised driver of the aforesaid vehicle was actually present nearby but made no attempt to avoid such mishap then for the negligence of the driver in not taking care of the property of the employer entrusted to him, the appellant MCD cannot escape its liability. The counsel maintained that even if respondent No. 6 was neither the employee nor the driver of MCD but since he was driving the vehicle of MCD, therefore, MCD cannot be absolved of its liability in toto and in such a situation both MCD and respondent No. 6 should be held liable. The counsel admitted the lodging of the report with the police by the appellant. The counsel also submitted that the appellant did not produce the authorized driver Sh. Satinder Kumar at any time during the proceedings before the trial Court. Counsel submitted that in fact the tribunal granted nominal amount of Rs. 25,000/- towards loss of love and affection and Rs. 10,000/- towards loss of estate. 5. The counsel for the respondent Nos. 1 to 5 relied upon following judgments in support of his contentions : (1) Selvarajamani and Qrs. v. New India Assurance Co. Ltd. and Ors. 2003 (2) ACJ 1152 (Mad) (DB); (2) Parvat v. Sheikh Ejaj and Ors. - II (2006) ACC 115 (MP); (3) Hargo Rubber Industries Pvt. Ltd. v. Mukesh Sharma and Ors. - 1994 (1) ACJ 450 (Del); and (4) Rita Devi and Ors. v. New India Assurance Co. Ltd. and Anr.- II (2000) ACC 291 : ( AIR 2000 SC 1930 ). 6. I have heard learned counsel for the parties and perused the record. 7. A scavenging van bearing registration No. DL 1M 0871 being driven in a rash and negligent manner by one Karamveer hit the victim with such a forceful impact that the victim received serious head injuries which ultimately proved fatal resulting into her death. 8. The contention of the counsel for the appellant that said Karamveer was not an employee of the MCD and therefore, the MCD is not vicariously liable to pay the compensation amount, appears to be totally misconceived and untenable, more particularly when the Tribunal has held the said Karamveer equally liable to pay the compensation amount, along with the appellant MCD. It is not in dispute that at the relevant time scavenging van was under the control of the employee of the MCD i.e., Mr. Satinder Kumar who was the driver of the said van along with one helper Mr. Ravi. It is not in dispute that at the relevant time scavenging van was under the control of the employee of the MCD i.e., Mr. Satinder Kumar who was the driver of the said van along with one helper Mr. Ravi. They were assigned the job of removing sludge from the septic tank and then to discharge the same in the nearby running ganda nala and therefore, even if the plea of the appellant is accepted, there was a clear neglect and carelessness on the part of the said two employees otherwise nobody could dare to attempt stealing the said heavy van such as scavenging van in the presence of the employees of the MCD. Although it has been pleaded that the complaint was lodged with the police on the intervening night of 24/ 25-3-2005 with the concerned police station, Shalimar Bagh about somebody's having driven away the vehicle but such a lodging of the complaint cannot absolve the employees of the MCD and the MCD, being the employer, from their acts of negligence in not taking proper care to protect and safeguard their vehicle. The Hon'ble Supreme Court in the judgment reported in II (2000) ACC 291 : ( AIR 2000 SC 1930 ), Rita Devi and Ors. v. New India Assurance Co. Ltd. and Anr., had gone to the extent of holding the insurance company liable for compensation for a death which arose on account of murder at the hands of the thief who committed the murder while achieving the object of stealing the autorickshaw. Para 16 of the said judgment is referred as under : "In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the Trial Court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle." 9. It would be thus manifest that the act of theft in itself would neither absolve the owner nor insurer to indemnify the risk of the third parties. 10. Primarily, a person can only be held responsible for the consequences of his own action. It would be thus manifest that the act of theft in itself would neither absolve the owner nor insurer to indemnify the risk of the third parties. 10. Primarily, a person can only be held responsible for the consequences of his own action. But in certain circumstances, by reason of the particular legal relationship with the wrongdoer, a person may be held liable for the wrongful acts of another person. Such a liability, which is shown as vicarious liability in the law of torts, arises when there is relationship of master and servant or principal and agent between the person held liable and the person who has committed the wrongful acts. In order that a master may be held vicariously liable for the wrongful act of his servant, it is, however, necessary that the wrongful act of the servant must fall within the course of the servant's employment. Similarly, the principal can be held to be vicariously liable for the wrongful act of the agent provided that the wrongful act falls within the scope of his agency. In the instant case, the driver was assigned the job of removing sludge and it was in the course of the employment of MCD that the accident occurred whatsoever be the reason, thus, the MCD is liable for the accident as much as the driver. 11. Even otherwise, the appellant MCD has failed to produce the driver of the said scavenging van Mr. Satinder Kumar, and therefore, for withholding such a material evidence, adverse inference has to be drawn against the appellant MCD. Further, since no attempt has been made by the counsel for the appellant to challenge the quantum of compensation and therefore, no fault can be found with the amount of compensation as has been arrived at by the Tribunal. 12. I do not find any merit in the present appeal. The same is hereby dismissed. Appeal dismissed.