Judgment:
S. Parvatha Rao, J.
1. The appellant questions the judgment of the learned single Judge dated 22.11.1988 in C.M.A. No. 223 of 1985 dismissing the same.
2. One Abdul Razak was the driver of lorry bearing registration No. APN 9144 owned by respondent No. 6 herein. On the fateful night of 19.10.1981, perhaps overtaken by fatigue, he parked that lorry on the public road near Uomidi village of Gudur taluk and rested his body under it and was lost in sleep, unmindful of the ignition key on the dashboard of the lorry left unattended. Came along that way a lorry bearing registration No. MDN 774 belonging to the appellant. Its driver an employee of the appellant stopped his vehicle (MDN 774) finding the other vehicle (APN 9144) obstructing his way; exploring, he found it apparently forsaken with its ignition key in position, got into it and started and moved it a few paces in a bid to clear his way without noticing that Abdul Razak was sleeping near or under it and ran over him thereby ending his life then and there. These are the facts.
3. The question is whether on these facts respondent Nos. 1 to 5, the legal representatives of Abdul Razak, i.e., his widow, minor son and minor daughters can lay claim under Section 110-A of the Motor Vehicles Act, 1939 ('the Act' for short) before the Motor Accidents Claims Tribunal for compensation for his death caused by the appellant's driver while moving lorry APN 9144 not belonging to the appellant. The Tribunal found that Abdul Razak died because of his own negligence in leaving the ignition key on the dash board of the unattended lorry and sleeping near or under it, and also because of the negligence of the driver of the appellant, who moved the lorry No. APN 9144 without noticing Abdul Razak. On that finding, the Tribunal apportioned the compensation equally and held that 50 per cent of it should be borne by the appellant as she is vicariously liable in tort as the employer and that the requirements of Section 110 of the Act were satisfied for the award of compensation as the accident arose out of the use of a motor vehicle by her employee though not belonging to her. This has been confirmed by the learned single Judge and this is questioned before us on the sole ground that the lorry did not belong to the appellant and therefore she could not be made liable for an accident arising out of the use of a motor vehicle not belonging to her.
4. We do not find any substance in the specious contention raised on behalf of the appellant and do not see any reason for taking a different view from that taken by the learned single Judge. Undoubtedly, Abdul Razak died in an accident arising out of the use of a motor vehicle, i.e., lorry No. APN 9144; that it was being driven by a person not employed by its owner, the third respondent, does not in any way affect the undoubted jurisdiction which the Claims Tribunal constituted under Section 110 of the Act had to entertain the claim of respondent Nos. 1 to 5 under Section 110-A of the Act. When a Tribunal is constituted under Section 110, it has the jurisdiction to entertain all claims for compensation for death or bodily injury in accidents arising out of the use of motor vehicles. As held by the Supreme Court in New India Assurance Co. Ltd. v. Shanti Mishra 1976 ACJ 128 (SC), Section 110 substituted by Central Act 100 of 1956 enabling the State Government to constitute Claims Tribunals did not affect the substantive law relating to the claims of compensation. The Supreme Court held in that case that 'the underlying principle of the change of law brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the Claims Tribunal on payment of a nominal court fee whereas a large amount of ad valorem court fee was required to be paid in civil court.' The Act has not created new rights or new remedies. It has only changed the forum and the mode of adjudicating claims for compensation arising from motor accidents. These claims are based in tort. It is well established that in tort an employer is vicariously liable for the negligent act of his employee in the course of his employment. In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), Kailasam, J. speaking for a two Judges Bench of the Supreme Court observed as follows:
Before we conclude, we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term 'in the course of employment' as ordinarily understood.
That was said in a case for claim for compensation under Section 110-A of the Act made before the Claims Tribunal. In State of Maharashtra v. Kanchanmala Vijaysing Shirke : AIR1995SC2499 , the Supreme Court has observed that 'under the law of Tort, courts have held that the employer is vicariously liable for an authorised act done in an unauthorized manner taking into consideration the interest of the victims of the accident...' The Supreme Court further held as follows in that case:
The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent (Government servant actually found driving the vehicle at the time of the accident) executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or concerned with the nature of authority vested by the master in his servant are not deprived from getting compensation. If the dispute revolves around 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 actually authorised the particular manner in which the act was it is established that negligent act of the driver and the respondent was 'in the course of employment', the appellant State (employer of the driver and the respondent) shall be liable for the same.
This legal position is not and cannot be disputed by the learned Counsel for the appellant. But he raises the question as to whether compensation can be claimed before the Claims Tribunal from a person other than the owner of the vehicle which caused the accident. In the present case we are only concerned with the claim for compensation from the appellant as employer of the driver who actually drove the vehicle which caused the accident, i.e., APN 9144. We do not see any reason whatsoever to exclude this claim from the scope of the Claims Tribunal constituted under Section 110 when it is based on the death caused by accident which arose out of the use of a motor vehicle, i.e., APN 9144.
5. In the result, the Letters Patent Appeal is dismissed. No costs.