The 'Ad Hoc' Committee, the Indian Insurance Company Association Pool Vs. Smt. Radhabai (21.02.1976 - MPHC) - Court Judgment

G.P. Singh, J. For himself and S.M.N. Raina J.

1. This order shall also dispose of Miscellaneous First Appeal No. 191 of 1971 and Miscellaneous First Appeal No. 16 of 1972.

2. The facts leading to these appeals are that a motor vehicle bearing registration number MPJ 9132 was involved in an accident on 3rd June 1965 at Nainpur in which one Babulal died. Babulal's widow and son, namely, Radhabai and Ravishankar, applied to the Motor Accidents Claims Tribunal for award of compensation. The Tribunal by its award, dated 18th September 1971, has allowed the claim for compensation to the extent of Rs. 9,486/-. Interest from the date of the claim petition upto payment at the rate of 4% per annum has also been allowed. All these appeals have been filed against the award.

3. The facts found are that the vehicle involved in the accident belonged to the State and that at the relevant time it was allotted to the Primary Health Centre, Nainpur. At about 10 P.M., one Satyanarayan approached Dr. Tiwari, Assistant Civil Surgeon, Nainpur, with a request that the vehicle be allowed to be taken to a place at a distance of 12 miles from Nainpur where some children were seriously ill with a view to bring them for treatment at Nainpur. This request was allowed by Dr. Tiwari. The vehicle was entrusted to Lallu, who was a driver in Government employment, for bringing the ailing children. When the vehicle left the hospital premises, it was being driven by Lallu. Satyanarayan was also in the vehicle. Lallu stopped the vehicle near the Petrol Depot of Narendra Kumar Jain and got down to take petrol in a petrol can. After taking petrol, when the vehicle left the depot of Narendra Kumar Jain, it was driven by Satyanarayan, who was on the steering wheel and Lallu was sitting beside him. After some distance from the petrol depot, the accident happened. The vehicle first struck an empty cot belonging to one Pande which was on the right hand side of the road. The vehicle then swerved towards the left and hit the cot on which Babulal was sleeping. Babulal, it appears, died on the spot. The Tribunal has found that the road was sufficiently wide and had the vehicle been properly driven, the accident would not have happened. The Tribunal further found that although Satyanarayan was actually driving the vehicle, Lallu was negligent in permitting Satyanarayan, who had no driving licence, to drive the vehicle. The Tribunal held that the accident happened in the course of employment and the State was vicariously liable for the negligence of Lallu. The Tribunal also held that apart from the State, Satyanarayan, Lallu and the Insurance Company were also liable. The claim was, however, dismissed against the Civil Surgeon who was also joined as a party before the Tribunal.

4. In the appeal preferred bySatyanarayan (Misc. First Appl. No. 16 of 1972), the only argument addressed to us is that at the time when the accident happened, Satyanarayan was not driving the vehicle and the vehicle was being driven by Lallu. In our opinion, there is no merit in this argument The most important evidence in this connection is the evidence of Narendra Kumar Jain (3-4-O.P.W. 4) who is the owner of the petrol depot from where petrol was taken in a can by Lallu. The witness is definite that at the time when the vehicle started after taking petrol, Satyanarayan was on the steering wheel and Lallu was sitting beside him in the front. It is clear from the evidence of Narendra Kumar Jain that after the vehicle left the petrol depot, it was being driven by Satyanarayan. Radhabai (P. W. 1) and Bhikamlal (P. W. 4) have also stated that at the time when the vehicle dashed against the cot on which Babulal was sleeping, Satyanarayan was on the steering wheel and Lallu was sitting beside him.

It has been stated by Bhikamlal that there was light in the vehicle. The Tribunal has relied on the evidence of these witnesses and we do not find any good reason to take a different view. Satyanarayan has examined three witnesses to prove that Lallu was driving the vehicle. These witnesses are Chhotelal (1 O.P.W.1), Rajkumar (1 O.P.W. 2) and Rupnaravan (1 O.P.W. 4). The evidence of these witnesses is clearly false because they even denied the presence of Satyanarayan in the vehicle. Satyanarayan has himself not dared to enter the witness-box. In the circumstances, the Tribunal was right in disbelieving Satyanarayan's story that the vehicle was being driven by Lallu at the time of the accident and that it was not being driven by him.

5. Satyanarayan had no driving licence. The manner in which the accident happened itself shows that the vehicle was negligently driven. Although there was ample space on the road forthe vehicle to pass, it dashed against an empty cot on the right hand side and then suddenly swerved towards the extreme left and hit the cot of Babulal. On these facts, the maxim Res ipsa loquitur applies. The case of negligent driving resulting in the death of Babulal is clearly made out. There is no merit in Satyanarayan's appeal and it must be dismissed.

6. In the appeal filed by the State of Madhya Pradesh (Miscellaneous First Appeal No. 191 of 1971), the first contention of the learned Government Advocate is that as Lallu had permitted Satyanarayan to drive the vehicle without any authority, the State was not vicariously liable.

7. We have already stated the relevant facts that the vehicle was entrusted to Lallu, who was the driver in the employment of the State, to take the vehicle for bringing to the hospital the ailing children. At the time when the accident happened, Satyanarayan was on the steering wheel and Lallu was sitting beside him. The vehicle was on its way to the village where the ailing children were for the purpose of bringing them to the hospital.

8. As stated by Salmond (Law of Torts, 15th Edition, page 620) 'a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.' This passage from Salmond has been cited in a number of cases with approval. In Sitaram v. Santanu Prasad, AIR 1966 SC 1697 which is the leading Indian case, the law on the point of vicarious responsibility of master was stated in almost identical terms (Page 1704). In Sitaram's case, the facts were that the owner had entrusted his car to the driver for plying it as a taxi. The driver took the cleaner, who was under his employment, to the R.T.O.'s office for driving test. The accident happened when the cleaner was driving while giving the driving test The driver was then not in the vehicle. On these facts, it was held that the owner was not liable. It will be seen that in Sitaram's case the accident did not happen when the vehicle was being driven in the execution of the owner's business.

The vehicle was then engaged inthe work of the cleaner which hadno connection whatsoever with theowner's business. The driver was also not in the vehicle and could not be said to be in control of the vehicle at the time when the accident happened. The Supreme Court in Sitaram's case referred to Ricketts v. Thos Tilling Ltd. (1915) 1 K.B. 644 and distinguished it In Ricketts' case, the facts were- that the conductor of an omnibus drove the omnibus for the purpose of turning it in the right direction for the next journey and in that process by his negligence the vehicle mounted the foot pavement and injured a person. The driver was sitting beside the conductor. The Court of Appeal held that on these facts the master could be held liable and a new trial was ordered. Distinguishing this case, the Supreme Court in Sitaram's case said as follows:

'the turning round of the vehiclewas an act within the employer's business and not something outside it. When the driver asked the conductor to drive the omnibus for his master's business, he did the master's work in a negligent way. The master was therefore rightly held responsible.'

9. Ricketts' case (1915) 1 K.B. 644 was followed in Marsh v. Moores (1949) 2 K.B. 208 and Ilkiw v. Samuels (1963) 1 WLR 991. In Samuel's case the facts were that a lorry driver was employed by a transport company to drive their lorry to a sugar warehouse, pick up a load of sugar and transport it to its destination. The driver took the lorry to the warehouse and backed it into position by a conveyor belt from which the sugar was to be loaded on to the lorry. The driver stood on the back of the lorry to take the seeks from the conveyor belt and stack them on the lorry. When loaded, the lorry had to be moved a short distance to enable the driver to sheet the load and to make room for other lorries. A person employed at the warehouse offered to move the lorry. The driver accepted the offer. The person concerned while moving the lorry was unable to stop it and due to his negligence, a labourer was injured. The driver throughout remained at the back of the lorry. The driver had strict instructions from his employer not to allow any one else to drive the lorry. On these facts, the Court of Appeal held that the employer was liable on the ground that at the time when the accident happened, the lorry was being used for the purpose of the employer's business although it was being used in an unauthorised way.

10. The facts in the instant case are nearer to the facts in Ricketts' case, (1915) 1 K.B. 644 and Samuel's case (1963) 1 WLR 991. Lallu, the driver was given the control of the vehicle not merely to drive it but to take it to the place where the ailing children were and to bring them in the vehicle to the hospital. At the time when the accident happened, the vehicle was engaged in this work and Lallu was in control of the vehicle sitting in the front. He had given control of the steering wheel to Satyanarayan and that was undoubtedly an unauthorised act on his part. But on the facts all that can be said is that Lallu's act of giving control of the steering wheel to Satyanarayan was merely a wrongful and unauthorised mode of doing the act authorised by the master, the act authorised by the master being the act of driving the vehicle and taking it to the place where the children were for bringing them to the hospital. In our opinion, the State was clearly vicariously liable for the negligence of Lallu in permitting Satyanarayan to drive the vehicle.

11. The Second contention of the learned Government Advocate is that the accident happened in the execution of delegated sovereign function of the State and, therefore, the State was not liable.

12. In cases where the State is sued for the tortious acts of its servants and where plea of immunity based on employment referable to sovereign functions is raised, the Court before upholding the plea must find that the impugned act was committed in the course of an undertaking or employment which falls within the area of traditional sovereign functions Kasturi Lal v. State of U.P. AIR 1965 SC 1039 at p. 1048. The question as to what are traditional sovereign functions of the State was considered by the Supreme Court in another context in State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 at p. 615 and Nagpur Corporation v. Its Employees AIR 1960 SC 675 at p. 681. In both these cases, their Lordships referred with approval to Lord Watson's observation on this point in Coomber v. Justice of Berks, (1883) 9 AC 61 (HL). These cases show that traditional sovereign functions are the making of laws, the administration of Justice, the maintenance of order, the repression of crime, carrying on of war, the making of treaties of peace and other consequential functions. Whether this list be exhaustive or not, it is at leastclear that the socio-economic and welfare activities undertaken by a modern State are not included in the traditional sovereign functions.

The case of Hospital Mazdoor Sabha is a direct authority on the point that the activity of running Government hospital for giving medical relief to citizens is not a sovereign function in the traditional sense. In State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933 the accident happened when a jeep car belonging to the Government was being driven from the workshop to the Collector's bungalow for the Collector's use. It was held that the State was liable for the negligence of the driver. In Shyam Sunder v. State of Rajasthan, AIR 1974 SC 890 a truck belonging to the Public Works Department was engaged in famine relief work when the accident happened. In holding that the State was liable, the Supreme Court observed:

'It is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood.'

13. Applying the principle of these cases to the facts of the instant case, we are of opinion that the medical relief work undertaken by the State through the Primary Health Centre, Nainpur, in which the vehicle in question was engaged at the time when the accident happened, is not a sovereign function in the traditional sense. The defence of immunity must therefore fail.

14. As a result of the above discussion, we are of opinion that the appeal filed by the State has no force and must be dismissed.

15. Coming to the appeal filed by the Insurance Company (Miscellaneous First Appeal No. 175 of 1971), the argument of the learned counsel appearing for the Company is that there was a condition in the insurance policy absolving the Insurance Company in case the vehicle was driven by an unlicensed person. It is pointed out that Satyanarayan had no licence to drive a vehicle and, therefore, the Company was not liable. Section 96 of the Motor Vehicles Act allows the Insurance Company to have a condition in the policy of insurance excluding driving by any person not duly licensed and to claim exemption in case there is a breach of the condition. The difficulty before the Company in the instant case is that the policy of insurance was not produced and proved before the Tribunal.

An application was made in this Court under Order 41, Rule, 27, of theCode of Civil Procedure for taking acopy of the policy as additional evidence. But we do not think that the conditions under which additional evidence can be taken in appeal under that provision are satisfied. No reason has been shown why the policy was not produced and proved before the Tribunal, we do not require the policy for pronouncing judgment. We, therefore, reject the application for taking a copy of the policy as additional evidence in the appeal. The position, therefore, remains that the Company has failed to prove that there was a condition in the policy of insurance exempting the Company from liability in case the vehicle was driven by a person who was not duly licensed. The appeal of the Insurance Company must, therefore, fail.

16. The claimants have filed a cross-objection for enhancement of compensation. In awarding compensation, the principle is to estimate what amount must be set aside so that its income supplemented by drawings on capital from year to year will cover the amount of annual dependency during the remaining period of dependency or the estimated remainder of the working life of the deceased whichever may be shorter. Growing inflation has led to the caution of emphasising that the sum to be awarded should be assumed to be invested in 'growth' stocks carrying a low rate of interest. This, in effect, is the same thing as saying that the valuation should be made of an annuity on the basis of low interest rates such as 4 to 5 per cent. which assume that the money values are steady but involve a higher number of years' purchase (See Taylor v. O' Connor, 1971 AC 115 (HL) Munkman's Damages for Personal Injuries and Death; Fifth Edition, pages 156-7 and Chaurasia & Co. Chhatarpur v. Pramila Rao, AIR 1975 Madh Pra 31 at p. 35.

17. The relevant facts in the instant case are that the deceased was earning on an average Rs. 90/- per month out of which he was spending about Rs. 60/- on his dependants who are the claimants in this case. The deceased at the time of his death was 50 years of age. His parents had died at the age of 70 to 75 years. The Tribunal, therefore, inferred that had the accident not happened, the deceased would have lived and worked up to the age of 70 years, that is, 20 years more. The deceased's widow Radhabai was aged 48 years at the time of the accident and his son Ravishankar was aged 10 years at that time. So faras the widow is concerned, the dependency would continue throughout her life. It may be assumed that she will also live upto the age of 70 years. The amount of annual dependency works out to be Rs. 720/- per year and the estimated period of dependency is 20 years. On the principles stated above, the claimants were entitled to a lump sum which, when invested, would make available to them an annuity of Rs. 720/- per year for 20 years.

The value of an annuity of Rs. 720/-for 20 years, on the basis of interest rate at 5% comes to Rs. 8,971,00 (See Archer's Loan Repayment and Compound Interest Tables, page 366). This would be the amount which the claimants are entitled to get under Section 1A of the Fatal Accidents Act, 1855. The claimants are further entitled to recover pecuniary loss to the estate of the deceased under Section 2 of the Act. Under this head, the claimants can recover the damages for pain and suffering and loss of expectation of life which the deceased could have recovered had he not died. Only moderate and conventional sums are awarded under these heads. In our opinion, a sum of Rs. 500/- would be the amount which the claimants can get under Section 2 of the Act In our estimate, therefore, the claimants are entitled to get in all Rs. 9,471/- as compensation. As earlier stated, the Tribunal has awarded a sum of Rs. 9,486/- which is nearly the same amount which we have estimated. No case, in our opinion, is made out for enhancing the amount of compensation.

18. As a result of the above discussion, all the appeals fail and are dismissed with costs, but there shall be only one set of counsel's fee for all these appeals. The cross-objection is dismissed but without any order as to costs.