The Primary Land Development Bank Vs. Mangal Chand and ors. - Court Judgment

Excerpt:
- - there cannot be any better evidence than the admission of appellant's manager himself. for the reasons best known to the bank no evidence has been adduced to show that under what circumstances the vehicles was being driven by a person who was not in bank's employment when concedingly it was on hire with the bank or it was under their control. in view of the observations made above, both the appeals as also the cross-objection fail and the same are accordingly dismissed with no order as to costs.orderp.k. jain, j. 1. this order will dispose of letter's patent appeal nos. 1180 of 1985 and 1181 of 1985.2. the charter of claim or the grounds of appeal for impugning the judgment of the single judge by the appellant-bank in this l.p.a. is:- the identity of the driver of the hired jeep was not positively established and no documentary evidence adduced by brij lal-respondent that the jeep was handed over on the request of the manager. thus, the vehicle was driven by a person who was not the employee of the bank and the tribunal has erroneously held the appellant vicariously liable.3. the hon'ble single judge after appreciating the evidence came to the conclusion that brij lal-respondent was the owner who had hired the jeep to the bank, so the fact of the bank having taken the jeep on hire is admitted by the bank manager shri paras ram rw2. there cannot be any better evidence than the admission of appellant's manager himself. it is also admitted by the manager, that the vehicles taken on hire remain in the custody of the bank till the time they are not required. as conceded before the single judge, the vehicle remained on hire with the bank for 2-1/2 months though an attempt was made that inspite of jeep being under the control of bank yet the owner of the jeep was vicariously liable for the compensation for this accident. once it is held in view of the admission that the jeep remained on hire with the bank and under its control was a necessary corollary it would be reasonable to assume or hold that the driver of the jeep at the relevant time was within the control of the bank though he may be in the regular employment or not. it cannot be said by any stretch of imagination that the bank would have no control over the driver that too on an assumption that he was not in its employment. it was for the appellant-bank and the burden lay on the appellant to prove that the person who was driving the vehicle was not under the control of the bank. for the reasons best known to the bank no evidence has been adduced to show that under what circumstances the vehicles was being driven by a person who was not in bank's employment when concedingly it was on hire with the bank or it was under their control. in these circumstances, we find no ground to differ with the finding of the hon'ble single judge that since the bank was in control of the jeep and was in custody of the jeep at the relevant time of accident, the bank is vicariously liable. the identity of the driver even if not established, would not absolve the bank of its liability in view of the tortious act committed by a person within the control and command of the bank. in view of the observations made above, we affirm the finding of the hon'ble single judge that the bank-appellant is vicariously liable for causing the injury by a person under its control.4. so far the quantum is concerned, the bank has not challenged the same. thus, we affirm the award of rs. 70,000/- for shortening the leg wherein the medical expert opined that there is a permanent disability to the extent of 30%. we too find that the compensation awarded is just in the facts and circumstances of the case and does not call for any interference.5. learned counsel for the claimants who claimed the compensation of rs. 1 lac, has been unable to advance any substantial contention so as to persuade us to modify the finding of the tribunal and for increasing the compensation beyond rs. 70,000/-. even otherwise, as observed earlier, in the facts and circumstances of this case, in our opinion, rs. 70,000/- is just compensation. in view of the observations made above, both the appeals as also the cross-objection fail and the same are accordingly dismissed with no order as to costs.

Judgment:
ORDER

P.K. Jain, J.

1. This order will dispose of Letter's Patent Appeal Nos. 1180 of 1985 and 1181 of 1985.

2. The charter of claim or the grounds of appeal for impugning the judgment of the Single Judge by the appellant-Bank in this L.P.A. is:- the identity of the driver of the hired jeep was not positively established and no documentary evidence adduced by Brij Lal-respondent that the Jeep was handed over on the request of the Manager. Thus, the vehicle was driven by a person who was not the employee of the Bank and the Tribunal has erroneously held the appellant vicariously liable.

3. The Hon'ble Single Judge after appreciating the evidence came to the conclusion that Brij Lal-respondent was the owner who had hired the Jeep to the Bank, so the fact of the Bank having taken the Jeep on hire is admitted by the Bank Manager Shri Paras Ram RW2. There cannot be any better evidence than the admission of appellant's Manager himself. It is also admitted by the Manager, that the vehicles taken on hire remain in the custody of the Bank till the time they are not required. As conceded before the Single Judge, the vehicle remained on hire with the Bank for 2-1/2 months though an attempt was made that inspite of Jeep being under the control of Bank yet the owner of the Jeep was vicariously liable for the compensation for this accident. Once it is held in view of the admission that the Jeep remained on hire with the Bank and under its control was a necessary corollary it would be reasonable to assume or hold that the driver of the Jeep at the relevant time was within the control of the Bank though he may be in the regular employment or not. It cannot be said by any stretch of imagination that the Bank would have no control over the driver that too on an assumption that he was not in its employment. It was for the appellant-Bank and the burden lay on the appellant to prove that the person who was driving the vehicle was not under the control of the Bank. For the reasons best known to the Bank no evidence has been adduced to show that under what circumstances the vehicles was being driven by a person who was not in Bank's employment when concedingly it was on hire with the Bank or it was under their control. In these circumstances, we find no ground to differ with the finding of the Hon'ble Single Judge that since the Bank was in control of the Jeep and was in custody of the Jeep at the relevant time of accident, the Bank is vicariously liable. The identity of the driver even if not established, would not absolve the Bank of its liability in view of the tortious act committed by a person within the control and command of the Bank. In view of the observations made above, we affirm the finding of the Hon'ble Single Judge that the Bank-appellant is vicariously liable for causing the injury by a person under its control.

4. So far the quantum is concerned, the Bank has not challenged the same. Thus, we affirm the award of Rs. 70,000/- for shortening the leg wherein the medical expert opined that there is a permanent disability to the extent of 30%. We too find that the compensation awarded is just in the facts and circumstances of the case and does not call for any interference.

5. Learned counsel for the claimants who claimed the compensation of Rs. 1 lac, has been unable to advance any substantial contention so as to persuade us to modify the finding of the Tribunal and for increasing the compensation beyond Rs. 70,000/-. Even otherwise, as observed earlier, in the facts and circumstances of this case, in our opinion, Rs. 70,000/- is just compensation. In view of the observations made above, both the appeals as also the cross-objection fail and the same are accordingly dismissed with no order as to costs.