Sub-divisional Officer, Hp Pwd Vs. Lalita Devi and ors.

Decided On : Aug-24-1999

Court : Himachal Pradesh

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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			(int) 39 => '1170',
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			(int) 41 => '1992',
			(int) 42 => '1992'
		),
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			(int) 10 => 'Parkash Chand',
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			(int) 12 => 'Jaipur',
			(int) 13 => 'Nichar',
			(int) 14 => 'Kumarsain',
			(int) 15 => 'S. Chandra v.'
		),
		'ORDINAL' => array(
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		),
		'EVENT' => array(
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		'TIME' => array(
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		),
		'LOC' => array(
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	'desc' => array(
		'Judgement' => array(
			'id' => '890826',
			'acts' => '',
			'appealno' => ' F.A.O. (MVA) Nos. 49 and 60 of 1992',
			'appellant' => 'Sub-divisional Officer, Hp Pwd',
			'authreffered' => '',
			'casename' => 'Sub-divisional Officer, Hp Pwd Vs. Lalita Devi and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'S. Chandra v. Pallavan Trans. Corporation;',
			'citingcases' => '',
			'counselplain' => ' Sanjay Karol, A.G. and; Vivek Thakur, A.A.G.',
			'counseldef' => ' D.C. Jishtu,; Subhash Sharma,; N.S. Shandil and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-08-24',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' D. Raju, C.J. and; L.S. Panta, J.',
			'judgement' => '<p style="text-align: justify;">L.S. Panta, J.</p><p style="text-align: justify;">1. Both these appeals have been taken up and heard together as they arise out of the single accident and are directed against the common judgment and award dated 23.8.1991 of Motor Accidents Claims Tribunal (I), Shimla in M.A.C. No. 60-S/2 of 1988/89 whereunder total amount of Rs. 83,500 as compensation was awarded in favour of claimant Lalita Devi for the death of her husband Sewa Dass in the accident. F.A.O. (MVA) No. 49 of 1992 has been filed by the Sub-Divisional Officer, H.P. P.W.D., Kumarsain against whom the award has been passed whereas F.A.O. (MVA) No. 60 of 1992 has been filed by claimant Lalita Devi for enhancement of the amount of compensation awarded by the Tribunal below. The learned counsel for the parties have made the same and identical submissions and, therefore, both these appeals are being disposed of by this common judgment.</p><p style="text-align: justify;">2. The facts leading to the appeals may briefly be stated as under:</p><p style="text-align: justify;">The Sub-Divisional Officer (H.P. P.W.D.), Kumarsain, entered into a contract with Kewal Ram Kaithala respondent herein for transporting fire-wood from Nichar to Kumarsain Division required for completing the metalling work of road. The owners respondents had engaged their truck No. HPS 5877 which was being driven by driver Jai Chand respondent and the said truck was insured with respondent National Insurance Co. Ltd.</p><p style="text-align: justify;">On 7.5.1987 the truck was coming from Nichar to Kumarsain carrying the fuel wood, the truck met with an accident near Nanibadhal on Nichar-Rampur Road and it rolled down into the gorge. One Sewa Dass who was working as Road Inspector under the Sub-Divisional Officer (PWD), Kumarsain died in the accident. Sewa Dass deceased was deputed by the Sub-Divisional Officer to ensure the proper weighment, loading of the wood at Nichar in the truck and thereafter to supervise the safe transportation and the unloading at Kumarsain. The deceased was travelling in the accidental vehicle discharging his official duties. The legal heirs of Sewa Dass who are his wife, sons and daughters filed a claim petition before the Tribunal below, inter alia, on the ground that the accident had occurred due to rash and negligent driving of the vehicle by its driver and thereby resulting in the death of Sewa Dass. The claimants made a claim of Rs. 4,00,000 for the death of Sewa Dass and the age of the deceased at the time of the accident was said to be 46 years and his total income was disclosed Rs. 1,500 per month from salary and agriculture pursuits.</p><p style="text-align: justify;">Both the owners filed a joint written statement resisting and contesting the claim of the claimants on the ground that their truck was requisitioned by the Sub-Divisional Officer on contract basis for transporting of firewood from Nichar to Kumarsain. They denied the cause of the accident as a result of rash and negligent driving by the driver and stated that the accident occurred due to an act of vis major. They pleaded that on the day of the accident it rained very heavily and a huge boulder came rolling down and hit the rear of the truck due to which it rolled down into the gorge. The driver in his separate written statement had pleaded the same defences which were taken by the owners of the vehicle and denied his involvement in the accident due to driving the vehicle in a rash and negligent manner.</p><p style="text-align: justify;">The insurance company denied its liability to indemnify the insured for the compensation, if any, payable to the claimants.</p><p style="text-align: justify;">The Sub-Divisional Officer, employer of Sewa Dass admitted in his written statement that Sewa Dass was employed as a Road Inspector drawing Rs. 1,143 per month as total salary. He admitted that the truck was requisitioned and hired by the Public Works Department for transporting the firewood.</p><p style="text-align: justify;">3. On the controversial pleadings of the parties, the Tribunal below framed the following issues on 8.8.1988:</p><p style="text-align: justify;">(1) Whether the deceased had died on account of rash and negligent driving of the truck driver Jai Chand, respondent No. 3, as alleged? -OPP</p><p style="text-align: justify;">(2) If issue No. 1 supra is proved, to what amount of compensation the petitioners are entitled and from which of the respondents? -OPP</p><p style="text-align: justify;">(3) Whether the deceased was travelling in the truck in question in the course of his employment of respondent No. 5, as alleged? If so, its effect? -OPR 1& 2.</p><p style="text-align: justify;">(4) Relief.</p><p style="text-align: justify;">4. The parties went to trial and led their oral and documentary evidence. After appreciating the entire evidence on record, the Tribunal below returned finding under issue No. 1 against the driver of the truck holding him guilty of driving the vehicle in a rash and negligent manner. Against issue No. 3 it was concluded that Sewa Dass was travelling in the accidental vehicle in the course of his employment and accordingly decided this issue in favour of the claimants. Consequently, total amount of compensation of Rs. 83,500 was awarded in favour of widow of the deceased Sewa Dass along with interest at the rate of 12 per cent per annum from the date of institution of the claim petition till final payment or deposit of the amount and the liability of payment of the amount of compensation has been saddled upon the Sub-Divisional Officer exclusively. Feeling aggrieved and dissatisfied against the judgment and award of the Tribunal below, the Sub-Divisional Officer, II.P. P.W.D. filed the appeal challenging the correctness, validity and legality of the award, whereas claimant Lalita Devi filed cross-objections in the appeal [F.A.O. (MVA) No. 49 of 1992] and she also filed separate appeal being F.A.O. (MVA) No. 60 of 1992 claiming enhancement of the amount of compensation to Rs. 4,00,000 as claimed in the claim petition.</p><p style="text-align: justify;">5. We have heard the learned counsel on both sides and reassessed the entire evidence on record and also examined the reasoning and conclusion arrived at by the Tribunal below. The learned Advocate General vehemently contended that the liability of the appellant Sub-Divisional Officer to pay the amount of compensation fastened by the Tribunal below is grossly erroneous, perverse and illegal. The accidental truck was not requisitioned or hired by the appellant, but a contract for carrying of the firewood was entered into with the contractor who happened to be one of the owners of the truck. He next contended that the driver of the truck who caused the accident was never the employee of the appellant Sub-Divisional Officer nor he was paid remuneration for his services during the period when he was engaged by the owners for transporting the firewood and that the overall control of the truck vested with the owners and, therefore, liability to pay the compensation was entirely that of owners, driver and insurance company jointly and severally.</p><p style="text-align: justify;">6. Per contra, Mr. D.C. Jishtu, learned counsel for the owners respondents while relying upon the reply to para 24 of the claim petition filed by the appellant Sub-Divisional Officer and extracted by the learned Tribunal below in para 14 of the judgment, contended that the appellant Sub-Divisional Officer had categorically admitted hiring of the truck involved in accident by the department through Executive Engineer, H.P. P.W.D., Kumarsain for carrying firewood and that in pursuance of the contract the Executive Engineer deputed Sewa Dass, Road Inspector, for supervision, loading/unloading and to verify the weight of the wood and as per the admission of the appellant Sub-Divisional Officer, the truck in question was entirely under the control of the Sub-Divisional Officer including its driver and that in view of admitted facts, the appellant Sub-Divisional Officer was deemed to have stepped into the shoes of the owners and thereby the said authority was vicariously liable for inaction of the driver and also for the payment of amount of compensation which has been rightly fastened upon the appellant Sub-Divisional Officer by the Tribunal below. In support of his submission Mr. D.C. Jishtu has placed reliance upon a judgment of the Division Bench of Punjab and Haryana High Court in Primary Land Development Bank v. Mangal Chanel 1998 ACJ 1312 (P&H;).</p><p style="text-align: justify;">7. Mr. Kulbhushan Khajuria, learned counsel appearing for the insurance company has sought to support the finding of the Tribunal below and contended that the vehicle was a goods carrier and deceased Sewa Dass was unauthorised passenger travelling in the vehicle in question and, therefore, insurance company was not liable to pay the amount of compensation.</p><p style="text-align: justify;">8. Mr. N.S. Shandil, learned counsel for the claimant has also made an attempt to support the award of the Tribunal holding the appellant Sub-Divisional Officer liable to pay the amount of compensation for the reason that the overall control of the vehicle was with the said officer. He next contended that Sewa Dass was deputed on duty by the Executive Engineer apparently to ensure the proper quantity of the goods after weighing them at Nichar and thereafter checking the fire/fuel wood to its destination intact in safe custody and proper delivery at Kumarsain and if he was discharging the official duty at the time of the accident, the appellant Sub-Divisional Officer cannot be permitted to contend that deceased Sewa Dass was not on official duty when the truck met with an accident resulting in his death. He next contended that taking the gross salary of the deceased at Rs. 1,143 and deduction of Rs. 543 therefrom for the deceased's personal expenses by the Tribunal below was grossly unwarranted and unsustainable. He sought for the enhancement of multiplier from 10 to 15. The learned counsel also contended that the Tribunal has not taken into consideration the agriculture income of Rs. 500 per month which the deceased used to earn before his death and the total loss of dependency to the estate of the deceased was Rs. 1,500 per month as the deceased would have received more pay after hike in salary to the extent of 30 per cent w.e.f. 1.1.1986 and thereafter revision of pay scale in the year 1996. According to the learned counsel the claimant Lalita Devi who is appellant in the second appeal should have been awarded total compensation of Rs. 1,91,500.</p><p style="text-align: justify;">9. We have given our careful consideration to the respective contentions of the learned counsel for the parties. The primary question which arises for our determination and consideration is to find out whether the truck involved in the accident was requisitioned for transporting fire/ fuel wood from Nichar to Kumarsain or whether one of the owners of the truck was awarded contract of transporting the fire/ fuel wood from Nichar to Kumarsain without requisition or hiring of the truck. Though admittedly in para 24 of the reply to the claim petition, the Sub-Divisional Officer admitted that the truck was hired by the department through Executive Engineer, Kumarsain for carriage of fire/fuel wood from Nichar to Kumarsain, yet this statement of the Sub-Divisional Officer will not ipso facto put the truck and its driver under the pervasive control of the said officer. In the agreement marked Exh. R-l/A it has been clearly stipulated that the contract for carriage of fire/fuel wood was executed in favour of one of the owners of the truck for Rs. 20,000 and there was no such stipulation that the fire/ fuel wood would be carried by the contractor (owner of the vehicle) in his own truck or through any other vehicle to be engaged by him. Further, we find no such stipulation that the vehicle involved in the accident was ever requisitioned by the appellant Sub-Divisional Officer for transporting the fire/fuel wood or the truck and driver would be under the overall charge of the appellant Sub-Divisional Officer. Guman Singh, Junior Engineer, H.P. P.W.D., Kumarsain, appeared as PW 2 and no question was put to him by the learned counsel for the owners of the truck that the truck was requisitioned for doing the work of the H.P. P.W.D. However, he admitted that Road Inspector Sewa Dass along with other labourers used to go from Kumarsain to Nichar for weighment and loading of the firewood in the truck and to travel back in the same truck to Kumarsain for unloading. He also admitted that some labourers also died in the said accident. One of the owners, by name Kewal Ram, appeared as RW 1 and admitted the ownership of the vehicle in question jointly with Amar Chand, respondent. He stated that he took the carriage of firewood from Nichar to Kumarsain on contract basis and loading and unloading expenses were to be borne by the Sub-Divisional Officer, H.P. P.W.D., Kumarsain. He also stated that Sewa Dass, Road Inspector along with other labourers used to travel in the truck for loading and unloading the fire/fuel wood. He brought on record policy note of the truck Exh. RA. Parkash Chand, Asstt. Administrative Officer of the insurance company appeared as RW 3 and placed on record a copy of insurance policy of the truck marked Exh. RW 3/A. Kapil Dev who was working as Junior Engineer at Kumarsain from 1984 to 30.6.1988 appealed as RW 4 and stated that on the day of the accident Sewa Dass was on duty of weighment and checking of the fuel wood at Nichar and challan regarding weighment and loading of firewood used to be signed by Sewa Dass and a copy of which has been filed on record marked Exh. PA. He has also stated that the work order for supply of the firewood executed in favour of the contractor was duly passed for Rs. 20,000.</p><p style="text-align: justify;">10. On reappraisal of the entire evidence on record noticed hereinabove, it can be safely held that Sewa Dass was on official duty at the time of the accident and he was entrusted the work of weighment to ensure loading of the wood at Nichar and thereafter unloading at Kumarsain and thereby he was overall incharge of carrying the fuel wood under safe custody to its destination and that in discharging his duty he was travelling in the truck which met with an accident resulting in his death. There is not an iota of evidence on record led by the owners of the vehicle involved in the accident that the truck was under the overall control of appellant Sub-Divisional Officer. There is also no evidence on record to prove that during the period when the truck was engaged for transporting fuel wood, the salary of the driver and other expenses such as freight charges of the wood, expenses incurred on purchase of diesel, etc., were to be borne by the appellant Sub-Divisional Officer. From careful reading of the terms and conditions of the agreement, it is clear that it was a pure and simple contract executed between the contractor who happened to be one of the owners of the vehicle to carry the fuel wood from Nichar to Kumarsain for fixed amount of Rs. 20,000, meaning thereby that all expenses including food, salary of the driver and purchase of diesel, etc., were to be borne not by the P.W.D. but by the owners themselves. There is vast distinction between requisitioning the vehicle for the purpose of doing the work of the department under the overall control of the department and contracting the carriage of the goods without requisition. In the case of contract carriage the overall control of the vehicle and its driver including the expenses incurred upon the vehicle would be always with the owners of the vehicle and not with the department official. The ratio of the judgment of the Punjab and Haryana High Court in Primary Land Development Bank's case 1998 ACJ 1312 (P&H;), would not be applicable in the peculiar facts and circumstances of the present case as relied upon by Mr. D.C. Jishtu. In that case the Manager of the bank categorically admitted that the vehicle taken on hire remained in the custody of the bank till the time it was not returned. On the basis of the admission of the Bank Manager, the learned Judge held that the driver of the vehicle at the relevant time was under the control of the bank though he may or may not be in its regular employment.</p><p style="text-align: justify;">11. In order to appreciate the submissions made at the Bar by learned Advocate General for the appellant Sub-Divisional Officer that the vehicle in question was not under the control of the appellant, we consider it appropriate to look at the definition of owner.</p><p style="text-align: justify;">12. Section 2 (19) of Motor Vehicles Act, 1939 defines owner in the following terms:</p><p style="text-align: justify;">2 (19) 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement. </p><p style="text-align: justify;">13. Having noticed the definition of the 'owner', under the 1939 Act, which admittedly applies to the instant case, we now address ourselves to test the correctness of the submission that since the Sub-Divisional Officer was not the 'owner' of the vehicle, as such the liability to pay compensation for an accident caused by the truck cannot be fastened on the appellant Sub-Divisional Officer and the relevant effect of the agreement. The Apex Court had the occasion to give the construction to the definition of 'owner' under Section 2 (19) of the Act in Rajasthan State Road Trans. Corporation v. Kailash Nath Kothari 1997 ACJ 1148 (SC), we may with advantage extract para 13 of the judgment as under:</p><p style="text-align: justify;">The definition of 'owner' under Section 2 (19) of the Act is not exhaustive. It has, therefore, to be construed, in a wider sense, in the facts and circumstances of a given case. The expression 'owner' must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to the registered owner only would, in a case where the vehicle is in the actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the 'owner' is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving the fare from them. Sanjay Kumar was, therefore, not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. 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 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 concerned employee during the course of his employment and within the scope of his authority, is a rebuttable presumption. If 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. </p><p style="text-align: justify;">14. In the case before the Supreme Court the relevant facts were that a bus No. RSB 3945, besides some other buses, was hired by the RSRTC from its owner Sanjay Kumar to ply on the routes specified by the RSRTC and agreement was executed between RSRTC and the owner of the bus containing the terms of hiring the bus No. RSB 3945. The said bus was on the fateful day on 17.7.1991 plying on the route Kekri to Jaipur for which route RSRTC had the route permit. At about 9.30 p.m. when the bus was near Renwal, it was noticed that water was flowing over the bridge of Bandi River due to heavy rains. The passengers travelling in the bus requested the driver not to drive the bus over the bridge because of overflowing water but their request had no effect and the driver despite the warning by the passengers, drove the bus over the bridge and as a result of flood in the river, the bus was swept away. As a result 23 passengers travelling in the ill-fated bus died due to the accident. The legal representatives/ heirs of the 23 passengers who had died as a result of accident filed separate claim petitions under the 1939 Act claiming compensation from the RSRTC and the insurance company. The claim petitions were resisted and the RSRTC in its written statement denied its liability on the ground that though it had hired the bus in question from Sanjay Kumar and the bus was plying on the route specified by it, the driver of the bus, Gopal, due to whose negligence and rashness the accident had taken place was not an employee of the RSRTC but of the bus owner Sanjay Kumar and, therefore, it was not vicariously responsible for his negligence and rashness. It was also pleaded that the liability to pay the compensation in case of an accident was that of the 'owner' and not of the hirer. Reliance in this behalf was placed on condition No. 15 of the agreement to disown its liability.</p><p style="text-align: justify;">15. The Hon'ble Judges of the Supreme Court on the basis of the condition Nos. 6 and 7 of the agreement executed between the RSRTC and the owner held in para 15 that under those conditions the owner had not merely transferred the services of the driver to the RSRTC but actual control of the driver to act under the instructions, control and commands of the conductor and other officers of the RSRTC. Their Lordships proceeded to hold that the second part of condition No. 15 made it abundantly clear that the RSRTC did not completely shift the liability to the owners of the bus because it provided for reimbursement to it in case it had to pay compensation arising out of an accident. In the facts and circumstances of that case, the Hon'ble Judges held that RSRTC could not escape its liability to pay the compensation to the legal representatives/heirs of the deceased who died in the accident. The Hon'ble Judges in para 17 extracted hereinabove of the report categorically held that the liability of the 'owner' was vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom could vicarious liability be fastened in the case of an accident.</p><p style="text-align: justify;">16. Relying upon the construction of the definition of the 'owner' by the Apex Court in the facts and circumstances of the case on hand, we find as noticed in the earlier part of the judgment that the vehicle in question was not hired by the appellant Sub-Divisional Officer, but the agreement executed between the Executive Engineer and the contractor was in regard to the supply of fire/fuel wood to be carried by the contractor from Nichar to Kumarsain, though under the supervision of Sewa Dass who was travelling in the ill-fated truck at the time of the accident. The vehicle was never put under the control of the appellant Sub-Divisional Officer nor his driver was under the control and command of the authority as discussed in the earlier part of the judgment, we are not inclined to agree with the finding of the Tribunal below that the vehicle involved in accident was under the control of the appellant Sub-Divisional Officer at the time of its accident and, therefore, the appellant Sub-Divisional Officer was liable to pay the amount of compensation awarded. We, therefore, hold that in the present case the vehicle and driver were under the control and command of the owners and liability of the owners of the vehicle is vicarious for the tort committed by the driver during the course of his employment. The accident was a result of the rashness and negligence of respondent Jai Chand and he was not an employee of the appellant Sub-Divisional Officer but of the truck owners. The truck was insured with the respondent insurance company, therefore, the insurance company is held liable jointly and severally with the owners and driver of the ill-fated vehicle to pay the amount of compensation to the claimant Lalita Devi. Consequently, the appeal of the Sub-Divisional Officer is allowed accordingly and the finding of the Tribunal below holding the appellant Sub-Divisional Officer liable for the payment of compensation is set aside.</p><p style="text-align: justify;">17. The next question involved for consideration is whether the amount of compensation awarded by the Tribunal below is just and reasonable or the same is inadequate as projected by the learned counsel for the claimant Lalita Devi in her cross-objections filed in F.A.O. (MVA) No. 49/1992 and claiming enhancement to the extent of Rs. 1,91,500 in her independent appeal. The Sub-Divisional Officer, H.P. P.W.D. in para 6 of the written statement has admitted that the gross salary of deceased Sewa Dass at the time of his death was Rs. 1,143 per month. However, Lalita Devi in her deposition before the Tribunal below disclosed that his salary was Rs. 1,500 per month. The Tribunal below admitted the statement of the Sub-Divisional Officer in his written statement and accepted the gross salary of deceased Sewa Dass as Rs. 1,143 per month since the claimant Lalita Devi has not rebutted that the gross salary of the deceased Sewa Dass was more than Rs. 1,143 per month. Lalita Devi in her deposition stated that her husband used to earn Rs. 500 from the agriculture work at home, but she could not substantiate her testimony by leading cogent, convincing and credible evidence and, therefore, the Tribunal has rightly not accepted her bald statement about the agriculture income of the deceased. Lalita Devi disclosed her age round about 50 years when she was examined on 26.2.1991 and stated that her husband was younger to her by one year. Gopi Ram, Secretary Gram Panchayat, Kumarsain appeared as PW 5 and produced on record an abstract from the Parivar Register marked Exh. PW 5/A with respect to the age of Sewa Dass. In Exh. PW 5/A the year of the birth of Sewa Dass was shown in column No. 7 to be 1926. In the teeth of the documentary evidence Exh. PW 5/A the oral testimony of claimant Lalita Devi could not be relied upon that her husband at the time of the accident was one year younger to her. Taking the year of birth of the deceased to be 1926, the age of the deceased at the time of the accident on 7.5.1987 would work out about 61 years. The Tribunal below determined the monthly dependency of the family members of the deceased at Rs. 600 after deducting Rs. 543 for the personal expenses of the deceased which, in our view, is proper and correct. That being so, the total loss to the estate of deceased Sewa Dass works out to Rs. 600 x 12 = Rs. 7,200 per annum. The Tribunal has applied multiplier of 10 and thereby awarded total sum of Rs. 7,200 x 10 = Rs. 72,000 on account of loss of dependency. In addition to Rs. 72,000 the Tribunal awarded a sum of Rs. 10,000 on account of mental agony and psychological setback, etc., to the dependants. In addition a sum of Rs. 1,000 on account of expenses incurred on post-death ceremonies and Rs. 500 litigation cost had been awarded and thereby the total amount of compensation awarded would work out to Rs. 83,500. Though we do not agree with the multiplier of 10 applied by the Tribunal in the case of the death of Sewa Dass whose age was about 61 years at the time of the accident, yet in the peculiar facts and circumstances of the case and in the absence of any appeal filed by the aggrieved party for reducing the multiplier, we are left with no option but to maintain the multiplier applied in the present case by the Tribunal below which shall not be treated as precedent for other accidental cases. It is well settled proposition of law by the Apex Court that the maximum multiplier in accidental cases can be 18. The Tribunal below has awarded the total amount of compensation in favour of claimant Lalita Devi, widow of the deceased by giving detailed reason in para 31 of the award and not to the other legal representatives/heirs of the deceased and we uphold the said finding to that extent. No other claimants have challenged the amount of compensation awarded exclusively in favour of Lalita Devi nor they have filed appeal for enhancement of the amount of compensation awarded by the Tribunal and the appeal was only filed by Lalita Devi claiming enhancement of the amount of compensation.</p><p style="text-align: justify;">18. Mr. N.S. Shandil, learned counsel for the claimant Lalita Devi has relied upon the judgment of the Apex Court in S. Chandra v. Pallavan Trans. Corporation 1995 ACJ 1170 (SC), to contend that in the case of the death of a person who was about 65 years of age, the Supreme Court enhanced the amount of compensation from Rs. 48,680 to Rs. 1,00,000. According to the learned counsel in the present case the amount of compensation awarded by the Tribunal below deserves to be enhanced proportionately. We do not see any reason to accept the contention of the learned counsel as already noticed in the earlier part of the judgment that the multiplier in the present case applied by the Tribunal below is on the higher side looking to the age of the deceased and that of the claimant Lalita Devi and coupled with duration of the period for which claimant Lalita Devi would have remained dependent upon the deceased had he not died in the accident. The amount of compensation awarded by the Tribunal below is found to be just and reasonable looking to the entire evidence on record and we find no merit in the appeal of the claimant Lalita Devi seeking enhancement of the amount of compensation. Claimant Lalita Devi is entitled to interest at the rate of 12 per cent per annum from the date of institution of the claim petition till the date of payment or deposit of the amount of compensation awarded by the Tribunal below. The amount of compensation with interest shall be paid jointly and severally by the owners of the truck, driver and indemnified by the respondent insurance company.</p><p style="text-align: justify;">19. No other point has been urged by the learned counsel on either side.</p><p style="text-align: justify;">20. In the result, for the abovesaid reasons and discussions, the appeal of the appellant Sub-Divisional Officer [being F.A.O. (MVA) No. 49 of 1992] is allowed, whereas the appeal of the claimant Lalita Devi [F.A.O. (MVA) No. 60 of 1992] and her cross-objections for enhancement of the compensation are dismissed and the award of the Tribunal below shall stand modified to the extent indicated above. The parties are left to bear their own costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		(int) 123 => 'Tribunal',
		(int) 124 => 'Tribunal',
		(int) 125 => 'Tribunal',
		(int) 126 => 'Tribunal',
		(int) 127 => 'Tribunal',
		(int) 128 => 'the Apex Court',
		(int) 129 => 'Tribunal',
		(int) 130 => 'Tribunal',
		(int) 131 => 'the Apex Court',
		(int) 132 => 'SC',
		(int) 133 => 'the Supreme Court',
		(int) 134 => 'Tribunal',
		(int) 135 => 'Tribunal',
		(int) 136 => 'Tribunal',
		(int) 137 => 'Tribunal',
		(int) 138 => 'Sub-Divisional',
		(int) 139 => 'MVA',
		(int) 140 => 'Tribunal'
	),
	'NORP' => array(
		(int) 0 => 'J.1',
		(int) 1 => 'Punjab',
		(int) 2 => 'RSRTC',
		(int) 3 => 'RSRTC',
		(int) 4 => 'RSRTC',
		(int) 5 => 'RSRTC',
		(int) 6 => 'RSRTC',
		(int) 7 => 'RSRTC',
		(int) 8 => 'RSRTC',
		(int) 9 => 'RSRTC'
	),
	'CARDINAL' => array(
		(int) 0 => '23.8.1991',
		(int) 1 => '1988/89',
		(int) 2 => '83,500',
		(int) 3 => '7.5.1987',
		(int) 4 => 'One',
		(int) 5 => '4,00,000',
		(int) 6 => '1,500',
		(int) 7 => '3',
		(int) 8 => '1',
		(int) 9 => '5',
		(int) 10 => '1',
		(int) 11 => '1',
		(int) 12 => '3',
		(int) 13 => '83,500',
		(int) 14 => '49',
		(int) 15 => '4,00,000',
		(int) 16 => '24',
		(int) 17 => '14',
		(int) 18 => '1,143',
		(int) 19 => '543',
		(int) 20 => '10 to 15',
		(int) 21 => '500',
		(int) 22 => '1.1.1986',
		(int) 23 => '24',
		(int) 24 => 'one',
		(int) 25 => '20,000',
		(int) 26 => 'One',
		(int) 27 => '20,000.10',
		(int) 28 => '20,000',
		(int) 29 => '19',
		(int) 30 => '19',
		(int) 31 => '13',
		(int) 32 => '19',
		(int) 33 => '13',
		(int) 34 => '19',
		(int) 35 => '4',
		(int) 36 => '7',
		(int) 37 => '6',
		(int) 38 => '14',
		(int) 39 => '23',
		(int) 40 => '23',
		(int) 41 => '15',
		(int) 42 => '6 and 7',
		(int) 43 => '15',
		(int) 44 => '15',
		(int) 45 => '17',
		(int) 46 => '1,91,500',
		(int) 47 => '6',
		(int) 48 => '1,500',
		(int) 49 => '500',
		(int) 50 => '7',
		(int) 51 => '600',
		(int) 52 => '543',
		(int) 53 => '600',
		(int) 54 => '12',
		(int) 55 => '7,200',
		(int) 56 => '10',
		(int) 57 => '7,200',
		(int) 58 => '10',
		(int) 59 => '72,000',
		(int) 60 => '72,000',
		(int) 61 => '10,000',
		(int) 62 => '1,000',
		(int) 63 => '500',
		(int) 64 => '83,500',
		(int) 65 => '10',
		(int) 66 => '18',
		(int) 67 => '31',
		(int) 68 => '48,680',
		(int) 69 => '1,00,000'
	),
	'PERSON' => array(
		(int) 0 => 'Shimla',
		(int) 1 => 'Lalita Devi',
		(int) 2 => 'Sewa Dass',
		(int) 3 => 'Lalita Devi',
		(int) 4 => 'Kumarsain',
		(int) 5 => 'Jai Chand',
		(int) 6 => 'Sewa Dass',
		(int) 7 => 'Kumarsain',
		(int) 8 => 'Sewa Dass',
		(int) 9 => 'Sewa Dass',
		(int) 10 => 'Sewa Dass',
		(int) 11 => 'Sewa Dass',
		(int) 12 => 'Sewa Dass',
		(int) 13 => 'Sewa Dass',
		(int) 14 => 'Jai Chand',
		(int) 15 => 'Sewa Dass',
		(int) 16 => 'Sewa Dass',
		(int) 17 => 'Lalita Devi',
		(int) 18 => 'D.C. Jishtu',
		(int) 19 => 'Sewa Dass',
		(int) 20 => 'D.C. Jishtu',
		(int) 21 => 'Chanel',
		(int) 22 => 'Kulbhushan Khajuria',
		(int) 23 => 'Sewa Dass',
		(int) 24 => 'N.S. Shandil',
		(int) 25 => 'Sewa Dass',
		(int) 26 => 'Sewa Dass',
		(int) 27 => 'Lalita Devi',
		(int) 28 => 'Exh',
		(int) 29 => 'Kumarsain',
		(int) 30 => 'Sewa Dass',
		(int) 31 => 'Nichar',
		(int) 32 => 'Kewal Ram',
		(int) 33 => 'Amar Chand',
		(int) 34 => 'Kumarsain',
		(int) 35 => 'Sewa Dass',
		(int) 36 => 'Exh',
		(int) 37 => 'Exh',
		(int) 38 => 'A. Kapil Dev',
		(int) 39 => 'Sewa Dass',
		(int) 40 => 'Sewa Dass',
		(int) 41 => 'Exh',
		(int) 42 => 'Sewa Dass',
		(int) 43 => 'D.C. Jishtu',
		(int) 44 => 'Kailash Nath Kothari',
		(int) 45 => 'Sanjay Kumar',
		(int) 46 => 'Sanjay Kumar',
		(int) 47 => 'Sanjay Kumar',
		(int) 48 => 'Sanjay Kumar',
		(int) 49 => 'Sanjay Kumar',
		(int) 50 => 'Gopal',
		(int) 51 => 'Sanjay Kumar',
		(int) 52 => 'Nos',
		(int) 53 => 'Sewa Dass',
		(int) 54 => 'Jai Chand',
		(int) 55 => 'Lalita Devi',
		(int) 56 => 'Lalita Devi',
		(int) 57 => 'Sewa Dass',
		(int) 58 => 'Lalita Devi',
		(int) 59 => 'Sewa Dass',
		(int) 60 => 'Lalita Devi',
		(int) 61 => 'Sewa Dass',
		(int) 62 => 'Lalita Devi',
		(int) 63 => 'Lalita Devi',
		(int) 64 => 'Gopi Ram',
		(int) 65 => 'Gram Panchayat',
		(int) 66 => 'Kumarsain',
		(int) 67 => 'Exh',
		(int) 68 => 'Sewa Dass',
		(int) 69 => 'Exh',
		(int) 70 => 'Sewa Dass',
		(int) 71 => 'Exh',
		(int) 72 => 'Lalita Devi',
		(int) 73 => 'Sewa Dass',
		(int) 74 => 'Sewa Dass',
		(int) 75 => 'Lalita Devi',
		(int) 76 => 'Lalita Devi',
		(int) 77 => 'Lalita Devi',
		(int) 78 => 'N.S. Shandil',
		(int) 79 => 'Lalita Devi',
		(int) 80 => 'Pallavan Trans',
		(int) 81 => 'Lalita Devi',
		(int) 82 => 'Lalita Devi',
		(int) 83 => 'Lalita Devi',
		(int) 84 => 'Claimant Lalita Devi',
		(int) 85 => 'Lalita Devi'
	),
	'MONEY' => array(
		(int) 0 => '60-S/2',
		(int) 1 => '12 per cent',
		(int) 2 => '30 per cent',
		(int) 3 => '12 per cent'
	),
	'DATE' => array(
		(int) 0 => '1992',
		(int) 1 => '1992',
		(int) 2 => '5877',
		(int) 3 => '46 years',
		(int) 4 => 'the day',
		(int) 5 => '1,143 per month',
		(int) 6 => '1992',
		(int) 7 => '1992',
		(int) 8 => '1998',
		(int) 9 => '1312',
		(int) 10 => '1,500 per month',
		(int) 11 => 'the year 1996',
		(int) 12 => '1984',
		(int) 13 => 'the day',
		(int) 14 => '1998',
		(int) 15 => '1312',
		(int) 16 => '1939',
		(int) 17 => '1148',
		(int) 18 => 'the fateful day',
		(int) 19 => 'the fateful day',
		(int) 20 => '17.7.1991',
		(int) 21 => '1,143 per month',
		(int) 22 => '1,143 per month',
		(int) 23 => '1,143 per month',
		(int) 24 => 'about 50 years',
		(int) 25 => '26.2.1991',
		(int) 26 => 'one year',
		(int) 27 => 'PW 5',
		(int) 28 => 'PW 5',
		(int) 29 => '1926',
		(int) 30 => 'PW 5',
		(int) 31 => 'one year',
		(int) 32 => 'the year',
		(int) 33 => '1926',
		(int) 34 => '7.5.1987',
		(int) 35 => 'about 61 years',
		(int) 36 => 'monthly',
		(int) 37 => 'about 61 years',
		(int) 38 => '1995',
		(int) 39 => '1170',
		(int) 40 => 'about 65 years of age',
		(int) 41 => '1992',
		(int) 42 => '1992'
	),
	'GPE' => array(
		(int) 0 => 'Nichar',
		(int) 1 => 'Nichar',
		(int) 2 => 'Nichar',
		(int) 3 => 'Kumarsain',
		(int) 4 => '8.8.1988:(1',
		(int) 5 => 'Nichar',
		(int) 6 => 'Nichar',
		(int) 7 => 'Nichar',
		(int) 8 => 'Kumarsain',
		(int) 9 => 'Nichar',
		(int) 10 => 'Parkash Chand',
		(int) 11 => 'Nichar',
		(int) 12 => 'Jaipur',
		(int) 13 => 'Nichar',
		(int) 14 => 'Kumarsain',
		(int) 15 => 'S. Chandra v.'
	),
	'ORDINAL' => array(
		(int) 0 => 'second',
		(int) 1 => 'second'
	),
	'EVENT' => array(
		(int) 0 => 'PW 2',
		(int) 1 => 'PW 5'
	),
	'TIME' => array(
		(int) 0 => 'about 9.30 p.m.'
	),
	'LOC' => array(
		(int) 0 => 'Bandi River'
	)
)
$desc = array(
	'Judgement' => array(
		'id' => '890826',
		'acts' => '',
		'appealno' => ' F.A.O. (MVA) Nos. 49 and 60 of 1992',
		'appellant' => 'Sub-divisional Officer, Hp Pwd',
		'authreffered' => '',
		'casename' => 'Sub-divisional Officer, Hp Pwd Vs. Lalita Devi and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'S. Chandra v. Pallavan Trans. Corporation;',
		'citingcases' => '',
		'counselplain' => ' Sanjay Karol, A.G. and; Vivek Thakur, A.A.G.',
		'counseldef' => ' D.C. Jishtu,; Subhash Sharma,; N.S. Shandil and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-08-24',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' D. Raju, C.J. and; L.S. Panta, J.',
		'judgement' => '<p style="text-align: justify;">L.S. Panta, J.</p><p style="text-align: justify;">1. Both these appeals have been taken up and heard together as they arise out of the single accident and are directed against the common judgment and award dated 23.8.1991 of Motor Accidents Claims Tribunal (I), Shimla in M.A.C. No. 60-S/2 of 1988/89 whereunder total amount of Rs. 83,500 as compensation was awarded in favour of claimant Lalita Devi for the death of her husband Sewa Dass in the accident. F.A.O. (MVA) No. 49 of 1992 has been filed by the Sub-Divisional Officer, H.P. P.W.D., Kumarsain against whom the award has been passed whereas F.A.O. (MVA) No. 60 of 1992 has been filed by claimant Lalita Devi for enhancement of the amount of compensation awarded by the Tribunal below. The learned counsel for the parties have made the same and identical submissions and, therefore, both these appeals are being disposed of by this common judgment.</p><p style="text-align: justify;">2. The facts leading to the appeals may briefly be stated as under:</p><p style="text-align: justify;">The Sub-Divisional Officer (H.P. P.W.D.), Kumarsain, entered into a contract with Kewal Ram Kaithala respondent herein for transporting fire-wood from Nichar to Kumarsain Division required for completing the metalling work of road. The owners respondents had engaged their truck No. HPS 5877 which was being driven by driver Jai Chand respondent and the said truck was insured with respondent National Insurance Co. Ltd.</p><p style="text-align: justify;">On 7.5.1987 the truck was coming from Nichar to Kumarsain carrying the fuel wood, the truck met with an accident near Nanibadhal on Nichar-Rampur Road and it rolled down into the gorge. One Sewa Dass who was working as Road Inspector under the Sub-Divisional Officer (PWD), Kumarsain died in the accident. Sewa Dass deceased was deputed by the Sub-Divisional Officer to ensure the proper weighment, loading of the wood at Nichar in the truck and thereafter to supervise the safe transportation and the unloading at Kumarsain. The deceased was travelling in the accidental vehicle discharging his official duties. The legal heirs of Sewa Dass who are his wife, sons and daughters filed a claim petition before the Tribunal below, inter alia, on the ground that the accident had occurred due to rash and negligent driving of the vehicle by its driver and thereby resulting in the death of Sewa Dass. The claimants made a claim of Rs. 4,00,000 for the death of Sewa Dass and the age of the deceased at the time of the accident was said to be 46 years and his total income was disclosed Rs. 1,500 per month from salary and agriculture pursuits.</p><p style="text-align: justify;">Both the owners filed a joint written statement resisting and contesting the claim of the claimants on the ground that their truck was requisitioned by the Sub-Divisional Officer on contract basis for transporting of firewood from Nichar to Kumarsain. They denied the cause of the accident as a result of rash and negligent driving by the driver and stated that the accident occurred due to an act of vis major. They pleaded that on the day of the accident it rained very heavily and a huge boulder came rolling down and hit the rear of the truck due to which it rolled down into the gorge. The driver in his separate written statement had pleaded the same defences which were taken by the owners of the vehicle and denied his involvement in the accident due to driving the vehicle in a rash and negligent manner.</p><p style="text-align: justify;">The insurance company denied its liability to indemnify the insured for the compensation, if any, payable to the claimants.</p><p style="text-align: justify;">The Sub-Divisional Officer, employer of Sewa Dass admitted in his written statement that Sewa Dass was employed as a Road Inspector drawing Rs. 1,143 per month as total salary. He admitted that the truck was requisitioned and hired by the Public Works Department for transporting the firewood.</p><p style="text-align: justify;">3. On the controversial pleadings of the parties, the Tribunal below framed the following issues on 8.8.1988:</p><p style="text-align: justify;">(1) Whether the deceased had died on account of rash and negligent driving of the truck driver Jai Chand, respondent No. 3, as alleged? -OPP</p><p style="text-align: justify;">(2) If issue No. 1 supra is proved, to what amount of compensation the petitioners are entitled and from which of the respondents? -OPP</p><p style="text-align: justify;">(3) Whether the deceased was travelling in the truck in question in the course of his employment of respondent No. 5, as alleged? If so, its effect? -OPR 1& 2.</p><p style="text-align: justify;">(4) Relief.</p><p style="text-align: justify;">4. The parties went to trial and led their oral and documentary evidence. After appreciating the entire evidence on record, the Tribunal below returned finding under issue No. 1 against the driver of the truck holding him guilty of driving the vehicle in a rash and negligent manner. Against issue No. 3 it was concluded that Sewa Dass was travelling in the accidental vehicle in the course of his employment and accordingly decided this issue in favour of the claimants. Consequently, total amount of compensation of Rs. 83,500 was awarded in favour of widow of the deceased Sewa Dass along with interest at the rate of 12 per cent per annum from the date of institution of the claim petition till final payment or deposit of the amount and the liability of payment of the amount of compensation has been saddled upon the Sub-Divisional Officer exclusively. Feeling aggrieved and dissatisfied against the judgment and award of the Tribunal below, the Sub-Divisional Officer, II.P. P.W.D. filed the appeal challenging the correctness, validity and legality of the award, whereas claimant Lalita Devi filed cross-objections in the appeal [F.A.O. (MVA) No. 49 of 1992] and she also filed separate appeal being F.A.O. (MVA) No. 60 of 1992 claiming enhancement of the amount of compensation to Rs. 4,00,000 as claimed in the claim petition.</p><p style="text-align: justify;">5. We have heard the learned counsel on both sides and reassessed the entire evidence on record and also examined the reasoning and conclusion arrived at by the Tribunal below. The learned Advocate General vehemently contended that the liability of the appellant Sub-Divisional Officer to pay the amount of compensation fastened by the Tribunal below is grossly erroneous, perverse and illegal. The accidental truck was not requisitioned or hired by the appellant, but a contract for carrying of the firewood was entered into with the contractor who happened to be one of the owners of the truck. He next contended that the driver of the truck who caused the accident was never the employee of the appellant Sub-Divisional Officer nor he was paid remuneration for his services during the period when he was engaged by the owners for transporting the firewood and that the overall control of the truck vested with the owners and, therefore, liability to pay the compensation was entirely that of owners, driver and insurance company jointly and severally.</p><p style="text-align: justify;">6. Per contra, Mr. D.C. Jishtu, learned counsel for the owners respondents while relying upon the reply to para 24 of the claim petition filed by the appellant Sub-Divisional Officer and extracted by the learned Tribunal below in para 14 of the judgment, contended that the appellant Sub-Divisional Officer had categorically admitted hiring of the truck involved in accident by the department through Executive Engineer, H.P. P.W.D., Kumarsain for carrying firewood and that in pursuance of the contract the Executive Engineer deputed Sewa Dass, Road Inspector, for supervision, loading/unloading and to verify the weight of the wood and as per the admission of the appellant Sub-Divisional Officer, the truck in question was entirely under the control of the Sub-Divisional Officer including its driver and that in view of admitted facts, the appellant Sub-Divisional Officer was deemed to have stepped into the shoes of the owners and thereby the said authority was vicariously liable for inaction of the driver and also for the payment of amount of compensation which has been rightly fastened upon the appellant Sub-Divisional Officer by the Tribunal below. In support of his submission Mr. D.C. Jishtu has placed reliance upon a judgment of the Division Bench of Punjab and Haryana High Court in Primary Land Development Bank v. Mangal Chanel 1998 ACJ 1312 (P&H;).</p><p style="text-align: justify;">7. Mr. Kulbhushan Khajuria, learned counsel appearing for the insurance company has sought to support the finding of the Tribunal below and contended that the vehicle was a goods carrier and deceased Sewa Dass was unauthorised passenger travelling in the vehicle in question and, therefore, insurance company was not liable to pay the amount of compensation.</p><p style="text-align: justify;">8. Mr. N.S. Shandil, learned counsel for the claimant has also made an attempt to support the award of the Tribunal holding the appellant Sub-Divisional Officer liable to pay the amount of compensation for the reason that the overall control of the vehicle was with the said officer. He next contended that Sewa Dass was deputed on duty by the Executive Engineer apparently to ensure the proper quantity of the goods after weighing them at Nichar and thereafter checking the fire/fuel wood to its destination intact in safe custody and proper delivery at Kumarsain and if he was discharging the official duty at the time of the accident, the appellant Sub-Divisional Officer cannot be permitted to contend that deceased Sewa Dass was not on official duty when the truck met with an accident resulting in his death. He next contended that taking the gross salary of the deceased at Rs. 1,143 and deduction of Rs. 543 therefrom for the deceased's personal expenses by the Tribunal below was grossly unwarranted and unsustainable. He sought for the enhancement of multiplier from 10 to 15. The learned counsel also contended that the Tribunal has not taken into consideration the agriculture income of Rs. 500 per month which the deceased used to earn before his death and the total loss of dependency to the estate of the deceased was Rs. 1,500 per month as the deceased would have received more pay after hike in salary to the extent of 30 per cent w.e.f. 1.1.1986 and thereafter revision of pay scale in the year 1996. According to the learned counsel the claimant Lalita Devi who is appellant in the second appeal should have been awarded total compensation of Rs. 1,91,500.</p><p style="text-align: justify;">9. We have given our careful consideration to the respective contentions of the learned counsel for the parties. The primary question which arises for our determination and consideration is to find out whether the truck involved in the accident was requisitioned for transporting fire/ fuel wood from Nichar to Kumarsain or whether one of the owners of the truck was awarded contract of transporting the fire/ fuel wood from Nichar to Kumarsain without requisition or hiring of the truck. Though admittedly in para 24 of the reply to the claim petition, the Sub-Divisional Officer admitted that the truck was hired by the department through Executive Engineer, Kumarsain for carriage of fire/fuel wood from Nichar to Kumarsain, yet this statement of the Sub-Divisional Officer will not ipso facto put the truck and its driver under the pervasive control of the said officer. In the agreement marked Exh. R-l/A it has been clearly stipulated that the contract for carriage of fire/fuel wood was executed in favour of one of the owners of the truck for Rs. 20,000 and there was no such stipulation that the fire/ fuel wood would be carried by the contractor (owner of the vehicle) in his own truck or through any other vehicle to be engaged by him. Further, we find no such stipulation that the vehicle involved in the accident was ever requisitioned by the appellant Sub-Divisional Officer for transporting the fire/fuel wood or the truck and driver would be under the overall charge of the appellant Sub-Divisional Officer. Guman Singh, Junior Engineer, H.P. P.W.D., Kumarsain, appeared as PW 2 and no question was put to him by the learned counsel for the owners of the truck that the truck was requisitioned for doing the work of the H.P. P.W.D. However, he admitted that Road Inspector Sewa Dass along with other labourers used to go from Kumarsain to Nichar for weighment and loading of the firewood in the truck and to travel back in the same truck to Kumarsain for unloading. He also admitted that some labourers also died in the said accident. One of the owners, by name Kewal Ram, appeared as RW 1 and admitted the ownership of the vehicle in question jointly with Amar Chand, respondent. He stated that he took the carriage of firewood from Nichar to Kumarsain on contract basis and loading and unloading expenses were to be borne by the Sub-Divisional Officer, H.P. P.W.D., Kumarsain. He also stated that Sewa Dass, Road Inspector along with other labourers used to travel in the truck for loading and unloading the fire/fuel wood. He brought on record policy note of the truck Exh. RA. Parkash Chand, Asstt. Administrative Officer of the insurance company appeared as RW 3 and placed on record a copy of insurance policy of the truck marked Exh. RW 3/A. Kapil Dev who was working as Junior Engineer at Kumarsain from 1984 to 30.6.1988 appealed as RW 4 and stated that on the day of the accident Sewa Dass was on duty of weighment and checking of the fuel wood at Nichar and challan regarding weighment and loading of firewood used to be signed by Sewa Dass and a copy of which has been filed on record marked Exh. PA. He has also stated that the work order for supply of the firewood executed in favour of the contractor was duly passed for Rs. 20,000.</p><p style="text-align: justify;">10. On reappraisal of the entire evidence on record noticed hereinabove, it can be safely held that Sewa Dass was on official duty at the time of the accident and he was entrusted the work of weighment to ensure loading of the wood at Nichar and thereafter unloading at Kumarsain and thereby he was overall incharge of carrying the fuel wood under safe custody to its destination and that in discharging his duty he was travelling in the truck which met with an accident resulting in his death. There is not an iota of evidence on record led by the owners of the vehicle involved in the accident that the truck was under the overall control of appellant Sub-Divisional Officer. There is also no evidence on record to prove that during the period when the truck was engaged for transporting fuel wood, the salary of the driver and other expenses such as freight charges of the wood, expenses incurred on purchase of diesel, etc., were to be borne by the appellant Sub-Divisional Officer. From careful reading of the terms and conditions of the agreement, it is clear that it was a pure and simple contract executed between the contractor who happened to be one of the owners of the vehicle to carry the fuel wood from Nichar to Kumarsain for fixed amount of Rs. 20,000, meaning thereby that all expenses including food, salary of the driver and purchase of diesel, etc., were to be borne not by the P.W.D. but by the owners themselves. There is vast distinction between requisitioning the vehicle for the purpose of doing the work of the department under the overall control of the department and contracting the carriage of the goods without requisition. In the case of contract carriage the overall control of the vehicle and its driver including the expenses incurred upon the vehicle would be always with the owners of the vehicle and not with the department official. The ratio of the judgment of the Punjab and Haryana High Court in Primary Land Development Bank's case 1998 ACJ 1312 (P&H;), would not be applicable in the peculiar facts and circumstances of the present case as relied upon by Mr. D.C. Jishtu. In that case the Manager of the bank categorically admitted that the vehicle taken on hire remained in the custody of the bank till the time it was not returned. On the basis of the admission of the Bank Manager, the learned Judge held that the driver of the vehicle at the relevant time was under the control of the bank though he may or may not be in its regular employment.</p><p style="text-align: justify;">11. In order to appreciate the submissions made at the Bar by learned Advocate General for the appellant Sub-Divisional Officer that the vehicle in question was not under the control of the appellant, we consider it appropriate to look at the definition of owner.</p><p style="text-align: justify;">12. Section 2 (19) of Motor Vehicles Act, 1939 defines owner in the following terms:</p><p style="text-align: justify;">2 (19) 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement. </p><p style="text-align: justify;">13. Having noticed the definition of the 'owner', under the 1939 Act, which admittedly applies to the instant case, we now address ourselves to test the correctness of the submission that since the Sub-Divisional Officer was not the 'owner' of the vehicle, as such the liability to pay compensation for an accident caused by the truck cannot be fastened on the appellant Sub-Divisional Officer and the relevant effect of the agreement. The Apex Court had the occasion to give the construction to the definition of 'owner' under Section 2 (19) of the Act in Rajasthan State Road Trans. Corporation v. Kailash Nath Kothari 1997 ACJ 1148 (SC), we may with advantage extract para 13 of the judgment as under:</p><p style="text-align: justify;">The definition of 'owner' under Section 2 (19) of the Act is not exhaustive. It has, therefore, to be construed, in a wider sense, in the facts and circumstances of a given case. The expression 'owner' must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to the registered owner only would, in a case where the vehicle is in the actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the 'owner' is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving the fare from them. Sanjay Kumar was, therefore, not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. 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 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 concerned employee during the course of his employment and within the scope of his authority, is a rebuttable presumption. If 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. </p><p style="text-align: justify;">14. In the case before the Supreme Court the relevant facts were that a bus No. RSB 3945, besides some other buses, was hired by the RSRTC from its owner Sanjay Kumar to ply on the routes specified by the RSRTC and agreement was executed between RSRTC and the owner of the bus containing the terms of hiring the bus No. RSB 3945. The said bus was on the fateful day on 17.7.1991 plying on the route Kekri to Jaipur for which route RSRTC had the route permit. At about 9.30 p.m. when the bus was near Renwal, it was noticed that water was flowing over the bridge of Bandi River due to heavy rains. The passengers travelling in the bus requested the driver not to drive the bus over the bridge because of overflowing water but their request had no effect and the driver despite the warning by the passengers, drove the bus over the bridge and as a result of flood in the river, the bus was swept away. As a result 23 passengers travelling in the ill-fated bus died due to the accident. The legal representatives/ heirs of the 23 passengers who had died as a result of accident filed separate claim petitions under the 1939 Act claiming compensation from the RSRTC and the insurance company. The claim petitions were resisted and the RSRTC in its written statement denied its liability on the ground that though it had hired the bus in question from Sanjay Kumar and the bus was plying on the route specified by it, the driver of the bus, Gopal, due to whose negligence and rashness the accident had taken place was not an employee of the RSRTC but of the bus owner Sanjay Kumar and, therefore, it was not vicariously responsible for his negligence and rashness. It was also pleaded that the liability to pay the compensation in case of an accident was that of the 'owner' and not of the hirer. Reliance in this behalf was placed on condition No. 15 of the agreement to disown its liability.</p><p style="text-align: justify;">15. The Hon'ble Judges of the Supreme Court on the basis of the condition Nos. 6 and 7 of the agreement executed between the RSRTC and the owner held in para 15 that under those conditions the owner had not merely transferred the services of the driver to the RSRTC but actual control of the driver to act under the instructions, control and commands of the conductor and other officers of the RSRTC. Their Lordships proceeded to hold that the second part of condition No. 15 made it abundantly clear that the RSRTC did not completely shift the liability to the owners of the bus because it provided for reimbursement to it in case it had to pay compensation arising out of an accident. In the facts and circumstances of that case, the Hon'ble Judges held that RSRTC could not escape its liability to pay the compensation to the legal representatives/heirs of the deceased who died in the accident. The Hon'ble Judges in para 17 extracted hereinabove of the report categorically held that the liability of the 'owner' was vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom could vicarious liability be fastened in the case of an accident.</p><p style="text-align: justify;">16. Relying upon the construction of the definition of the 'owner' by the Apex Court in the facts and circumstances of the case on hand, we find as noticed in the earlier part of the judgment that the vehicle in question was not hired by the appellant Sub-Divisional Officer, but the agreement executed between the Executive Engineer and the contractor was in regard to the supply of fire/fuel wood to be carried by the contractor from Nichar to Kumarsain, though under the supervision of Sewa Dass who was travelling in the ill-fated truck at the time of the accident. The vehicle was never put under the control of the appellant Sub-Divisional Officer nor his driver was under the control and command of the authority as discussed in the earlier part of the judgment, we are not inclined to agree with the finding of the Tribunal below that the vehicle involved in accident was under the control of the appellant Sub-Divisional Officer at the time of its accident and, therefore, the appellant Sub-Divisional Officer was liable to pay the amount of compensation awarded. We, therefore, hold that in the present case the vehicle and driver were under the control and command of the owners and liability of the owners of the vehicle is vicarious for the tort committed by the driver during the course of his employment. The accident was a result of the rashness and negligence of respondent Jai Chand and he was not an employee of the appellant Sub-Divisional Officer but of the truck owners. The truck was insured with the respondent insurance company, therefore, the insurance company is held liable jointly and severally with the owners and driver of the ill-fated vehicle to pay the amount of compensation to the claimant Lalita Devi. Consequently, the appeal of the Sub-Divisional Officer is allowed accordingly and the finding of the Tribunal below holding the appellant Sub-Divisional Officer liable for the payment of compensation is set aside.</p><p style="text-align: justify;">17. The next question involved for consideration is whether the amount of compensation awarded by the Tribunal below is just and reasonable or the same is inadequate as projected by the learned counsel for the claimant Lalita Devi in her cross-objections filed in F.A.O. (MVA) No. 49/1992 and claiming enhancement to the extent of Rs. 1,91,500 in her independent appeal. The Sub-Divisional Officer, H.P. P.W.D. in para 6 of the written statement has admitted that the gross salary of deceased Sewa Dass at the time of his death was Rs. 1,143 per month. However, Lalita Devi in her deposition before the Tribunal below disclosed that his salary was Rs. 1,500 per month. The Tribunal below admitted the statement of the Sub-Divisional Officer in his written statement and accepted the gross salary of deceased Sewa Dass as Rs. 1,143 per month since the claimant Lalita Devi has not rebutted that the gross salary of the deceased Sewa Dass was more than Rs. 1,143 per month. Lalita Devi in her deposition stated that her husband used to earn Rs. 500 from the agriculture work at home, but she could not substantiate her testimony by leading cogent, convincing and credible evidence and, therefore, the Tribunal has rightly not accepted her bald statement about the agriculture income of the deceased. Lalita Devi disclosed her age round about 50 years when she was examined on 26.2.1991 and stated that her husband was younger to her by one year. Gopi Ram, Secretary Gram Panchayat, Kumarsain appeared as PW 5 and produced on record an abstract from the Parivar Register marked Exh. PW 5/A with respect to the age of Sewa Dass. In Exh. PW 5/A the year of the birth of Sewa Dass was shown in column No. 7 to be 1926. In the teeth of the documentary evidence Exh. PW 5/A the oral testimony of claimant Lalita Devi could not be relied upon that her husband at the time of the accident was one year younger to her. Taking the year of birth of the deceased to be 1926, the age of the deceased at the time of the accident on 7.5.1987 would work out about 61 years. The Tribunal below determined the monthly dependency of the family members of the deceased at Rs. 600 after deducting Rs. 543 for the personal expenses of the deceased which, in our view, is proper and correct. That being so, the total loss to the estate of deceased Sewa Dass works out to Rs. 600 x 12 = Rs. 7,200 per annum. The Tribunal has applied multiplier of 10 and thereby awarded total sum of Rs. 7,200 x 10 = Rs. 72,000 on account of loss of dependency. In addition to Rs. 72,000 the Tribunal awarded a sum of Rs. 10,000 on account of mental agony and psychological setback, etc., to the dependants. In addition a sum of Rs. 1,000 on account of expenses incurred on post-death ceremonies and Rs. 500 litigation cost had been awarded and thereby the total amount of compensation awarded would work out to Rs. 83,500. Though we do not agree with the multiplier of 10 applied by the Tribunal in the case of the death of Sewa Dass whose age was about 61 years at the time of the accident, yet in the peculiar facts and circumstances of the case and in the absence of any appeal filed by the aggrieved party for reducing the multiplier, we are left with no option but to maintain the multiplier applied in the present case by the Tribunal below which shall not be treated as precedent for other accidental cases. It is well settled proposition of law by the Apex Court that the maximum multiplier in accidental cases can be 18. The Tribunal below has awarded the total amount of compensation in favour of claimant Lalita Devi, widow of the deceased by giving detailed reason in para 31 of the award and not to the other legal representatives/heirs of the deceased and we uphold the said finding to that extent. No other claimants have challenged the amount of compensation awarded exclusively in favour of Lalita Devi nor they have filed appeal for enhancement of the amount of compensation awarded by the Tribunal and the appeal was only filed by Lalita Devi claiming enhancement of the amount of compensation.</p><p style="text-align: justify;">18. Mr. N.S. Shandil, learned counsel for the claimant Lalita Devi has relied upon the judgment of the Apex Court in S. Chandra v. Pallavan Trans. Corporation 1995 ACJ 1170 (SC), to contend that in the case of the death of a person who was about 65 years of age, the Supreme Court enhanced the amount of compensation from Rs. 48,680 to Rs. 1,00,000. According to the learned counsel in the present case the amount of compensation awarded by the Tribunal below deserves to be enhanced proportionately. We do not see any reason to accept the contention of the learned counsel as already noticed in the earlier part of the judgment that the multiplier in the present case applied by the Tribunal below is on the higher side looking to the age of the deceased and that of the claimant Lalita Devi and coupled with duration of the period for which claimant Lalita Devi would have remained dependent upon the deceased had he not died in the accident. The amount of compensation awarded by the Tribunal below is found to be just and reasonable looking to the entire evidence on record and we find no merit in the appeal of the claimant Lalita Devi seeking enhancement of the amount of compensation. Claimant Lalita Devi is entitled to interest at the rate of 12 per cent per annum from the date of institution of the claim petition till the date of payment or deposit of the amount of compensation awarded by the Tribunal below. The amount of compensation with interest shall be paid jointly and severally by the owners of the truck, driver and indemnified by the respondent insurance company.</p><p style="text-align: justify;">19. No other point has been urged by the learned counsel on either side.</p><p style="text-align: justify;">20. In the result, for the abovesaid reasons and discussions, the appeal of the appellant Sub-Divisional Officer [being F.A.O. (MVA) No. 49 of 1992] is allowed, whereas the appeal of the claimant Lalita Devi [F.A.O. (MVA) No. 60 of 1992] and her cross-objections for enhancement of the compensation are dismissed and the award of the Tribunal below shall stand modified to the extent indicated above. The parties are left to bear their own costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			(int) 34 => 'Kumarsain',
			(int) 35 => 'Sewa Dass',
			(int) 36 => 'Exh',
			(int) 37 => 'Exh',
			(int) 38 => 'A. Kapil Dev',
			(int) 39 => 'Sewa Dass',
			(int) 40 => 'Sewa Dass',
			(int) 41 => 'Exh',
			(int) 42 => 'Sewa Dass',
			(int) 43 => 'D.C. Jishtu',
			(int) 44 => 'Kailash Nath Kothari',
			(int) 45 => 'Sanjay Kumar',
			(int) 46 => 'Sanjay Kumar',
			(int) 47 => 'Sanjay Kumar',
			(int) 48 => 'Sanjay Kumar',
			(int) 49 => 'Sanjay Kumar',
			(int) 50 => 'Gopal',
			(int) 51 => 'Sanjay Kumar',
			(int) 52 => 'Nos',
			(int) 53 => 'Sewa Dass',
			(int) 54 => 'Jai Chand',
			(int) 55 => 'Lalita Devi',
			(int) 56 => 'Lalita Devi',
			(int) 57 => 'Sewa Dass',
			(int) 58 => 'Lalita Devi',
			(int) 59 => 'Sewa Dass',
			(int) 60 => 'Lalita Devi',
			(int) 61 => 'Sewa Dass',
			(int) 62 => 'Lalita Devi',
			(int) 63 => 'Lalita Devi',
			(int) 64 => 'Gopi Ram',
			(int) 65 => 'Gram Panchayat',
			(int) 66 => 'Kumarsain',
			(int) 67 => 'Exh',
			(int) 68 => 'Sewa Dass',
			(int) 69 => 'Exh',
			(int) 70 => 'Sewa Dass',
			(int) 71 => 'Exh',
			(int) 72 => 'Lalita Devi',
			(int) 73 => 'Sewa Dass',
			(int) 74 => 'Sewa Dass',
			(int) 75 => 'Lalita Devi',
			(int) 76 => 'Lalita Devi',
			(int) 77 => 'Lalita Devi',
			(int) 78 => 'N.S. Shandil',
			(int) 79 => 'Lalita Devi',
			(int) 80 => 'Pallavan Trans',
			(int) 81 => 'Lalita Devi',
			(int) 82 => 'Lalita Devi',
			(int) 83 => 'Lalita Devi',
			(int) 84 => 'Claimant Lalita Devi',
			(int) 85 => 'Lalita Devi'
		),
		'MONEY' => array(
			(int) 0 => '60-S/2',
			(int) 1 => '12 per cent',
			(int) 2 => '30 per cent',
			(int) 3 => '12 per cent'
		),
		'DATE' => array(
			(int) 0 => '1992',
			(int) 1 => '1992',
			(int) 2 => '5877',
			(int) 3 => '46 years',
			(int) 4 => 'the day',
			(int) 5 => '1,143 per month',
			(int) 6 => '1992',
			(int) 7 => '1992',
			(int) 8 => '1998',
			(int) 9 => '1312',
			(int) 10 => '1,500 per month',
			(int) 11 => 'the year 1996',
			(int) 12 => '1984',
			(int) 13 => 'the day',
			(int) 14 => '1998',
			(int) 15 => '1312',
			(int) 16 => '1939',
			(int) 17 => '1148',
			(int) 18 => 'the fateful day',
			(int) 19 => 'the fateful day',
			(int) 20 => '17.7.1991',
			(int) 21 => '1,143 per month',
			(int) 22 => '1,143 per month',
			(int) 23 => '1,143 per month',
			(int) 24 => 'about 50 years',
			(int) 25 => '26.2.1991',
			(int) 26 => 'one year',
			(int) 27 => 'PW 5',
			(int) 28 => 'PW 5',
			(int) 29 => '1926',
			(int) 30 => 'PW 5',
			(int) 31 => 'one year',
			(int) 32 => 'the year',
			(int) 33 => '1926',
			(int) 34 => '7.5.1987',
			(int) 35 => 'about 61 years',
			(int) 36 => 'monthly',
			(int) 37 => 'about 61 years',
			(int) 38 => '1995',
			(int) 39 => '1170',
			(int) 40 => 'about 65 years of age',
			(int) 41 => '1992',
			(int) 42 => '1992'
		),
		'GPE' => array(
			(int) 0 => 'Nichar',
			(int) 1 => 'Nichar',
			(int) 2 => 'Nichar',
			(int) 3 => 'Kumarsain',
			(int) 4 => '8.8.1988:(1',
			(int) 5 => 'Nichar',
			(int) 6 => 'Nichar',
			(int) 7 => 'Nichar',
			(int) 8 => 'Kumarsain',
			(int) 9 => 'Nichar',
			(int) 10 => 'Parkash Chand',
			(int) 11 => 'Nichar',
			(int) 12 => 'Jaipur',
			(int) 13 => 'Nichar',
			(int) 14 => 'Kumarsain',
			(int) 15 => 'S. Chandra v.'
		),
		'ORDINAL' => array(
			(int) 0 => 'second',
			(int) 1 => 'second'
		),
		'EVENT' => array(
			(int) 0 => 'PW 2',
			(int) 1 => 'PW 5'
		),
		'TIME' => array(
			(int) 0 => 'about 9.30 p.m.'
		),
		'LOC' => array(
			(int) 0 => 'Bandi River'
		)
	),
	'desc' => array(
		'Judgement' => array(
			'id' => '890826',
			'acts' => '',
			'appealno' => ' F.A.O. (MVA) Nos. 49 and 60 of 1992',
			'appellant' => 'Sub-divisional Officer, Hp Pwd',
			'authreffered' => '',
			'casename' => 'Sub-divisional Officer, Hp Pwd Vs. Lalita Devi and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'S. Chandra v. Pallavan Trans. Corporation;',
			'citingcases' => '',
			'counselplain' => ' Sanjay Karol, A.G. and; Vivek Thakur, A.A.G.',
			'counseldef' => ' D.C. Jishtu,; Subhash Sharma,; N.S. Shandil and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-08-24',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' D. Raju, C.J. and; L.S. Panta, J.',
			'judgement' => '<p style="text-align: justify;">L.S. Panta, J.</p><p style="text-align: justify;">1. Both these appeals have been taken up and heard together as they arise out of the single accident and are directed against the common judgment and award dated 23.8.1991 of Motor Accidents Claims Tribunal (I), Shimla in M.A.C. No. 60-S/2 of 1988/89 whereunder total amount of Rs. 83,500 as compensation was awarded in favour of claimant Lalita Devi for the death of her husband Sewa Dass in the accident. F.A.O. (MVA) No. 49 of 1992 has been filed by the Sub-Divisional Officer, H.P. P.W.D., Kumarsain against whom the award has been passed whereas F.A.O. (MVA) No. 60 of 1992 has been filed by claimant Lalita Devi for enhancement of the amount of compensation awarded by the Tribunal below. The learned counsel for the parties have made the same and identical submissions and, therefore, both these appeals are being disposed of by this common judgment.</p><p style="text-align: justify;">2. The facts leading to the appeals may briefly be stated as under:</p><p style="text-align: justify;">The Sub-Divisional Officer (H.P. P.W.D.), Kumarsain, entered into a contract with Kewal Ram Kaithala respondent herein for transporting fire-wood from Nichar to Kumarsain Division required for completing the metalling work of road. The owners respondents had engaged their truck No. HPS 5877 which was being driven by driver Jai Chand respondent and the said truck was insured with respondent National Insurance Co. Ltd.</p><p style="text-align: justify;">On 7.5.1987 the truck was coming from Nichar to Kumarsain carrying the fuel wood, the truck met with an accident near Nanibadhal on Nichar-Rampur Road and it rolled down into the gorge. One Sewa Dass who was working as Road Inspector under the Sub-Divisional Officer (PWD), Kumarsain died in the accident. Sewa Dass deceased was deputed by the Sub-Divisional Officer to ensure the proper weighment, loading of the wood at Nichar in the truck and thereafter to supervise the safe transportation and the unloading at Kumarsain. The deceased was travelling in the accidental vehicle discharging his official duties. The legal heirs of Sewa Dass who are his wife, sons and daughters filed a claim petition before the Tribunal below, inter alia, on the ground that the accident had occurred due to rash and negligent driving of the vehicle by its driver and thereby resulting in the death of Sewa Dass. The claimants made a claim of Rs. 4,00,000 for the death of Sewa Dass and the age of the deceased at the time of the accident was said to be 46 years and his total income was disclosed Rs. 1,500 per month from salary and agriculture pursuits.</p><p style="text-align: justify;">Both the owners filed a joint written statement resisting and contesting the claim of the claimants on the ground that their truck was requisitioned by the Sub-Divisional Officer on contract basis for transporting of firewood from Nichar to Kumarsain. They denied the cause of the accident as a result of rash and negligent driving by the driver and stated that the accident occurred due to an act of vis major. They pleaded that on the day of the accident it rained very heavily and a huge boulder came rolling down and hit the rear of the truck due to which it rolled down into the gorge. The driver in his separate written statement had pleaded the same defences which were taken by the owners of the vehicle and denied his involvement in the accident due to driving the vehicle in a rash and negligent manner.</p><p style="text-align: justify;">The insurance company denied its liability to indemnify the insured for the compensation, if any, payable to the claimants.</p><p style="text-align: justify;">The Sub-Divisional Officer, employer of Sewa Dass admitted in his written statement that Sewa Dass was employed as a Road Inspector drawing Rs. 1,143 per month as total salary. He admitted that the truck was requisitioned and hired by the Public Works Department for transporting the firewood.</p><p style="text-align: justify;">3. On the controversial pleadings of the parties, the Tribunal below framed the following issues on 8.8.1988:</p><p style="text-align: justify;">(1) Whether the deceased had died on account of rash and negligent driving of the truck driver Jai Chand, respondent No. 3, as alleged? -OPP</p><p style="text-align: justify;">(2) If issue No. 1 supra is proved, to what amount of compensation the petitioners are entitled and from which of the respondents? -OPP</p><p style="text-align: justify;">(3) Whether the deceased was travelling in the truck in question in the course of his employment of respondent No. 5, as alleged? If so, its effect? -OPR 1& 2.</p><p style="text-align: justify;">(4) Relief.</p><p style="text-align: justify;">4. The parties went to trial and led their oral and documentary evidence. After appreciating the entire evidence on record, the Tribunal below returned finding under issue No. 1 against the driver of the truck holding him guilty of driving the vehicle in a rash and negligent manner. Against issue No. 3 it was concluded that Sewa Dass was travelling in the accidental vehicle in the course of his employment and accordingly decided this issue in favour of the claimants. Consequently, total amount of compensation of Rs. 83,500 was awarded in favour of widow of the deceased Sewa Dass along with interest at the rate of 12 per cent per annum from the date of institution of the claim petition till final payment or deposit of the amount and the liability of payment of the amount of compensation has been saddled upon the Sub-Divisional Officer exclusively. Feeling aggrieved and dissatisfied against the judgment and award of the Tribunal below, the Sub-Divisional Officer, II.P. P.W.D. filed the appeal challenging the correctness, validity and legality of the award, whereas claimant Lalita Devi filed cross-objections in the appeal [F.A.O. (MVA) No. 49 of 1992] and she also filed separate appeal being F.A.O. (MVA) No. 60 of 1992 claiming enhancement of the amount of compensation to Rs. 4,00,000 as claimed in the claim petition.</p><p style="text-align: justify;">5. We have heard the learned counsel on both sides and reassessed the entire evidence on record and also examined the reasoning and conclusion arrived at by the Tribunal below. The learned Advocate General vehemently contended that the liability of the appellant Sub-Divisional Officer to pay the amount of compensation fastened by the Tribunal below is grossly erroneous, perverse and illegal. The accidental truck was not requisitioned or hired by the appellant, but a contract for carrying of the firewood was entered into with the contractor who happened to be one of the owners of the truck. He next contended that the driver of the truck who caused the accident was never the employee of the appellant Sub-Divisional Officer nor he was paid remuneration for his services during the period when he was engaged by the owners for transporting the firewood and that the overall control of the truck vested with the owners and, therefore, liability to pay the compensation was entirely that of owners, driver and insurance company jointly and severally.</p><p style="text-align: justify;">6. Per contra, Mr. D.C. Jishtu, learned counsel for the owners respondents while relying upon the reply to para 24 of the claim petition filed by the appellant Sub-Divisional Officer and extracted by the learned Tribunal below in para 14 of the judgment, contended that the appellant Sub-Divisional Officer had categorically admitted hiring of the truck involved in accident by the department through Executive Engineer, H.P. P.W.D., Kumarsain for carrying firewood and that in pursuance of the contract the Executive Engineer deputed Sewa Dass, Road Inspector, for supervision, loading/unloading and to verify the weight of the wood and as per the admission of the appellant Sub-Divisional Officer, the truck in question was entirely under the control of the Sub-Divisional Officer including its driver and that in view of admitted facts, the appellant Sub-Divisional Officer was deemed to have stepped into the shoes of the owners and thereby the said authority was vicariously liable for inaction of the driver and also for the payment of amount of compensation which has been rightly fastened upon the appellant Sub-Divisional Officer by the Tribunal below. In support of his submission Mr. D.C. Jishtu has placed reliance upon a judgment of the Division Bench of Punjab and Haryana High Court in Primary Land Development Bank v. Mangal Chanel 1998 ACJ 1312 (P&H;).</p><p style="text-align: justify;">7. Mr. Kulbhushan Khajuria, learned counsel appearing for the insurance company has sought to support the finding of the Tribunal below and contended that the vehicle was a goods carrier and deceased Sewa Dass was unauthorised passenger travelling in the vehicle in question and, therefore, insurance company was not liable to pay the amount of compensation.</p><p style="text-align: justify;">8. Mr. N.S. Shandil, learned counsel for the claimant has also made an attempt to support the award of the Tribunal holding the appellant Sub-Divisional Officer liable to pay the amount of compensation for the reason that the overall control of the vehicle was with the said officer. He next contended that Sewa Dass was deputed on duty by the Executive Engineer apparently to ensure the proper quantity of the goods after weighing them at Nichar and thereafter checking the fire/fuel wood to its destination intact in safe custody and proper delivery at Kumarsain and if he was discharging the official duty at the time of the accident, the appellant Sub-Divisional Officer cannot be permitted to contend that deceased Sewa Dass was not on official duty when the truck met with an accident resulting in his death. He next contended that taking the gross salary of the deceased at Rs. 1,143 and deduction of Rs. 543 therefrom for the deceased's personal expenses by the Tribunal below was grossly unwarranted and unsustainable. He sought for the enhancement of multiplier from 10 to 15. The learned counsel also contended that the Tribunal has not taken into consideration the agriculture income of Rs. 500 per month which the deceased used to earn before his death and the total loss of dependency to the estate of the deceased was Rs. 1,500 per month as the deceased would have received more pay after hike in salary to the extent of 30 per cent w.e.f. 1.1.1986 and thereafter revision of pay scale in the year 1996. According to the learned counsel the claimant Lalita Devi who is appellant in the second appeal should have been awarded total compensation of Rs. 1,91,500.</p><p style="text-align: justify;">9. We have given our careful consideration to the respective contentions of the learned counsel for the parties. The primary question which arises for our determination and consideration is to find out whether the truck involved in the accident was requisitioned for transporting fire/ fuel wood from Nichar to Kumarsain or whether one of the owners of the truck was awarded contract of transporting the fire/ fuel wood from Nichar to Kumarsain without requisition or hiring of the truck. Though admittedly in para 24 of the reply to the claim petition, the Sub-Divisional Officer admitted that the truck was hired by the department through Executive Engineer, Kumarsain for carriage of fire/fuel wood from Nichar to Kumarsain, yet this statement of the Sub-Divisional Officer will not ipso facto put the truck and its driver under the pervasive control of the said officer. In the agreement marked Exh. R-l/A it has been clearly stipulated that the contract for carriage of fire/fuel wood was executed in favour of one of the owners of the truck for Rs. 20,000 and there was no such stipulation that the fire/ fuel wood would be carried by the contractor (owner of the vehicle) in his own truck or through any other vehicle to be engaged by him. Further, we find no such stipulation that the vehicle involved in the accident was ever requisitioned by the appellant Sub-Divisional Officer for transporting the fire/fuel wood or the truck and driver would be under the overall charge of the appellant Sub-Divisional Officer. Guman Singh, Junior Engineer, H.P. P.W.D., Kumarsain, appeared as PW 2 and no question was put to him by the learned counsel for the owners of the truck that the truck was requisitioned for doing the work of the H.P. P.W.D. However, he admitted that Road Inspector Sewa Dass along with other labourers used to go from Kumarsain to Nichar for weighment and loading of the firewood in the truck and to travel back in the same truck to Kumarsain for unloading. He also admitted that some labourers also died in the said accident. One of the owners, by name Kewal Ram, appeared as RW 1 and admitted the ownership of the vehicle in question jointly with Amar Chand, respondent. He stated that he took the carriage of firewood from Nichar to Kumarsain on contract basis and loading and unloading expenses were to be borne by the Sub-Divisional Officer, H.P. P.W.D., Kumarsain. He also stated that Sewa Dass, Road Inspector along with other labourers used to travel in the truck for loading and unloading the fire/fuel wood. He brought on record policy note of the truck Exh. RA. Parkash Chand, Asstt. Administrative Officer of the insurance company appeared as RW 3 and placed on record a copy of insurance policy of the truck marked Exh. RW 3/A. Kapil Dev who was working as Junior Engineer at Kumarsain from 1984 to 30.6.1988 appealed as RW 4 and stated that on the day of the accident Sewa Dass was on duty of weighment and checking of the fuel wood at Nichar and challan regarding weighment and loading of firewood used to be signed by Sewa Dass and a copy of which has been filed on record marked Exh. PA. He has also stated that the work order for supply of the firewood executed in favour of the contractor was duly passed for Rs. 20,000.</p><p style="text-align: justify;">10. On reappraisal of the entire evidence on record noticed hereinabove, it can be safely held that Sewa Dass was on official duty at the time of the accident and he was entrusted the work of weighment to ensure loading of the wood at Nichar and thereafter unloading at Kumarsain and thereby he was overall incharge of carrying the fuel wood under safe custody to its destination and that in discharging his duty he was travelling in the truck which met with an accident resulting in his death. There is not an iota of evidence on record led by the owners of the vehicle involved in the accident that the truck was under the overall control of appellant Sub-Divisional Officer. There is also no evidence on record to prove that during the period when the truck was engaged for transporting fuel wood, the salary of the driver and other expenses such as freight charges of the wood, expenses incurred on purchase of diesel, etc., were to be borne by the appellant Sub-Divisional Officer. From careful reading of the terms and conditions of the agreement, it is clear that it was a pure and simple contract executed between the contractor who happened to be one of the owners of the vehicle to carry the fuel wood from Nichar to Kumarsain for fixed amount of Rs. 20,000, meaning thereby that all expenses including food, salary of the driver and purchase of diesel, etc., were to be borne not by the P.W.D. but by the owners themselves. There is vast distinction between requisitioning the vehicle for the purpose of doing the work of the department under the overall control of the department and contracting the carriage of the goods without requisition. In the case of contract carriage the overall control of the vehicle and its driver including the expenses incurred upon the vehicle would be always with the owners of the vehicle and not with the department official. The ratio of the judgment of the Punjab and Haryana High Court in Primary Land Development Bank's case 1998 ACJ 1312 (P&H;), would not be applicable in the peculiar facts and circumstances of the present case as relied upon by Mr. D.C. Jishtu. In that case the Manager of the bank categorically admitted that the vehicle taken on hire remained in the custody of the bank till the time it was not returned. On the basis of the admission of the Bank Manager, the learned Judge held that the driver of the vehicle at the relevant time was under the control of the bank though he may or may not be in its regular employment.</p><p style="text-align: justify;">11. In order to appreciate the submissions made at the Bar by learned Advocate General for the appellant Sub-Divisional Officer that the vehicle in question was not under the control of the appellant, we consider it appropriate to look at the definition of owner.</p><p style="text-align: justify;">12. Section 2 (19) of Motor Vehicles Act, 1939 defines owner in the following terms:</p><p style="text-align: justify;">2 (19) 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement. </p><p style="text-align: justify;">13. Having noticed the definition of the 'owner', under the 1939 Act, which admittedly applies to the instant case, we now address ourselves to test the correctness of the submission that since the Sub-Divisional Officer was not the 'owner' of the vehicle, as such the liability to pay compensation for an accident caused by the truck cannot be fastened on the appellant Sub-Divisional Officer and the relevant effect of the agreement. The Apex Court had the occasion to give the construction to the definition of 'owner' under Section 2 (19) of the Act in Rajasthan State Road Trans. Corporation v. Kailash Nath Kothari 1997 ACJ 1148 (SC), we may with advantage extract para 13 of the judgment as under:</p><p style="text-align: justify;">The definition of 'owner' under Section 2 (19) of the Act is not exhaustive. It has, therefore, to be construed, in a wider sense, in the facts and circumstances of a given case. The expression 'owner' must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to the registered owner only would, in a case where the vehicle is in the actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the 'owner' is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving the fare from them. Sanjay Kumar was, therefore, not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. 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 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 concerned employee during the course of his employment and within the scope of his authority, is a rebuttable presumption. If 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. </p><p style="text-align: justify;">14. In the case before the Supreme Court the relevant facts were that a bus No. RSB 3945, besides some other buses, was hired by the RSRTC from its owner Sanjay Kumar to ply on the routes specified by the RSRTC and agreement was executed between RSRTC and the owner of the bus containing the terms of hiring the bus No. RSB 3945. The said bus was on the fateful day on 17.7.1991 plying on the route Kekri to Jaipur for which route RSRTC had the route permit. At about 9.30 p.m. when the bus was near Renwal, it was noticed that water was flowing over the bridge of Bandi River due to heavy rains. The passengers travelling in the bus requested the driver not to drive the bus over the bridge because of overflowing water but their request had no effect and the driver despite the warning by the passengers, drove the bus over the bridge and as a result of flood in the river, the bus was swept away. As a result 23 passengers travelling in the ill-fated bus died due to the accident. The legal representatives/ heirs of the 23 passengers who had died as a result of accident filed separate claim petitions under the 1939 Act claiming compensation from the RSRTC and the insurance company. The claim petitions were resisted and the RSRTC in its written statement denied its liability on the ground that though it had hired the bus in question from Sanjay Kumar and the bus was plying on the route specified by it, the driver of the bus, Gopal, due to whose negligence and rashness the accident had taken place was not an employee of the RSRTC but of the bus owner Sanjay Kumar and, therefore, it was not vicariously responsible for his negligence and rashness. It was also pleaded that the liability to pay the compensation in case of an accident was that of the 'owner' and not of the hirer. Reliance in this behalf was placed on condition No. 15 of the agreement to disown its liability.</p><p style="text-align: justify;">15. The Hon'ble Judges of the Supreme Court on the basis of the condition Nos. 6 and 7 of the agreement executed between the RSRTC and the owner held in para 15 that under those conditions the owner had not merely transferred the services of the driver to the RSRTC but actual control of the driver to act under the instructions, control and commands of the conductor and other officers of the RSRTC. Their Lordships proceeded to hold that the second part of condition No. 15 made it abundantly clear that the RSRTC did not completely shift the liability to the owners of the bus because it provided for reimbursement to it in case it had to pay compensation arising out of an accident. In the facts and circumstances of that case, the Hon'ble Judges held that RSRTC could not escape its liability to pay the compensation to the legal representatives/heirs of the deceased who died in the accident. The Hon'ble Judges in para 17 extracted hereinabove of the report categorically held that the liability of the 'owner' was vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom could vicarious liability be fastened in the case of an accident.</p><p style="text-align: justify;">16. Relying upon the construction of the definition of the 'owner' by the Apex Court in the facts and circumstances of the case on hand, we find as noticed in the earlier part of the judgment that the vehicle in question was not hired by the appellant Sub-Divisional Officer, but the agreement executed between the Executive Engineer and the contractor was in regard to the supply of fire/fuel wood to be carried by the contractor from Nichar to Kumarsain, though under the supervision of Sewa Dass who was travelling in the ill-fated truck at the time of the accident. The vehicle was never put under the control of the appellant Sub-Divisional Officer nor his driver was under the control and command of the authority as discussed in the earlier part of the judgment, we are not inclined to agree with the finding of the Tribunal below that the vehicle involved in accident was under the control of the appellant Sub-Divisional Officer at the time of its accident and, therefore, the appellant Sub-Divisional Officer was liable to pay the amount of compensation awarded. We, therefore, hold that in the present case the vehicle and driver were under the control and command of the owners and liability of the owners of the vehicle is vicarious for the tort committed by the driver during the course of his employment. The accident was a result of the rashness and negligence of respondent Jai Chand and he was not an employee of the appellant Sub-Divisional Officer but of the truck owners. The truck was insured with the respondent insurance company, therefore, the insurance company is held liable jointly and severally with the owners and driver of the ill-fated vehicle to pay the amount of compensation to the claimant Lalita Devi. Consequently, the appeal of the Sub-Divisional Officer is allowed accordingly and the finding of the Tribunal below holding the appellant Sub-Divisional Officer liable for the payment of compensation is set aside.</p><p style="text-align: justify;">17. The next question involved for consideration is whether the amount of compensation awarded by the Tribunal below is just and reasonable or the same is inadequate as projected by the learned counsel for the claimant Lalita Devi in her cross-objections filed in F.A.O. (MVA) No. 49/1992 and claiming enhancement to the extent of Rs. 1,91,500 in her independent appeal. The Sub-Divisional Officer, H.P. P.W.D. in para 6 of the written statement has admitted that the gross salary of deceased Sewa Dass at the time of his death was Rs. 1,143 per month. However, Lalita Devi in her deposition before the Tribunal below disclosed that his salary was Rs. 1,500 per month. The Tribunal below admitted the statement of the Sub-Divisional Officer in his written statement and accepted the gross salary of deceased Sewa Dass as Rs. 1,143 per month since the claimant Lalita Devi has not rebutted that the gross salary of the deceased Sewa Dass was more than Rs. 1,143 per month. Lalita Devi in her deposition stated that her husband used to earn Rs. 500 from the agriculture work at home, but she could not substantiate her testimony by leading cogent, convincing and credible evidence and, therefore, the Tribunal has rightly not accepted her bald statement about the agriculture income of the deceased. Lalita Devi disclosed her age round about 50 years when she was examined on 26.2.1991 and stated that her husband was younger to her by one year. Gopi Ram, Secretary Gram Panchayat, Kumarsain appeared as PW 5 and produced on record an abstract from the Parivar Register marked Exh. PW 5/A with respect to the age of Sewa Dass. In Exh. PW 5/A the year of the birth of Sewa Dass was shown in column No. 7 to be 1926. In the teeth of the documentary evidence Exh. PW 5/A the oral testimony of claimant Lalita Devi could not be relied upon that her husband at the time of the accident was one year younger to her. Taking the year of birth of the deceased to be 1926, the age of the deceased at the time of the accident on 7.5.1987 would work out about 61 years. The Tribunal below determined the monthly dependency of the family members of the deceased at Rs. 600 after deducting Rs. 543 for the personal expenses of the deceased which, in our view, is proper and correct. That being so, the total loss to the estate of deceased Sewa Dass works out to Rs. 600 x 12 = Rs. 7,200 per annum. The Tribunal has applied multiplier of 10 and thereby awarded total sum of Rs. 7,200 x 10 = Rs. 72,000 on account of loss of dependency. In addition to Rs. 72,000 the Tribunal awarded a sum of Rs. 10,000 on account of mental agony and psychological setback, etc., to the dependants. In addition a sum of Rs. 1,000 on account of expenses incurred on post-death ceremonies and Rs. 500 litigation cost had been awarded and thereby the total amount of compensation awarded would work out to Rs. 83,500. Though we do not agree with the multiplier of 10 applied by the Tribunal in the case of the death of Sewa Dass whose age was about 61 years at the time of the accident, yet in the peculiar facts and circumstances of the case and in the absence of any appeal filed by the aggrieved party for reducing the multiplier, we are left with no option but to maintain the multiplier applied in the present case by the Tribunal below which shall not be treated as precedent for other accidental cases. It is well settled proposition of law by the Apex Court that the maximum multiplier in accidental cases can be 18. The Tribunal below has awarded the total amount of compensation in favour of claimant Lalita Devi, widow of the deceased by giving detailed reason in para 31 of the award and not to the other legal representatives/heirs of the deceased and we uphold the said finding to that extent. No other claimants have challenged the amount of compensation awarded exclusively in favour of Lalita Devi nor they have filed appeal for enhancement of the amount of compensation awarded by the Tribunal and the appeal was only filed by Lalita Devi claiming enhancement of the amount of compensation.</p><p style="text-align: justify;">18. Mr. N.S. Shandil, learned counsel for the claimant Lalita Devi has relied upon the judgment of the Apex Court in S. Chandra v. Pallavan Trans. Corporation 1995 ACJ 1170 (SC), to contend that in the case of the death of a person who was about 65 years of age, the Supreme Court enhanced the amount of compensation from Rs. 48,680 to Rs. 1,00,000. According to the learned counsel in the present case the amount of compensation awarded by the Tribunal below deserves to be enhanced proportionately. We do not see any reason to accept the contention of the learned counsel as already noticed in the earlier part of the judgment that the multiplier in the present case applied by the Tribunal below is on the higher side looking to the age of the deceased and that of the claimant Lalita Devi and coupled with duration of the period for which claimant Lalita Devi would have remained dependent upon the deceased had he not died in the accident. The amount of compensation awarded by the Tribunal below is found to be just and reasonable looking to the entire evidence on record and we find no merit in the appeal of the claimant Lalita Devi seeking enhancement of the amount of compensation. Claimant Lalita Devi is entitled to interest at the rate of 12 per cent per annum from the date of institution of the claim petition till the date of payment or deposit of the amount of compensation awarded by the Tribunal below. The amount of compensation with interest shall be paid jointly and severally by the owners of the truck, driver and indemnified by the respondent insurance company.</p><p style="text-align: justify;">19. No other point has been urged by the learned counsel on either side.</p><p style="text-align: justify;">20. In the result, for the abovesaid reasons and discussions, the appeal of the appellant Sub-Divisional Officer [being F.A.O. (MVA) No. 49 of 1992] is allowed, whereas the appeal of the claimant Lalita Devi [F.A.O. (MVA) No. 60 of 1992] and her cross-objections for enhancement of the compensation are dismissed and the award of the Tribunal below shall stand modified to the extent indicated above. The parties are left to bear their own costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000ACJ512',
			'ratiodecidendi' => '',
			'respondent' => 'Lalita Devi and ors.',
			'sub' => 'Motor Vehicles',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Sub divisional Officer, Hp Pwd Vs. Lalita Devi and ors. Semantic Analysis'
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		(int) 86 => 'RSRTC',
		(int) 87 => 'RSRTC',
		(int) 88 => 'RSRTC',
		(int) 89 => 'RSRTC',
		(int) 90 => 'the Supreme Court',
		(int) 91 => 'RSRTC',
		(int) 92 => 'RSRTC',
		(int) 93 => 'Renwal',
		(int) 94 => 'Reliance',
		(int) 95 => 'The Hon'ble Judges',
		(int) 96 => 'the Supreme Court',
		(int) 97 => 'RSRTC',
		(int) 98 => 'RSRTC',
		(int) 99 => 'RSRTC',
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		(int) 5 => 'RSRTC',
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		(int) 8 => 'RSRTC',
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		(int) 9 => '5',
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		(int) 11 => '1',
		(int) 12 => '3',
		(int) 13 => '83,500',
		(int) 14 => '49',
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		(int) 19 => '543',
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		(int) 22 => '1.1.1986',
		(int) 23 => '24',
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		(int) 25 => '20,000',
		(int) 26 => 'One',
		(int) 27 => '20,000.10',
		(int) 28 => '20,000',
		(int) 29 => '19',
		(int) 30 => '19',
		(int) 31 => '13',
		(int) 32 => '19',
		(int) 33 => '13',
		(int) 34 => '19',
		(int) 35 => '4',
		(int) 36 => '7',
		(int) 37 => '6',
		(int) 38 => '14',
		(int) 39 => '23',
		(int) 40 => '23',
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		(int) 45 => '17',
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		(int) 53 => '600',
		(int) 54 => '12',
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		(int) 56 => '10',
		(int) 57 => '7,200',
		(int) 58 => '10',
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		(int) 60 => '72,000',
		(int) 61 => '10,000',
		(int) 62 => '1,000',
		(int) 63 => '500',
		(int) 64 => '83,500',
		(int) 65 => '10',
		(int) 66 => '18',
		(int) 67 => '31',
		(int) 68 => '48,680',
		(int) 69 => '1,00,000'
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		(int) 16 => 'Sewa Dass',
		(int) 17 => 'Lalita Devi',
		(int) 18 => 'D.C. Jishtu',
		(int) 19 => 'Sewa Dass',
		(int) 20 => 'D.C. Jishtu',
		(int) 21 => 'Chanel',
		(int) 22 => 'Kulbhushan Khajuria',
		(int) 23 => 'Sewa Dass',
		(int) 24 => 'N.S. Shandil',
		(int) 25 => 'Sewa Dass',
		(int) 26 => 'Sewa Dass',
		(int) 27 => 'Lalita Devi',
		(int) 28 => 'Exh',
		(int) 29 => 'Kumarsain',
		(int) 30 => 'Sewa Dass',
		(int) 31 => 'Nichar',
		(int) 32 => 'Kewal Ram',
		(int) 33 => 'Amar Chand',
		(int) 34 => 'Kumarsain',
		(int) 35 => 'Sewa Dass',
		(int) 36 => 'Exh',
		(int) 37 => 'Exh',
		(int) 38 => 'A. Kapil Dev',
		(int) 39 => 'Sewa Dass',
		(int) 40 => 'Sewa Dass',
		(int) 41 => 'Exh',
		(int) 42 => 'Sewa Dass',
		(int) 43 => 'D.C. Jishtu',
		(int) 44 => 'Kailash Nath Kothari',
		(int) 45 => 'Sanjay Kumar',
		(int) 46 => 'Sanjay Kumar',
		(int) 47 => 'Sanjay Kumar',
		(int) 48 => 'Sanjay Kumar',
		(int) 49 => 'Sanjay Kumar',
		(int) 50 => 'Gopal',
		(int) 51 => 'Sanjay Kumar',
		(int) 52 => 'Nos',
		(int) 53 => 'Sewa Dass',
		(int) 54 => 'Jai Chand',
		(int) 55 => 'Lalita Devi',
		(int) 56 => 'Lalita Devi',
		(int) 57 => 'Sewa Dass',
		(int) 58 => 'Lalita Devi',
		(int) 59 => 'Sewa Dass',
		(int) 60 => 'Lalita Devi',
		(int) 61 => 'Sewa Dass',
		(int) 62 => 'Lalita Devi',
		(int) 63 => 'Lalita Devi',
		(int) 64 => 'Gopi Ram',
		(int) 65 => 'Gram Panchayat',
		(int) 66 => 'Kumarsain',
		(int) 67 => 'Exh',
		(int) 68 => 'Sewa Dass',
		(int) 69 => 'Exh',
		(int) 70 => 'Sewa Dass',
		(int) 71 => 'Exh',
		(int) 72 => 'Lalita Devi',
		(int) 73 => 'Sewa Dass',
		(int) 74 => 'Sewa Dass',
		(int) 75 => 'Lalita Devi',
		(int) 76 => 'Lalita Devi',
		(int) 77 => 'Lalita Devi',
		(int) 78 => 'N.S. Shandil',
		(int) 79 => 'Lalita Devi',
		(int) 80 => 'Pallavan Trans',
		(int) 81 => 'Lalita Devi',
		(int) 82 => 'Lalita Devi',
		(int) 83 => 'Lalita Devi',
		(int) 84 => 'Claimant Lalita Devi',
		(int) 85 => 'Lalita Devi'
	),
	'MONEY' => array(
		(int) 0 => '60-S/2',
		(int) 1 => '12 per cent',
		(int) 2 => '30 per cent',
		(int) 3 => '12 per cent'
	),
	'DATE' => array(
		(int) 0 => '1992',
		(int) 1 => '1992',
		(int) 2 => '5877',
		(int) 3 => '46 years',
		(int) 4 => 'the day',
		(int) 5 => '1,143 per month',
		(int) 6 => '1992',
		(int) 7 => '1992',
		(int) 8 => '1998',
		(int) 9 => '1312',
		(int) 10 => '1,500 per month',
		(int) 11 => 'the year 1996',
		(int) 12 => '1984',
		(int) 13 => 'the day',
		(int) 14 => '1998',
		(int) 15 => '1312',
		(int) 16 => '1939',
		(int) 17 => '1148',
		(int) 18 => 'the fateful day',
		(int) 19 => 'the fateful day',
		(int) 20 => '17.7.1991',
		(int) 21 => '1,143 per month',
		(int) 22 => '1,143 per month',
		(int) 23 => '1,143 per month',
		(int) 24 => 'about 50 years',
		(int) 25 => '26.2.1991',
		(int) 26 => 'one year',
		(int) 27 => 'PW 5',
		(int) 28 => 'PW 5',
		(int) 29 => '1926',
		(int) 30 => 'PW 5',
		(int) 31 => 'one year',
		(int) 32 => 'the year',
		(int) 33 => '1926',
		(int) 34 => '7.5.1987',
		(int) 35 => 'about 61 years',
		(int) 36 => 'monthly',
		(int) 37 => 'about 61 years',
		(int) 38 => '1995',
		(int) 39 => '1170',
		(int) 40 => 'about 65 years of age',
		(int) 41 => '1992',
		(int) 42 => '1992'
	),
	'GPE' => array(
		(int) 0 => 'Nichar',
		(int) 1 => 'Nichar',
		(int) 2 => 'Nichar',
		(int) 3 => 'Kumarsain',
		(int) 4 => '8.8.1988:(1',
		(int) 5 => 'Nichar',
		(int) 6 => 'Nichar',
		(int) 7 => 'Nichar',
		(int) 8 => 'Kumarsain',
		(int) 9 => 'Nichar',
		(int) 10 => 'Parkash Chand',
		(int) 11 => 'Nichar',
		(int) 12 => 'Jaipur',
		(int) 13 => 'Nichar',
		(int) 14 => 'Kumarsain',
		(int) 15 => 'S. Chandra v.'
	),
	'ORDINAL' => array(
		(int) 0 => 'second',
		(int) 1 => 'second'
	),
	'EVENT' => array(
		(int) 0 => 'PW 2',
		(int) 1 => 'PW 5'
	),
	'TIME' => array(
		(int) 0 => 'about 9.30 p.m.'
	),
	'LOC' => array(
		(int) 0 => 'Bandi River'
	)
)
$desc = array(
	'Judgement' => array(
		'id' => '890826',
		'acts' => '',
		'appealno' => ' F.A.O. (MVA) Nos. 49 and 60 of 1992',
		'appellant' => 'Sub-divisional Officer, Hp Pwd',
		'authreffered' => '',
		'casename' => 'Sub-divisional Officer, Hp Pwd Vs. Lalita Devi and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'S. Chandra v. Pallavan Trans. Corporation;',
		'citingcases' => '',
		'counselplain' => ' Sanjay Karol, A.G. and; Vivek Thakur, A.A.G.',
		'counseldef' => ' D.C. Jishtu,; Subhash Sharma,; N.S. Shandil and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-08-24',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' D. Raju, C.J. and; L.S. Panta, J.',
		'judgement' => '<p style="text-align: justify;">L.S. Panta, J.</p><p style="text-align: justify;">1. Both these appeals have been taken up and heard together as they arise out of the single accident and are directed against the common judgment and award dated 23.8.1991 of Motor Accidents Claims Tribunal (I), Shimla in M.A.C. No. 60-S/2 of 1988/89 whereunder total amount of Rs. 83,500 as compensation was awarded in favour of claimant Lalita Devi for the death of her husband Sewa Dass in the accident. F.A.O. (MVA) No. 49 of 1992 has been filed by the Sub-Divisional Officer, H.P. P.W.D., Kumarsain against whom the award has been passed whereas F.A.O. (MVA) No. 60 of 1992 has been filed by claimant Lalita Devi for enhancement of the amount of compensation awarded by the Tribunal below. The learned counsel for the parties have made the same and identical submissions and, therefore, both these appeals are being disposed of by this common judgment.</p><p style="text-align: justify;">2. The facts leading to the appeals may briefly be stated as under:</p><p style="text-align: justify;">The Sub-Divisional Officer (H.P. P.W.D.), Kumarsain, entered into a contract with Kewal Ram Kaithala respondent herein for transporting fire-wood from Nichar to Kumarsain Division required for completing the metalling work of road. The owners respondents had engaged their truck No. HPS 5877 which was being driven by driver Jai Chand respondent and the said truck was insured with respondent National Insurance Co. Ltd.</p><p style="text-align: justify;">On 7.5.1987 the truck was coming from Nichar to Kumarsain carrying the fuel wood, the truck met with an accident near Nanibadhal on Nichar-Rampur Road and it rolled down into the gorge. One Sewa Dass who was working as Road Inspector under the Sub-Divisional Officer (PWD), Kumarsain died in the accident. Sewa Dass deceased was deputed by the Sub-Divisional Officer to ensure the proper weighment, loading of the wood at Nichar in the truck and thereafter to supervise the safe transportation and the unloading at Kumarsain. The deceased was travelling in the accidental vehicle discharging his official duties. The legal heirs of Sewa Dass who are his wife, sons and daughters filed a claim petition before the Tribunal below, inter alia, on the ground that the accident had occurred due to rash and negligent driving of the vehicle by its driver and thereby resulting in the death of Sewa Dass. The claimants made a claim of Rs. 4,00,000 for the death of Sewa Dass and the age of the deceased at the time of the accident was said to be 46 years and his total income was disclosed Rs. 1,500 per month from salary and agriculture pursuits.</p><p style="text-align: justify;">Both the owners filed a joint written statement resisting and contesting the claim of the claimants on the ground that their truck was requisitioned by the Sub-Divisional Officer on contract basis for transporting of firewood from Nichar to Kumarsain. They denied the cause of the accident as a result of rash and negligent driving by the driver and stated that the accident occurred due to an act of vis major. They pleaded that on the day of the accident it rained very heavily and a huge boulder came rolling down and hit the rear of the truck due to which it rolled down into the gorge. The driver in his separate written statement had pleaded the same defences which were taken by the owners of the vehicle and denied his involvement in the accident due to driving the vehicle in a rash and negligent manner.</p><p style="text-align: justify;">The insurance company denied its liability to indemnify the insured for the compensation, if any, payable to the claimants.</p><p style="text-align: justify;">The Sub-Divisional Officer, employer of Sewa Dass admitted in his written statement that Sewa Dass was employed as a Road Inspector drawing Rs. 1,143 per month as total salary. He admitted that the truck was requisitioned and hired by the Public Works Department for transporting the firewood.</p><p style="text-align: justify;">3. On the controversial pleadings of the parties, the Tribunal below framed the following issues on 8.8.1988:</p><p style="text-align: justify;">(1) Whether the deceased had died on account of rash and negligent driving of the truck driver Jai Chand, respondent No. 3, as alleged? -OPP</p><p style="text-align: justify;">(2) If issue No. 1 supra is proved, to what amount of compensation the petitioners are entitled and from which of the respondents? -OPP</p><p style="text-align: justify;">(3) Whether the deceased was travelling in the truck in question in the course of his employment of respondent No. 5, as alleged? If so, its effect? -OPR 1& 2.</p><p style="text-align: justify;">(4) Relief.</p><p style="text-align: justify;">4. The parties went to trial and led their oral and documentary evidence. After appreciating the entire evidence on record, the Tribunal below returned finding under issue No. 1 against the driver of the truck holding him guilty of driving the vehicle in a rash and negligent manner. Against issue No. 3 it was concluded that Sewa Dass was travelling in the accidental vehicle in the course of his employment and accordingly decided this issue in favour of the claimants. Consequently, total amount of compensation of Rs. 83,500 was awarded in favour of widow of the deceased Sewa Dass along with interest at the rate of 12 per cent per annum from the date of institution of the claim petition till final payment or deposit of the amount and the liability of payment of the amount of compensation has been saddled upon the Sub-Divisional Officer exclusively. Feeling aggrieved and dissatisfied against the judgment and award of the Tribunal below, the Sub-Divisional Officer, II.P. P.W.D. filed the appeal challenging the correctness, validity and legality of the award, whereas claimant Lalita Devi filed cross-objections in the appeal [F.A.O. (MVA) No. 49 of 1992] and she also filed separate appeal being F.A.O. (MVA) No. 60 of 1992 claiming enhancement of the amount of compensation to Rs. 4,00,000 as claimed in the claim petition.</p><p style="text-align: justify;">5. We have heard the learned counsel on both sides and reassessed the entire evidence on record and also examined the reasoning and conclusion arrived at by the Tribunal below. The learned Advocate General vehemently contended that the liability of the appellant Sub-Divisional Officer to pay the amount of compensation fastened by the Tribunal below is grossly erroneous, perverse and illegal. The accidental truck was not requisitioned or hired by the appellant, but a contract for carrying of the firewood was entered into with the contractor who happened to be one of the owners of the truck. He next contended that the driver of the truck who caused the accident was never the employee of the appellant Sub-Divisional Officer nor he was paid remuneration for his services during the period when he was engaged by the owners for transporting the firewood and that the overall control of the truck vested with the owners and, therefore, liability to pay the compensation was entirely that of owners, driver and insurance company jointly and severally.</p><p style="text-align: justify;">6. Per contra, Mr. D.C. Jishtu, learned counsel for the owners respondents while relying upon the reply to para 24 of the claim petition filed by the appellant Sub-Divisional Officer and extracted by the learned Tribunal below in para 14 of the judgment, contended that the appellant Sub-Divisional Officer had categorically admitted hiring of the truck involved in accident by the department through Executive Engineer, H.P. P.W.D., Kumarsain for carrying firewood and that in pursuance of the contract the Executive Engineer deputed Sewa Dass, Road Inspector, for supervision, loading/unloading and to verify the weight of the wood and as per the admission of the appellant Sub-Divisional Officer, the truck in question was entirely under the control of the Sub-Divisional Officer including its driver and that in view of admitted facts, the appellant Sub-Divisional Officer was deemed to have stepped into the shoes of the owners and thereby the said authority was vicariously liable for inaction of the driver and also for the payment of amount of compensation which has been rightly fastened upon the appellant Sub-Divisional Officer by the Tribunal below. In support of his submission Mr. D.C. Jishtu has placed reliance upon a judgment of the Division Bench of Punjab and Haryana High Court in Primary Land Development Bank v. Mangal Chanel 1998 ACJ 1312 (P&H;).</p><p style="text-align: justify;">7. Mr. Kulbhushan Khajuria, learned counsel appearing for the insurance company has sought to support the finding of the Tribunal below and contended that the vehicle was a goods carrier and deceased Sewa Dass was unauthorised passenger travelling in the vehicle in question and, therefore, insurance company was not liable to pay the amount of compensation.</p><p style="text-align: justify;">8. Mr. N.S. Shandil, learned counsel for the claimant has also made an attempt to support the award of the Tribunal holding the appellant Sub-Divisional Officer liable to pay the amount of compensation for the reason that the overall control of the vehicle was with the said officer. He next contended that Sewa Dass was deputed on duty by the Executive Engineer apparently to ensure the proper quantity of the goods after weighing them at Nichar and thereafter checking the fire/fuel wood to its destination intact in safe custody and proper delivery at Kumarsain and if he was discharging the official duty at the time of the accident, the appellant Sub-Divisional Officer cannot be permitted to contend that deceased Sewa Dass was not on official duty when the truck met with an accident resulting in his death. He next contended that taking the gross salary of the deceased at Rs. 1,143 and deduction of Rs. 543 therefrom for the deceased's personal expenses by the Tribunal below was grossly unwarranted and unsustainable. He sought for the enhancement of multiplier from 10 to 15. The learned counsel also contended that the Tribunal has not taken into consideration the agriculture income of Rs. 500 per month which the deceased used to earn before his death and the total loss of dependency to the estate of the deceased was Rs. 1,500 per month as the deceased would have received more pay after hike in salary to the extent of 30 per cent w.e.f. 1.1.1986 and thereafter revision of pay scale in the year 1996. According to the learned counsel the claimant Lalita Devi who is appellant in the second appeal should have been awarded total compensation of Rs. 1,91,500.</p><p style="text-align: justify;">9. We have given our careful consideration to the respective contentions of the learned counsel for the parties. The primary question which arises for our determination and consideration is to find out whether the truck involved in the accident was requisitioned for transporting fire/ fuel wood from Nichar to Kumarsain or whether one of the owners of the truck was awarded contract of transporting the fire/ fuel wood from Nichar to Kumarsain without requisition or hiring of the truck. Though admittedly in para 24 of the reply to the claim petition, the Sub-Divisional Officer admitted that the truck was hired by the department through Executive Engineer, Kumarsain for carriage of fire/fuel wood from Nichar to Kumarsain, yet this statement of the Sub-Divisional Officer will not ipso facto put the truck and its driver under the pervasive control of the said officer. In the agreement marked Exh. R-l/A it has been clearly stipulated that the contract for carriage of fire/fuel wood was executed in favour of one of the owners of the truck for Rs. 20,000 and there was no such stipulation that the fire/ fuel wood would be carried by the contractor (owner of the vehicle) in his own truck or through any other vehicle to be engaged by him. Further, we find no such stipulation that the vehicle involved in the accident was ever requisitioned by the appellant Sub-Divisional Officer for transporting the fire/fuel wood or the truck and driver would be under the overall charge of the appellant Sub-Divisional Officer. Guman Singh, Junior Engineer, H.P. P.W.D., Kumarsain, appeared as PW 2 and no question was put to him by the learned counsel for the owners of the truck that the truck was requisitioned for doing the work of the H.P. P.W.D. However, he admitted that Road Inspector Sewa Dass along with other labourers used to go from Kumarsain to Nichar for weighment and loading of the firewood in the truck and to travel back in the same truck to Kumarsain for unloading. He also admitted that some labourers also died in the said accident. One of the owners, by name Kewal Ram, appeared as RW 1 and admitted the ownership of the vehicle in question jointly with Amar Chand, respondent. He stated that he took the carriage of firewood from Nichar to Kumarsain on contract basis and loading and unloading expenses were to be borne by the Sub-Divisional Officer, H.P. P.W.D., Kumarsain. He also stated that Sewa Dass, Road Inspector along with other labourers used to travel in the truck for loading and unloading the fire/fuel wood. He brought on record policy note of the truck Exh. RA. Parkash Chand, Asstt. Administrative Officer of the insurance company appeared as RW 3 and placed on record a copy of insurance policy of the truck marked Exh. RW 3/A. Kapil Dev who was working as Junior Engineer at Kumarsain from 1984 to 30.6.1988 appealed as RW 4 and stated that on the day of the accident Sewa Dass was on duty of weighment and checking of the fuel wood at Nichar and challan regarding weighment and loading of firewood used to be signed by Sewa Dass and a copy of which has been filed on record marked Exh. PA. He has also stated that the work order for supply of the firewood executed in favour of the contractor was duly passed for Rs. 20,000.</p><p style="text-align: justify;">10. On reappraisal of the entire evidence on record noticed hereinabove, it can be safely held that Sewa Dass was on official duty at the time of the accident and he was entrusted the work of weighment to ensure loading of the wood at Nichar and thereafter unloading at Kumarsain and thereby he was overall incharge of carrying the fuel wood under safe custody to its destination and that in discharging his duty he was travelling in the truck which met with an accident resulting in his death. There is not an iota of evidence on record led by the owners of the vehicle involved in the accident that the truck was under the overall control of appellant Sub-Divisional Officer. There is also no evidence on record to prove that during the period when the truck was engaged for transporting fuel wood, the salary of the driver and other expenses such as freight charges of the wood, expenses incurred on purchase of diesel, etc., were to be borne by the appellant Sub-Divisional Officer. From careful reading of the terms and conditions of the agreement, it is clear that it was a pure and simple contract executed between the contractor who happened to be one of the owners of the vehicle to carry the fuel wood from Nichar to Kumarsain for fixed amount of Rs. 20,000, meaning thereby that all expenses including food, salary of the driver and purchase of diesel, etc., were to be borne not by the P.W.D. but by the owners themselves. There is vast distinction between requisitioning the vehicle for the purpose of doing the work of the department under the overall control of the department and contracting the carriage of the goods without requisition. In the case of contract carriage the overall control of the vehicle and its driver including the expenses incurred upon the vehicle would be always with the owners of the vehicle and not with the department official. The ratio of the judgment of the Punjab and Haryana High Court in Primary Land Development Bank's case 1998 ACJ 1312 (P&H;), would not be applicable in the peculiar facts and circumstances of the present case as relied upon by Mr. D.C. Jishtu. In that case the Manager of the bank categorically admitted that the vehicle taken on hire remained in the custody of the bank till the time it was not returned. On the basis of the admission of the Bank Manager, the learned Judge held that the driver of the vehicle at the relevant time was under the control of the bank though he may or may not be in its regular employment.</p><p style="text-align: justify;">11. In order to appreciate the submissions made at the Bar by learned Advocate General for the appellant Sub-Divisional Officer that the vehicle in question was not under the control of the appellant, we consider it appropriate to look at the definition of owner.</p><p style="text-align: justify;">12. Section 2 (19) of Motor Vehicles Act, 1939 defines owner in the following terms:</p><p style="text-align: justify;">2 (19) 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement. </p><p style="text-align: justify;">13. Having noticed the definition of the 'owner', under the 1939 Act, which admittedly applies to the instant case, we now address ourselves to test the correctness of the submission that since the Sub-Divisional Officer was not the 'owner' of the vehicle, as such the liability to pay compensation for an accident caused by the truck cannot be fastened on the appellant Sub-Divisional Officer and the relevant effect of the agreement. The Apex Court had the occasion to give the construction to the definition of 'owner' under Section 2 (19) of the Act in Rajasthan State Road Trans. Corporation v. Kailash Nath Kothari 1997 ACJ 1148 (SC), we may with advantage extract para 13 of the judgment as under:</p><p style="text-align: justify;">The definition of 'owner' under Section 2 (19) of the Act is not exhaustive. It has, therefore, to be construed, in a wider sense, in the facts and circumstances of a given case. The expression 'owner' must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to the registered owner only would, in a case where the vehicle is in the actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the 'owner' is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving the fare from them. Sanjay Kumar was, therefore, not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. 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 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 concerned employee during the course of his employment and within the scope of his authority, is a rebuttable presumption. If 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. </p><p style="text-align: justify;">14. In the case before the Supreme Court the relevant facts were that a bus No. RSB 3945, besides some other buses, was hired by the RSRTC from its owner Sanjay Kumar to ply on the routes specified by the RSRTC and agreement was executed between RSRTC and the owner of the bus containing the terms of hiring the bus No. RSB 3945. The said bus was on the fateful day on 17.7.1991 plying on the route Kekri to Jaipur for which route RSRTC had the route permit. At about 9.30 p.m. when the bus was near Renwal, it was noticed that water was flowing over the bridge of Bandi River due to heavy rains. The passengers travelling in the bus requested the driver not to drive the bus over the bridge because of overflowing water but their request had no effect and the driver despite the warning by the passengers, drove the bus over the bridge and as a result of flood in the river, the bus was swept away. As a result 23 passengers travelling in the ill-fated bus died due to the accident. The legal representatives/ heirs of the 23 passengers who had died as a result of accident filed separate claim petitions under the 1939 Act claiming compensation from the RSRTC and the insurance company. The claim petitions were resisted and the RSRTC in its written statement denied its liability on the ground that though it had hired the bus in question from Sanjay Kumar and the bus was plying on the route specified by it, the driver of the bus, Gopal, due to whose negligence and rashness the accident had taken place was not an employee of the RSRTC but of the bus owner Sanjay Kumar and, therefore, it was not vicariously responsible for his negligence and rashness. It was also pleaded that the liability to pay the compensation in case of an accident was that of the 'owner' and not of the hirer. Reliance in this behalf was placed on condition No. 15 of the agreement to disown its liability.</p><p style="text-align: justify;">15. The Hon'ble Judges of the Supreme Court on the basis of the condition Nos. 6 and 7 of the agreement executed between the RSRTC and the owner held in para 15 that under those conditions the owner had not merely transferred the services of the driver to the RSRTC but actual control of the driver to act under the instructions, control and commands of the conductor and other officers of the RSRTC. Their Lordships proceeded to hold that the second part of condition No. 15 made it abundantly clear that the RSRTC did not completely shift the liability to the owners of the bus because it provided for reimbursement to it in case it had to pay compensation arising out of an accident. In the facts and circumstances of that case, the Hon'ble Judges held that RSRTC could not escape its liability to pay the compensation to the legal representatives/heirs of the deceased who died in the accident. The Hon'ble Judges in para 17 extracted hereinabove of the report categorically held that the liability of the 'owner' was vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom could vicarious liability be fastened in the case of an accident.</p><p style="text-align: justify;">16. Relying upon the construction of the definition of the 'owner' by the Apex Court in the facts and circumstances of the case on hand, we find as noticed in the earlier part of the judgment that the vehicle in question was not hired by the appellant Sub-Divisional Officer, but the agreement executed between the Executive Engineer and the contractor was in regard to the supply of fire/fuel wood to be carried by the contractor from Nichar to Kumarsain, though under the supervision of Sewa Dass who was travelling in the ill-fated truck at the time of the accident. The vehicle was never put under the control of the appellant Sub-Divisional Officer nor his driver was under the control and command of the authority as discussed in the earlier part of the judgment, we are not inclined to agree with the finding of the Tribunal below that the vehicle involved in accident was under the control of the appellant Sub-Divisional Officer at the time of its accident and, therefore, the appellant Sub-Divisional Officer was liable to pay the amount of compensation awarded. We, therefore, hold that in the present case the vehicle and driver were under the control and command of the owners and liability of the owners of the vehicle is vicarious for the tort committed by the driver during the course of his employment. The accident was a result of the rashness and negligence of respondent Jai Chand and he was not an employee of the appellant Sub-Divisional Officer but of the truck owners. The truck was insured with the respondent insurance company, therefore, the insurance company is held liable jointly and severally with the owners and driver of the ill-fated vehicle to pay the amount of compensation to the claimant Lalita Devi. Consequently, the appeal of the Sub-Divisional Officer is allowed accordingly and the finding of the Tribunal below holding the appellant Sub-Divisional Officer liable for the payment of compensation is set aside.</p><p style="text-align: justify;">17. The next question involved for consideration is whether the amount of compensation awarded by the Tribunal below is just and reasonable or the same is inadequate as projected by the learned counsel for the claimant Lalita Devi in her cross-objections filed in F.A.O. (MVA) No. 49/1992 and claiming enhancement to the extent of Rs. 1,91,500 in her independent appeal. The Sub-Divisional Officer, H.P. P.W.D. in para 6 of the written statement has admitted that the gross salary of deceased Sewa Dass at the time of his death was Rs. 1,143 per month. However, Lalita Devi in her deposition before the Tribunal below disclosed that his salary was Rs. 1,500 per month. The Tribunal below admitted the statement of the Sub-Divisional Officer in his written statement and accepted the gross salary of deceased Sewa Dass as Rs. 1,143 per month since the claimant Lalita Devi has not rebutted that the gross salary of the deceased Sewa Dass was more than Rs. 1,143 per month. Lalita Devi in her deposition stated that her husband used to earn Rs. 500 from the agriculture work at home, but she could not substantiate her testimony by leading cogent, convincing and credible evidence and, therefore, the Tribunal has rightly not accepted her bald statement about the agriculture income of the deceased. Lalita Devi disclosed her age round about 50 years when she was examined on 26.2.1991 and stated that her husband was younger to her by one year. Gopi Ram, Secretary Gram Panchayat, Kumarsain appeared as PW 5 and produced on record an abstract from the Parivar Register marked Exh. PW 5/A with respect to the age of Sewa Dass. In Exh. PW 5/A the year of the birth of Sewa Dass was shown in column No. 7 to be 1926. In the teeth of the documentary evidence Exh. PW 5/A the oral testimony of claimant Lalita Devi could not be relied upon that her husband at the time of the accident was one year younger to her. Taking the year of birth of the deceased to be 1926, the age of the deceased at the time of the accident on 7.5.1987 would work out about 61 years. The Tribunal below determined the monthly dependency of the family members of the deceased at Rs. 600 after deducting Rs. 543 for the personal expenses of the deceased which, in our view, is proper and correct. That being so, the total loss to the estate of deceased Sewa Dass works out to Rs. 600 x 12 = Rs. 7,200 per annum. The Tribunal has applied multiplier of 10 and thereby awarded total sum of Rs. 7,200 x 10 = Rs. 72,000 on account of loss of dependency. In addition to Rs. 72,000 the Tribunal awarded a sum of Rs. 10,000 on account of mental agony and psychological setback, etc., to the dependants. In addition a sum of Rs. 1,000 on account of expenses incurred on post-death ceremonies and Rs. 500 litigation cost had been awarded and thereby the total amount of compensation awarded would work out to Rs. 83,500. Though we do not agree with the multiplier of 10 applied by the Tribunal in the case of the death of Sewa Dass whose age was about 61 years at the time of the accident, yet in the peculiar facts and circumstances of the case and in the absence of any appeal filed by the aggrieved party for reducing the multiplier, we are left with no option but to maintain the multiplier applied in the present case by the Tribunal below which shall not be treated as precedent for other accidental cases. It is well settled proposition of law by the Apex Court that the maximum multiplier in accidental cases can be 18. The Tribunal below has awarded the total amount of compensation in favour of claimant Lalita Devi, widow of the deceased by giving detailed reason in para 31 of the award and not to the other legal representatives/heirs of the deceased and we uphold the said finding to that extent. No other claimants have challenged the amount of compensation awarded exclusively in favour of Lalita Devi nor they have filed appeal for enhancement of the amount of compensation awarded by the Tribunal and the appeal was only filed by Lalita Devi claiming enhancement of the amount of compensation.</p><p style="text-align: justify;">18. Mr. N.S. Shandil, learned counsel for the claimant Lalita Devi has relied upon the judgment of the Apex Court in S. Chandra v. Pallavan Trans. Corporation 1995 ACJ 1170 (SC), to contend that in the case of the death of a person who was about 65 years of age, the Supreme Court enhanced the amount of compensation from Rs. 48,680 to Rs. 1,00,000. According to the learned counsel in the present case the amount of compensation awarded by the Tribunal below deserves to be enhanced proportionately. We do not see any reason to accept the contention of the learned counsel as already noticed in the earlier part of the judgment that the multiplier in the present case applied by the Tribunal below is on the higher side looking to the age of the deceased and that of the claimant Lalita Devi and coupled with duration of the period for which claimant Lalita Devi would have remained dependent upon the deceased had he not died in the accident. The amount of compensation awarded by the Tribunal below is found to be just and reasonable looking to the entire evidence on record and we find no merit in the appeal of the claimant Lalita Devi seeking enhancement of the amount of compensation. Claimant Lalita Devi is entitled to interest at the rate of 12 per cent per annum from the date of institution of the claim petition till the date of payment or deposit of the amount of compensation awarded by the Tribunal below. The amount of compensation with interest shall be paid jointly and severally by the owners of the truck, driver and indemnified by the respondent insurance company.</p><p style="text-align: justify;">19. No other point has been urged by the learned counsel on either side.</p><p style="text-align: justify;">20. In the result, for the abovesaid reasons and discussions, the appeal of the appellant Sub-Divisional Officer [being F.A.O. (MVA) No. 49 of 1992] is allowed, whereas the appeal of the claimant Lalita Devi [F.A.O. (MVA) No. 60 of 1992] and her cross-objections for enhancement of the compensation are dismissed and the award of the Tribunal below shall stand modified to the extent indicated above. The parties are left to bear their own costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 2, Motor Vehicles Act, Section 2, Section 2

ORG: L.S. Panta, MVA, the Sub-Divisional Officer, H.P., Tribunal, The Sub-Divisional Officer, Kewal Ram Kaithala, Kumarsain Division, National Insurance Co. Ltd., Nichar-Rampur Road, the Sub-Divisional Officer, PWD, the Sub-Divisional Officer, Nichar, Tribunal, inter alia, the Sub-Divisional Officer, The Sub-Divisional Officer, the Public Works Department, Tribunal, Tribunal, the Sub-Divisional, Tribunal, the Sub-Divisional Officer, MVA, Tribunal, Sub-Divisional, Tribunal, Sub-Divisional, Sub-Divisional Officer, Tribunal, Sub-Divisional Officer, Executive Engineer, H.P., the Executive Engineer, Sub-Divisional Officer, the Sub-Divisional, Sub-Divisional Officer, Sub-Divisional, Tribunal, the Division Bench of Punjab, Haryana High Court, Primary Land Development Bank, Tribunal, Tribunal, Sub-Divisional, the Executive Engineer, Nichar, Sub-Divisional Officer, Tribunal, Tribunal, the Sub-Divisional Officer, Executive Engineer, the Sub-Divisional Officer, Sub-Divisional, Sub-Divisional, Singh, Junior Engineer, H.P., the H.P. P.W.D., Road Inspector, RW 1, the Sub-Divisional Officer, H.P., RA, Asstt, RW 4, Nichar, Nichar, Sub-Divisional, Sub-Divisional, Haryana High Court, Primary Land Development Bank's, P&H, Bank, Bar, Sub-Divisional, the Sub-Divisional Officer, Sub-Divisional Officer, The Apex Court, Rajasthan State Road Trans, Corporation, SC, RSRTC, RSRTC, RSRTC, RSRTC, RSRTC, RSRTC, RSRTC, RSRTC, the Supreme Court, RSRTC, RSRTC, Renwal, Reliance, The Hon'ble Judges, the Supreme Court, RSRTC, RSRTC, RSRTC, Lordships, RSRTC, the Apex Court, Sub-Divisional Officer, the Executive Engineer, Sub-Divisional, Tribunal, Sub-Divisional, Sub-Divisional Officer, Sub-Divisional, the Sub-Divisional Officer, Tribunal, Sub-Divisional, Tribunal, F.A.O., MVA, The Sub-Divisional Officer, H.P., Tribunal, Tribunal, the Sub-Divisional Officer, Tribunal, the Parivar Register, Tribunal, Tribunal, Tribunal, Tribunal, Tribunal, the Apex Court, Tribunal, Tribunal, the Apex Court, SC, the Supreme Court, Tribunal, Tribunal, Tribunal, Tribunal, Sub-Divisional, MVA, Tribunal

NORP: J.1, Punjab, RSRTC, RSRTC, RSRTC, RSRTC, RSRTC, RSRTC, RSRTC, RSRTC

CARDINAL: 23.8.1991, 1988/89, 83,500, 7.5.1987, One, 4,00,000, 1,500, 3, 1, 5, 1, 1, 3, 83,500, 49, 4,00,000, 24, 14, 1,143, 543, 10 to 15, 500, 1.1.1986, 24, one, 20,000, One, 20,000.10, 20,000, 19, 19, 13, 19, 13, 19, 4, 7, 6, 14, 23, 23, 15, 6 and 7, 15, 15, 17, 1,91,500, 6, 1,500, 500, 7, 600, 543, 600, 12, 7,200, 10, 7,200, 10, 72,000, 72,000, 10,000, 1,000, 500, 83,500, 10, 18, 31, 48,680, 1,00,000

PERSON: Shimla, Lalita Devi, Sewa Dass, Lalita Devi, Kumarsain, Jai Chand, Sewa Dass, Kumarsain, Sewa Dass, Sewa Dass, Sewa Dass, Sewa Dass, Sewa Dass, Sewa Dass, Jai Chand, Sewa Dass, Sewa Dass, Lalita Devi, D.C. Jishtu, Sewa Dass, D.C. Jishtu, Chanel, Kulbhushan Khajuria, Sewa Dass, N.S. Shandil, Sewa Dass, Sewa Dass, Lalita Devi, Exh, Kumarsain, Sewa Dass, Nichar, Kewal Ram, Amar Chand, Kumarsain, Sewa Dass, Exh, Exh, A. Kapil Dev, Sewa Dass, Sewa Dass, Exh, Sewa Dass, D.C. Jishtu, Kailash Nath Kothari, Sanjay Kumar, Sanjay Kumar, Sanjay Kumar, Sanjay Kumar, Sanjay Kumar, Gopal, Sanjay Kumar, Nos, Sewa Dass, Jai Chand, Lalita Devi, Lalita Devi, Sewa Dass, Lalita Devi, Sewa Dass, Lalita Devi, Sewa Dass, Lalita Devi, Lalita Devi, Gopi Ram, Gram Panchayat, Kumarsain, Exh, Sewa Dass, Exh, Sewa Dass, Exh, Lalita Devi, Sewa Dass, Sewa Dass, Lalita Devi, Lalita Devi, Lalita Devi, N.S. Shandil, Lalita Devi, Pallavan Trans, Lalita Devi, Lalita Devi, Lalita Devi, Claimant Lalita Devi, Lalita Devi

MONEY: 60-S/2, 12 per cent, 30 per cent, 12 per cent

DATE: 1992, 1992, 5877, 46 years, the day, 1,143 per month, 1992, 1992, 1998, 1312, 1,500 per month, the year 1996, 1984, the day, 1998, 1312, 1939, 1148, the fateful day, the fateful day, 17.7.1991, 1,143 per month, 1,143 per month, 1,143 per month, about 50 years, 26.2.1991, one year, PW 5, PW 5, 1926, PW 5, one year, the year, 1926, 7.5.1987, about 61 years, monthly, about 61 years, 1995, 1170, about 65 years of age, 1992, 1992

GPE: Nichar, Nichar, Nichar, Kumarsain, 8.8.1988:(1, Nichar, Nichar, Nichar, Kumarsain, Nichar, Parkash Chand, Nichar, Jaipur, Nichar, Kumarsain, S. Chandra v.

ORDINAL: second, second

EVENT: PW 2, PW 5

TIME: about 9.30 p.m.

LOC: Bandi River