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Pradip Debnath v/s Babul Das & Others


Company & Directors' Information:- G DAS & CO PVT LTD [Active] CIN = U74992WB1935PTC008299

Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- K C DAS PVT LTD [Active] CIN = U15433WB1946PTC013592

Company & Directors' Information:- D K DAS & CO PVT LTD [Active] CIN = U51909WB1938PTC009288

Company & Directors' Information:- U C DAS & CO PVT LTD [Active] CIN = U31200WB1987PTC042709

Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- DAS-G INDIA PRIVATE LIMITED [Active] CIN = U24304DL2020PTC370609

Company & Directors' Information:- P K DAS & CO PVT LTD [Strike Off] CIN = U74210WB1955PTC022259

    MAC App. No. 31 of 2019

    Decided On, 27 February 2020

    At, High Court of Tripura

    By, THE HONOURABLE CHIEF JUSTICE MR. AKIL KURESHI

    For the Appellant: Kohinoor N. Bhattacharyya, Advocate. For the Respondents: S. Deb, Sr. Advocate, P. Gautam, Advocate.



Judgment Text


Oral

[1] This appeal is filed by the original respondent No.3 of T.S(MACT) No. 118/2014 to challenge the award dated 19.01.2019 passed by the Motor Accident Claims Tribunal, Gomati Judicial District, Udaipur.

[2] Brief facts are as under:

The respondent No.1 herein original claimant was travelling on a motorcycle. On 31.10.2013 in the evening hours between 5 - 5.30 p.m when his vehicle was dashed from behind causing serious bodily injuries. According to him it was a police mini bus bearing registration No.TR-01C-1129. According to him this vehicle was being driven by the present appellant-original respondent No.3 who was employed as a driver in the police department. He was taken to a nearby hospital for treatment. He filed claim petition joining the Government and its Officers as Opponents No. 1 and 2 and the driver, the present appellant as Opponent No. 3.

[3] Before the Claims Tribunal Opponents No. 1 and 2 filed a written statement attach with the blame for causing accident on the Opponent No.3. In such written statement dated 26.2.2016 Opponents No.1 and 2 had made following averments:

“5. That the accident was occurred due to rush and negligent driving of the driver of vehicle bearing No. TR-03-A-9674(Motor Bike) not for any negligence Act of the driver of vehicle bearing No.TR-01-C-1129 (Mini Bus) and as such the answering respondent is not liable for the said accident.

6. That the vehicle bearing No.TR-01-C-1129 (Mini Bus) is owned by the respondent No.2 Superintendent of Police, Gomati District and the said vehicle was driven by the respondent No.3 Sri Pradip Debnath a competent driver having valid driving license bearing No.0320010009712 issued by the competent authority.”

[4] Opponent No.3 filed a written statement dated 17.08.2016 in which he had averred as under:

“7. That the statement made in paragraph No.20 of the petition that on 30/10/2013 at about 5/5.30 P.M, The claimant-Petitioner Sri Babul Das was going to his house from Udaipur side or when he reached at Gakulpur Bazar in front of Gakulpur Ration Shop or at that time Bus vide N o. TR-01-C-1129 was coming from Udaipur side with high speed or dashed the injured in his back side are all false as such denied by the answering defendant. The respondent No.3 was not the driver of the vehicle bearing No. TR-01-C-1129 on 31/10/2013 at about 5/5.30 P.M.”

[5] The claimant was examined as witness No. 1. He deposed that he was hit by the mini bus coming from behind. He also produced the first information report and the charge sheet filed by the police against Opponent No.3 and other related documents. On his behalf one Rajib Nama was also examined. He was present at the spot when the accident took place. He had helped shifting the injured to a nearby hospital. He also alleged that the mini bus was being driven by the Opponent No. 3 in a rash and negligent manner.

[6] On behalf of Opponent No.3, two witnesses were examined including himself in which he stated that he was the driver of the mini bus in question. However, the said vehicle was not involved in the accident. He relied on the log book showing the movements of the vehicle suggesting that the mini bus had returned the police headquarters by 1.30 in the afternoon and not taken out on that day after that. In the cross examination, he however agreed that on 31.10.2013 he did pass from KBI school to M.T Pool, Dhajanagar in the said vehicle and that Gokul Pur Bazar where the accident took place was situated between the said two places.

[7] Second witness examined by the said opponent was Sankar Chakraborty. He was the havildar. He also stated that the Opponent No.3 had returned to the police station at about 1.30 in the afternoon, after which the vehicle remained there stationary.

[8] The Claims Tribunal did not believe the evidence of these two witnesses mainly citing the reason that no such stand was taken in the written statement filed by the Opponent No. 3. In the opinion of the Tribunal had this being the correct fact, naturally it would have been stated in the original written statement. On the other hand, relying on the eye witness accounts of the claimant and his witness as also the charge sheet filed by the police pursuant to the FIR against the Opponent No.3, the learned Judge held that it was he who was driving the vehicle at the time of accident. For some strange reason after assessing the compensation at Rs.1,25,923/- the Tribunal held the driver solely liable to pay such compensation. This conclusion the Tribunal arrived in a brief discussion which reads as under:

“10. Now to decide the liability this tribunal is of the opinion that the principal cannot escape the liability for the wrong committed by his agent.

In this case from para-6 of W/S of O.P.1/2 it is clear that the O.P. No.2 is the owner of the vehicle TR-01C-1129(Mini Bus) and O.P. no.3 was the driver at the time of accident.

10.1 O.P. No.3, being the agent of O.P. No.2, was solely responsible responsible for the accident but it is to be seen whether the driving of O.P. No.3 at the time of accident, was an authorized act of O.P.-2. Even if I accept the version of the log book and command certificate it appears that the vehicle was kept stationed at M.T. section and so the driving of vehicle TR-01C-1129(Mini Bus) on 31.10.2013 at 5/5.30 pm was an unauthorized act of O.P. No.3 and so O.P no.3 is to be made solely liable for the compensation and accordingly the whole amount of compensation shall be paid by O.P. No.3.”

[9] The appellant has challenged the said award of the Claims Tribunal on the ground that the Mini Bus in question was never involved in the accident and at any rate he was not the driver thereof. His alternative contention was that in any case the employer would be equally liable to satisfy the award.

[10] I have heard learned counsel for the parties. With respect to the factual findings of the Claims Tribunal that the said mini bus was involved in the accident and was driven by the appellant, I see no infirmity. The Tribunal has assessed the evidence on record which comprise of two eye witnesses accounts on part of the claimant and given cogent reason for not accepting the version of Opponent No.3 and his witness. Admitted facts are that the Opponent No.3 was employed as a driver in the police department, that he was in-charge of the mini bus in question and on the date of the incident he admitted that his mini bus did travel from the spot where the accident took place. His version that the mini bus did not pass from the said place in the evening hours was not believed by the Claims Tribunal. Even the Opponents No. 1 and 2 in the written statement had taken a stand that the mini bus was driven by the Opponent No. 3. It was not the case of the Opponents No. 1 and 2 that the said vehicle was not involved in the accident at all or that the Opponent No. 3 had unauthorizedly against his instructions removed the vehicle from the police station and was using for his private purpose.

[11] When the accident was thus caused by the driver employed by the police department, there was simply no logic in absolving the department as the employer from satisfying the award. This is the most basic principle of vicarious tortious liability which proceeds on the basis that the principal is responsible for the tortious acts of the agent committed in the course of such agency. As a driver who was negligent in driving vehicle and causing

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accident of course the appellant has the primary liability to compensate the injured. As an employer, the department also has the vicarious liability to pay such compensation. Insofar as payment is concerned such liability would be joined and several. In other words it would be completely at the discretion of the claimant to recover the compensation from either of them. Insofar as the claimant is concerned at any rate the Government cannot escape its legal responsibility to bear the burden of the compensation. [12] Under the circumstances, while disposing of this appeal it is provided that in partial modification of the impugned award all the original opponents would be jointly and severally liable to satisfy the award. [13] Appeal is disposed of accordingly. Pending application(s), if any, also stands disposed of.
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