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Bombay High CourtIndian Cases

Maimuna Begum Wd/O Abdul Razzaque … vs Taju S/O Ahmed Khan And Ors. on 15 October 1987

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Bombay High Court
Maimuna Begum Wd/O Abdul Razzaque … vs Taju S/O Ahmed Khan And Ors. on 15 October, 1987
Equivalent citations: I(1988)ACC106, 1989(1)BOMCR673
JUDGMENT

V.A. Mohta, J.

1. Abdul Razzaque who died during the pendency of this appeal under section 110-D of the Motor Vehicles Act, 1939 (‘the M.V. Act’) had lodged a petition under section 110-A of the M.V. Act to recover a sum of Rs. 2,05,890.27 P. as compensation for the injuries suffered by him a in a motor accident that took place in the evening of 14th July, 1976 on Nagpur Kamptee Road. The petition was filed against Taju Ahmad Khan, who during the regular course of his employment was driving Truck No. MHG 6167 owned by Shriram Ramteke and insured with the New Indian Assurance Company Limited, Nagpur. Abdul Razzaque was a resident of Kamptee and was serving as a binder boy at Government Press, Nagpur. On the fatefull day, the truck was returning empty from Nagpur to Kamptee after unloading the goods. On the way the driver Taju Khan gave lift to Abdul Razzaque, his friend Meshram and several others on payment of Rs. 0.50 each. The truck was already carrying the conductor and the labourers employed for unloading the goods. Owner Ramteke was not in the truck. Taju lost control over the vehicle on account of negligent driving, as a consequence of which truck dashed against the railing of the bridge and plunged into the bed of the river. Mashram died on the spot and Abdul Razzaque received several serious injuries as a result which he was admitted as on indoor patient in several hospitals for months together. Even after discharge, physical condition of Abdul Razzaque remained deteriorated. He was declared as invalid and was compulsorily retired from service. Damages to the tune of Rs. 95,000/- on various counts such as loss of earning, loss of earning capacity, physical and mental pain and agony, medical expenses were awarded by an Award dated 24-2-1981 passed by the Motor Accidents Claim Tribunal at Nagpur (the tribunal) but only as against the driver Taju, absolving the owner and the insurer, from the liability. Aggrieved by the rejection of claim as against the owner and the insurer, Abdul Razzaque has filed this appeal as an indigent person on 2-7-1981. Abdul Razzaque unfortunately died on 5-6-1982 and his widow and minor children have been substituted as appellants in his place. Their application for being brought on record in place of deceased Abdul Razzaque was opposed on the ground that right to sue did not survive. The application was granted subject to decision on the point in this appeal. Driver Taju was not challenged the award passed against him.

2. Against this basis factual back ground, the following, three points fall for determination in this appeal.

1. Whether the owner is liable?

2. Whether the insurer is liable?

3. Whether right to sue the owner and the insurer survives to the legal heris?

Point No. 1:—The truck in question is a “goods vehicle” as defined under section 2(8) of the M.V. Act. Rule 118(1) of the Bombay Motor Vehicles Rules, 1959 (“the M.V. Rules”) framed under the M.V. Act prohibits carrying a passenger in a goods vehicle. Indeed, to do so is an offence punishable under section 112 of the M.V. Act. Owner was not in the truck. He used to pay bhatta to the driver whenever the driver was sent outstation and had issued instructions not to carry the passengers. In our judgment, in this basic factual back ground, the tribunal was justified in not holding the owner vicariously liable. No doubt the driver was driving the truck in the regular course of his employment but taking passenger was not only outside the scope of his employment and/or authority but was a criminal Act.

3. The first leading Indian decision on the point seems to be the case of Sitaram Motilal Kalal v. Santanupradsad, . Basic facts of that case were not an owner of a taxi entrusted it to M who appointed a cleaner C.M. also trained C for driving. C took the taxi to the office of the R.T.A. where the accident took place, due to negligent driving of C. Question arose where the owner was liable for the negligent driving of C. Following statements of law are to the point :—

“The law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the Act is done in the course of employment, the servant’s Act does not make the employer liable. In other words, for the master’s liability to arise, the Act must be a wrongful Act authorised by the master or a wrongful and unauthorised mode of doing some Act authorised by the master. The driver of a car taking the car on the master’s business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable.” (Para 27) In Rickett’s and Engelhart’s cases, 1915(1) K.B. 644 and 1897(1) Q.B. 240 (respectively) each servant was acting on the master’s business at the time. If the two servants in the Engelhart’s case had gone for a picnic or the boy had borrowed the cart to give a joy ride to his friends the master would not have been liable although the effective cause would still have been the elder servant’s negligence. The difference lies in this that in the two cases the negligent Act took place in the execution of the master’s business and in the examples suggested by us, no question of master’s business or the scope of the servant’s or agent’s employment arises, because the Act are clearly outside that scope. Going for a picnic or lending the cart so that the co-servant’s friends may go for an outing is not in the course of the master’s employment. Beard’s case 1900(2) Q.B. 530 when compared with Rickett’s case, 1915(1) K.B. 644, brings out the difference. In (1928)44 T.L.R. 294 the master himself lent the car to the servant for the latter’s private work and the master was not held responsible for the negligence of the servant in causing injury because neither was the journey on the master’s account nor was the master in control at that time. Sir John Salmond (13th Edn. p. 124) has summed up the law thus :
“………. a master is not responsible for the negligence or other wrongful Act of his servant simply because it is committed at a time when the servant is engaged on his master’s business. It must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it”. (Para 30).
The principles laid down in the above case have been followed by the Supreme Court in the case of Pushpabai v. M/s. Ranjit G. & P. Ltd., . As regards vicarious liability of the owner for the criminal Acts of a servant it is observed :—
“Lord Denning took the view that though the second defendant was acting illegally in asking for the receiving a premium and had no actual or ostensible authority to do an illegal Act, nevertheless, he was plainly acting in the course of his employment, because the employers, the landlords, has entrusted him with the full business of letting the property, and it was in the very course of conducting that business that he did the wrong of which complaint is made. This decision has extended the score of acting in the course of employment to include an illegal Act of asking for an receiving a premium though the receiving of the premium was not authorised. We do not feel called upon to consider whether this extended meaning should be accepted by this Court. It appears Lord Goddard, Chief Justice, had gone further in Barker v. Levinson, 1950(66) T.L.R. (Pt. 2) 717 and stated that “the master is responsible for a criminal Act of the servant if the Act is done within the general scope of the servant’s employment”. Lord Justice Denning would not go to this extent and felt relived to find that in the authorised Law Reports 1951(1) K.B. 342, the passage quoted above has struck out. We respectfully agree with the view of Lord Denning that the passage attributed to Lord Chief Justice Goddard went a bit too far”. (Para 14).
It will thus be seen that Supreme Court has in terms disapproved a proposition that “the master is responsible for a criminal Act of the servant if the Act is done in the general scope of the servant’s employment”. It is a different matter that on the facts found in the above decision vicarious liability was held proved. It was a case of a manager of a company driving the car. He permitted the deceased to ride the car. In the absence of any evidence to the contrary ostensible authority of the manager to permit such ride was held proved and hence the company was made vicariously liable.
4. In the case of Mohiddinsab Gaffarsab Kundgol v. Rohidas Hari Kindalkar and another, 1973 A.C.J. 424 it was held by the Mysore High Court that as law does not permit carrying of passengers in a goods vehicle, picking up of a passenger for giving lift by a driver is outside the scope of the employment of the driver and, therefore, the owner was not vicariously liable. In the case of Machiraja Visalkashi v. Treasurer, Council of India, 1978 A.C.J. 314 the Andhra Pradesh High Court took a similar view.

A Division Bench of this Court in the case of United India Insurance Co. Ltd. v. Abdul Munaf Majur Hussain, 1984 A.C.J. 653 held that the Act of the driver of a truck in carrying the passengers on charges recovered by the driver, was not during the course of his employment and, therefore, the owner was not vicariously liable.

5. We will now notice the cases which reported strike a somewhat different note. In the case of Narayanlal v. Rukhmanibai, 1979 A.C.J. 261 the Madhya Pradesh High Court held that giving-lift to a passenger in disregard to the rules, in the absence of express prohibition by master from giving lift to anybody in the truck, makes the owner of the truck vicariously liable. In the case of Oriental Fire & General Insurance Co. Ltd. v. B. Parvathamma, 1984 A.C.J. 680 the Karnataka High Court held that Act of giving lift by a driver in a goods vehicle does not amount to a criminal Act though it is a statutory offence and that there is a vicarious liability of the owner. Here is relevant extract :—

“The learned Counsel for the claimants further pointed out that a mere breach of a rule though it may be a statutory offence cannot be described as a Criminal Act on the part of the servant as the essence of a criminal Act is that it consist of moral turpitude. Moral turpitupe is there in fraud or in embezzlement, and not in a breach of a rule under the Motor Vehicles Act, which says that the goods vehicle shall not carry more than 6 passengers. Therefore, though the breach may constitute a statutory offence, it cannot strictly be described as a Criminal Act. There is force in the submission so made by the learned Counsel”.
In the case of Mannalal v. State of Madhya Pradesh, 1986 A.C.J. 902 the Madhya Pradesh High Court held that in the absence of evidence about the driver of a truck having been prohibited from carrying any passenger vicarious liability of the owner existed.

6. In our judgment the basic principles laid down in Sitaram Motilal Kalal and Pushpabai (supra) are correctly interpreted and applied in Mohiddinsab, Machiraja and United India Insurance Co. (supra) and the view taken in the above cases commands itself to us. Indeed United India Insurance Co. is a decision of a co-ordinate Bench of this Court and is binding upon us. Now, Narayanlal, Oriental Fire & General Insurance Co. and Mannlal (supra) are by and large based on the ratio laid down in Pushpabai and English leading case of Twine v. Bean’s Express Ltd., 1946(1) All.E.R. 202 in which it is observed :—

“It was outside the scope of the driver’s employment for him to bring within the class of persons to whom a duty to take care was owned by the employer, a man to whom, contrary to his instructions he gave a lift”.
The Court of Appeal in Convey v. Wimpel & Co. Ltd., 1951(1) All.E.R. 363 while approving the above passage further observed :—

“If the question is asked : Was the driver, Harrision, in giving a lift to the deceased man acting within the scope of his employment ? The answer is clearly ‘No’. He was doing something that he had no right whatsoever to do, and qua the deceased man he was as such on a forlic of his own if he had been driving somewhere on some amasement of his own quite unauthorised by his employers. He was driving his van from one place to another by a route that he was properly taking when he ran into the omnibus, and as he was driving the van he was acting within the scope of his employment. The other thing that he was doing simultaneously was something totally outside the scope of his employment namely, giving a lift to a person who had no right whatsoever to be there. In my opinion once the facts are understood the case is a perfectly simple one, and there is only one answer to it”.
We are unable to see how the above observations or the observations in Pushpabi can support a proposition that even where the driver has done an unauthorised Criminal Act the owner is vicariousliable. It is difficult to hold, as has been done in Oriental Fire Insurance Co., that a statutory offence is not a Criminal Act in the absence of mensrea or moral turpitude. A proposition that implied authority in the agent to do a Criminal Act should be presumed in the absence of specific instructions not to do such Act, appear to our mind to be highly debatable, but the said controversy need not detain us in the present case. We may, however, in the parting notice the following observations in the case of M/s. Jiwan Dass v. Karnailsingh, :—

“Acting in direct contravention of a statutory provision which is made an offence by an employee cannot be easily conceived as in the normal course of employment. No employer can be deemed or assumed to authorise the contravention of law or the commission of an offence. Assuming so entirely for the argument sake that in such a remote contingency it could only be so by an established express command by the employer and here as already noticed, there is not the least evidence to this effect”.
7. Point No. 2 :—Copy of insurance policy (Exhibit 61) is on record and is rightly held admissible in evidence. Chapter VIII of the M.V. Act generally deals with the compulsory insurance of motor vehicles against third party risks. Section 95 of the M.V. Act deals with the subject of “Requirements of policies and limits of liabilities”. Section 95(1) reads :—

“In order to comply with the requirements of this Chapter, a policy of insurance must be a police which —
(a) is issued by a person who is an authorised insurer, or by a co-operative society allowed under section 108 to transact the business of an insurer, and
(b) insures the persons or classes of person specified in the policy to the extent specified in sub-section (2) —
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place :
(ii) against the death or bodily injury to any passengers of a public service vehicle caused by or arising out of the use of a vehicle in a public place”.
Provided that a policy shall not be required —

(i) to cover liability in respect of the death, arising out and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than a liability arising under the Workmen’s Compensation Act, 1923 (VIII of 1923) in respect of the death of, or bodily injury to any such employees ;
(a) engaged in driving the vehicle, or
(b) if it be a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it be a goods vehicle, being carried in the vehicle or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
(iii) to cover any contractual liability.
Explanation.—For the removal of doubts it is hereby declared that the death or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident if the Act or ommission which led to the accident occurred in a public place”.

In this case the injured passenger was not a hirer of a truck, no doubt that he was carried on payment of charges but the carrying of such passenger was in contravention of the rules and in disregard to the limitation as to the use of the said vehicle. Clause (3) of the General Exceptions to the Insurance Policy reads :—

“The company shall not be liable under the policy in respect of —
(3) any accident loss, damage and/or liability caused, sustained or incurred whilst the motor vehicle is
(a) ………
(b) being used otherwise than in accordance with the limitations to use”.
That the passenger risk is not a third party risk is a position fairly settled in Pushpabai. Section 96(2)(b) of the MV. Act deals with the subject of non-liability of the insurer for breach of specific condition in the policy. Thus it seems plain to us that the surer in the case at hand cannot be held liable to pay compensation. This legal position seems to be further crystalised by United India Insurance Co.

8. Point No. 3 :—The contention of the respondent owner is that cause of action of the deceased Abdul Razzaque for the claim based on physical and mental injuries did not survive to his legal representatives as it was entirely a personal claim which could not survive after his death and the cause of action died with him. Reliance is placed on the old English Common Law maxim “actio personalis mortur cum persona” and section 306 of the Indian Succession Act (the IS Act) which reads thus :—

“306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory Illustrations
(ii) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.
(ii) A sues for divorce. A dies. The cause of action does not survive to his representatives”.
Against the backdrop of very peculiar set of facts of the case, we find it wrong and unjust to non suit the heirs of the deceased on this ground. In the first place the said maxim is criticized even in the country of its origin as unjust, obscure in its origin, inaccurate in its expression and often resulting into grave injustice. Indian Courts have generally taken a view that the maxim should not be applied as a part of our law except of course where specifically engrafted in a statute and that the principles of justice, equity and good conscience should be followed. See Bhupendra v. Chandarmani . It was anamolous that while action could be maintained by an injured against a wrong does for causing injury, (and not death) no such action was permissible after his death. This anomoly was sought to be removed in England by the Law Reforms Act and Fatal Accidents Act. Soon thereafter even in Indian on similar lines the Legal Representatives Suits Act and the Indian Fatal Accidents Act were enacted as a result certain causes of action under tort were made to survive and be available to the legal heirs. Section 1-A of the Indian Fatal Accidents Act created special rights in favour of a class of defendants.

9. Unending rush or motor vehicles on the road and constant increase of their use as a mode of transport posed a constant threat of death, and injury to persons as well as property. The long drawn and expensive process of a civil suit was considered too inadequate to render quick justice demanded by the situation. A new forum was therefore created under the M.V. Act by inserting section 110-A to 110-F. Section 110-A(1)(a) entitled an injured person to make a claim for injury sustained by him. Injury includes all species of injuries, injury to property not excluding. Newly added sub-clause (aa) permits for damages to the property by the owner. It is thus clear that even the legal representatives can claim damages for loss to the estate of the deceased. It is difficult to see as to why an action initiated by an injured for damages on account of loss to his property should not be made to survive to his legal representatives on his death pending an action already launched by him.

10. Assuming that section 306 of the IS Act is attracted in the case of legal heirs (and is not confined only to executors or administrators) illustration (i) to the said section gives indication that the provision is not attracted once an action is brought. In the instant case the death is not only after the action is brought but after an “award” contemplated under section 110-B is passed. There can be no manner of doubt that even a total rejection of a claim is an “award”. The term “award” is not defined under the MV Act but it quite obviously and plainly means a judgment. In the instant case, the award has not resulted into dismissal of a claim. Compensation is awarded under various heads noticed earlier, to the satisfaction of the injured in his life time against a wrong doer. The injured was not satisfied with findings that (1) no vicarious liability arose and (ii) insurer was absolved in terms of the policy of insurance. The injured merely challenged those findings in the present appeal and during its pendency unfortunately he died. The case of Pulin Beharilal v. Narendrakumar, A.I.R. 1971 Tripura 483 has taken a view that section 306 of the IS Act does not apply once a cause of action has merged into a decree of Court and death of a party will not per se nullify a decree.

11. There is yet another angle to the point. As rightly held in the case Meghjibhai v. Chandubhai, 1978 Guj.L.R. 216 the MV Act is a benevolent legislation which calls for liberal and broad interpretation so that real object underlying sections 110 to 110-F is achieved. Thus, if any doubt exists on the construction of a statute its benefit must be given to the claimant for whose benefit the law has been made.

12. We have therefore no hesitation to conclude that the cause of action had survived to the legal representatives and this point has to be answered in the affirmative and in favour of the appellants legal representatives.

13. To conclude, appeal dismissed on merits though maintainable in law. No order as to costs.