G DHYANAND Vs. ZAAMNI BI

JUDGEMENT

(1.) ONE Abdul Jabbar, the husband of the first respondent and the father of respondents 2 to 7, lost his life in a fatal road accident about 12'o clock midnight on 2nd October, 1975, on the Hosur Krishnagiri Road while he was travelling in the lorry MYD. 3425 belonging to the first appellant and insured with the second appellant.

(2.) THE case of the respondents 1 to 7, who are petitioners before the Motor Accidents Claims Tribunal, in M. A. C. T. O. P. No. 20 of 1977, under section 110-A of the Motor Vehicles Act is as follows. THE deceased Abdul Jabbar was a sheep merchant and was aged about 50 years at the time of his death. THE deceased was travelling in the lorry MYD. 3435 from Bangalore. THE lorry was driven by the 8th respondent, herein, and when the lorry was proceeding near Kurubarabelli at about 12'o clock in the midnight on 2nd October, 1975 due to the rash and negligent driving at high speed of the lorry, it capsized and Abdul Jabbar who sat in the cabin met with instantaneous death. THE accident took place on account of the rash and negligent driving of the 8th respondent herein. THE respondents 1 to 7 claimed compensation of Rs. 30,000 before the Tribunal. THE driver of the lorry remained ex parte. In the counter statement filed by the lorry owner, who is the first appellant herein before the Tribunal, the allegation that the lorry was driven at a high speed and in a rash and negligent manner was denied. He attributed the accident to the mechanical defect in the lorry. He also contended that the driver was directed not to carry any passenger in the lorry and as such the driver had acted beyond the course of employment and taken the deceased passenger in the vehicle for which the lorry owner cannot be held liable. In any event, the deceased was not a fare-paying passenger and the Insurance Company is also liable in terms of the insurance policy. It was also contended that the compensation claimed is excessive. In a separate counter-statement, the Insurance company, the second appellant herein, denied the allegation that the lorry was insured so as to cover the liability of the deceased passenger and the age, income and occupation of the deceased passenger were also disputed by the Insurance Company. THE Insurance Company also contended that in any event, the compensation claimed is high and exaggerated. On these pleadings, the Tribunal framed the following points for determination:

(3.) IN the case reported in K.R Sivagami, proprietor Rajendran Tourist v. Mahabobh Niss Bi and others1 a Division Bench of this Court to which one of us was a party, in dealing with a case of a driver of a taxi carrying more than the permitted load of passengers which is contrary to the conditions of permit under which the vehicle was allowed to be used as a tourist taxi, held that the non-observance of the rules relating to the number of passengers to be carried can only be said to be an improper performance of the driver's duty. Even assuming that the permit conditions not to take more than the permitted number of passengers is a prohibition, limitation or restriction, that relates only to the manner of performance of the driver's duties in the course of his employment and that cannot in any way limit the sphere of employment. Therefore, the carrying of two excess passengers by the driver of the taxi will only amount to an improper performance of his duties as a driver of the taxi and therefore it cannot be taken to be outside the sphere of his employment. It held that the owner of the taxi is vicariously liable for the tort committed by the driver of his taxi. IN United INdia Fire and General INsurance Company Limited, Madurai v. M.S. Durairaj and others2 this Bench had occasion to consider a case where a senior clerk of the State Bank of INdia, Kodaikanal, while he was returning from Madurai to Kodaikanal in a car MDA 1194, met with an accident resulting in injuries to the said clerk. IN regard to the claim for compensation by the injured clerk an objection was taken by the INsurance company that the injured was carried for hire which is against the terms of the INsurance policy and as such the insurer was not liable. Following the judgment of the Supreme Court reported in Pushpabai Purushotham Udeshi and others v. Messrs Ranjit Ginning & Pressing Company and another3 referred to supra, this Court negatived the liability of the insurance company.