CHANDRAKANT D. VOLVOIKAR Vs. SADIQ SHEIKH

JUDGEMENT

(1.) THIS judgment will conveniently dispose of both the appeals filed against the award of the learned Member of the Motor Accident Claims Tribunal, Panaji, dated 30th September, 1987 in Claim Petition No. 99 of 1983. First Appeal No. 170 of 1987 was filed by respondent No. 5 in First Appeal No. 6 of 1988 one Sadiq Sheikh owner of M/s. Shaukat AH Glass Traders, Panaji while First Appeal No. 6 of 1988 was filed by respondent No. 5 in First Appeal No. 170 of 1987 M/s. Vishnu Kamat Tarkar. The claim petition had been instituted by the applicant one Chandrakant D. Volvoikar against respondent No. 1 M/s. V.S. Dempo & Co. Pvt. Ltd., who was the owner of the vehicle involved in the accident, respondent No. 2 one Vasant Kutty who was actually driving the vehicle which met with an accident, respondent No. 3 which is the Insurance Company of the vehicle, respondent No. 4 M/s. Vishnu Kamat Tarkar which is a firm dealing with repairs of vehicles having a garage for that purpose and to which the vehicle had been entrusted by the owner and respondent No. 5 which is also a firm dealing with the work of glass and to which respondent No. 4 had entrusted the said vehicle to carry on some work with the glass fittings. The facts of the case are that on 2.8.1983 the claimant had come out of the Menezes Pharmacy at Panaji and was walking along the footpath when near the door of one Chodankar's shop the Jeep No. GDE 2179 belonging to respondent No. 1 and proceeding towards Fountain has came in a rash and negligent manner and dashed against the claimant. As a result of the accident the claimant sustained a compound fracture of the tibia/fibula upper 1/3. The Jeep was driven by respondent No. 2-A compensation of Rs. 25,000/- was claimed by the petitioner. The petition was originally filed by the claimant against the owner and driver of the vehicle only. Subsequently by way of amendment he added the names of three more respondents being respondent No. 3 the Insurance Company with whom the Insurance Company had been insured by respondent No. 1. Respondent No. 4 M/s. Vishnu V. Kumat Tarkar to whom respondent No. 1 had entrusted the vehicle for repairs and respondent No. 5 Shri Sadiq Sheikh, Proprietor of M/s. Shaukat Ali Glass Traders to whom respondent No. 4 had entrusted the vehicle for replacement of the windshield glass.

(2.) THE case of the respondent No. 3-Insurance Company is that respondent No. Vasant Kutty who was driving the vehicle at the relevant time was not holding any licence and therefore they were not liable to pay any compensation. The defence of respondent No. 1 was that there was no accident at all involving the vehicle belonging to them. They also pleaded that on the day of the accident the vehicle had been entrusted to respondent No. 4 - M/s. Vishnu V. Kamat Tarkar who are independent contractors and owners of a workshop wherein repairs were being undertaken by the vehicle. Therefore they were not liable to pay any compensation. In his turn respondent No. 4-M/s. Vishnu V. Kamat Tarkar's case is that they also were not liable to my compensation on account of the accident because at the relevant time the jeep which was handed over to them by respondent No. 1 M/s. V.S. Dempo, the owner of the vehicle, had been entrusted by the said respondent No. 4 to the respondent No. 5 to undertake some repairs in respect of the fitting of windshield glass and this also with the permission and full knowledge of the owner. In fact the vehicle was given to respondent No. 5 by respondent No. 4 with the 'respondent No. 1's consent on 1.8.83 for fixing the front windshield glass and thereafter the respondent No. 4 came to know, by letter of respondent No. 5, dated 2.8.83, that the vehicle had met with an accident while the same was in their custody. The respondent No. 4 pleaded that it is only respondent No. 5 Sadiq Sheikh, Proprietor of M/s. Shaukat Ali Glass Traders who was solely responsible for any compensation arising out from the accident involving the Jeep belonging to respondent No. 1. However respondent No. 5 pleaded on liability alleging that there was no cause of action against them. The said respondent No. 5 denied that the vehicle was in their possession at the relevant time. As such he was not responsible to compensate the victim for any accident. The learned Tribunal after recording evidence gave the findings that the accident had been caused due to the rash and negligent driving of respondent No. 2 Vasant Kutty, that the vehicle belonging to respondent No. 1 had been entrusted by the owner to the respondent No. 4 for repairs at the material time, that in his turn respondent No. 4 had given the vehicle to respondent No. 5 to undertake some glass work when the accident occurred namely the fitting of the front windshield. On the basis of these findings the learned Tribunal came to the conclusion that once, respondent No. 1 was not in possession of the vehicle at the material time and had parted with possession entirely with respondent No. 4 the respondent No. 1 could not be held liable to pay compensation for the accident and consequently the Insurance Company who had insured the vehicle would also not be liable to pay compensation once no indemnity could be demanded from the Insurance Company when the insured was not to be made liable for the accident. Accordingly the learned Tribunal held that the petitioner/claimant was entitled for compensation of Rs. 17,300/- with interest from the date of the filing of the petition and cost of Rs. 1800/- on account of the injuries sustained in the accident but the said compensation should be jointly and severally paid by the respondents Nos. 2,4 and 5 only. As it was stated above the said Award was challenged by both the respondents No. 5 M/s. Vishnu V. Kamat Tarkar and Respondent No. 5 Sadiq Sheikh in Appeal No. 170 of 1987 and 6 of 1988 respectively.

(3.) SO far as Appeal No. 6 of 1988 is concerned Shri Bharne, learned Counsel appearing for the appellant, has raised two propositions while challenging the impugned Award. The first proposition is to the effect that since the vehicle has been entrusted by the respondent No. 4 to the respondent No. 5 Sadiq Sheikh of M/s. Shaukat Ali Glass Traders for the purpose of carrying on some glass works namely fitting of the windshield the liability of respondent No. 4 had ceased because he was no more in control of the vehicle which was actually in exclusive possession of respondent No. 5. Shri Bharne has submitted that the fact of this entrustment had been communicated to the respondent No. 1, the owner of the vehicle, who had been told that some glass work would be required and this has to be done by respondent No. 5. Shri Bharne contended that the owner of the vehicle was thus aware of the entrustment and had agreed to that. I am however to accept these submissions of Shri Bharne. It is an admitted position that on the relevant day the vehicle belonging to respondent No. 1 had been entrusted by the owner to the respondent No. 4 who has a garage doing repairs of vehicles for the purpose of carrying on some repairs. It is not disputed by the respondent No. 4 that the vehicle was thus in their exclusive possession and that the owner was not in possession of the said vehicle. Being so even assuming that the repairs which had to be carried on by respondent No. 4 and for which purpose the vehicle had been entrusted to them by respondent No. 1 could not be completed without the glass work which was required to be done by another agency, namely, the respondent No. 5, the circumstances of the vehicle having been in custody of the respondent No. 5 on account of its entrustment done by respondent No. 4 could not by any stretch of imagination absolve the respondent No. 4 from the liability arising out of the accident since admittedly the same occurred during the time repairs were still being done by the respondent No. 4 and had not been completed to the satisfaction of the owner and the owner had not been given back the possession of the vehicle by the said respondent No. 4. Shri Bharne's contention that the vehicle had been handed over to respondent No. 5 with the knowledge and consent of the owner has not been substantiated by the learned Counsel by way of any conclusi ve evidence on record. Hence I am inclined to reject the proposition advanced by Shri Bharne in this respect.