T.CH.SURYA RAO, J. - (1.) THE unsuccessful claimant seeks to assail the order and decretal order dated 20.7.1998 passed by the learned Chairman, Motor Accident Claims Tribunal-cum-III Additional District Judge, Tirupati, in M.V.O.P. No. 599 of 1990.
(2.) ACCORDING to the appellant, on 19.9.1990 at about 4.00 p.m., when he was travelling in the vehicle bearing No. ATC-9242 belonging to the first respondent Railways, due to rash and negligent driving of the driver of the vehicle it dashed against the roadside electric pole near Subbanaidu Kandriga Village on Nagalapuram-Uthukotai Main Road on Account of which the appellant sustained injuries. He was hale and healthy and aged 20 years by the date of Accident and was studying in 10th class. In the accident, the appellant sustained multiple fractures to his both legs which resulted in permanent disability and hence he sustained loss physically and economically. He laid the claim for Rs. 1,12,060/-. The respondents resisted the claim on the premises that the vehicle in question was Allwyn Cabstar and on the date of Accident the driver was enstrusted with 23 empty oxygen cylinders and 6 acetylene cylinders to be carried to Madras so as to get them filled at IOL filling station and to bring back. Two Kalasis, by name Mr. D. Thomas and Mr. A.V. Madhusudhan were sent along with the driver to assist him in loading and unloading of the cylinders. The seating capacity of the vehicle is three inclusive of the driver and the driver has been forbidden and not authorized to give any lift to any person either in the cabin or in the body of the vehicle. Even if the driver had permitted any person to board the vehicle, it was outside the scope of the employment and, therefore, the respondents were not vicariously liable to pay the compensation to the appellant. According to the driver of the vehicle, while he was negotiating the curve at Subbanaidu Kandriga the clutch was not in condition and with great difficulty he took the vehicle to the roadside to save the cylinders from being fallen and there was no rash and negligent act on his part. The respondents further pleaded that the compensation claimed was barred by limitation. On the above pleadings, the following issues were settled for trial: (1) Whether the petitioner received injuries due to rash and negligent driving of the vehicle bearing No. ATC-9242 by its driver? (2) Whether the petitioner is entitled to compensation and if so to what amount and from whom? (3) To what relief? The following additional issues were framed on 3.6.1998: (1) Whether the accident took place when the driver acted outside the scope of the employment of respondent? (2) Whether the petition is barred by limitation?
(3.) DURING the course of inquiry, the claimant examined himself as P.W. 1 and got Exs. A.1 to A.5 marked. On behalf of the respondents two witnesses were examined including the driver and got Exs. B.1 to B.4 marked.;