THE STATE OF ASSAM Vs. URMILA DATTA AND ORS.
LAWS(GAU)-1973-2-6
HIGH COURT OF GAUHATI
Decided on February 22,1973

The State of Assam Appellant
VERSUS
Urmila Datta And Ors. Respondents

JUDGEMENT

D.M. Sen, J. - (1.) WE shall dispose of by this common judgment appeal Nos. 26, 27, 28, 29, 30 and 46 of 1966 against the judgment and award passed by the learned Member, Motor Accidents Claims Tribunal, Gauhati in Misc. Case Nos. 29 to 33 of 1964. The first five appeals are by the State of Assam while the last one, namely, appeal No. 46/66 has been preferred by Mr. Lakheswar Sharma, one of the claimants.
(2.) BEFORE we deal with other points and enter into the merit of these appeals, we shall first deal with the preliminary submissions made by Mr. K. Sarma, learned Counsel appearing for the State of Assam, regarding the maintainability of the compensation applications, under Section 110 -A of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'). Mr. Sarma submits that the provisions of Section 80 of the Code of Civil Procedure have not been complied with before the applications were preferred and on that ground alone they should be dismissed as not being maintainable in law. We are, therefore, required to examine whether the provisions of Section 80 of the Code of Civil Procedure are required to be complied with in the matter of an application under Section 110 -A of the Act. Section 80 of the Code of Civil Procedure deals with the institution of a suit. The question, therefore, that falls for determination is whether the compensation application can be said to be a suit within the meaning of Section 80 of the Code of Civil Procedure. We may here look into Section 4 of the Code of Civil Procedure and examine whether the Code of Civil Procedure is at all applicable to claims under Sections 110 to 110 -F of the Act. We find that under Section 110 -C, only certain provisions of the Code of Civil Procedure have been made applicable to a proceeding before a Claims Tribunal. Where any special law or a particular procedure is provided, the provisions of the Code of Civil Procedure are to that extent excluded and as we have already stated, Section 80 of the Code of Civil Procedure primarily deals with institution of a suit. We are fortified in taking this view by the decision of Khairunnissa A.K. Saddiki and Ors. v. Municipal Corporation, Bombay and Ors. : 1966 A.C.J. 37, where their lordships have held that a Claims Tribunal is not a Court and that applications under Section 110 for compensation before such Claims Tribunal are not suits and that the proceedings before these Tribunals are not governed by the statutory provisions applicable to Civil Courts. We are of the opinion that Section 80 of the Code of Civil Procedure is not attracted to an application made under Section 110 -A of the Act, since such application is not a plaint on the presentation of which a suit can be held to have been instituted. Mr. K. Sarma, the learned Counsel appearing for the State has made a further submission that even if it be held that the driver was negligent in driving the vehicle and that his state of drunkenness led to such negligence, the State cannot be made liable for such act of negligence. We are therefore, required to consider whether a master is liable for his servant's negligence in the course of employment and if so, if there are any limitations to such liability. It is now well settled that the careless acts of a servant or even the mistake of a servant in course of employment will fasten vicarious liability for consequences thereof on the master. Even a wilful wrong of a servant will fasten such vicarious responsibility on the master. Again, where a servant does an act which he is only conditionally authorised to do, without or beyond the conditions, the employer is liable for the wrongful act (Subbiah Reddy and Anr. v. T. Jardon : A.I.R. 1945 P.C. 168.) In the instant case, the driver, in course of his employment under the master, caused the accident; and the mere fact that he had consumed liquor, which would possibly have incurred the displeasure of the master if the master had known of it or was even beyond the terms of conduct specified for him, would not exempt the master from his vicarious liability. The master to decide is whether the driver was acting in course of his employment or was acting on his own. In the instant case, the driver of the vehicle was certainly in the course of the master's employment and in the discharge of his duties. Any negligence in such driving would therefore impose vicarious liability on the master. We, therefore, cannot accept the submission of Mr. Sarma that merely because the driver had consumed liquor, which contributed to his negligent driving, the master (State) would be exempted from the vicarious liability. The position would remain the same even if the consumption of liquor had been expressly forbidden by the master under the relevant conduct rules.
(3.) WE may now briefly narrate the incident which unfortunately led to the accident and gave rise to these claims. On 16th June, 1964 while the claimants were proceeding to Shillong from Gauhati in Car No. ASE -1587 belonging to Mr. L.P. Dutta, Respondent in M.A. (F) No. 29/66, they met with an accident with a Government truck No. ASX -1306 driven on duty by an employee of the State of Assam and coming down from Shillong. As a result of the impact of the two vehicles, Mrs. Urmila Dutta (Respondent in M.A. (F) No. 26/66) Miss Lanu Dutta (Respondent in M.A. (F) No. 27/66), Mr. Gopinath Bordoloi (Respondent in M.A. (F) No. 28/66) Shri L.P. Dutta (Respondent in M.A. (F) No. 29/66) and Mr. Lakheswar Sharma (Respondent in M.A. (F) No. 30/66) sustained several injuries, which will be described later on.;


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