D.K. Mahajan, J. - (1.) THIS is an appeal under Section 110 -D of the Motor Vehicles Act against the award of compensation to the Respondents for the death by accident of one Girdhari Singh, husband of Respondent 1 and father of Respondent 2 and 3.
(2.) THERE is no dispute that Girdhari Singh was killed by accident caused by scooter belonging to Joginder Nath and driven by Nirmal Singh and that the res -Respondents are his dependents. The Motor Accidents Claims Tribunal has assessed the compensation at Rs. 13,500/ -. An appeal has been filed by the owner of the scooter as well as by the Premier Insurance Company Limited. So far as the Insurance Company is concerned, it is not entitled to appeal against the quantum of compensation and as a matter of fact, in view of the clear terms of Section 96(2), the present appeal is not at all competent by the Insurance Company on any ground on which the claim was contested before the Motor Accidents Claims Tribunal. However, the appeal is competent on behalf of the owner of the vehicle. The first contention advanced on behalf of the owner is that evidence has been led on issue No. 1 contrary to its frame and, therefore, a new case that has not been pleaded Whether Joginder Nath drove the scooter negligently, and this resulted into an accident which caused the death of Girdhari Singh? Evidence has been led to prove that it was Nirmal Singh and not the owner Joginder Nath who was driving the scooter It is, therefore, argued that the frame of the issue has caused injustice to the Appellant. This contention has to be rejected because, in my opinion, no injustice has at all been caused to the Appellant. In the application, it is clearly stated that the vehicle was owned by Joginder Nath and it was at the time of the accident driver. The name of the driver is not mentioned. In evidence, it was brought out that the vehicle was being driven by Nirmal Singh Driver. No objection was taken to this on the ground that it was a fact outside the pleadings or the issues. As a matter of fact, the parties very well understood their case and allowed evidence to be led to prove as to who was the person who was driving the vehicle. It is significant that no evidence has been led by the Insurance Company or the owner to the contrary As no objection was taken to the evidence when led, on this part of the case, it is now too late to permit it to be raised. I would accordingly reject the first contention.
(3.) THE second contention of the learned Counsel is that the master is not liable for the vicarious liability of his servant unless it is proved that the servant was acting in the discharge of his duties. It is maintained that as a matter of fact, it is not even proved that Nirmal Singh was an employee of Joginder Nath. However, this contention is of no avail to the learned Counsel for the Appellant because it is admitted that the scooter did belong to Joginder Nath and it is proved on record that it was at the relevant time being driven by Nirmal Singh. In this situation, it has to be presumed that the scooter was being driven by Nirmal Singh for and on behalf of the owner. In this connection, reference may be made to Workers employed in Thambi Motor Service, Salem v. Management Thambi Motor Service : A.I.R. 1963 Mad 193 : (1963) 1 M.L.J. 33; State v. Bhagwan Singh and Ors. : A.I.R. 1963 Raj 81 : 1962 Raj. L.W, 45 and Dinabai R. Wadia and Ors. v. Farukh Mobedjina and Anr. : A.I.R. 1958 Bom 218 : 59 Bom. L.R. 1196. This presumption could have been rebutted by the owner of the vehicle: but the owner chose not to lead any evidence. Thus the liability of the owner does arise in law for the accident caused by Nirmal Singh who was driving the owner's vehicle. Therefore, the second contention has no merit and is rejected.;