RATNAM AUTOMOBILES Vs. SIVAGAMI

JUDGEMENT

(1.) THE fourth respondent in M. C. O. P. No. 100 of 1981 on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), tirunelveli, is the appellant in this appeal. In M. C. O. P. No. 100 of 1981 filed by respondents Nos. 1 to 3 herein against respondents Nos. 4 to 6 and the appellant herein under section 110a of the Motor Vehicles Act (hereinafter referred to as "the Act"), they (as the widow and minor children of the deceased Murugan) had prayed for the award of compensation in a sum of Rs. 30, 000 in respect of the death of Murugan in an accident that took place on january 1, 1980, involving the omnibus bearing Registration No. TNR 750 belonging to the fourth respondent and insured with the sixth respondent and entrusted to the appellant for repairs and driven by the fifth respondent in the course of test-checking the vehicle after the repairs. Having regard to the limited scope of this appeal, it would suffice to notice the defence raised by the appellant to whom the vehicle was entrusted by the fourth respondent for repairs. Apart from disputing that the vehicle was driven in a rash and negligent manner and that caused the accident, the appellant pleaded that no vicarious liability could be fastened on it in respect of the accident and that the claim for compensation in a sum of Rs. 30, 000 was excessive and on the high side. On a consideration of the oral as well as documentary evidence, the tribunal found that the accident took place only owing to the rash and negligent driving of the omnibus belonging to the fourth respondent by the fifth respondent, who was attached to the appellant-automobile workshop, that the fifth respondent drove the vehicle as a mechanic as well as a servant of the appellant and not unauthorisedly and that he was not an employee of the owner of the vehicle, the fourth respondent, that respondents Nos. 1 to 3 were entitled to be paid a consolidated sum of Rs. 21, 000 towards compensation and that the appellant was liable to pay the amount of compensation so determined to respondents Nos. 1 to 3. A further direction was also given that, in respect of respondents Nos. 2 and 3, an amount of Rs. 7, 000 each should be deposited in the bank in the name of the first respondent and the first respondent, as the guardian of respondents Nos. 2 and 3, was also permitted to withdraw the interest accruing thereon to be utilised for the benefit of respondents Nos. 2 and 3. In so far as the award so passed by the Tribunal fastened the liability on the appellant to whom the vehicle had been entrusted for carrying out repairs, it has come forward with this appeal questioning its liability to pay the compensation amount as awarded. THE facts are not in controversy. That the accident took place on January 1, 1980, about 1 1/2 furlongs south of konganthanparai road diversion in Palayamcottai-Nagercoil road involving the vehicle of the fourth respondent bearing Registration No. TNR 750 and the deceased Murugan sustained injuries and he died on January 4, 1980, are all admitted. It is also not in dispute that the fourth respondent had entrusted the vehicle in question to the appellant for carrying out repairs at the time when the accident took place and the vehicle was driven by the fifth respondent who was only an employee of the appellant-automobile workshop. THE vehicle in question had been insured by the sixth respondent under the terms of the policy, exhibit B-2, in and by which it had to indemnify the insured in respect of any sum which the insured shall become legally liable to pay in respect of the death of any person caused by or arising out of the use of the motor vehicle and the limit of its liability, as set out in the policy, is such amount as is necessary to meet the requirements of the Act. THE Tribunal took the view that, as the accident had taken place when the vehicle entrusted to the appellant for repairs was driven by its driver, the fifth respondent, who was an employee of the appellant, the appellant would be liable to pay the compensation to respondents Nos. 1 to 3. For so holding, the Tribunal had also relied upon the decision in Gopalakrishnan v. Krishnankutty, 1967 AIR (Ker) 19.

(2.) THE question is whether the Tribunal was right in the view it took regarding the liability of the appellant to whom the vehicle was entrusted merely for purposes of carrying out repairs, exonerating the fourth respondent, the owner of the vehicle, and the sixth respondent, the insurance company. Whatever doubts might have been expressed earlier on the question of the liability of the owner of the vehicle and the insurer with reference to an accident taking place in circumstances referred to earlier, is now clearly laid down by the Supreme court in Guru Govekar v. Miss Filomena F. Lobo 1988 (S1) SCR 170, 1988 AIR (SC)1332, 1988 (3) SCC 1, 1988 (2) JT 273, 1988 (1) Scale 834, 1988 (2) UJ 276, 1988 (2) ACJ 585, 1988 (2) ACC 625, 1988 (64) CC 631, 1988 SCC (Cr) 535, 1988 (75)AIR (SC) 1332 (SC) that implicit in the entrustment of the vehicle for repairs is that the owner of the vehicle allows any servant of the repairer to use the vehicle for the purpose of or in connection with the work of repairs and when such work of repairs is carried out in a public place, and a third party dies or suffers injury to his person or property owing to the negligence of either the repairer or his employee, the insurer is liable to pay the compensation under the provisions of the Act. In that case, a car was owned by International repairers and it was entrusted to one Guru, proprietor of Auto Electrical works, with instructions to carry out electrical repairs and the keys were handed over to the repairer for that purpose. THE car had been insured with oriental Insurance Company Limited. At the time the accident took place, the employee of the repairer was repairing the car and the injured person filed a claim petition impleading the owner of the car, the proprietor of Auto electrical Works, and his employee and the insurer. THE plea raised by the owner of the vehicle was that it had been entrusted to the repairer to do electrical repair jobs as an independent contractor and his employee had taken away the car without the consent of the owner of the motor vehicle and, therefore, neither the insured nor the insurance company would be liable.