INDERJIT SINGH AND CO Vs. KAMAL PRAKASH PAWAR

JUDGEMENT

(1.) This appeal is preferred by original Opponent No. 3, a partnership firm Inderjeet Singh and Sons which carries on a transport business, against the judgment and order dated April 9, 1984 passed by the Member, Motor Accidents Claims Tribunal, Pune (hereinafter referred to as the Tribunal ) in Application No. 120 of 1981 filed by respondents Nos. 1 to 4 against the appellant and respondent Nos. 5 to 7. Respondents Nos. 5 and 6 are original Opponents Nos. 1 and 2 and respondent No. 7 is the Insurance Company which was Opponent No. 4 in the application. The Tribunal passed an award directing the appellant and respondents Nos. 5 to 7 to pay Rs. 1,50,000/- by way of compensation together with future interest thereon at the rate of 9 per cent annum from the date of the application till realisation together with the costs of the application. The liability of the Insurance Company was restricted to the extent of Rs. 50,000/-.

(2.) The accident took place on January 15,1981 at about 4.35 p.m. on Range Hills Corner Road at Karkee, District Pune. The motor vehicle involved in the accident is a goods truck bearing Registration No. MHF 6906 belonging to the appellant. At the material time. Respondent No. 6 was serving as a driver on this truck in the employment of the appellant. The truck with its ignition-key used to remain in the custody of respondent No. 6 .At the time of the accident, however, the truck was being driven by respondent No. 5, who is the brother of Respondent No. 6. In the accident, one Prakash Anandrao Pawar, aged about 28 years and serving as a helper in the employment of the Maharashtra State Road Transport Corporation, died. respondent No. 1 is his widow; respondent No. 2 is the minor daughter and respondents Nos. 3 and 4 are the parents of the deceased Prakash. A claim for compensation as stated above was filed by respondents Nos. 1 to 4 on June 25, 1981 before the Tribunal. It is not necessary to state the facts showing the negligence on the part of the driver as the finding recorded by the Tribunal in that behalf has not been challenged before us. The Tribunal has held, on appreciation of evidence, that Prakash Anandrao Pawar died an accidental death due to rash and/or negligent driving of the said truck by respondent No. 5. Similarly, the finding as regards the quantum of compensation is also not challenged before us.

(3.) Shri Gorwadkar, learned Counsel appearing for the appellant, urged two contentions before us. Firstly, it has been contended that the appellant cannot be fastened with the vicarious liability in view of the fact that the truck at the material time was being driven by respondent No. 5, who was not in the employment of the appellant and also was driving the truck without the authority of the appellant. It was submitted that respondent No. 5 being not in the employment of the appellant at the material time, having driven the truck without the authority of the appellant, had committed a criminal act for which the appellant as the master of respondent No. 6 could not be held vicariously liable. Secondly, it has been contended before us that the Tribunal erred in law in restricting the liability of respondent No. 7, the Insurance Company with whom the truck was insured, to Rs. 50,000/-. In view of the amendment of section 95 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act ) by the Amending Act No. 47 of 1982, which came into force on October 1, 1982, i.e., during the pendency of the proceedings before the Tribunal, the limit of liability of the insurer was enhanced from Rs. 50,000/- to Rs. 1,50,000/-. Learned Counsel contended that this amendment is retrospective and the Tribunal was bound to give effect to this amendment by passing an award against respondent No. 7 holding it liable for the whole amount of Rs. 1,50,000/-., which is the amount awarded against the appellant and respondents Nos. 5 and 6.