SAMPATH REDDY Vs. G M S VENKATAMMA

JUDGEMENT

(1.) C.M.A. Nos. 12 of 1986 and 512 of 1986 arise out of the same cause of action and the same judgment and the facts are the same and, therefore, they are disposed by a common judgment. On 4-10-'81 at about 7.40 p.m., the driver of the 1st respondent Corporation's bus APZ 9226 kept the vehicle in Janagoan Bus-stand, and himself and the conductor went to take their meals in a Canteen. By the time, they returned they found the vehicle missing and they reported the matter to the Depot Manager and the Traffic Inspector. In the meanwhile, K. Sampath Reddy, the second respondent in the O.P. and the appellant in C.M.A. 12 of 1986 drove the vehicle and near Kazipet he hit the deceased G. Komuraiah, a Kalasi working in the Railway Department, who was proceeding to his house by a cycle and coming opposite to the vehicle. The vehicle dashed against him. He was taken to the Hospital. But in the meanwhile, he died. Sampath Reddy drove the vehicle to a distance of two to three K.Ms and abandoned the same. In the meanwhile, the Depot Manager laid the complaint to the police under Ex. B.2 about the theft of the vehicle. The police and the Depot people of the first respondent Corporation went in search of the vehicle. They found the vehicle abandoned. One Kishan Rao, Quarry owner of the nearby scene of offence, laid a complaint to the police about the rash and negligent driving by Sampath Reddy which was witnessed by P.W. 2 and others. On the basis thereof, a case in C.E. 194/82 for the offence under S.304(a), I.P.C., was registered and investigated into. Another case in C.C. No. 210/82 was also registered for the offence under S.379, I.P.C. and investigated into. In both the cases Sampath Reddy was acquitted. In the meanwhile, the widow, four minor children and the parents of the deceased G. Komuraiah laid their claim under S.110(a) of M.V. Act 4 of 1939 in a sum of Rs. 1,35,000/-The Tribunal below awarded a sum of Rs. 64,200/- in all. The Tribunal below absolved the driver of the Corporation and the Corporation of their liability holding that there is no proof to show that the driver of the bus had kept the ignition keys in the vehicle. This is a case of theft. Therefore, the corporation is not liable for the payment of compensation. As against the amount awarded, Sampath Reddy, the second respondent in the Tribunal below filed C.M.A. 12 of 1986, and as against disallowance of the claim against the Corporation, the claimants filed C.M.A. 512 of 1986. Thus both the appeals are disposed of together.

(2.) THE contention of Sri C. Malla Reddy, learned counsel appearing for Sampath Reddy is that there is no satisfactory proof that Sampath Reddy had driven the vehicle much less rashly and negligently. THE direct witnesses are P.Ws. 2 and 4 who spoke about the act of causing the death of G. Komuraiah by rash and negligent driving by Sampath Reddy. THE Tribunal below having rightly rejected the evidence of P.W. 2 ought to have rejected the evidence of P.W. 4. P.W. 4 admitted that he knew the name of Sampath Reddy, but he did not inform the name. It is also contended that the Criminal Court has rightly acquitted the appellant for the offence under Ss.379 and 304(a), I.P.C. THEre is no satisfactory proof that Sampath Reddy had driven the vehicle and caused the accident. THE learned Counsel Sri Rangappa, appearing for the claimants resisted the claim contending that the evidence on record satisfactorily established that it is Sampath Reddy who drove the vehicle and that theft was committed on account of the negligence on the part of the driver of the Corporation vehicle kept the ignition key in the bus itself and left unattended to by anybody, and thereby the driver has facilitated commission of theft of the vehicle by Sampath Reddy. For the vicarious negligent acts of the driver, the Corporation is also liable and the Tribunal below has committed a grievous error of law in absolving the Corporation. Sri K. Harinath, learned counsel appearing for the Corporation has contended that the vehicle has been stationed in the bus-depot and that the driver and the conductor having kept the vehicle stationed, left for taking their meals in a neighbouring canteen. After they returned, they found the vehicle missing and immediately, they complained of it to the Depot Manager and the Traffic Inspector who in turn complained to the police. In the meanwhile, Sampath Reddy drove the vehicle and caused the accident by hitting the traveller, G. Komuraiah. THErefore, the Tribunal below has rightly absolved the Corporation of its liability. THE rival contentions give rise to two points. Firstly, whether it is proved that Sampath Reddy had driven the vehicle at the time when the accident had occured and whether he had driven the vehicle rashly and negligently. Secondly, whether the Corporation is absolved from its liability to pay the damages to the claimants. As regards the first contention, we have the undisputed evidence of P.W. 4. THE undisputed fact is that the vehicle belongs to the Corporation and it is a service-vehicle. It was kept in the Bus-Station at Jangoan as admitted in the counter-affidavit filed by the Corporation. It cannot be improved upon at this stage that the bus-station and the bus-depot are one and the same, and the bus was stationed at the other end of the bus-depot. It is not their case set out in the counter. THErefore, I cannot look into the contention raised by Sri Harinath and I proceed on the footing, as admitted by the Corporation, that the bus was stationed in the bus-station. No doubt, there is no evidence whether the ignition key was taken by the driver along with him when the vehicle was kept in the bus-station and himself and conductor left to canteen for taking their meals. But the fact remains that it was driven. It is also an admitted fact that before leaving the bus, the driver and the conductor made no arrangements to watch the vehicle. Section 84 of the Act provides that no person driving or incharge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licenced to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. THEreby, u/s.84 of the Act a statutory duty is cast upon the driver to see that the vehicle is either kept incharge of a person duly licenced in his absence or the mechanism should be stopped and breaks applied. In such a case, there cannot be any accidental motion of the motor vehicle in the absence of the driver. No prosecution has been taken by the driver of the Corporation. THErefore, when the vehicle was kept in the bus-station unattended to, it had facilitated the second respondent-appellant to drive the vehicle. THE question thus is whether Sampath Reddy, the appellant, had driven the vehicle or not. We have the evidence of P.W. 4 and P.W. 2 in this regard. Even excluding the evidence of P.W. 2 which was discarded by the Tribunal below as he did not support the case of the prosecution for the offence u/s.304(A), I.P.C., we have the evidence of P.W. 4. No doubt, P.W. 4 was not examined in the Criminal Court. It is true that direct witness has to be examined at the trial in a Criminal Court. But the absence of examination of a direct witness in the criminal Court, his evidence can be looked into if the same inspires confidence to be accepted that he is a direct witness to the accident. It is a well settled legal position. It needs no citation. THE question is whether the evidence of P.W. 4 can be accepted or not. P.W. 4 stated in his cross-examination also that he knew the appellant earlier and that he does not know his name. It shows that he has previous acquaintance with Sampath Reddy, but he does not know his name. As stated earlier, he has no axe to grind to speak against the appellant. He is not related even to the deceased and to the claimants and so he is absolutely a disinterested person. Nothing has been elicited during his cross-examination except the fact that he was not examined at the trial in the criminal Court. THE Tribunal below has accepted his evidence. Except the suggestion that he is giving false evidence by taking money from the claimants, nothing has been elicited. Having considered the evidence from the stated perspective, I have no hesitation to hold that P.W. 4 is a reliable witness who is working as a cooly along with P.W. 2 in the quarry of Krishna Rao. Krishna Rao himself has laid the complaint before the police and in the complaint, he mentioned the presence of P.W. 4. Unfortunately, Krishna Rao died before he was examined in the Tribunal. Under those circumstances, I accept the evidence of P.W. 4 as a truthful witness and therefore, his evidence inspires confidence to be accepted as true version without any corroboration. THE name of Sampath Reddy was mentioned in Ex. B1 given at the earliest point of time. When once the evidence of P.W. 4 is accepted, it is to be held that Sampath Reddy drove the vehicle and caused the accident due to his rash and negligent driving of the vehicle resulting in the death of G. Komiraiah, the deceased, who was coming on the extreme left side of the road on a cycle. Accordingly, the finding of the Tribunal below that the accident has occurred as a result of rash and negligent driving of Sampath Reddy is confirmed and Sampath Reddy is liable for the payment of the damages. THE next question is whether the Corporation is vicariously liable for the negligent act on the part of its driver in keeping the vehicle at a public place, unattended to violating the statutory provisions u/s. 84 of the M.V. Act. Sri Harinath, the learned counsel has cited a decision in Minu B. Mehta v. Balkrishna Ramachandra Nayan, 1977 Acc CJ 118. THErein, the Supreme Court held that (Paras 21 and 22 of AIR).