JASWANT SINGH Vs. DARSHAN SINGH AND ANR.

JUDGEMENT

(1.) THE appeal is against the award of Rs. 18,500/ - with interest, by the owner of the motorcycle. The claimant was sitting on the carrier of the cycle and the accident had resulted by a collision of the cyclist and the motorcycle owned by the Appellant. The contention of the Appellant was that although the vehicle was owned by him, he had gone away, but the vehicle was taken by one Gurmit Singh without his knowledge and authority drove the vehicle and involved it in an accident. He said therefore, that he could not be made liable. It was also his contention that the principle of vicarious liability ought not to have been applied in a case where the Petitioner had not established that the vehicle was driven under his express authority. Learned senior counsel appearing on behalf of the Appellant states that at the trial, he had made an attempt to summon Gurmit Singh, but it was returned without actual service with information by the Commanding Officer that he could not be relieved to come to Court. The liability for an accident in a motor car is not always placed only on the basis of vicarious liability in the context of a employer -employee or a person under express authority. Situations have arisen, while determining the liability arising out of a motor accident, where the owner or a driver keeps the key in the vehicle and somebody drives the vehicle by the negligence of the owner and the driver in keeping the key in the vehicle. This was not a case where a vehicle was said to be stolen. On the other hand, it was a case where the owner was contending that the vehicle had been taken by someone without his authority. If the owner had kept the vehicle that could be used by yet another person, in my view, he ought to take the responsibility for a possible misuse by his negligent act. It is no argument to contend that the claimant had not brought the evidence of Gurmit Singh or any evidence that he was driving the vehicle with the owner's authority. I would take Gurmit Singh driving the vehicle at that time as an instance of implied authority. If his evidence was not available for whatever reasons, the claimant cannot suffer by such a course. It should be more the responsibility of the owner to secure his presence or his evidence. I would, therefore, not find any reason to make any deviation, while fastening the liability on the owner of the vehicle.

(2.) AS regards the assessment of compensation, the Tribunal has found that the claimant had fracture of the upper end of Fibula and both the bones of the right leg. There had been a resultant shortening of limb by 11/2 cm. He was an agricultural labour and while assessing the compensation the Tribunal provided for Rs. 2000/ - towards medicines, Rs. 10,000/ - for pain & suffering, Rs. 10,000/ - for loss of amenities, Rs. 5000/ - for reduction in earning and Rs. 10,000/ - for disfigurement and future enjoyment. I find the assessment under each one of the heads reasonable and I find no reason to increase the same. The Tribunal, however, made a partial abatement of 50% by holding that he had contributed to the accident by sitting at the carrier. The issue of contributory negligence ought not to have been placed when the actual driver of the vehicle was not examined. I will vacate the finding and will hold the driver of the motorcycle as well as the owner jointly and severally responsible for the same.

(3.) THE appeal by the Appellant is dismissed, but with the modification as set out above. The x -objection is allowed to the above extent.