Prasanta Kumar Saikia, J.@mdashThis appeal is directed against the award dated 21.11.2011 passed by learned MAC Tribunal, Aizawl in
MACT Case No. 36/2008 refusing the claimants therein to grant the award, claimed on an in application, filed u/s 166 of the Motor Vehicle Act
of 1988 (in short ''the Act'') on holding that claimants could not prove that the servant of the state respondents committed the accident in question
in the course of employment of public servants. Being aggrieved by and dissatisfied with such an award, appellants/claimants preferred this appeal
citing several infirmities in the award dated 21.11.2011 rendered by learned Tribunal in MACT Case No. 36/2008.
2. Heard Mr. M. Zothankhuma, Sr. Advocate, assisted by learned the counsel Mr. Lalfakawma, Ms. D. Lalrinchhani and Ms. Nancy Lalruatkimi,
all appearing for and on behalf of appellants. Also heard Mr. B. Lalramenga, learned counsel for respondents No. 1, 2 & 3.
3. The brief facts necessary for disposal of the present appeal are that on 31.07.2004, al function under the caption ""Green Mizoram Day"" was
organized at Zemabawk, Aizawl. The said function was attended to by Chief Minister, Mizoram as the Chief Guest The meeting was attended to
by one Mr. Liankhama, a Government servant in the Department of Environment & Forest, Mizoram and he came there in the vehicle which
department had allotted to him. He was, however, accompanied by his daughter Lalhlimpuii, since deceased. The vehicle was driven by on Mr.
P.C. Lalrintluanga, a driver on contract basis working under the department aforesaid.
4. On getting down from the vehicle at Zemabawk, Mr. Liankhama instructed his driver to take his daughter in his allotted vehicle to his farm,
situated near Tuirial Airfield runway since his daughter wanted to plant some seedlings in the farm aforesaid. Unfortunately, on the way back, the
said vehicle met with an accident near the Tuirial Airfield runway while it was driven by Mr. Lalrintluanga.
5. Smt. Lalhlimpuii, the daughter of Mr. Liankhama sustained serious wounds on her person for which she was taken to Greenwood Hospital but
she succumbed to her injuries in hospital sometime later. Owing to such accident, a case was filed with Police at Bawngkawn P.S. which was
registered as Bawngkawn P.S Case No. 555/04 under Sections 279 /304A /427 IPC following which the driver of the vehicle bearing No. MZ-
01-4791 was arrested.
6. During the course of investigation, police examined the witnesses, acquainted with the facts and circumstances of the case. It also suspected that
some mechanical defects might have occasioned the accident in question since the MVI Report reveals that the said accident occurred due to ""the
rear left wheel fell off from the axle causing the vehicle to rollover several times"".
7. In due course, the investigating officer submitted offence report u/s 279 /304A /447 IPC against the accused person, namely, P.C. Lalrintluanga
seeking his trial on the allegations aforementioned. The Court, thereafter, summoned the accused person. He entered appearance and on being,
explained and read over the accusations, leveled against him, he pleaded guilty to the allegations so made. Accordingly the driver was held guilty of
offence u/s 279 /304A /427 IPC and was sentenced to undergo imprisonment for a day and to pay a fine of Rs. 1000/- in default S.I. for a month.
8. Subsequently, on 13.5.2008, the present appellants, through their next friend, their grandmother, had preferred an MACT Case vide MACT
Case No. 36708, before the Motor Accident Claims Tribunal, Aizawl u/s 166 of the MV Act against the respondent No. 1 claiming, amongst
other things, such compensation as is permissible under the law.
9. Notice on being served upon the respondent, he entered appearance and contested the case having filed written statements. It has been
contended that the claim application is not maintainable, that there is no cause of action that it is barred by principle of limitation, estoppel, waiver
and acquiescence and that same is also bad for non-rejoinder of necessary party.
10. Their further case was that when the accident took place, the driver of vehicle was plying the same not in discharge of his duties for which he
was employed or for any purpose, connected therewith. Rather he plied the vehicle for transacting the private affairs of Government servant to
whom the aforesaid vehicle was allotted or for some other members of his family.
11. It was also contended that at the time relevant, the deceased was working as a teacher on contract basis at a salary of Rs. 4000/- pm and as
such, amount, claimed as compensation, was unreasonably high and as such, same cannot be awarded under any circumstances, whatsoever. The
opposite party therefore, urged the Tribunal to dismiss the proceeding.
12. Upon the pleadings of the parties the learned Tribunal framed the following points for determination:--
(1) Whether the claim application is maintainable or not;
(2) Whether there was fault on the part of driver or owner of the vehicle involved in this case and
(3) Whether claimants are entitled to compensation and if so, who is liable to pay and to what extent.
13. Both sides adduced the evidence of two witnesses each. The claimants also submitted a number of documents in support of their claims. On
conclusion of the trial and on hearing the arguments, advanced by the parties, Ld. Presiding Officer, MACT, Aizawl answered all those issues in
favor of the claimants and vide its award dated 20.4.2010 granted Rs. 7,54,000/- as being compensation with an interest thereon @ 9% per
annum till full and final realization of the same.
14. However, the Award, so passed in MACT Case No. 36/2008 was challenged in appeal before this Court. This Court on hearing the parties
set aside and quashed the award on holding that said proceeding was bad for non joinder of necessary party, State of Mizoram being such a party
and remanded the case to the Tribunal for passing necessary order afresh after impleading the State of Mizoram as respondent in the aforesaid
MACT Case.
15. The Tribunal on receipt of the case on remand impleaded the State of Mizoram as a party and after hearing all the parties passed the award as
aforesaid on 21.11.2011. It is that award which has been assailed in this present appeal citing several serious infirmities in the award under
challenge.
16. I have heard the learned counsel for the parties. Opening up argument, learned counsel for the appellants has contended that the judgment,
rendered in MACT 36/08 on 21.11.2011 is unsustainable in law since the Tribunal could not appreciate the evidence before it in proper
perspective and such wrong appreciation of facts on record caused it to arrive a finding which is absolutely without any basis and as such
unsustainable in law.
17. It also contends that the award is also liable to be set aside for some other reasons as well, such as, (i) the Tribunal failed to appreciate the fact
that the negligence on the part of the driver occasioned the accident in question and at the time, relevant, he was driving the vehicle in the course of
his employment. This clearly shows that State respondents, being the employer of the driver, aforesaid, were vicariously liable for the negligent act
on the part of its employee.
18. Further case of the appellants was that the Office Memorandum No. F.15017/191-GAD/VOL-1 dated 27.2.2011 allows a Government
employee to use the vehicle allotted to such officer even for private purpose, off course, subject to the conditions that (i) vehicle must be plied
within the Aizawl station area; (ii) such vehicle can be used for travelling upto 250 km in a month and (iii) the allottee officer must pay Rs. 500/-
per month for use of official vehicle for his private purposes.
19. Thus, even one assumes for the sake of argument for a moment that at the time, relevant, the vehicle was used in attending some private affairs
of the Government servant yet the Office Memorandum dated 27.2.2011 makes such trip to Tuirial Airfield, a trip, in the course of his employment
and in that view of the matter, the appellants were entitled to claim compensation from the State respondents since both the father of the deceased
as well as his driver are the officer/staff of the State respondents.
20. However learned Tribunal on wrong appreciation of facts on record and on wrong interpretation of Office Memorandum as well as the laws
which hold the field in question came to the finding that the driver aforesaid committed the accident while he was, not in the course of employment
but it in the course of attending the private purposes of officer whom he was attached with. On the aforesaid considerations, the learned Tribunal
refused to give the appellants compensation, they have prayed for and all those make the judgment impugned unsustainable in law.
21. On the other hand learned counsel for State respondents has submitted that on the materials on record, perhaps one cannot differ with the
findings of the learned Tribunal to the effect that at the time in question, the driver of the vehicle bearing No. MZ-01-4719 was not in the course of
his employment, and that, at such a crucial part of time, he was engaged in execution of private affairs of the deceased as well as her father. They,
therefore, urge this Court to dismiss the appeal.
22. I have given my anxious consideration to the arguments advanced by learned counsel for the parties having regard to materials on record. But
before we proceed further, I find it necessary to notice briefly the relevant aspects of law of torts vis-�-vis liability of an owner of a car for the
acts of his driver. In that connection, we may profitably peruse the decision of the Hon''ble Supreme Court in the case of Sitaram Motilal Kalal Vs.
Santanuprasad Jaishankar Bhatt, .
23. The Hon''ble Supreme Court in the case of Sitaram Motilal Kalal (supra) takes notice of the principles which decides the liability of an owner
of a car for the act of his driver. They are as follows:--
(8) The general principle is well settled and it is neatly given by Pearson, L.J., in Norton v. Canadian Pacific Steamships Ltd., 1961-2 All ER 785
at p 790 thus.
The owner of a car, when he takes or sends it on a journey for his own purposes, owes a duty of care to other road users, and it any of them
suffers damage from negligent driving of the car, whether by the owner himself or by an agent to whom he had delegated the driving, the owner is
liable.
The limitation on this principle has been succinctly stated by Cockburn, CJ, in Storey v. Ashton, (1869) 4 QB 476 at p 479 thus.
The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of
negligence, in the Course of his employment as servant.
24. In the same judgment, vicarious liability of the master for the acts of his servant has been explained in the following manner:--
The law, is settled master is vicariously liable for the act office servant acting in the course of his employment. Unless the act is done in the course
of employment, the servant''s act does not make employer liable. In other words, for master''s liability arises, the act must be wrongful act
authorized by the master or a wrongful unauthorized mode of doing some act authorized by the driver. The driver of a car taking the car on the
master''s business makes him victoriously liable if he commits an accident. But it is equally well settle that if the servant, at the time of accident, is
not acting with the course of employment but is doing something for himself, the master, is not liable.
25. Hon''ble Supreme Court in the same judgment, on the point of vicarious liability of the master, quoted with approval, the decision rendered in
the case of Britt Vs. Galmoye and Nevill reported in (1928) 44 TLR 294 in the following manner:--
(16) In Britt v. Galmoye and Nevill, (1928) 44 TLR 294, the first defendant, who had the 2nd defendant in his employment as a van driver, lent
him his private car after the day''s work was finished to take friends to a theatre and the 2nd defendant by his negligent driving injured the plaintiff.
It was held that the journey was not on the master''s business and the master was not in control and, therefore, he was not liable for the servant''s
act The principle of this decision is that a owner of a car will not be liable for the accident caused by his employee if it was caused outside the
master''s employment.
26. A careful perusal of the above principles reveals that the scope of employment of a servant need not always be viewed narrowly but essential
element that wrong must be committed by the servant during the course of employment i.e. in doing master business must always be present
Therefore a master is not always responsible for negligence or other wrongful act of his servant simply because it is committed at a time when the
servant was engaged on master''s business. What is important is that it must be committed during the course of business so as to form part of it,
and not actually coincidence in time with it.
27. The law which holds the field as far as vicarious liability is concerned having been discussed as before, I find it necessary to look into the
evidence on record to see how far materials on record make out the claims brought against the State respondents. On the perusal of evidence on
record, I have found that Mr. P.C. Lalrintluanga, a driver on contract basis, was attached to Mr. P. Liankhama, the father of the deceased. I have
also found that opposite party No. 1-3, in MACT Case No. 36/2008 are the employers both of Mr. P. Liankhama as well as Mr. P.C.
Lalrintluanga.
28. Being so, since the proceeding in question is a proceeding u/s 166 the Act, unless it is shown that the driver was negligent in attending his duty
which occasioned the accident which extinguished the life of a lady in her early thirties and unless it is shown that accident arouse during and in the
course of employment of the driver aforesaid, the appellants cannot validly make any claim to get compensation from the State respondents. To
put it slightly differently, in order to saddle the State respondents with the responsibilities arising out of wrong, committed by its servant, it needs to
be established that when such wrong was committed, public servant was executing the duty for which he was employed.
29. Another factor that deserves discussion here is whether the driver of the vehicle bearing No. MZ-01-4791 was negligent in driving the vehicle
which ultimately occasioned the accident causing the death of mother of the claimants on 31.07.2004. In this connection, it may be stated that the
driver being examined as opposite party No. 2 in MACT Case No. 36/2008 has stated that at the time relevant, the vehicle was driven not by him
but by the daughter of Mr. P. Liankhama against whom the vehicle'' aforesaid was allotted.
30. But then, he admitted that he was convicted of offence under Sections 279 /304(A) /427 IPC and that too on his own admission. The
judgment, so passed, convicting and punishing him has never been assailed in any forum whatsoever at any point of time. In my opinion, the
judgment aforesaid has therefore attained finality and it has established once for all that vehicle which met an accident near Tuirial Airfield on
31.07.2004 was driven by none other than one Mr. P.C. Lalrintluanga. Being so, now, he cannot be allowed to resile from his earlier stance to
shift the blame to the deceased.
31. It is in those legal backdrops, I propose to consider the relevant part of evidence of witnesses. Evidently and admittedly, the most important
witness on the part of the claimants is Mr. P. Liankhama, the father of the deceased. According to him, during the time, under consideration, he
was working as DFO in the Department of Environment & Forests. While he was in service, the department had allotted him a vehicle to attend his
official duties. So also to attend his private affairs as per the terms and conditions, specified in Office Memorandum dated 27.02.2001.
32. On 31.07.2004, he went to Zemabawk, Aizawl to attend an official function under the caption ""Green Mizoram Day"". He went to such place
by his vehicle. His daughter, the deceased, too accompanied him to such place. However, after getting down from his vehicle at Zemabawk, he
instructed his driver to take his daughter to his farm near the Tuirial Airfield since his daughter wanted to plant some seedlings there. However,
while traveling to such place, the vehicle met with an accident and his daughter got injured and killed. In his re-examination, he has further stated
that the vehicle was driven by the driver himself
33. PW1 Smt. Lalnunmawii is the grandmother of the claimants and who filed the MACT case in her capacity as next friend of her granddaughters.
According to her, on 31.07.2004, her daughter died in a motor accident near abandoned Tuirial Airfield for which Police registered a case against
the driver and was subsequently convicted of offences under Sections 279 /304(A) /427 IPC on the basis of his own admission. She deposes that
when she died on 31.07.2004, she was working as teacher drawing a salary of Rs. 5500/- pm only.
34. She also produced some documents which were proved as Ext.1-Ext.12. In her cross examination, she has admitted that on the day of
accident, the vehicle allotted to the father of the deceased was not detailed to attend some duty near the abandoned Tuirial Airfield. In her re-
examination, she however, clarified that she did not know if there was any derailment order requiring the driver of ill-fated vehicle to take the same
to the place where accident occurred on the day in question.
35. Mr. P.C. Lalrintluanga, the driver of the vehicle, was examined as witness No. 2 from the side of the opposite party. According to him, on the
fateful day, he took deceased, her brother and their father to the Zemabawk, Aizawl where an official function was conducted on that day.
However, at Zemabawk he dropped off the father of the deceased and thereafter, he took the deceased and his brother to their farm, situated near
abandoned Tuirial Airfield.
36. It is also in his evidence that at the relevant time, the deceased drove the vehicle and the accident under consideration occurred when the
deceased was trying to negotiate a depression which comes in her way. In his cross examination, he has, however, admitted that he was convicted
of offences under Sections 279 /304(A) /427 IPC and was sentenced to punishment as well.
37. Witness No. 1 for the opposite party was one Shri. Lalduhthanga. He deposes that the father of the deceased was DFO in the Department of
Forests in the Environment & Forests Department. On 31.07.2004 at abandoned Tuirial Airfield, daughter of Mr. P. Liahkhama met an accident
for which she died same day. The vehicle, involved, in the accident, was the vehicle allotted to the father of the deceased as an incidence of
employment.
38. In his cross examination, he admitted that the owner of the vehicle was Principal Chief Conservator of Forests, Government of Mizoram and
the driver was the employee of the aforesaid department Now, let us see how far such evidence makes out the claim of the appellants that at the
time of incident, the driver was discharging his duty in the course of employment.
39. A careful perusal of the evidence on record reveals that at the time relevant, one Mr. P.C. Lalrintluanga was the driver of the vehicle, allotted
to the father of the deceased, that the deceased was the daughter of Mr. P. Liankhama who worked as DFO in the Department of Environment &
Forests when incident in question took place, that on the day of incident, he went to Zemabawk, Aizawl to attend an official function, that his
daughter too accompanied him upto Zemabawk, that all of them travelled to such place in a vehicle allotted to him and that at Zemabawk, he got
down from his official vehicle.
40. The evidence on record further reveals that the deceased went to their farm near Tuirial Airfield in the official vehicle allotted to her father, that
she went to such place to plant some seedlings in their farm, that the official vehicle in which they were travelling met with an accident near Tuirial
Airfield and that the daughter of Mr. P. Liankhama, the officer to whom such vehicle was allotted, died same day in hospital for sustaining wounds
in the incident aforesaid. The parties were in agreement on facts up to this far.
41. However, on further perusal of the record, I have also found that though the exact purpose for which the deceased visited a place near
abandoned Tuirial Airfield remains unclear yet there is no doubt whatsoever that such journey was performed not in connection with official duty
attached or entrusted to driver of the father of the deceased, admittedly a Government officer on the day of incident. His own admission that he
sent his daughter in his official vehicle to his farm near Tuirial Airfield to plant some seedlings there only confirms that the visit was absolutely not in
connection with the official duty or any duty ancillary thereto.
42. The above revelations unfortunately very vividly demonstrate that while the accident took place on the day in question which extinguished the
live of a mother of the claimants, the driver was not driving the official vehicle allotted to the father of the deceased in the course of his employment.
Quite contrary to it, it was driven to execute some private affairs-of the deceased as well as her father. Being so, respondent No. 1, 2 & 3, being
the employers/masters of the driver of vehicle cannot be saddled with the liability arising out of negligent conduct on the part of the driver aforesaid
vehicle.
43. Referring to the Office Memorandum dated 27.02.2001, issued by the Secretary to the Government of Mizoram, General Administration
Department, it has been contended that the officer concerned was allowed to use his official vehicle even for private purpose on fulfillment of
certain conditions which were already referred to here-in-before.
44. Therefore, it has been argued that even if the driver of the vehicle concerned caused the accident negligently in the course of execution of
private affairs of the father of the deceased, who was admittedly Government servant, State respondents cannot escape being found responsible
for the lapses on the part of its employee which ultimately occasioned the death of the daughter of the deceased, more so, since there is absolutely
nothing on record to show that conditions, enumerated in the Office Memorandum dated 27.02.2001 for the use of official vehicle for private
purposes were violated in any manner, whatsoever.
45. I have very carefully considered the above submissions advanced from the side of the learned counsel for the claimants. On reading the Office
Memorandum above in between the lines, I have found that such memorandum allows a Government servant to use an official vehicle, allotted to
him, even for his private purposes on fulfillment of certain conditions enumerated therein and to that extent, Office Memorandum above, prevents
private trip in such official vehicle from becoming illegal or irregular.
46. But then, by no stretch of imagination, it can be concluded that since there was no violation of the conditions, so enumerated in the Office
Memorandum above, the later, makes a private trip in such official vehicle with the Government driver in the wheel, a trip, done in the course of
employment of such driver. Situations being such, Office Memorandum dated 27.02.2001, in my considered opinion, could render no help in
showing that the all eventful trip on 31.07.2004 was conducted by the driver, attached to father of the deceased, in course of his employment
47. Being so, I am quite in agreement with the learned Tribunal that the trip which the deceased and the driver undertook to a place near
abandoned Tuirial Airfield on 31.07.2004 and which abruptly cut short the life of the daughter of Mr. P. Liankhama was out and out a private trip,
no way connected with the purposes for which the driver aforesaid was employed by State respondents and as such, the State respondents cannot
be saddled with the responsibility arising out of wrong committed by its servant even if he committed such wrong negligently.
48. Learned counsel for the respondent has, however, questioned the award of the Tribunal contending that the learned Tribunal which refused to
grant any relief to the claimants u/s 166 of the Act cannot legally give any relief to the claimants invoking the provisions u/s 140 of the Act. Such an
argument is found without any basis.
49. This is because of the fact that ""No fault liability"" as envisaged in Section 140 of the Act requires the owner of the vehicle to pay compensation
to the victims of vehicular accident at the scale fixed therein depending on the nature of the injuries to the victims and such amount needs to be paid
regardless of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made.
50. That being so, there cannot be an escape from the conclusion that the learned Tribunal having granted no fault liability u/s 140 of the Act in
favour of claimants with interest thereon at the rate of 9% payable from the date of filing of the claim petition committed no wrong whatsoever.
Rather in the Fact and circumstances of the proceeding in question, by granting such an amount, the Tribunal has furthered the purpose for which
such a beneficial and benevolent legislation was brought into existence.
51. In view of what I have discussed herein before and what have emerged therefrom, I am of the opinion that the findings of the learned Tribunal
that the State respondents cannot be held vicariously liable for the tortuous act of its servant cannot be faulted with. Consequently, this appeal
lacks of merit and is accordingly dismissed but however without costs. Return the LCR.
