D.H. SHUKLA

(1) The appellants herein were originally the applicants in Motor Accident Claim Application No. 60 of 1975 before the Motor Accidents Claims Tribunal Rajkot District at Rajkot wherein they had claimed compensation of Rs. 51 0 for the death of Jusab Ibrahim husband of applicant No. 1 and father of minor applicants Nos. 2 and 3 represented by their mother applicant No. 1. Their application was dismissed by the judgment and order dated 30/07/1977 against which they have filed the present appeal. Original opponent No. 1 was the driver of a water-tanker bearing No. GTX 5131 which was of the ownership of opponent No. 2. Opponents Nos. 3 and 4 are the parents of the deceased Jusal Ibrahim.

(2) The applicants case is that deceased Jusab lbrahim and opponent No. 1 Hematlal Ratilal were friends and opponent No. 1 had taught the deceased driving of a heavy vehicle and had also promised him to secure a Government service for driving a water-tanker. It is their further case that opponent No. 1 used to give lifts to deceased quite often. On 20 at about 8-30 A. M. opponent No. 1 gave a lift in the water- tanker to the deceased. The water tanker was taken to total dam for filling in water and from there they were proceeding to Mandilkpur village to supply water to the villagers. At that time opponent No. 1 was driving the said water tanker and the deceased was sitting by his side in the drivers cabin. At a distance of about two furlongs away from Mandilkpur. village the accident occurred to the water tanker. The applicant severed that opponent No. 1 drove the water tanker at a high speed and in a rash and negligent manner. He took a sharp curve without applying the brakes and lost control over the tanker with the result that it capsized and its door got broken. The deceased was thrown off was crushed below the tanker and died on the spot. The applicants averred that the deceased was in good health and was engaged in running a Tonga from which occupation he was earning approximately Rs. 10.00 per day. He was also likely to get a service as a motor driver in near future. The deceased was at the time of the fatal accident to him about 29 to 3U years of age whereas the applicant No. 1 was aged about 23 years applicant No. 2 about 112 years and applicant No. 3 only four months old.

(3) The opponents Nos. 1 and 2 contested the proceedings by filing their respective written statements at Exhs. 16 and 20 respectively. They have denied the averments made in the application and have denied any liability on their part to pay the compensation to the applicants. It is specifically denied that the water-tanker was being driven in a High speed and in a rash and negligent manner. It is also denied that oppo- nent No. 1 had taken with him the deceased in the water-tanker. According to opponent No. 1 while he was proceeding towards Mandilkpur deceased had requested him very insistently that opponent No. 1 should give him a lift in the tanker and therefore he had acceded to the request of the deceased. He was proceeding slowly. There was a curve at the road and a herd of cattle came from the opposite side on the right hand side that is to say on his left-hand side) and in order to avert an accident to the cattle he swerved the tanker to his right but in that act of his the main lift of the spring broke. He further found while he swerved the tanker to his right that by the side of the edge of the road there was a pit wherein he feared that the tanker might fall and therefore he again swerved the tanker to the left in which process he applied brakes but the tanker capsized on the road the door of it got opened the deceased was thrown out on the road and was crushed under the wheels in brief opponent No. 1 pleaded that it was an inevitable accident and that the accident had not occurred on account of his negligence.

(4) The State opponent No. 2 contended that the opponent No. 1 had no authority to give a lift to any person in the tanker and if he did so it was not in the discharge of his duties and therefore the State would not stand victoriously liable for the wrongful act if any of opponent No. 1 in driving the. vehicle. ... ... ... ... ... ... ... ...

(5) The main argument of the Tribunal however for exonerating the driver is the sudden breakage of the main spring. The Tribunal has considered that he was not responsible for this mechanical defect which developed on the ways more so because he had checked the tanker before he took charge of it and that at that time he had found no defect in it. It is not so easy for the opponents to get away from the liability for negligence on the plea of mechanical failure of some impo- rtant parts in the vehicle just prior to the occurrence of the accident .

(6) While sitting with A. M. Ahmadi J. in First Appeal No. 470 of 1976 I had an occasion to discuss this aspect of the question (Marakka v. Santosh Benefit Pvt. Ltd. and Ors. 23 G.L.R. 294). In that case we have considered the nature of the burden which the opponents must discharge in order to disprove any charge of negligence in a case where there was an occurrence of a latent mechanical failure. It is not enough that the driver had checked the tanker before he started to run it on that day. The opponents in general and the owner of the vehicle in particular must prove by evidence what care was taken of the vehicle to make it road-worthy how old was the vehicle and what was the mileage covered by it at what periodical intervals it is their practice to check it and on which last occasion was it found to be fit and proper and again by which mechanic. When mechanical failure is pleaded all these relevant questions are required to be gone into and the onus is on the opponents to satisfy the conscience of the Court that mechanical failure had resulted despite all care said caution on their part which they exercised from time to time to keep the vehicle in a road-worthy condition. In the present case the Tribunal has relied only on a bare statement of the driver that he had checked the tanker and had found it proper. That statement stands uncorroborated and we have to accept it on the bare testimony of the driver. But apart from that fact what is necessary in order to take up this defence is not to prove it by the statement of a driver but there are other relevant factors some of them observed above which must go into the evidence to enable the Court to come to the conclusion that for such a mechanical failure the driver and the owner were not to be blamed. In our view therefore the Tribunal has over-emphasised the value of the statement of the driver. We are of the further view that considering the evidence on the record the defence of mechanical failure cannot come to the rescue of the opponents Nos. 1 and 2. The Tribunal was thus entirely in the wrong to come to the conclusion that the occurrence of the accident could not be attributed to the negligence of the driver. We set aside the Tribunals finding with regard to the question of negligence and hold that the deceased had died on account of the accident which was caused by opponent No. 1 by driving the tanker in a rash and negligent manner.

(7) The next plea of opponents Nos. 1 and 2 was that opponent No. 1 the driver was not authorised to give list to a third party and therefore the act of opponent No. 1 of giving a lift to the deceased was ab initio an unauthorised act and therefore outside the course of his employment. This contention of the opponents Nos. 1 and 2 is covered by issue No. 2. It has been answered in the negative. If we refer to the deposition of opponent No. 1 himself he is found to have stated in his cross-examination that he was not given any instructions by opponent No. 2 that he should not give lift to anybody although he knew that in a State vehicle no lift can be given. There are two distinct positions which must be noted it is one thing that in a vehicle of this nature no lift should be given to a stranger. It is also a different thing that in a State Vehicle the driver is not authorised to give a lift to a stranger However it is entirely a different matter that the driver was given positive instructions prohibiting him from giving lift to a stranger. In the written statement of opponent No. 2 at paragraph 8 a catenation is raised this-wises. The opponent No. 1 was not required to take any person with him in discharge of his duties as a driver: It is absolutely an independent act of opponent No. 1 in taking the deceased with him in the lanker as alleged or permitting the deceased to sit in the tanker by the opponent No. 1. Such an act has nothing to do with the discharge of duties by opponent No. 1 in the course of employment. It is outside the course of employment and hence the State is not liable for compen- sation if any arising out of the accident. It is pertinent to observe that Dot a word is stated to the effect that positive instructions were given to opponent No. 1 prohibiting him from giving a lift to a stranger. No oral evidence is also led to that effect As seen above the driver himself has in terms stated that no such instructions were given. We are not thereafter required to consider the been position about the vicarious liability of the principal when the agent has either deviated from or disobeyed the prohibitive instructions which are restrictive of the scope of his employment. Mr. Takwani referred us to an unreported case of Wright v. International Tea Company referred to in Binghams Motor Claims Cases Eighth Edition 154 He also referred us to a second case of Conway v. George Wimpey and Co. reported in (1951) 2 KB 266 1 All ER 363 These two cases would indeed help him provided however he succeeds in proving not accept his contention that opponent No. 2 had issued prohibitory instructions to opponent No. 1.

(8) This leads us to examine the position about the vicarious liability of opponent No. 2 for the act of opponent No. 1 of giving a lift to the deceased in a water tanker which was obviously not a passenger vehicle. This aspect of the question is neatly covered by a judgment of the Division Bench of this Court reported in 1976 ACJ 72 (1976) 7 G. L. R. 910 (Amthiben Maganlal and; Others v. Superintending Geophysicist O. N. G. C. and Others). Therein the accident took place on the Deesa Palanpur Highway at about 10-00 p.m. on 21/07/1969 The deceased Maganlal Mistry and the injured claimant Maganlal Prajapati had been given a lift by respondent No. 7 Deputy Engineer Mr. Patel who had gone for a visit on the site at Deesa. On the return journey after leaving Deesa at about 9-15 p.m. when they had travelled for about 12 miles away between Chandisar and Chadotar villages on the Highway in the Sim of Badarpura village the accident had taken place between the jeep and the O.N.G.C. truck in question bearing No. GTD 5497. The claimants jeep was left-hand vehicle and it was driven by respondent No. 7 Mr. Patel. The offending truck had dashed with the truck. It did not stop and had gone away. The relevant question was discussed at paragraph 14 of the judgment and that is a question as to the liability of the owners that is master of these two tort-feasors the driver of the said jeep respondent No. 7 and respondent No. 3 the driver. So far as the owner of the jeep that is to say the State was concerned it was sought to be exonerated on the ground that respondent No. 7 had no authority to give any such lift to these two persons. J.B. Mehta J. spea- king for the Division Bench observed as under:

"The material question which always arises in such cases when there is collision by negligent driving of the driver would always have to be examined by reference to the fact that whether at the time of negligent driving which injured these persons he was driving the vehicle for the masters purpose or on the frolic of his own".

Further he observed as under:

"We had followed the earlier decision of this Court in F.A. No. 106 of 1972 decided on 9/04/1973 where it had been in terms held that sec. 60 -B of the Motor Vehicles Act 1939 which permitted the authority to cancel the permit of the vehicle if the holder allowed the vehicle to be used in a manner not authorised by the permit could not be invoked because the court had not to go into the question whether taking of such passenger by the driver of the vehicle was illegal or not. It was the owner who had to decide whether to run the risk or not. If however the risk was taken the owner would be liable for the damages. The decision in Sitaram v. Santanuprasad was in terms followed by pointing out that the presumption would always be raised by the Court that the truck was driven for the masters purpose and the driver was acting in the scope of employment unless the presumption was rebutted. Therefore it was in terms held that in absence of any evidence to show that the owner had not authorised the driver to take passen- gers for payment on the truck in question this salutary presumption raised by the Courts in such cases would not be rebutted It was further pointed out that the matter can be looked at from another angle. If the driver had while driving the vehicle on the masters business killed a pedestrian the master would have been liable in damages to the heirs and legal representatives of the deceased. Merely because the deceased had been sitting on the truck and was not a pedestrian passing on the road it made no difference so far as the liability of the owner is concerned. If the driver drives a truck of the master on the masters business it does not make any difference if he kills a pedestrian or one sitting on the truck".

(9) That the opponent No. 1-driver could not have given a lift to the deceased as a passenger on the water tanker since it was not a passenger vehicle makes no difference. He indeed was driving the vehicle on the masters business and that raises a presumption that he was driving the tanker in the course of his employment. That presumption is required to be rebutted and it has not been rebutted in this case. The Tribunal has therefore rightly decided the question of the vicarious liability of opponent No. 2 and has correctly held that opponent No. 1 was at the time of the occurrence an authorised driver of the opponent No. 2. [ The rest of the judgment is not material for the reports. ] Appeal allowed.