1. Appellants have preferred this appeal to challenge the judgment dated 26th March, 1991, passed by the Motor Accident Claims Tribunal, Sri Ganganagar in Claim Case No. 40/89.

2. Claimant-appellants claimed a sum of Rs. 11,70,000, stating the fact that on 20th November, 1988, at about 5.00 p.m., when Rajendra Kumar was near Telephone Exchange building and moving towards Padampur, then Jeep bearing No. R.S.C. 9170 driven by Devilal, caused accident, resulting in death of Rajendra Kumar. It was urged that accident took place due to rash and negligent driving of Devilal.

3. Reply was filed by the respondent Nos. 3 and 4 before the Tribunal, denying their liabilities.

4. It is contended that authorised driver of the jeep involved in the accident was Diwan Chand but jeep was unauthorisedly driven by Devilal, as nobody authorised Devilal to drive the said jeep. It was further contended that the owner of the jeep is only Panchayat Samiti and not the Government. It was lastly contended that jeep was being driven on a moderate speed, thus accident had not taken place due to rash and negligent driving.

5. The Tribunal framed five issues and, thereafter, awarded a sum of Rs. 1,39,000 along with interest. However, the respondent Nos. 3 and 4 before the Tribunal were absolved from their liabilities on the ground that Devilal was not authorised to drive the vehicle and it was not otherwise for owners purpose or his business the vehicle was used at the time of accident.

6. Appellants have preferred this appeal, not only to challenge the award of compensation to the tune of Rs. 1,39,000, but also to challenge the finding of the Tribunal in regard to the liability of respondent Nos. 3 and 4 before the Tribunal. The claimants have claimed original amount demanded by them in the claim petition, i.e. a sum of Rs. 11,70,000, on the ground that income of the deceased was not properly assessed and, thereby, quantum of compensation awarded to the claimants is not proper. It has further been pleaded that the Panchayat Samiti as well as Government were liable for compensation as they were vicariously liable for any act of the driver. Thus, challenging the finding of the Tribunal, it was prayed that the Panchayat Samiti and State Government should also be made liable for payment of compensation.

7. During the course of arguments of the appeal, learned Counsel for the appellants pressed only one ground which pertains to absolving Panchayat Samiti and Government from their liabilities. Learned Counsel urged that the jeep was belonging to the Panchayat Samiti, and as Panchayat Samiti is financed by the State Government, thus Panchayat Samiti as well as Government are liable for payment of compensation. The owner of the jeep is necessarily liable for all acts of its driver, in view of the fact that the owner of the vehicle is vicariously liable for all acts and omissions of the driver who is authorised to drive the vehicle not only for the purpose of business, but also where the vehicle is used on the instructions of the owner. It was contended that in the present matter, Devilal was driving the jeep having been authorised by Diwan Chand, hence the respondent Nos. 2 and 3 in appeal are liable for the acts and omissions of Devilal, because he was otherwise authorised to drive the vehicle. Referring to the judgment of the Tribunal, it was projected that the jeep was driven by Devilal with a permission of Diwan Chand as the Tribunal has already recorded this finding. Thus, in such cases, the owner of the vehicle cannot be absolved from their liability.

8. To support the argument, learned Counsel for the appellants has referred the cases of State of Madhya Pradesh v. Prembai and Others, AIR 1979 MP 85 [LQ/MPHC/1979/3] ; Pushpabai Parshottam Udeshi and Others v. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. & Another, AIR 1977 SC 1735 [LQ/SC/1977/154] ; Ajoy Kumar Singh v. Pata Dei and Others, AIR 1982 Ori. 51 [LQ/OriHC/1981/154] , Union of India v. Mrs. Marcia E. Dutta, AIR 1982 Gau. 4, Smt. Mariyam Jusab and Others v. Hematlal Ratilal & Others, AIR 1982 Guj. 23 [LQ/GujHC/1981/154] , Sita Bai and Another v. Purshottam and Others, I (1988) ACC 27 [LQ/RajHC/1986/639] =(1988-III) 1 CCC 612 (Raj.); Kota Sand Company and Another v. Santosh Talwar & Others, 1985 ACJ 98 [LQ/RajHC/1984/335] and Gujarat State Road Transport Corporation v. Haribhai Vallabhbhai Darji & Others, I (1984) ACC 475 (DB)=1984 ACJ 72 (Guj.).

9. According to the learned Counsel for the appellants, judgments referred to above are on the same issue, wherein different Courts as well as Apex Court have taken a view that the owner of the vehicle is vicariously liable if accident took place due to negligence of driver who was either an authorised driver or driving the vehicle on instructions.

10. Per contra, learned Counsel appearing for the Government, urged that the Government and Panchayat Samiti are not liable to pay compensation as Devilal was not their authorised driver nor he was directed or authorised to drive the vehicle. Referring to the facts of this case, it was contended that only Diwan Chand was an authorised driver on the day of accident, Vikas Adhikari was not in the office so as to permit movement of vehicle, because vehicle is permitted to move only for the purpose of business of the office. Referring to the statement of Devilal, it was further contended that, admittedly, Devilal had taken the vehicle for his personal use in an unauthorised manner, hence in such circumstances, when the vehicle was used by unauthorised person without instructions and authority, coupled with the fact that the use of vehicle was not for the purpose of owners business or with the consent of the owner of the vehicle, owner cannot be held liable to pay compensation. Referring to the judgment in the case of Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt, AIR 1966 SC 1697 [LQ/SC/1966/46] , it was submitted that the liability of the owner cannot be fastened in case the vehicle was not driven under the authority of the owner, more specifically when the vehicle was not used for the purpose of owner or for owners business. Learned Counsel for the State, thus, prayed that the judgment of the Tribunal deserves to be maintained.

11. I have considered the rival submissions of the learned Counsel for the parties and scanned the matter carefully.

12. Learned Counsel for the appellants has referred the judgment of State of Madhya Pradesh v. Prembai and Others (supra), wherein it was held that the driver is primarily liable for compensation for causing death or injuries by his rash and negligent driving of vehicle. His master is also vicariously liable for the act of the servant. If the vehicle is entrusted to an independent person and it is in complete control of that independent person, then owner cannot be made liable for the act of that independent person or his servant. Referring to the facts of the case, the Court held that in any case, the vehicle continued to be in the ownership of UNICEF. The Government though not the owner of the vehicle is liable under the General law for the acts of its servant in causing death of the two pedestrians, by his rash and negligent driving.

13. Perusal of the judgment does reveal that the facts of the case are same as in the present matter, because, in the present case, the jeep was driven by an unauthorised person for his private purposes. Hence, even if the ratio of the judgment referred to above is applied, Panchayat Samiti, being the owner of the vehicle, can be held liable for the acts of its servant, but, here, accident has not been caused by the servant of the Panchayat Samiti, therefore, the judgment rendered by the Madhya Pradesh High Court has no application in the present matter.

14. The second case referred to by the learned Counsel is Pushpabai Parshottam Udeshi & Others v. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. (supra). In the said case, the Honble Apex Court held in para 9 as under:

9. We will now refer to the three cases relied on by the High Court for coming to the conclusion that the accident did not take place during the course of employment. The first case referred to is Sitaram Motilal v. Santanuprasad Jaishanker, (1966) 3 S.C.R. 527 : A.I.R. 1966 S.C. 1697. The owner of a vehicle entrusted it to A for plying it as a taxi. B who used to clean the taxi was either employed by the owner or on his behalf by A. A trained B to assist him in driving the taxi and took B for obtaining a licence for driving. Whicle taking the test B caused bodily injury to the respondents. A was not present in the vehicle at the time of the accident. On the question whether the owner was liable the majority held the view that the owner was not liable. On the facts the Court found that the person who had borrowed that taxi for taking out a licence and the driver who lent the same was not acting in the course of his business. The Court on an application of the test laid down in various decisions held that there is no proof that the second defendant, the driver, was authorised to coach the cleaner might become a driver and drive the taxi and that it appeared more probable that the second defendant wanted someone to assist him in driving the taxi for part of the time and was training the third defendant to share the task of driving. The owners plea that it has not given any such authority was accepted by the Court. Holding that it had not been proved that the act was impliedly authorised by the owner or to come within any of the extensions of the doctrine of scope of employment the Court held that the owner is not liable. This Court has held that the test is whether the act was done on the owners business or that it was proved to have been impliedly authorised by the owner. At page 537 it is stated that the law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment, the servants act does not make the employer liable. In other words, for the masters liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The extension of the doctrine of the scope of employment noticed in the judgment refers to the decision of Ormrod v. Crosville Motor Services Ltd., (1953) 2 All. E.R. 753 where Lord Denning stated : It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of him employment. This is not correct. The owner is also liable if the driver is, with the owners consent, driving the car on the owners business or for the owners purposes. The Supreme Court accepted the test and to that extent this may be taken as an extension of the doctrine of scope of employment. Thus, on the facts as we have found that the accident took place during the course of employment the decision in Sitaram Motilal Kalal is of no help to the respondents.

15. The perusal of the para, referred to above, reveals that the owner is liable for payment of compensation if the driver is with the owners consent driving the car for the owners business or for owners purpose, therefore, outcome of the judgment is that if the vehicle is used for the purpose of owner or for owners business purposes, then the servants act would make owner vicariously liable for payment of compensation, but again, the case in hand is not such where the vehicle was used for owners purpose or for owners business through authorised driver. But, it is clear from the fact that not only vehicle was unauthorisedly used by Devilal, but the same was for his personal purposes and not for the purposes of the owner or for its business. Hence, the import of the judgment referred to above, goes against the appellant instead of to support, looking to the facts of present case.

16. Learned Counsel for the appellants further referred the judgment rendered in Ajoy Kumar Singh v. Pata Dei & Others (supra). In the said judgment, the issue was altogether different than exists in the present matter. The issue involved in the said matter was pertaining to liability of the Insurance Company on account of alleged breach of policy, on the ground that vehicle was not driven by the named driver. The present matter is not concerned with the issue of the liability of the Insurance Company. Thus, the aforesaid judgment has no application in the present case.

17. The next case referred to by the learned Counsel for the appellant is rendered in Union of India v. Mrs. Marcia E. Dutta (supra), wherein the issue was that if a person is given lift while the Government vehicle was driven by the employee for official work, then as to whether the Government would be liable to pay compensation or not. Again, the facts of the said case are not akin to this case, because the case decided by the Gauhati High Court, the vehicle was driven by authorised person, whereas in the present matter, it was driven by the unauthorised person and that, too, vehicle was not transacted for owners purpose or for his business. Therefore, I am unable to accept the application of the judgment, referred to above on the facts of present case.

18. The judgment rendered in Smt. Variyam Jusab & Others v. Hematlal Ratilal & Others (supra), is again almost on the same facts as were existing in the case decided by Gauhati High Court in the matter of Mrs. Marcia E. Dutta under Section 409, therefore, the judgment rendered by the Gujarat High Court in Smt. Variyam Jusabs case cannot have any bearing on the present matter.

19. Learned Counsel for the appellants has, further, referred two judgments of this Court rendered in Sita Bai & Another v. Parshotam & Others (supra) and Kota Sand Company & Another v. Santosh Talwar & Others (supra). In the first case, jeep was under the charge of Executive Engineer. Hari Prasad was the driver who was assigned official work and while discharging the said work, accident took place, but it was found that at the time of accident, jeep was driven by one Parshotam. The Court held that vehicle was sent by the State Officer and was used for official purposes and, in those cases, the Government cannot plead immunity from payment of compensation and, otherwise, the vehicle was driven under the express permission of the authorised officer of the State. Again, the facts of the aforesaid case are not same as the present case, because the vehicle was not used for the official purposes but was used by Devilal for his own purpose, thus cannot be said to be with the permission of the authorised driver. It is also clarified that in view of the judgment of the Supreme Court referred to in Pushpabai Parshottam Udeshi & Others v. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. (supra), owner cannot be held liable, unless the vehicle is used for owners purpose or owners business and the vehicle is being driven by authorised person under instructions of the owner. In the second case, the State vehicle met with an accident at the time when same was driven by Executive Engineer, while the regular driver was also travelling in the jeep but not driving the vehicle. In those circumstances, the State was made liable, because the Executive Engineer was the in-charge of the vehicle and such in-charge was driving the vehicle accompanied by the regular driver, hence, looking to the fact that a person authorised to give direction for use of vehicle was found driving the vehicle by himself, then the Government is made liable. However, again, the facts of this case are not at par with the facts of the judgment rendered by this Court in the case of Kota Sand Company & Another (supra).

20. Last judgment referred to by the learned Counsel for the appellant is rendered in Gujarat State Road Transport Corporation v. Haribhai Vallabhbhai Darji & Others (supra), wherein it was held that even third person unauthorisedly drove the bus and caused a serious accident, then driver was held negligent in leaving the bus unattended as the facts of the case show that if the driver was negligent, then owner can be made liable to pay compensation for the negligence of his employee. I am not impressed by the judgment rendered by Honble Gujarat High Court as the same goes contrary to the judgment of the Honble Apex Court, because unauthorised person, driving the vehicle, not for the business purposes or owners purposes, then owner cannot be held liable.

21. Learned Counsel, appearing for the State-respondents, placed reliance on the judgment rendered in Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt (supra).

Dealing with the case, the Honble Apex Court held thus:

(30) In Ricketts and Engelharts cases, 1915-1 KB 644 and 1897-1 Q.B. 240 (respectively) each servant was acting on the masters business at the time. If the two servants in Engelharts case had gone for a picnic or the boy had borrowed the cart to give a joy ride to his friends, the master would not have been liable although the effective cause would still have been the elder servants negligence. The difference lies in this that in the two cases the negligent act took place in the execution of the masters business and in the examples suggested by us, no question of masters business or the scope of the servants or agents employment arises, because the acts are clearly outside that scope. Going for a picnic or lending the cart so that the co-servants friends may go for an outing is not in the course of the masters employment. Beards case, 1900-2 Q.B. 530 when compared with Ricketts case, 1915-1 K.B. 644 brings out the difference. In (1928) 44 T.L.R. 294 the master himself lent the car to the servant for the latters private work and the master was not held responsible for the negligence of the servant in causing injury because neither was the journey on the masters account nor was the master in control at the time. Sir John Salmond (13th Edn., p. 124) has summed up the law thus

a master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his masters business, it must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it.

(31) The scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e. in doing the masters business ought always to be present. In Century Insurance Co. v. Northern Ireland Road Transport Board, 1942 A.C. 509 the driver of a petrol lorry while transferring petrol from the lorry to an underground tank, struck a match to light a cigarette and threw it on the floor, and thereby caused a fire and explosion which did great damage. The masters were held liable because the negligence was in the discharge of the duty by the servant. Although the act of lighting the cigarette was something the driver did for himself and was by itself quite harmless, it could not be regarded in the abstract and was a negligent method of conducting the masters work. Similarly in Smith v. Martin and Kingston-upon-Hull Corpn., 1911-2 K.B. 775 at p. 784 a school authority was held liable when a teacher during school hours sent a girl aged 14 wearing print pinafore to poke the fire and to draw out the damper in a grate in the teachers common room and the child was burnt. It was held that the teachers duty was to prove education in the widest sense and included expecting obedience from the pupils and this was an act of negligence in the discharge of such duty.

22. The facts of the case referred to above, show that the same are similar to that of the present matter. In the aforesaid case also, vehicle was driven by unauthorised person. In the present matter not only the vehicle was driven by unauthorised person, but same was not even for owners purpose or his business, therefore, in those circumstances, even owner cannot be held liable for vicarious liability.

23. In view of the above, I am not inclined to accept the appeal as the judgment cited by the learned Counsel for the appellants have no application in the present matter, more so, the judgment referred to by the learned Counsel appearing for the State-respondents in the case of Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt (supra), covers the controversy of the present matter. The appeal is, thus, having no force, the same is dismissed on the ground urged at the time of hearing because the learned Counsel for the appellants has not pressed any other argument. Costs made easy.