TMI Blog1997 (7) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of Manamadurai Police Station for the rash and negligent driving of the said car. The further plea of the claimants is that the deceased was earning Rs. 1,500 per month and he was spending the entire income for the family of the claimants and that they are entitled to a total compensation of Rs. 3,00,000. 5. The respondent No. 1 filed a counter statement which was adopted by respondent No. 2, insurance company. According to the counter, the respondent No. 1 is the owner of the car, that on 3.2.1992 around 2.30 p.m., the owner parked the car in his plot No. 56, Anna Nagar, while he was taking his lunch, the car was missing and the respondent No. 1 had registered a complaint with Anna Nagar Police Station, Madurai, complaining that his motor car is missing and that it has been stolen by an unknown person. 6. Late in the evening on 3.2.1992, the respondent No. 1 received information through the local police that the car had been traced on Madurai-Manamadurai road and was found lying near Somasundaram Mills, that the respondent No. 1 used to drive the car personally and he has no driver, that it is an unknown third party who had committed theft of the vehicle and had taken the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet has been filed by Manamadurai Police for rash and negligent driving. The said Sakthi alias Sathianarayanan is not traceable at all and the charge-sheet was pending till the disposal of the claim petition. 11. On the facts of the case, it is evident that the respondent No. 1's vehicle had been stolen away around 2.30 p.m. and he had given a complaint around 3.00 p.m. to the police and the said complaint had been registered by the police. The accident occurred around 4.15 p.m. near Muthananthal on the same day. 12. The Tribunal had rightly rejected the plea that the theft of the vehicle is only an after-thought and the police complaint is only a fabricated one. Admittedly, the vehicle had got valid insurance and so found by the Tribunal below, there is no reason at all for the respondent No. 1, owner of the vehicle to give a false police complaint. The registration of case, the tracing of the vehicle by Anna Nagar Police Station and the registration of the case by Manamadurai Police Station against the driver of the car for rash and negligent driving of the vehicle are not in dispute and the cogency of the evidence would show that there was theft of the vehicle and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent No. 1 or by the driver employed by the respondent No. 1. This finding of the Tribunal has to be necessarily confirmed in this appeal and there is no escape at all. 16. It has also to be pointed out that it is not as if the respondent No. 1 was negligent in parking the vehicle nor he had left the vehicle unlocked, nor he had left the vehicle on the road side, but he had parked it in his premises. Only after locking it he had gone to take his lunch. 17. In the present appeal, the learned Counsel for the appellants contended that at any rate, the respondent No. 1 and the respondent No. 2, insurance company are liable as the deceased was hit by the car belonging to the respondent No. 1 and the car was abandoned at the scene of occurrence and it is for the respondent No. 1 to prove that the vehicle was not driven by the driver or a person authorised by him. 18. Learned counsel for the appellants also relied upon a judgment of Ratnam, J., as he then was, in B.M. Deviah v. B. Suriya Kumar C.M.A. No. 274 of 1988, dated 20.1.1992 and contended that the respondents are liable. On the facts of the case in C.M.A. No. 274 of 1988, Ratnam, J. had held that it has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed. The evidence of RWs 4 and 5 who have been examined clearly establishes that Anoop Singh was driving the vehicle. The two stray suggestions and the reply given by the two witnesses are not sufficient to establish that Anoop Singh was not licensed to drive a truck. It is the duty of the insurer to have substantiated his plea. We have no hesitation in rejecting the insurer's plea as false especially as the owner who filed the written statement a month later did not support the former's plea... The law as it stands requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving. The burden thus placed is very heavy and difficult to discharge by the claimant. The records of police investigation are not made available to the Tribunal. The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist in coming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act must be a wrongful and unauthorised mode of doing some act authorised by the master. The driver of the car, driving the same on the master's business, makes the master vicariously liable if he commits an accident. It is also equally well settled that if the driver of the vehicle at the time of the accident is not acting in the course of his employment, but is doing some thing for himself, the master is not liable. 25. There is a presumption that vehicle is driven on the master's business if it is driven by his authorised agent or servant. The master is liable for the negligence of the driver if the driver is his servant, acting in the course of his employment. The principle that the owner is held vicariously liable for the negligent driving of the vehicle by another person is the principle sui facit per anum tacit per se. If the vehicle is driven by another person, either as a servant in the course of his employment or as an agent in the course of agency, the owner is responsible for the negligence in driving. 26. Unless the jural relationship of master and servant between the owner and driver of the vehicle is pleaded and made out, the doctrine of vicarious liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the vehicle, the doctrine of vicarious liability cannot be extended to the third party. In the said decision, it has been held thus: Thus, it is settled law that unless the jural relationship of master and servant is established between the owner of the vehicle and the person who drove the vehicle, vicarious liability cannot be fastened merely because the owner happened to entrust the vehicle to third party and the accident occurred when the third party was driving the vehicle. The doctrine of vicarious liability has arisen only on account of jural relationship that for every tortious act committed by the servant, the master should be made liable. Otherwise, the master could easily escape the liability for the tortious act committed by the servant during the course of employment and for the benefit of the master. In this case, since the jural relationship of master and servant is absolutely lacking, the Tribunal below is well justified in exculpating the liability of the owner and I do not find any compelling reasons to differ from the conclusion arrived at by the Tribunal below. 31. On a consideration of the law laid down by the Apex Court as well as the various authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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