JUDGMENT
M. Mahavan Nair, J.
1. After the mid-night of January 5/6, 1959, the 4th defendant drove the lorry K. L. R 1190, into the plaintiff’s restaurant Radhakrishna Coffee Club, Trichur, breaking its front shutters and damaging a brigadier show-cases, almirahs tables, chairs, tube lights etc. therein. The 1st defendant was the owner of the lorry and the 2nd defendant is his brother who was in possession, control and management of the lorry 3rd defendant was its cleaner. The 4th defendant was the mechanic employed by the 2nd defendant to do minor repairs to this lorry and another belonging to himself At the time of the accident, the 4th defendant was taking the lorry on a test-run after fastening its steering column to the foundation with a new bolt: and 3rd defendant was beside him in the lorry
The mahazar, Ext. P-8, prepared by the Sub Inspector of the Town Police station, Trichur, shows that the foot-path in front of the restaurant is 11ft. 9 inches in width and 9 inches higher than the concrete road which is 47 ft. broad, that the floor of the restaurant
is 6 inches higher than the foot-path and that the lorry went 11 ft. inside the hall of the restaurant, causing the aforesaid damages. The plaintiff claimed damages Rs. 8219 from defendants 1, 2 and 4. The Courts below have assessed the damages at Rs. 3813.87 p. and decreed it against the 4th defendant alone, exonerating defendants 1 to 3. In this second appeal the plaintiff seeks to fix the liability on defendants 1 and 2 as well.
2. Defendants 1 and 2 in their written statement denied the defendants 3 and 4 to have been their employees and alleged the 4th defendant to have been an employee in a neighbouring workshop run by Pw. 2 and him to have taken out the lorry from their garage without authority or permission when the accident was caused. The 3rd defendant in his written statement supported defendants 1 and 2. The 4th defendant admitted that he was, from 1st January 1950, a paid employee under defendants 1 and 2 but denied to have driven the lorry or caused the accident. The Subordinate Judge found
“…. .that the lorry belongs to the 1st
defendant and that 2nd defendant was looking after the management of the lorry…. .that the
3rd defendant was the cleaner of the lorry and that the 4th defendant was the blacksmith-mechanic working under the 2nd defendant.
….. that there was negligence and rashness on the part of the 4th defendant who was then driving the lorry is beyond dispute. The 3rd defendant was only sitting beside the 4th defendant
….. .The question arises whether the
4th defendant was acting in the course of his employment. Even the plaintiff admits that the 4th defendant was only a fitter employed in the workshop. He had no licence to drive any motor vehicles. The duty of a mechanic is only to make the necessary repairs. It is not in the course of his employment and he is not engaged to cost a lorry by driving it.
. .. .The 3rd defendant was the cleaner and the 4th defendant was only a fitter. It is no part of their duties to drive the lorry, through the public streets even for a test after repairs. Driving is the duty entrusted to the driver and he alone is competent to drive the lorry. Defendants 3 and 4 were not acting in the course of their employment, in driving the lorry through the public streets. In any case therefore defendants 1 and 2 cannot be made liable. The 3rd defendant is also not liable. It follows that the 4th defendant alone is liable for the damages”
On appeal by the plaintiff, the Additional District Judge has held:
“It has been proved conclusively by the evidence in this case that on the night of the 5th January 1959 lorry bearing registration No. KLR 1190 ran into the plaintiff’s restaurant and caused damage to his articles kept therein and also caused injuries to some of his employees, one of whom died as a result of the injuries sustained. The evidence further shows clearly that the lorry at that time was
being driven by the 4th defendant. The 3rd defendant is the cleaner of that lorry and the evidence shows that at the time of the occurrence he was sitting in the lorry by the side of the 4th defendant.
…. .A perusal of the evidence adduced in this case clearly goes to show that it was as a result of the rash and negligent driving of the vehicle by the 4th defendant that the lorry left the road and ran into the restaurant building.
… .I, therefore find that it was the wrongful act of the 4th defendant that caused damages to the plaintiff.
…. .I, therefore accept the finding of the lower Court that the 4th defendant was on the dale in question a servant of the 2nd defendant.
… .In the circumstances, the conclusion arrived at by the learned Subordinate Judge that though the lorry belonged to the 1st defendant, ft was in the control, possession and management of the 2nd defendant, is correct.
. .. .The evidence and circumstances go to show that the 4th defendant got the occasion and opportunity to take the lorry out to the road by his having been engaged by the 2nd defendant for the repair work.
… .Though the contesting respondents deny this, there is reason to infer from the evidence and circumstances of the case that the 4th defendant took the lorry out to the road for the purpose of a test. It is not reasonable to expect that defendants 3 and 4 would have taken out the lorry from its garage simply for the purpose of taking tea in a tea-shop in the town itself, as suggested by defendants 1 and 2. Nevertheless, the 2nd defendant cannot in law be made liable for damages caused by the rash and negligent act of the 4th defendant, because it was not within the scope of his authority or within the course of his employment to drive the vehicle. The 4th defendant is admittedly not a mechanic-cum-driver. He is only a smith who perhaps by reason of his experience knew some mechanism of the motor engine too. …. It was not part of his work to drive the lorry even If it be for a trial run, especially when he had no driving licence….. Liability in torts can arise as against the master only if the servant did a wrongful act authorised by the master, or if the servant did an authorised act in a wrongful or unauthorised manner. It is clear that the 4th defendant could not have been authorised by the 2nd defendant to drive the vehicle even for a test. Though such a case of express authorisation was put forth in the lower Court, it was rightly rejected and was not seriously pressed before me. He cannot also be deemed to have done an act otherwise lawful and authorised In a wrongful or unauthorised manner too, because driving the vehicle was not a work for which he was employed at all by the 2nd defendant …. In this view. I find that the 2nd defendant is not liable for the consequences of the wrongful act on the part of the 4th defendant.
It follows that the 1st defendant also cannot be made liable because the relationship as
between the 1st defendant and the 2nd defendant is only that of principal and agent.
The lower Court was therefore right in making the 4th defendant alone liable for the damages.”
3. The law on the matter is explained in Salmond on Torts, 13th Ed., pages 122-128, thus:
“…..But a master, as opposed to the employer of an independent contractor, is liable even for acts which he had not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes — Although improper modes — of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. If a servant docs negligently that which he was authorised to do carefully, or if he does fraudulently that which he was authorised to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud or mistake….. On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it.” (This passage has been approved by the Privy Council in Canadian Pacific Railway Co. v. Lockhart, AIR 1943 PC 65).
Winfield on Tort, 7th edn., Chapter 28, also states the principle thus:
“. . . . .The master is liable for any tort which the servant commits in the course of his employment. The servant himself is also liable…..
During the nineteenth century the ‘implied command’ theory was displaced by the scope of employment’ theory which is now the rule.
…. .Unless the wrong done falls within the course of the servant’s employment, the master is not liable. It may he asked, ‘How can any wrong be in the course of a servant’s employment? No sane or law-abiding master ever hires a man to tell lies, give blows or act carelessly’. But that is not what course of employment means: A wrong falls within the scope of employment if it is expressly or impliedly authorised by the master or is art unauthorised manner of doing something which Is authorised, or is necessarily incidental to something which the servant is employed to do.
In the light of the above expositions of law, the only question here is whether the 4th defendant was within “the scope of his employment” when he drove the lorry at the time of the accident.
4. The District Judge has found “that the 4th defendant got the occasion and opportunity to lake the lorry out to the road by his having been engaged by the 2nd defendant for the repair work” and “that the 4th defendant took the lorry out to the road for the
purpose of a lest”. Counsel for defendants 1 and 2 challenged those findings as not been supported by the evidence on record. The 3rd defendant, examined as Dw. 5, has sworn:
(Malayalam quotation omitted).
“The lorry had some defect. The 4th defendant repaired it. After that the 4th defendant took for trial. . . . On January 5 the lorry had gone to Varandarappilli to take load. It was to take bamboos. On the way back when the steering’s foundation bolt became loose (it was) tied with coir and (the lorry) brought down. At 4 O’ Clock (It) reached here and unloaded the bamboos. Lorry was brought to the shed. Then the 2nd defendant asked to repair. After repairing, by about 11-12 O’ clock (it was) taken out of the shed…. When if was being so driven the accident happened. It was 4th defendant who was driving the lorry… .
(Cross by the 1st defendant)….. When lorry was being repaired the driver was not there. (After) saying such and such should be done be went. (After) tying the bolt with coir (the lorry) was driven 20 miles with the load on. It was 4th defendant and myself who worked (on it)…..
(Cross by 4th defendant)… From the time the lorry was brought to the workshop till (ii) was taken out I was also there. ….”
It is conceded at the bar that the workshop and the shed referred to in the above passage mean the garage where tools and a small furnace are kept for purposes of repair to the lorries of defendants 1 and 2.
The Additional District Judge has accepted the above testimony in full. It is in reliance of the above testimony that the Subordinate Judge found that at the time of the accident the 4th defendant was driving the lorry and that the 2nd defendant was in control and management of the lorry throughout. But, regarding his testimony on repair of the lorry the Subordinate Judge observed “The 3rd defendant swears that the lorry had lost a bolt during the trip that day, and that it was being repaired by himself and the 4th defendant The 3rd defendant cannot be fully believed on this point”.
Why he could not be fully believed is not indicated in the judgment. One is at a loss to understand what the Subordinate Judge meant in saying that the witness could not be “fully” believed. To what extent the Subordinate Judge could believe him is also not indicated. On the other hand, in the further discussion of the case the Subordinate Judge has assumed that the 4th defendant had done the repairs, and took the lorry out for a test run. Admittedly the lorry had been in the garage in the evening of January 5, and the garage is in a busy part of the town
The 2nd defendant’s lorry was also kept in the same garage. The 2nd defendant was living quite close-by, within about 35 ft of the garage and he was looking after both the lorries. Evidence shows further that the 2nd defendant was in his house at the relevant time. Immediately after the event he went to the
neighbouring workshop of P. W. 2 and asked P. W 8 to gather details of the event. It is impossible to believe that defendants 3 and 4 would have dared to take the lorry at dead of night for their fun and frolic, while the 2nd defendant was so close by.
The 3rd defendant has sworn that the 4th defendant had put a new bolt to fasten the steering column of the lorry with its foundation and then took out the lorry for a test drive. Though the 3rd defendant has been cross-examined at length by defendants 1 and 2, nothing has been brought out to discredit his testimony or to challenge the above statement. In the circumstances, the District Judge’s finding that the 4th defendant repaired the lorry at night on January 6, 1959, and took the lorry out to the road for the purpose of a test has to be accepted as right.
6. The question then arises whether the 4th defendant, when he took out the lorry for a trial drive after repair, was acting within the scope of his employment. Though it has been concurrently found against by the Courts below,
I should say he was. In repairing the steering column of a motor vehicle, a mechanic is expected to take a trial drive in order to see that his work has left the driving mechanism in smooth working. Without a test to that effect he cannot be confident of his repairs.
It may be that the 4th defendant had no authority to drive a lorry on public road. But that is neither here nor there. Even if he had been expressly forbidden to drive any vehicle, if he did it for purposes of the work he was engaged for, it would only be doing an authorised job in an unauthorised way.
In London County Council v. Cattermoles (Garages) Ltd.. 1953-1 WLR 997 the defendants, who owned a garage, had employed a man as a general garage-hand. Part of his job was to assist in getting cars out of the way of other cars by pushing them by hand. He was expressly forbidden to drive since he had no driving licence He was asked by the man in charge of the petrol pump to move a van which was remaining stationary in front of the pump which was itself in front of the garage He got into the van started the engine and drove it into the highway with a view to turning round there and coming back into the yard behind the petrol pump While on the highway he came into collision with the plaintiff’s van and damaged it. The Court of Appeal held that his driving the van was only a wrongful and unauthorised mode of moving the van which was his job that it came within the scope of his employment and that accordingly the defendants, the garage owners, were liable for his negligence.
On the facts found, the 4th defendant was employed to repair the steering column of the lorry. If in the course of that work or at the end of the work he drove the lorry in order to see whether the work he did was right and effective that must necessarily be part of his carrying out the work, and therefore within the scope of his employment, though not authorised. It follows that the 4th defendant, when he drove the lorry, in the course of which the accident occurred, was doing something that was within the scope of his employment and that defendants 1 and 2, who were his masters at the time have to answer for its consequences. The plaintiff is therefore entitled to recover from defendants 1 and 2 also and this appeal should succeed.
6. In the result, this appeal is allowed and the plaintiff is allowed to recover the damages found by the Court below from defendants 1, 2 and 4.
It is regrettable to note here that the 1st defendant denied the 2nd defendant to have been in management of his lorry and that both of them denied the 4th defendant to have been under their employ. They were false to their knowledge. The plaintiff should have his full costs from defendants 1 and 2 in the Court of trial and, as his claim in appeal and second appeal was confined to the damages found by Court, his costs in the lower appellate Court and here as well.
7. Counsel for respondents requests leave to appeal to a Division Bench under Section 5 of the High Court Act. Leave is refused.