JUDGMENT
Pareed Pillay, J.
1. Appellant is the first respondent in O.P. (M.V.) No. 544 of 1979 before the Motor Accidents Claims Tribunal, Trivandrum. The appplicant filed the application for compensation in respect of an accident in which she sustained injuries. The accident is alleged to have occurred on 16-6-1977 at 11.45 a.m. while she was walking along the road. The Tribunal awarded compensation for an amount of Rs. 6,000/-holding that the accident occurred as a result of the rash and negligent driving of the vehicle by the 2nd respondent.
2. The parties will be referred to in the judgment by their ranking before the Tribunal.
3. The applicant’s case is that on 16-6-1977 at about 11.45 a.m. while she was walking along the road she was hit by the scooter driven by the second respondent in a rash and negligent manner and caused her serious injuries including fracture on the right leg. The applicant was admitted in the Medical College Hospital, Trivandrum for treatment. The first respondent filed counter-statement admitting his ownership over the scooter but contending that he had entrusted it for repairs to a workshop and the second respondent who was a mechanic in the workshop drove the scooter for test after repairs and it was then that the accident occurred. According to him, the second respondent was not his employee and therefore no liability can be fastened upon him.
4. It is the case of the first respondent that he entrusted the scooter to the workshop for repairs and never authorised the second respondent to use it on the road and hence he cannot be made liable for the compensation claimed by the applicant. The question that has to be considered is as to whether the first respondent can be absolved of his liability on the score that the second respondent was not an employee under him. Even according to the first respondent, the vehicle was entrusted to the workshop and the accident occurred while the second respondent took the vehicle on the road for test after repairs. Thus it can be seen that the owner of the Vehicle (first respondent) had entrusted the vehicle to the workshop and the second respondent, a mechanic of the workshop used the vehicle on the road and it was then that the accident occurred. Counsel for the applicant submitted that as the accident occurred when the second respondent used the vehicle on the road for test after repairs the first respondent cannot disclaim his tortious liability. There is no evidence that the first respondent instructed the workshop owner not to allow the driving of the vehicle for test after the repairs.
5. When a vehicle is entrusted to a workshop for repairs it is only reasonable to infer permission to take it for test driving as part of the work. It is for the first respondent to prove that the act of driving of the vehicle by the employee of the workshop owner was in excess of his authority. It is settled law that the burden is on the owner of the vehicle to prove that he did not authorise the person concerned to drive the vehicle. It is useful !o refer to the decision reported in Sitaram v. Santanuprasad, AIR 1966 SC 1697 where it is held as follows :
“A master is vicariously liable for the acts of his 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 the employer liable. In other words, for the master’s 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 driver of a car taking the car on the master’s business makes him vicariously liable if he commits an accident. But it is equally well settled that it the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master’s business and by his authorised agent of servant but the presumption can be met.”
As the second respondent used the scooter on the road the presumption unless rebutted is to the effect that he used it with the authority of the first respondent. As the vehicle was entrusted for repairs to the workshop there was every likelihood of it to have been tested after repairs. Such a possibility cannot be ruled out. It is not possible to hold that the second respondent used the vehicle on the road for a purpose other than testing after repairs. If there is evidence to the contrary first respondent cannot at all be held liable. As there is always a presumption that the machanic drove the Vehicle on master’s business with due authorization it is futile to contend that the first respondent cannot be saddled with vicarious liability.
6. 1978 Acc CJ 53 (Punj and Har), (Tara Singh v. Mangala Singh) is a case where the vehicle was given for repairs by the owner. An unlicenced worker drove the truck and caused accident. It was held in that decision that as the vehicle was driven by the worker of the workshop it should be deemed to have been driven in the course of employment. In Gopalakrishnan Embrantdiri v. Krishnan kutty, 1966 Acc CJ 262 this Court had occasion to consider a case where a vehicle given for repairs was driven by the mechanic and caused accident. In that decision it was held that the act of driving the vehicle was incidental to his job and as it was within the scope of his employment the employer had to answer for its consequences. Savitri Kumari Das v. State of Orissa, 1976 Acc CJ 341 is also a similar case, where the vehicle was given for repairs and the accident occurred when the mechanic took the vehicle for a test drive. As he drove the vehicle in a rash and negligent manner and knocked down a person, the owner was held vicariously liable. As it was necessary to have a test drive after the repair of the vehicle and as this was done for the owner’s benefit the liability of the owner can never be a matter in dispute. In Pritam Kaur v. Dal Singh, 1977 Acc CJ 326 (Punj and Har) it has been held as follows :
“It is settled law that if a person is found to be driving the vehicle he shall be presumed to be so doing with the lawful authority of its owner and if the owner alleges that he had not authorised that person for driving of his vehicle then the onus is on him.”
As the first respondent does not have a specific case that the vehicle was unauthorisedly used by the second respondent he cannot be heard to say that he is not in any way liable for the claim. As the onus is upon the first respondent to establish that he did not authorise the second respondent to drive the vehicle and as that onus has not been discharged it is futile to contend that liability has been wrongly fastened upon him by the Tribunal.
7. Thus the settled legal position is that there is a presumption that the vehicle is driven on the master’s business. Of course it could be repelled by adducing evidence. So long as that has not been done the presumption cannot be brushed aside. In (1977) 3 SCR 372 : (AIR 1977 SC 1735), (Pushpahai v. Ranjit Ginning Co.) it is stated as follows (at p. 1744 of AIR):
“Before we conclude, we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term “in the course of the employment” as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhat, (AIR 1966 SC 1697) where this Court accepted the law laid down by Lord Denning in Ormrod v. Crosville Motor Services Ltd., (1953 (2) All ER 753) that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owner’s consent, driving the car on the owner’s business or for the owner’s purposes. This extension has been accepted by this Court”.
The indubitable position is that the owner is liable for the negligence of his driver not only if he acted in the course of his employment but also if he drove the vehicle with his tacit or implied consent for his business or other purposes.
8. Counsel for the first respondent relying on 1981 Acc CJ 448: (AIR 1981 Punj and Har 53). (Devinder Singh v. Mangal Singh) contended that the owner of the vehicle cannot be held vicariously liable for the unauthorised use of the vehicle during its custody with an independent contractor for repairs. The above decision has no application to the facts of the case in hand as it can never be said that the second respondent unauthorisedly used the vehicle. First respondent does not have such a case. In the counter-statement his case is that on the relevant date the second respondent, who was employed as a mechanic in the workshop, drove the scooter for test after repair and during that test drive the accident occurred. So long as there is no pleading and evidence that the vehicle was used by the second respondent un authorisedly and not for the purpose of the 1st respondent the vicarious liability of the first respondent cannot be ignored.
9. On a consideration of the evidence we hold that the Tribunal has correctly held that the first respondent being the owner of the vehicle is vicariously liable for the compensation. We do not find sufficient reasons to interfere with the award passed by the Tribunal. The award is hereby confirmed. The appeal is dismissed. There is no order as to costs.