State Of Maharashtra And Ors vs Kanchanmala Vijasinci Shirke And … on 22 August, 1995

Supreme Court of India
State Of Maharashtra And Ors vs Kanchanmala Vijasinci Shirke And … on 22 August, 1995
Bench: N.P. Singh, B.L. Hansaria
           CASE NO.:
Appeal (civil)  7564 of 1995

PETITIONER:
STATE OF MAHARASHTRA AND ORS.

RESPONDENT:
KANCHANMALA VIJASINCi SHIRKE AND ORS.

DATE OF JUDGMENT: 22/08/1995

BENCH:
N.P. SINGH & B.L. HANSARIA

JUDGMENT:

JUDGMENT

1995 (3) Suppl. SCR 1

The Judgment of the Court was delivered by N.P. SINGH, J. Leave granted.

This appeal has been filed on behalf of the State of Maharashtra and others
against the judgment of the High Court holding that the appellant Stale
shall be vicariously liable for payment of compensation to the heirs of the
deceased, who was the victim of the accident.

On 31.3.1980 at about 10.00 P.M. an accident took place opposite S.T.
Divisional .office. Ratnagiri in which one Vijay Singh died. At that time
the said Vijay Singh was driving the scooter and the jeep which belonged to
the State Government dashed against the scooter because of which the victim
sustained serious injuries and he ultimately succumbed to those injuries in
the hospital. The appellant No. 3 was the driver of the said jeep, but at
the time of accident Respondent No. 4 (hereinafter referred to as
respondent’) who was then a clerk in Engineering Fishing Project Division,
Ratnagiri, was driving the jeep.

The Respondent Nos. 1 to 3 filed their claim before the Motor vehicles
Tribunal, claiming Rs. 4,00,000 as the compensation for the death of Vijay
Singh. it was alleged that respondent was under the influence of liquor and
was driving the jeep in a rash and negligent manner which resulted in the
accident and death of Vijay Singh. It was also alleged that the said
respondent was driving the jeep with the knowledge and consent of the
appellant No. 3, the driver of the jeep, as such the appellants and
respondent were jointly and severally liable to pay compensation for the
accident. Vijay Singh, the deceased was then aged about 35 years and was
earning Rs. 1400 to Rs. 2000 per month.

In the written statement filed on behalf of the appellants, it was admitted
that respondent was driving the jeep although he had no licence to drive
the same. It was also admitted that he was under the influence of liquor.
However, it was pleaded on behalf of the appellants that said respondent
had snatched the keys of the jeep from the driver, appellant No. 3, and
started driving the jeep from the office premises. It was asserted that in
that background the appellants including the State could not be held to be
vicariously liable for the compensation to be paid to the claimants.
Respondent filed a separate written statement and denied that he was
driving the vehicle at the time of the accident and claimed that he was
sitting by the side of the driver, appellant No. 3, who was driving the
jeep.

The Tribunal on materials on record came to the conclusion that it was
respondent who was driving the vehicle at the relevant time and he caused
the accident because of his rash and negligent driving. It was also held
that he was having no licence to drive the jeep in question. But the
Tribunal accepted the case of the appellants that said respondent had
snatched the keys of the jeep from the driver and was driving the vehicle
Unauthorisedly. In this background only respondent could be held to be
liable to pay compensation to the claimants. The Tribunal directed
respondent to pay Rs. 1,50,000 as compensation to the claimants.

The High Court affirmed the finding of the Tribunal that it was the
respondent who was driving the jeep at the time of accident. Alter
referring several materials on records including the First Information
Report which was lodged after the accident, the High Court came to the
conclusion that the case put forward on behalf of the appellants that
respondent had snatched the keys forcibly from the driver was not correct.
The High Court pointed out that the pleadings and evidence on record
clearly indicate that it was the year ending day, i.e. 31.3.1980 and the
clerks and officers were required to work during night time. This was at
the instance of appellant No. 2, who was the incharge of the office. The
evidence further disclosed that after normal working hours of the office,
the employees had gone to their homes and were required to come back after
taking dinner. The jeep was used for bringing the employees to the office.
The High Court said that on the materials on record it was not possible to
conclude that respondent had taken the jeep for his own private purpose, on
the other hand, it had been established that the jeep was on official duty
although being driven by respondent, who had taken the charge of the
vehicle under the authority of the driver of the vehicle. The High Court
pointed out from the records including the medical examination of the
driver that he had consumed liquor on that day and because of that he
permitted respondent to drive the vehicle that night. In this background,
the Slate has to be held to be vicariously liable for the accident.
Thereafter the High Court directed payment of Rs.2,06.000 as the
compensation along with 12% interest per annum payable from the date of the
application till the date of deposit/realisation. The Stale Government, the
driver and respondent were jointly and severally held liable to pay the
same.

The learned counsel appearing for the appellants took a stand that in the
facts and circumstances of the present case, the State could not be held to
be vicariously liable to pay the compensation for the acts of respondent
who was just a clerk under the State Government and was neither authorised
nor required to drive the jeep in question. The jeep had been put in
custody of the driver who alone was entitled to drive the same. As
respondent had forcibly snatched the keys from the driver and had caused
the accident, the said respondent only should have been held to be liable
for his act; his act could not bind the Stale because it could not be held
that he was driving the jeep in the course of his employment so as to
saddle the liability to pay compensation on the State Government, As a
first impression, the argument looks attractive, but on proper analysis and
evaluation, according to us, it cannot be accepted. As already mentioned
above, the High Court has examined the materials on record for purpose of
recording the finding that the jeep was on official duty, to bring the
employees of the State Government to the office from their residences after
they had their dinner. Respondent was a clerk in the said office and was
required to be present in the office that night. The High Court has
rejected the case of the State that the said respondent had snatched the
keys from the driver. It has been found that respondent was driving the
vehicle with the consent and under the authority of the driver of the jeep.
Nothing has been brought on the record to show that any instruction had
been issued to the driver not to hand over the vehicle to any other
employee of the State Government while on official duly. As such it has to
be examined whether in this background, it is open to the State Government
to take a stand that the State Government shall not be vicariously liable
for the act of respondent.

The question of payment of compensation for motor accidents has assumed
great importance during the last few decades. The road accidents have
touched a new height in India as well as in other parts of the world.
Traditionally, before court directed payment of tort compensation, the
claimant had to establish the fault of the person causing injury or damage.
But of late, it shall appear from different judicial pronouncements that
the fault is being read as because of someone’s negligence or carelessness.
Same is the approach and altitude of the courts while judging the vicarious
liability of the employer for negligence of the employee. Negligence is the
omission to do something which a reasonable man is expected to do or a
prudent man is expected not to do. Whether in the facts and circumstances
of a particular case, the person causing injury to the other was negligent
or not has to be examined on the materials produced before the Court. It is
the rule thai an employer, though guilty of on fault himself, is liable for
the damage done by the fault or negligence of his servant acting in the
course of his employment. In some case, it can be found that an employee
was doing an unauthorised act in an unauthorised but not a prohibited way.
The employer shall be liable for such act, because such employee was acting
within the scope of his employment and in so acting done something
negligent or wrongful A muster is liable even for acts which he had not
authorised provided they are so connected with acts which he has been so
authorised. On the other hand, if the act of the servant is not even
remotely connected within the scope of employment and is an independent
act, the master shall not be responsible because the servant is not acting
in the course of his employment but has gone outside. In Saimond’s Law of
Torts (Twentieth Edition) at page 458 it has been said:

“……..On the other hand it has been held that a servant who is
authorised to drive a motor-vehicle, and who permits an unauthorised person
to drive it in his place, may yet be acting within the scope of his
employment. The act of permitting another to drive may be a mode, albeit an
improper one, of doing the authorised work. The master may even be
responsible if the servant impliedly, and not expressly, permits an
unauthorised person to drive the vehicle, as where he leaves it unattended
in such a manner that it is reasonably foreseeable that the third party
will attempt to drive it, at least if the driver retains notional control
of the vehicle.”

In Halsbury’s Laws of England, Fourth Edition, Volume 16, paragraph 739 it
has been stated:

“Where the act which the employee is expressly authorised to do is lawful,
the employer is nevertheless responsible for the manner in which the
employee executes his authority. If, therefore, the employee does the act
in such a manner as to occasion injury to a third person, the employer
cannot escape liability on the ground that he did not actually authorise
the particular manner in which the act was done, or even on the ground that
the employee was acting on his own behalf and not on that of his employer.”

In the case of London County Council v. Cattennoles (Garages) Ltd., [1953]
All ER 582, a workman was employed as a general garage hand, for moving
cars by-pushing them or giving guidance to the drivers. He was not
competent to drive, had no licence, and had been forbidden to do so. He got
into a stationary van, started the engine, drove the van and went on to the
highway. On the highway he collided with the plaintiff’s van. The employers
were held liable. A person who is a servant has always a personal
independent sphere of life and at any particular time he may be acting in
that sphere. Fn that situation, the master cannot be responsible for what
he does. When the act of the servant causes injury Io a third party the
question is not answered by merely applying the test whether the act itself
is one which the servant was ordered or forbidden lo do. The employer has
to shoulder the responsibility on a wider basis. In some situation he
becomes responsible to third parties for acts which he has expressly or
implicitly forbidden the servant to do.

It was said in the case of Ilkiw v. Samuels and Others, [1963] 1 W.L.R. 991
at 998:

“….., The driver of the vehicle. Waines, was employed, as I see

it, not only to drive, but to be in charge of his vehicle in all
circumstances during any such times as he was on duty. That means to say
that, even when he was not himself siting at the controls, he remained in
charge of the lorry, and in charge as his employers’ representative. His
employers must remain liable for his negligence as long as the vehicle was
being used in the course of their business. As I understand the
authorities, the employers escape liability if, but only if, the vehicle
was, at the time of the negligent act, being used by the driver for the
purpose of what has been called a “frolic” of his own. That is not this
case. Here, at the material time, this vehicle was in fact being used in
the course of the defendants business.”

It was further said at page 1005 :

“…………. If, as in Ricketts’ case, and in the present case, the
master puts the vehicle in the charge and control of his servant to he used
for the purposes of the masters business, he thereby delegates to the
servant his duty so to control it that it is driven with reasonable care
while being used for that purpose; and an express prohibition upon allowing
any other person lo drive it whilst being used for that purpose is no more
than a direction as to the mode in which the servant shall perform the
duty. It is a prohibition dealing with conduct within the sphere of
employment.”

In respect of a contention that the driver to whom the vehicle had been
entrusted for driving had no authority from employer to delegate the
driving of the vehicle to another person and because of that the employer
cannot he made vicariously liable for the negligence of some one to whom he
had purported to delegate the control of the vehicle, it was said at page
1006:

“The duty in tort of which he was in breach was, in my view, a duty
delegated to him by the defendants under his contract of employment, and
for that breach the defendants are vicariously liable notwithstanding that
it resulted from his breach of an express prohibition by the defendants
against permitting any other person to drive, for that prohibition did not
limit the sphere of his employment, but dealt with the conduct of Waines
within that sphere.”

It need not be pointed out that different considerations might arise if the
servant or some stranger was using the vehicle for purpose other than the
purpose of his master’s business and the accident occurred while the
vehicle was being used for that other purpose. But once it is found and
established that vehicle was being used for the business of the employer,
then the employer will be held vicariously liable even for the lapse,
omission and negligence of his driver to whom the vehicle had been
entrusted for being driven for the business of the employer.

In Staveley Iron & Chemical Co. Ltd, v, Jones, [1956] AC 627 = (1956) 1 All
ER 403, it was said that the legislation has in no way altered the standard
of care which is required from workmen or employers or ‘that the standard
can differ according to whether the workman is being sued personally or his
employer is being sued in respect of his acts omissions in course of his
employment.

In the case of Pitshpabai v. Ranjit Ginning Co., [1977] 3 SCR 372, it was
said:

“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
course of the employment” as ordinarily understood. We have referred to
Sitaram Motilal Kalal v. SantanuprasadJaishankar Bhat, (supra) where this
Court accepted the law laid down by Lord Denning in Onnrod and Another v.
(supra) 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 of for the owner’s purposes. This extension has been
accepted by this Court, The law as laid down by Lord Denning in Young v.
Edward Box and Co. Ltd., already referred to i.e. the first question is to
see whether the servant is liable and if the answer is yes, the second
question is to see whether the employer must shoulder the servant’s
liability, has been uniformally accepted as stated in Salmond Law of Torts.
15th Ed., p. 606 in Crown Proceedings Act, 1947 and approved by the House
of Lords in Staveley Iron & Chemical Co. Ltd. v. Jones [1956] A.C. 62? and
I.CI. Ltd. v. Shatwell, [1965] A.C. 656″

From the facts of Pushpabai’s case (supra), it will appear that one
Purshottam Udeshi was travelling in a car which was driven the Manager of
the first respondent company. The car dashed against a tree resulting in
the death of purshottam. The widow and children of purshottam filed a claim
for compensation. The High Court held that the respondent-company could not
be held vicariously liable for the act of their driver in taking Purshottam
as a passenger as the said act was neither in the course of his employment
nor under any authority whatsoever. Therefore, the respondent-company was
not liable to pay any compensation. It was pointed out by this Court that
recent trend in law was to make the master liable for acts which do not
strictly fall within the term “in the course of the employment” as
ordinarily understood. It was held that the respondent-company was
vicariously liable in respect of the accident.

On behalf of the appellants reliance was placed on the judgment in the case
of Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR (1966) SC
[1697] = [19661] 3 SCR 527. In that case the owner of the vehicle entrusted
it to A for plying as a taxi. B used to clean the taxi. He was either
employed by the owner or by A. A trained B to drive the vehicle and, took B
for obtaining the licence for driving. While taking the test B caused
bodily injury to the respondent. At the time of the accident, A was not
present in (he vehicle. On the question whether the owner was liable, it
was held in the majority judgment that the owner was not liable because
evidence did not disclose that owner had employed B to drive the taxi or
given him the permission to drive the taxi. However, Subba Rao, J. (as he
then was) held that the owner was liable because A did not exceed the
authority conferred on him by the owner in employing B as a servant and
permitted him to drive the vehicle in order to obtain the licence for
assisting him as a driver. This case was considered by this Court in the
case of’ Pushpabai’s (supra) and it was said that recent trend in law is to
make the master liable for acts which do not strictly fulls within the term
“in the course of the employment” as ordinarily understood. The learned
counsel for the appellants sought to distinguish Pushpabai’s ease by
contending that therein this court accepted the unauthorised act of the
driver being within the course of employment because of his occupying ‘high
position of Manager’, whereas in the case at hand appellant No, 3 – the
driver – was a class IV employee. We do not think that the ratio of the
case turns on the position occupied by the driver. The real thrust .of the
decision is acceptance of the trend to make the master liable for acts
which do not strictly fall within the term in the course of employment’ as
ordinarily understood.

In view of sub-section (1) of Section 94 of the Motor Vehicles Act, 1939
(Section 146 of the Motor Vehicles Act, 1988) no person can use or allow
any other person to use a motor vehicle in a public place, unless there is
in force relation to the vehicle by that person, a policy of insurance
complying with the requirements of Chapter VIII. In view of sub-section (2)
of Section 94 (sub-section (2) of Section 146 of Motor Vehicles Act, 1988),
the said provision is not applicable to any vehicle owned by the Central or
State Government and used for government purposes. Sub-section (3) vests
power in the appropriate Government to exempt from the operation of sub-
section (1) of Section 94 any vehicle even owned by any local authority of
any transport undertaking. Section 94 of the old Act as well as Section 146
of the new Act requires that a policy of insurance must provide insurance
against any liability to third parties incurred by the person using the
vehicle. But there is no such requirement so far the vehicles owned by the
Central or State Government are concerned and if the exemptions are granted
from operation of sub-section (1) of Section 94 it is not incumbent even on
the part of any local authority or any State transport undertaking to take
out insurance policy providing insurance against any liability to third
parties incurred by the person using the vehicle. In this background,
according to us, the Courts while judging the liability of the Central or
Slate Government or local authorities or transport undertakings, which have
been exempted from the provision of sub-section (1) of Section 94, have to
be more cautious, while recording a finding as to whether in the facts and
circumstances of a particular case the Central or the State Government or
the local authority of the transport undertaking In question can he held
vicariously liable for any act of its employee in the course of employment.
As a result of commercial and industrial growth, even motor accidents are
on sleep rise. For no fault or any contributory negligence of the victims
of such accidents, [he families are deprived of their bread carners. The
jurisprudence of compensation for motor accidents must develop towards
liberal approach, because of mounting highway accidents.

Incidentally, it may be pointed out that in Motor Vehicles Act, 1939,
Chapter VII A “liability without fault in certain .cases” has been
introduced (Chapter X of the Motor Vehicles Act. 1988) . Sub-section (1) of
Section 92A provides that where the death or permanent disablement of any
person has resulted from an accident arising out of the use. of a motor
vehicle, the owner of the vehicle shall be liable to pay compensation in
respect of such death or disablement in accordance with the provisions of
the said Section, Sub-section (2) specifies a fixed amount for such
liability without fault. In view of sub-section (3) the claimant is not
required to plead and establish that the death or permanent disablement in
respect of which the claim has been made was due to any wrongful act,
neglect or default of the owner of the vehicle. Sub-section (4} of that
Section says in clear and unambiguous words that a claim for compensation
under sub-section (1) of that section shall not be defeated by reason of
any wrongful act, neglect or default of the person in respect of whose
death of permanent disablement the claim has been made. Section 92B
clarifies that the right to claim compensation under Section 92A in respect
of death or permanent disablement of any person shall be in addition to any
other right i.e. the right to claim compensation on principle of fault. The
introduction of provisions creating liability without fault gives out that
the Parliament has provided for payment of compensation within certain
limits, ignoring the principle of fault. When even under the law of tort,
courts have held that the employer is vicariously liable for an authorised
act done in an unauthorised manner taking into consideration the interest
of the victims of the accident, according to us, this approach is all the
more necessary while judging the liability of the owner of the vehicle
under the Statutory provisions of the Motor Vehicles Act.

So far the facts of the present case are concerned, the High Court has
rightly come to the conclusion, on basis of the pleadings and evidence on
record, that it was the year ending day i.e. 31.3.1980 and the clerks and
officers were required to work during night time. This direction had been
given by the appellant No. 2 who was incharge of the office. It further
appears that after normal working hours of the office, the employees had
gone to their homes and were required to come back after taking dinner. The
jeep was used for bringing such employees to the office. In this
background, there is no escape from conclusion that jeep was being used in
connection with the affairs of the State and for official purpose. The High
Court has also found that respondent who was the clerk in the office of
appellant No. 2 was driving the vehicle under the authority of the driver
who was in charge of the said vehicle and as the driver had consumed more
liquor on that day he permitted respondent to drive the vehicle that night,
The facts of the present case disclose and demonstrate that an authorised
act was being done in an unauthorised manner. The accident took place when
the act authorised was being performed in a mode which may not be proper
but nonetheless it was directly connected with in the course of
employment’- it was not an independent act for a purpose or business which
had no nexus or connection with the business of the State Government so as
to absolve the appellant State from the liability.

The crucial test is whether the initial act of the employee was expressly
authorised and lawful. The employer, as in the present case the State
Government, shall nevertheless be responsible for the manner in which the
employee, that is, the driver and the respondent executed the authority.
This is necessary to ensure so that the injuries caused to third parties
who are not directly involved or concerned with the nature of authority
vested by the master to his servant are not deprived from getting
compensation. If the dispute revolves around the mode or manner of
execution of the authority of the master by the servant, the master cannot
escape the liability so far third parties are concerned on the ground that
he had not actually authorised the particular manner in which the act was
done. In the present case, it has been established beyond doubt that the
driver of the vehicles had been fully authorised to drive the jeep for a
purpose connected with the affair of the state and the dispute is only in
respect of the manner and the mode in which the said driver performed his
duties by allowing another employee of the State Government, who was also
going on an official duty, to drive the jeep, when the accident took place.
Once it is established that negligent act of the driver and respondent was
in the course of employment’ the appellant State shall be liable for the
same.

We are of the view that the appellant Stale cannot escape its vicarious
liability to pay compensation to the heirs of the victim. The appeal is
accordingly dismissed there shall be no orders as to cost.

Appeal dismissed.

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