The Bombay Tramway Company … vs Khairaj Tejpall on 12 January, 1883

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Bombay High Court
The Bombay Tramway Company … vs Khairaj Tejpall on 12 January, 1883
Equivalent citations: (1883) ILR 7 Bom 119
Author: K Charles Sargent
Bench: C Sargent, Kt., Melvill


Charles Sargent, Kt., C.J.

1. We think the questions put to us by the First Judge of the Small Cause Court must be answered in the affirmative, and that the proprietor of the buggy is liable in this suit.

2. In Fowler v. Locke L.R. 7 C.P. at p. 285 Willes. J., stated that the effect of the corresponding Acts in force in England upon the subject was to recognize and stamp upon the transaction the character of an employment in which the cabman is a servant, and to make the proprietor liable for “him as such.” The question is whether there is any material difference between the English Acts and the Bombay Act VI of 1863 which would justify us in holding that the relationship established here between the proprietor and the driver of a cab is different from that existing in England.

3. In Powles v. Hider 25 L.J.Q.B. 331 Lord Campbell considered the effect of the English Statutes, and referred particularly to Sections 23, 24, 27 and 28 of Stat. 6 and 7 Vic., c. 86, as showing that the driver of a cab was to be considered as the servant or agent of the proprietor for whom, in the exercise of his employment as driver, the proprietor was answerable. Now, although the language of the Bombay Act is not precisely the same as that of the English Act, we are of opinion that Sections 26 and 27 of the former indicate the relationship which the Legislature intended to exist between the proprietor and the driver of a public conveyance as decidedly as the sections upon which Lord Campbell relies. Section 26 makes the proprietor as well as the driver liable for any offence committed by the driver in the exercise of his vocation. It requires the proprietor to appear and to produce the driver to answer the complaint; and Section 27 provides that if a driver fails to, pay any fine imposed upon him, the proprietor may be compelled to pay it. It appears, therefore, that the proprietor is liable for the driver, and the existence of that liability is only consistent with the relationship between them being that of master and servant.

4. We should not consider ourselves justified in departing from the English rulings on this subject, unless we could see that there was a substantial difference in the legislation of the two countries. It appears to us, however, that it is essentially the same, and that the present case is governed by the authority of Powles v. Hider 25 L.J.Q.B. 331.

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