{"id":97888,"date":"1977-03-25T00:00:00","date_gmt":"1977-03-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pushpabai-purshottam-udeshi-ors-vs-ranjit-ginning-pressing-co-p-on-25-march-1977"},"modified":"2015-10-22T11:28:30","modified_gmt":"2015-10-22T05:58:30","slug":"pushpabai-purshottam-udeshi-ors-vs-ranjit-ginning-pressing-co-p-on-25-march-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pushpabai-purshottam-udeshi-ors-vs-ranjit-ginning-pressing-co-p-on-25-march-1977","title":{"rendered":"Pushpabai Purshottam Udeshi & Ors vs Ranjit Ginning & Pressing Co. (P) … on 25 March, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Pushpabai Purshottam Udeshi & Ors vs Ranjit Ginning & Pressing Co. (P) … on 25 March, 1977<\/div>\n
Equivalent citations: 1977 AIR 1735, \t\t 1977 SCR (3) 372<\/div>\n
Author: P Kailasam<\/div>\n
Bench: Kailasam, P.S.<\/div>\n
           PETITIONER:\nPUSHPABAI PURSHOTTAM UDESHI & ORS.\n\n\tVs.\n\nRESPONDENT:\nRANJIT GINNING & PRESSING CO. (P) LTD. & ANR.\n\nDATE OF JUDGMENT25\/03\/1977\n\nBENCH:\nKAILASAM, P.S.\nBENCH:\nKAILASAM, P.S.\nBEG, M. HAMEEDULLAH (CJ)\n\nCITATION:\n 1977 AIR 1735\t\t  1977 SCR  (3) 372\n 1977 SCC  (2) 745\n CITATOR INFO :\n R\t    1988 SC 719\t (5)\n\n\nACT:\n\t   Motor Vechicles Act 1939--S. 95, 110--Liability of insur-\n\tance company--Death of passenger not for reward--Quantum  of\n\tcompensation--Annual income if on the basis of basic wages.\n\t    Torts--Negligence--Res ipsa loquitur--Rash and negligent\n\tdriving--Meaning of--Rationalae--course of employment--Scope\n\tof  employment--If  driver  gives a  lift  without  charging\n\tanything--If master liable--Vicarious liability--Master\t and\n\tservant.\n\n\n\nHEADNOTE:\n\t    Purshottam\tUdeshi\twas travelling in a  car  which\t was\n\tdriven by Manager of the first respondent company.  The\t car\n\twas  insured  with  the second respondent.  The\t car  dashed\n\tagainst a tree while proceeding\t from  Nagpur  to  Pandurna.\n\tPurshottam,  who  was aged 58 years at that  time,  died  in\n\tthe.   accident.   His annual income was about\tRs.  9000\/-.\n\tThe  widow  and\t children of Purshottam filed  a  claim\t for\n\tcompensation for a sum of Rs. 1 lac under section 110 of the\n\tMotor  Vehicles Act, 1939, before the Claims Tribunal.\t The\n\trespondents denied that the vehicle was driven in a rash  or\n\tnegligent manner and contended tbat the vehicle at the\ttime\n\tof  accident was perfectly in sound condition.\tIt was\talso\n\tcontended that Purshottam was travelling in the said vehicle\n\ton his own responsibility and for his own purpose absolutely\n\tgratis and not on behalf of or at the instance of respondent\n\tNo.  1\tor  the driver of the vehicle  and,  therefore,\t the\n\tclaimants  were\t not  entitled to  any\t compensation.\t The\n\trespondent pleaded inevitable accident.\n\t    The Tribunal found that the accident was as a result  of\n\tnegligent  driving of the vehicle by the Manager.   It\talso\n\tfound that the first respondent the owner of the company was\n\tliable,\t to pay compensation to the claimants on account  of\n\tnegligence  of\ttheir employee.\t The. Tribunal\tawarded\t Rs.\n\t31,209\/- as general damages on the basis of 5 years' earning\n\tless  the,  amount which the deceased might  have  spent  on\n\thimself\t and Rs. 2,000\/. as special damages for funeral\t and\n\tpost-funeral expenses.\tThe Tribunal took into account\t the\n\tpay,   D.A., conveyance allowance etc. for the\tpurpose\t  of\n\tdetermining   income  of  the deceased.\t Both  the  respond-\n\tents. filed appeals in the. High Court.\t The High Court\t did\n\tnot  decide the question as to whether the accident was\t due\n\tto rash and negligent driving or the quantum of compensation\n\tallowed by the Tribunal was proper or not on the ground that\n\tthe respondent No. 1 cannot  be\t held vicariously liable for\n\tthe act of their  Manager in taking  Purshottam as a passen-\n\tger as the said act was neither in the course of his employ-\n\tment  nor under any authority whatsoever; that\tno  evidence\n\twas  led  to show that the respondent No. 1 was\t aware\tthat\n\tPurshottam  was\t being taken in the car as  a  passenger  by\n\ttheir  Manager.\t The High Court held that Purshottam was  no\n\tbetter\tthan  a\t trespasser as far as respondent  No.  1  is\n\tconcerned  and that, therefore., respondent No. 1 cannot  be\n\tmade vicariously liable.\n\tIn  an appeal by certificate, the appellants claimants\tcon-\n\ttended:\n\t\t\t (1) That the accident was due to the,\trash\n\t\t      and  negligent driving of the Manager  of\t re-\n\t\t      spondent No. 1.\n\t\t      (2) The accident took place during the  course\n\t\t      of the employment of the driver.\n\tAllowing the appeal,\n\t    HELD: (1) The car was being driven rashly and negligent-\n\tly.  Although no eye witness was examined P.W.I. the brother\n\tof the deceased who went to the spot soon after the accident\n\twas examined.  He deposed that the car dashed\n\t373\n\tagainst a tree.\t The tree was on the right hand side of\t the\n\troad,  4 ft. away from the right-hand side of the main\tmet-\n\talled  road.   The road was 15 ft. wide and was\t a  metalled\n\troad.  On other side of the road there were fields at  lower\n\tlevel.\t The tree against which the car dashed was  uprooted\n\tabout\t9  to  10\" from the ground.  The car dashed so\tvio-\n\tlently\tthat it was broken in the front side.\tThe  vehicle\n\tstruck\tso violently that the machine of the car  went\tback\n\tabout a foot from its original position.  The steering wheel\n\tof  the engine of the car receded back on the driver's\tside\n\tand  the  said impact on the driver's side and by  the\tsaid\n\timpact\tthe occupants died and front seat also\tmoved  back.\n\tThe  witness  was not cross-examined on\t these\tfacts.\t The\n\tmaxim of \"Res ipsa 1oquitur\" clearly applies in the  present\n\tcase.\tIn  view of the proved facts the burden was  on\t the\n\trespondents to prove the inevitable accident.  [376 B-H]\n\tEller v. Selfridge (1930) 46 T.L.R. 236, referred to.\n\t    The normal rule is that it is for the plaintiff to prove\n\tnegligence but in some cases considerable hardship is caused\n\tto' the plaintiff as the true, cause! of the accident is not\n\tknown  to  him but is solely within the\t knowledge  of\tthe,\n\tdefendant  who caused it. The plaintiff can prove the  acci-\n\tdent  but cannot prove how it happened to  establish  negli-\n\tgence on the part of the defendant.  This hardship is sought\n\tto  be avoided by applying the principle of res ipsa  1oqui-\n\ttur.   It means the accident \"speaks for itself\"  or  \"tells\n\tits  own story\".  The car could not have gone to  the  right\n\textremity and dashed with such violence with the tree if the\n\tdriver had exercised reasonable care and caution.  The Court\n\tdid not think it necessary to remand the matter to the\tHigh\n\tCourt to consider the question of rash and negligent driving\n\tsince the evidence was convincing. [377 D-E, 378, A. E]\n\t    (2)\t It is an admitted fact that the driver of the\tcar,\n\tthe Manager of respondent No. 1, was proceeding from  Nagpur\n\tto  Pandhurna  for  purpose  of delivering an amount of\t Rs.\n\t20,000\/-.   He\twas  driving the car in the  course  of\t the\n\temployment  of\trespondent No. 1.  It is now  firmly  estab-\n\tlished\tthat  the master's liability is based on the  ground\n\tthat the. act is done in the scope or sourse of his  employ-\n\tment or authority. [379 A-G]\n\tYoung v. Edward Box and Co. Ltd. (1951) 1 T.L.R. 789 at 793,\n\tapproved.\n\t    Sitaram Motilal Kalal v. Santanuprasad Jaishankar  Bhatt<\/a>\n\t(1966)3 SCR 527; Conway v. George Wimpey & Co. Ltd. 1951 All\n\tE.R. 363 and 62 T.L.R. 458, distinguished.\n\t    Ormrod  and\t Another v. Crosville  Motor  Services\tLtd.\n\t(1953)2\t All  E.R. 753 and Canadian Pacific Railway  Co.  v.\n\tLockhart 1942 A.C. 591, referred to.\n\t    (3)\t The Manager permitted Purshottam to have a ride  in\n\tthe  car.   Taking  into account the high  position  of\t the\n\tdriver who was the Manager of the company it is\t reasonable,\n\tto  presume in the absence of any evidence to  the  contrary\n\tthe  Manager had authority to carry Purshottam or acting  in\n\tthe  course of his employment.\tThere is nothing to  support\n\tthe  conclusion\t of the High Court that the driver  was\t not\n\tacting in the course of his employment.\t [382 D-F]\n\t    Cox v. Midland Counties Ry. Co. (3 Ex. 268) and Honghton\n\tv. Pilkington, (1912) 3 K.B. 308 distinguished.\n\tTwine v. Bean's Express, Ltd. 62 T.L.R.p. 155, year  1945-46\n\tdistinguished.\n\t    4. Recent trend in law is to make the master liable\t for\n\tacts  which  do not strictly fall within the  term  \"in\t the\n\tcourse of employment\" as ordinarily understood. [383 F]\n\t    5.\tThe  High  Court did not go  into  the\tquestion  of\n\tquantum\t of  compensation.  The Tribunal, however, ought not\n\tto have taken D.A.,  Conveyance Allowance etc., into account\n\tfor the purposes of determining the income of the  deceased.\n\tThus,  the  income of 5 years would stand reduced  from\t Rs.\n\t31,000\/to Rs. 25,500\/- over and above special damage of\t Rs.\n\t2,000\/- [385 A, C-D]\n\t374\n\t    6.\t As  far as respondent No. 2 Insurance Co.  is\tcon-\n\tcerned it contended that since the Company had\tspecifically\n\tlimited its liability in respect of injury to passengers  to\n\tRs. 15,000\/- it cannot be made liable for anything in excess\n\tof Rs. 15,000\/-. The respondent\t No. 1\tcontended  that\t the\n\tinsurance  cover under\tthe  Act   extended   to the  injury\n\tto   the   passengers\talso  and relied  on  Section  95(1)\n\t(b)(i)\twhich  provides against any libility  to  the  owner\n\twhich may be incurred by him in respect of  death or  bodily\n\tinjury\tto   any person or damage to any person of  a  third\n\tparty caused by or arising out of the use of the vehicle  in\n\ta  public  place.  Section 95 of the Motor Vehicles  Act  as\n\tamended by Act 56 of 1969, is based on the Road Traffic\t Act\n\tof  1960  or the earlier Act of 1930  in  England.   Section\n\t95(a)  and 95(b)(i) of the Act adopts the provisions of\t the\n\tEnglish\t Road Traffic Act, 1960, and excludes the  liability\n\tof the Insurance Co. regarding the. risk to the\t passengers.\n\tSection\t 95  provides that a policy of insurance must  be  a\n\tpolicy which insures the persons against any liability which\n\tmay be incurred by him in respect of death or bodily  injury\n\tto  any person or damage. to any property of a\tthird  party\n\tcaused\tby or arising out of use of the vehicle in a  public\n\tplace.\tProviso 2 to Section 95(b) makes it clear that it is\n\tnot required that a policy of insurance should cover risk of\n\tthe  passengers\t who  are not carried for  hire\t or  reward.\n\tUnder  section 95, the risk to a passenger in a vehicle\t who\n\tis  not\t carried for hire or reward is not  required  to  be\n\tinsured.  The Insurer can however always take policies for a\n\trisk  which  is not covered by section 95.  In\tthe  present\n\tcase,  the  insurer had insured with the Insurance  Co.\t the\n\trisk  to  the  passenger to  the  extent  of  Rs.  15,000\/-.\n\tClause\t1  of the section 2 to the  Insurance  Policy  which\n\trequires  the  Insurance Co. to\t indemnify the\t insured  in\n\trespect\t of claimants' claim which becomes legally  payable:\n\tin respect of death of or bodily injury to any person is not\n\thappily\t worded.  However, since the said clause  .talks  of\n\t\"except\t so  far as necessary to meet  the  requirements  of\n\tsection\t 95 of the Motor Vehicles Act, 1939\" would  indicate\n\tthat the  liability  is\t restricted ,to the liability  aris-\n\ting out of the statutory requirements under section 95.\t The\n\tpolicy\tread with the other clauses makes it clear that\t the\n\trespondent  no.\t 2  would be liable to\tthe  extent  of\t Rs.\n\t15,000\/-.  [385 G-H, 386 A, F, 387 B, H, 388 A-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
\t    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2071\t  of
\n\t1968.\n<\/p>\n
\t    (From  the\tJudgment and Order dated  20-4-1967  of\t the
\n\tMadhya Pradesh High Court in Misc. First Appeal No. 104\/66).
\n\tRameshwar Nath, for the appellants
\n\tU.R. Lalit and A.G. Ratnaparkhi, for respondent No. 1.
\n\tNaunit Lal and Miss Lalita Kohli, for respondent No. 2.
\n\tThe Judgment of the Court was delivered by
\n\t    KAILASAM,  J.–This\t is an appeal by  certificate  under
\n\tArticle\t 133 (1)(a) of the Constitution granted by the\tHigh
\n\tCourt  of Madhya Pradesh.  The appellants filed a claim\t for
\n\tcompensation  of a sum of rupees one lakh under section\t 110
\n\tof  the\t Motor\tVehicles  Act before  the  Claims  Tribunal,
\n\tJabalpur.  The first claimant is  the wife and the claimants
\n\t2  to 8 are the children of one Purshottam  Tulsidas  Udeshi
\n\twho  met  with\this death in a motor car  accident  on\t18th
\n\tDecember,  1960 when he was travelling in the car which\t was
\n\tdriven\tby Madhavjibhai Mathuradas Ved, the Manager  of\t the
\n\tfirst opponent company, M\/s. Ranjit Ginning and Pressing Co.
\n\tPrivate Ltd., in a rash and negligent manner near a  village
\n\tcalled Chincholivad which was 16 miles from Saoner.  The car
\n\twhich  was .a Hindustan Ambassador Saloon was  insured\twith
\n\tsecond\topponent,  Union
\n\t375<\/span>
\n\tFire  Accident and General Insurance Co. Ltd.  The  deceased
\n\twas aged 58 years at the time of’ his death and according to
\n\tthe petitioners was earning annually about Rs. 9,000.\tThey
\n\tclaimed\t a  compensation of rupees one lakh.   The  opposite
\n\tparties,  the owner and the insurance company, opposed.\t the
\n\tclaim.\t While\tadmitting that\tthe vehicle  was  proceeding
\n\tfrom  Nagpur  on its way to Pandhurna for the  purpose\tmen-
\n\ttioned\tby the applicants they denied that the\tvehicle\t was
\n\tdriven\tin a rash and negligent manner and pleaded that\t the
\n\tvehicle\t was  at  the time of accident\tin  perfectly  sound
\n\tcondition.  It Was submitted that the husband of the  appli-
\n\tcant  No.  1 was travelling in the said vehicle on  his\t own
\n\tresponsibility\tand  for  his own  purpose   and  absolutely
\n\tgratis\tand  not  on behalf of or at the  instance  of\t the
\n\topposite  party\t No.  1, or the driver of  the\tvehicle\t and
\n\ttherefore  the claimants are not entitled to  any  compensa-
\n\ttion.  The opposite parties pleaded that the incident was as
\n\ta  result of inevitable accident and not due to any  act  of
\n\trashness  or  negligence  on the part Of  the  driver.\tThey
\n\topposed the claim of the compensation as highly exaggerated.
\n\t    The\t Motor\tAccidents Claims Tribunal,  Jabalpur,  found
\n\tthat  the accident of the motor vehicle was as a  result  of
\n\tnegligent driving of the vehicle by the Manager,  Madhavjib-
\n\thai  Mathuradas\t Ved, the driver of the\t vehicle.   It\talso
\n\tfound  that the first respondent, the owner of the  company,
\n\tis liable to pay compensation to the claimants on account of
\n\tthe  negligence of their employee Madhavjibhai which  caused
\n\tthe  death  of Purshottam Tulsidas  Udeshi.   Regarding\t the
\n\tcompensation  payable  the Tribunal fixed Rs.  31,209.15  as
\n\tgeneral damages in addition to Rs. 2,000 as special  damages
\n\tfor  funeral  and post-funeral expenses.  The  owner,  first
\n\topponent,  preferred an appeal to the High Court  impleading
\n\tthe  claimants\tand  the insurance  company  as\t respondents
\n\tagainst the award passed by the. Claims Tribunal.  The\tHigh
\n\tCourt did not decide the question as to whether the accident
\n\twas due to the rash and negligent driving or the quantum  of
\n\tcompensation  to which the claimants were entitled to as  it
\n\tallowed the appeal by the owner on the ground that the owner
\n\tcannot be held vicariously liable for the act of  Madhavjib-
\n\thai in taking Purshottam as a passenger as the said act\t was
\n\tneither\t in the course of his employment nor under  any\t au-
\n\tthority\t whatsoever and that there was no evidence that\t the
\n\towners\tof the vehicle were aware that Purshottam was  being
\n\ttaken in the car as a passenger by their Manager, Madhavjib-
\n\thai.   Holding that so far as the owners are concerned\tPur-
\n\tshottam was no better than a trespasser the High Court\theld
\n\tthat the owners were not vicariously liable.  On an applica-
\n\ttion  by the claimants the High Court granted a\t certificate
\n\tand thus this appeal has come before this Court.
\n\t  The questions that arise for consideration are whether  on
\n\tthe  facts  of the case the claimants have  established\t (1)
\n\tthat the accident was due to the rash and negligent  driving
\n\tof Madhaviibhai Mathuradas Ved, the Manager of the  company,
\n\tand (2) whether the incident took place during the course of
\n\tthe  employment of the driver.\t In the event the  claimants
\n\tsucceed on these two points the amount\tof compensation\t  to
\n\twhich  they  are  entitled  would  have\t to   be determined.\n<\/p>\n
\t376<\/span><\/p>\n
\t    The High Court relying on three  decisions\tin   Sitgram
\n\tMotilal Kalal v. Santanuprasad Jaishankar Bhatt<\/a>(1), Canadian
\n\tPacific\t Railway Company v. Leonard Lockhall(2), and  Conway
\n\tv. George Wimpey & Co. Ltd.(3), came to the conclusion\tthat
\n\tthe rash and negligent driving by the Manager was not in the
\n\tcourse\tof  his\t employment.  The learned  counsel  for\t the
\n\trespondent  relied  on some other decisions  which  will  be
\n\treferred to in due course.\n<\/p>\n
\t    The\t High  Court has not gone into the  question  as  to
\n\twhether the car was. being driven rashly and negligently  by
\n\tthe owner’s employee as it held that the act was not in\t the
\n\tcourse\tof his employment.  We feel that the question as  to
\n\twhether\t the  car was being driven  rashly  and\t negligently
\n\twould  have  to be decided on the facts of the\t case  first
\n\tfor, if the claimants fail to establish rash’ and  negligent
\n\tact  no\t other\tquestion would arise.\tWe  would  therefore
\n\tproceed\t to  deal with this question first.   The  claimants
\n\tdid  not  lead any direct evidence as to  how  the  accident
\n\toccurred.   No\teye-witness was examined. But  P.W.  1,\t the
\n\tyounger brother of the deceased Purshottam Udeshi, who\twent
\n\tto the spot soon after the accident was examined.  He stated
\n\tthat  he went with one of his relatives and an\temployee  of
\n\this  brother’s\temployer  and saw that the  car\t had  dashed
\n\tagainst\t  a tree while proceeding from Nagpur  to  Pandurna.
\n\tThe  tree was on the right hand side of the road, four\tfeet
\n\taway  from  the right hand side of the main  metalled  road.
\n\tThe  vehicle will have to proceed on the left hand  side  of
\n\tthe  road.   The road was 15 feet wide and  was\t a  straight
\n\tmetalled  road.\t  On  either side of  the  road\t there\twere
\n\tfields.\t The fields were of lower level.  The  tree  against
\n\twhich the car dashed was uprooted about 9 to 10 inches\tfrom
\n\tthe ground.  The car dashed so heavily that it was broken in
\n\tthe  front side.  A photograph taken at that time  was\talso
\n\tfiled.\t According  to\tthe witness the\t vehicle  struck  so
\n\theavily that the machine of the car from its original  posi-
\n\ttion  went back about a foot.  The steering wheel  and\t the
\n\tengine\tof the car receded back on driver’s side and by\t the
\n\tsaid  impact  the occupants died and front seat\t also  moved
\n\tback.\tThe  witness was not cross-examined on what  he\t saw
\n\tabout  the state of the car and the tree.  It was  not\tsug-
\n\tgested\tto  him that the car was not driven in\ta  rash\t and
\n\tnegligent manner.  In fact there is no cross-examination  on
\n\tthe aspect of rash and negligent driving.  The Claims Tribu-
\n\tnal on this evidence found that “it was admittedly a  mishap
\n\ton the right side of the road wherein the vehicle had dashed
\n\tagainst a tree beyond the pavement so violently as not\tonly
\n\tto damage the vehicle badly but also entailing death of\t its
\n\tthree  occupants,  maxim ‘res ipsa  loquitur’  applies\t(See
\n\tEllor  v.  Selfridge [1930], 46 T.L.R. 236)”.  The  Tribunal
\n\tproceeded to discuss the evidence of P.W. 1 and found on the
\n\tevidence that it cannot.help concluding that the dashing  of
\n\tthe  car against the tree was most violent and that  it\t was
\n\tfor  the  respondents  to establish that it was\t a  case  of
\n\tinevitable accident.  They have led no evidence.  It may  at
\n\tonce be stated that though the opposite parties had  pleaded
\n\tthat this is a case of inevitable accident they have
\n\t(1) [1966] 3 S.C.R. 527.\n<\/p>\n
\t(2) A.I.R. 1943 P.C. 63.\n<\/p>\n
\t(3) [1951] 1 A.E.R. 363.\n<\/p>\n
\t      377<\/span><\/p>\n
\tnot  led any evidence to establish their plea.\t The  burden
\n\trests  on the opposite party to prove the  inevitable  acci-
\n\tdent.  To succeed in such a defence the opposite party\twill
\n\thave to establish that the cause of  the accident could\t not
\n\thave been avoided by exercise of ordinary care and  caution.
\n\t“To establish a defence of inevitable accident the defendant
\n\tmust  either  show  what caused the accident  and  that\t the
\n\tresult was inevitable, or he must show all possible  causes,
\n\tone or more of which produced the effect, and with regard to
\n\teach  of such possible causes he must show that\t the  result
\n\tcould  not have been avoided.” (Halsbury’s Laws of  England,
\n\tThird  Ed.,  Vol. 28, p. 81). No such attempt was  made\t and
\n\tbefore\tus the plea of inevitable accident was\tnot  raised.
\n\tWe  have  therefore to consider whether the  claimants\thave
\n\tmade out a case of rash and negligent driving.\tAs found  by
\n\tthe  Tribunal  there  is no eye-witness\t and  therefore\t the
\n\tquestion  is whether from the facts established the case  of
\n\trash and negligent act could be inferred.  The Tribunal\t has
\n\tapplied\t the doctrine of “resipsa-loquitur”.  It has  to  be
\n\tconsidered  whether under  the\tcircumstances  the  Tribunal
\n\twas justified in applying the doctrine.\n<\/p>\n
\t    The normal rule is that it is for the plaintiff to prove
\n\tnegligence  but\t as in some cases considerable\thardship  is
\n\tcaused to the plaintiff as the true cause of the accident is
\n\tnot  known to him but is solely within the knowledge of\t the
\n\tdefendant who. caused it, the plaintiff can prove the  acci-
\n\tdent  but cannot prove how it happened to  establish  negli-
\n\tgence on the part of the defendant,  This hardship is sought
\n\tto be  avoided by applying the principle of res ipsa  loqui-
\n\ttur.  The general  purport of the words res ipsa loquitur is
\n\tthat  the  accident “speaks for itself” or  tell’s  its\t own
\n\tstory.\t There\tare cases in which the accident\t speaks\t for
\n\titself\tso that it is sufficient for the plaintiff to  prove
\n\tthe  accident  and nothing more.  It will then\tbe  for\t the
\n\tdefendant  to  establish that the accident happened  due  to
\n\tsome  other cause that his own negligence.  Salmond  on\t the
\n\tLaw  of Torts (15th Ed.)  at p. 306 states: “The  maxim\t res
\n\tipsa loquitur applies whenever it is so improbable that such
\n\tan  accident would have happened without the  negligence  of
\n\tthe  defendant\tthat a reasonable jury\tcould  find  without
\n\tfurther evidence that it was so caused.”  In Halsbury’s Laws
\n\tof  England,  3rd Ed., Vol. 28, at p. 77,  the\tposition  is
\n\tstated\tthus:  “An exception to the general  rule  that\t the
\n\tburden\tof proof of the alleged\t negligence is in the  first
\n\tinstance on the plaintiff occurs wherever the facts  already
\n\testablished are such that .the proper and natural  inference
\n\tarising\t from  them is ,that the injury\t complained  of\t was
\n\tcaused\tby the\tdefendant’s negligence, or where  the  event
\n\tcharged as negligence “tells its own story’ of negligence on
\n\tthe  part of the defendant, the\t story so told\tbeing  clear
\n\tand unambiguous.”  Where the maxim is applied the burden  is
\n\ton  the\t defendant to show either that in fact\the  was\t not
\n\tnegligent  or  that the accident might\tmore  probably\thave
\n\thappened in a manner which did not connote negligence on his
\n\tpart. For the application of the principle it must be  shown
\n\tthat  the car was under the management of the defendant\t and
\n\tthat  the accident is such as in ordinary course  of  things
\n\tdoes not happen if those who had the management used  proper
\n\tcare.\tApplying the principles stated above we have to\t see
\n\twhether the requirements of the principle
\n\t378<\/span>
\n\thave  been satisfied.  There can be no dispute that the\t car
\n\twas  under the management of the company’s manager and\tthat
\n\tfrom  the facts disclosed by P.W. 1 if the driver  had\tused
\n\tproper\tcare in the ordinary course of things the car  could
\n\tnot  have  gone\t to the right extreme of  the  road,  dashed
\n\tagainst\t a tree and moved it a few inches away. The  learned
\n\tcounsel\t for  the respondents submitted that the road  is  a
\n\tvery  narrow  road of the width of about 15 feet  on  either
\n\tside of which were fields and that it is quite probable that
\n\tcattle\tmight have strayed. into the road  suddenly  causing
\n\tthe  accident.\tWe are\tunable\tto accept the plea for in  a
\n\tcountry\t road with a width of about 15 feet with  fields  on
\n\teither\tside ordinary care requires that the car  should  be
\n\tdriven\tat a speed in which it could be\t controlled’if\tsome
\n\tstray  cattle  happened\t to come into the  road.   From\t the
\n\tdescription  of\t the accident given by P.W. 1  which  stands
\n\tunchallenged  the car  had proceeded to the right  extremity
\n\tof  the\t road which is the wrong side and dashed  against  a
\n\ttree  uprooting it about 9 inches from the ground.  The\t car
\n\twas broken on the front side and the vehicle struck the tree
\n\tso heavily that the engine of the car was displaced from its
\n\toriginal  position  one foot on the back  and  the  steering
\n\twheel  and  the engine of the car had receded  back  on\t the
\n\tdriver’s  side.\t  The car could not have gone to  the  right
\n\textremity  and dashed with such violence on the tree if\t the
\n\tdriver\thad  exercised reasonable care and caution.  On\t the
\n\tfacts made out the doctrine is applicable and it is for\t the
\n\topponents to prove that the incident did not take’ place due
\n\tto  their negligence.  This they have not even attempted  to
\n\tdo.   In   the circumstances we find that the  Tribunal\t was
\n\tjustified in applying the doctrine.  It was submitted by the
\n\tLearned\t counsel for the respondents that as the High  Court
\n\tdid not consider the question this point may be remitted  to
\n\tthe  High Court.  We do not think it necessary to do so\t for
\n\tthe  evidence  on record is convicing to prove the  case  of
\n\trash and negligent driving set up by the claimants.
\n\t    The second contention that was raised by the counsel for
\n\tthe appellants is that the High Court was in error in  hold-
\n\ting  that the incident did not take place in the  course  of
\n\tthe  employment or under the authority of the company.\t The
\n\tHigh Court found that there is no evidence that the owner of
\n\tthe vehicle was aware that Purshottam was being taken in the
\n\tcar as a passenger by Madhavjibhai and in the  circumstances
\n\tthe owner cannot be held liable for the tortious act of\t the
\n\tservant.   The High Court found that the car was going\tfrom
\n\tNagpur\tto Pandhurna on the business of the company  and  it
\n\tmay  also be that Madhavjibhai, the Manager of\tthe  owner’s
\n\tcar, was also going on the business of the owner and it\t may
\n\talso  be  that\the had implied\tauthority   to\t drive\t the
\n\tvehicle.  Having  agreed with the contentions of the  claim-
\n\tants so far the High Court came to the conclusion that there
\n\twere  no pleadings or material on record to  establish\tthat
\n\tPurshottam  was\t travelling in the vehicle  either  on\tsome
\n\tbusiness of the owner of the vehicle or under any ostensible
\n\tauthority  from them to their manager Madhavjibhai  to\ttake
\n\tPurshottam  as a passenger in the vehicle.   Before  dealing
\n\twith the right of Purshottam as a passenger, we will consid-
\n\ter the question whether the
\n\t379<\/span>
\n\taccident  took place during the course of the employment  of
\n\tMadhavjibhai by the company.  It is admitted in the  written
\n\tstatement by the owner, that Madhavjibhai was the Manager of
\n\topposite  party\t No. 1 and that the vehicle  was  proceeding
\n\tfrom Nagpur on its way to Pandhurna for purpose of  deliver-
\n\ting  an\t amount of Rs. 20,000 to the Ginning.  and  Pressing
\n\tfactory\t at  Pandhurna.\t The  Tribunal\tfound on the  plead-
\n\tings  that Madhavjibhai was the employee of the company\t and
\n\tduring the course of employment by driving the motor car  he
\n\tnegligently caused the death of Purshottam.  The High  Court
\n\talso confirmed the findings and found that Madhavjibhai, the
\n\tManager .of the owner of the car, was going on the  business
\n\tOf  the said owner and that it may be that the\tManager\t had
\n\tthe  implied  authority\t to drive the vehicle.\t On  such  a
\n\tfinding which is not disputed before us, it is difficult  to
\n\tresist\tthe  conclusion-that  the accident was\tdue  to\t the
\n\tnegligence  of the servant in the course of  his  employment
\n\tand  that the master is liable.\t On the facts found the\t law
\n\tis very clear but as the question of the company’s liability
\n\twas  argued at some length we will proceed to refer  to\t the
\n\tlaw on the subject.\n<\/p>\n
\t    It is now firmly established that the master’s liability
\n\tis based on the ground that the act is done in the scope  or
\n\tcourse\tof  his employment or authority.  The  position\t was
\n\tstated\tby Lord Justice Denning in Young v. Edward  Box\t and
\n\tCo. Ltd.(1).  The plaintiff and fellow workmen were given  a
\n\tlift  on one of the defendants’ lorries with the consent  of
\n\this  foreman  and of the driver of the lorry.  On  a  Sunday
\n\tevening\t the plaintiff, in the course of that  journey,\t was
\n\tinjured by the negligence of the driver of the lorry and the
\n\tplaintiff brought an action against the defendants  claiming
\n\tdamages\t for his injuries.  The defence was that the  plain-
\n\ttiff,  when  on the lorry, was a  trespasser.\tThe  traffic
\n\tmanager\t of the defendants pleaded that he had\tnever  given
\n\tinstructions to the foreman that he should arrange for lifts
\n\tbeing  given  to  the plaintiff and  his  fellow-workmen  on
\n\tSundays and that the foreman had no authority to consent  to
\n\tthe  plaintiff’s  riding on the lorry.\t While\ttwo  learned
\n\tJudges\theld that the right to give the plaintiff  leave  to
\n\tride on the lorry was within the ostensible authority of the
\n\tforeman, and that the plaintiff was entitled to rely on that
\n\tauthority  and in that respect was a licensee, Lord  Denning
\n\theld  that although the plaintiff, when on the lorry, was  a
\n\ttrespasser,  so\t far as the defendants were  concerned,\t the
\n\tdriver was acting in the course of his employment in  giving
\n\tthe  plaintiff\ta lift and that was sufficient to  make\t the
\n\tdefendants  liable and that he did not base his judgment  on
\n\tthe consent of ‘the foreman. Lord Justice Denning stated the
\n\tposition thus:\n<\/p>\n
\t\t\t  ”   ….   the first question\t is  to\t see
\n\t\t      whether’\tthe  servant  was  liable.   If\t the
\n\t\t      answer  is Yes, the second question is to\t see
\n\t\t      whether  the employer must shoulder the  serv-
\n\t\t      ant’s  liability.\t So  far as  the  driver  is
\n\t\t      concerned,   his liability depends on  whether
\n\t\t      the  plaintiff was on the lorry with his\tcon-
\n\t\t      sent or not.  X X X X X.\n<\/p><\/blockquote>\n
\t\t      (1) (1951) 1 T.L.R. 789 at 793.\n<\/p><\/blockquote>\n
\t\t      380<\/span><\/p>\n
\t\t\t  The next question is how far the employers
\n\t\t      are  liable for their servant’s  conduct.\t  In
\n\t\t      order  to\t make  the employers liable  to\t the
\n\t\t      passenger\t it  is\t not  sufficient  that\tthey
\n\t\t      should  be liable for theft  servant’s  negli-
\n\t\t      gence in driving.\t They must also be responsi-
\n\t\t      ble for his conduct in giving the man a  lift.
\n\t\t      If the servant has been forbidden, or is unau-
\n\t\t      thorised,\t to  give anyone a  lift,  then\t no.
\n\t\t      doubt  the passenger is a trespasser  on’\t the
\n\t\t      lorry so far as the owners are concerned;\t but
\n\t\t      that is not of itself an answer to the  claim.
\n\t\t      X\t X X X X In my opinion, when the owner of  a
\n\t\t      lorry sends his servant on a journey with\t it,
\n\t\t      thereby putting the servant in a position, not
\n\t\t      only  to drive it, but also be give  people  a
\n\t\t      lift  in\tit,  then he  is  answerable\/or\t the
\n\t\t      manner  in which the servant conducts  himself
\n\t\t      on the journey, not only in the driving of it,
\n\t\t      but  also in giving lifts in it, provided,  of
\n\t\t      course, that in so doing the servant is acting
\n\t\t      in the course of his employment.”\n<\/p><\/blockquote>\n
\tLord Justice Denning concluded by observing that the passen-
\n\tger was therefore a trespasser, so far as the employers were
\n\tconcerned;  but\t nevertheless the driver was acting  in\t the
\n\tcourse of his employment, and that is sufficient to make the
\n\temployers  liable.  It will thus be seen that while  two  of
\n\tthe learned Judges held that the right to give the plaintiff
\n\tleave to ride on the lorry was within the ostensible author-
\n\tity of the foreman and the plaintiff was entitled to rely on
\n\tthat  authority as a licensee, Lord Denning based it on\t the
\n\tground\tthat even though the plaintiff was a  trespasser  so
\n\tfar  as\t the defendants were concerned, as  the\t driver\t was
\n\tacting in the course of his employment in giving the  plain-
\n\ttiff  a lift, it was sufficient to make the  defendants\t li-
\n\table.  Applying the test laid down there can be no difficul-
\n\tty in concluding that the right to give leave to  Purshottam
\n\tto  ride in the car was within the ostensible  authority  of
\n\tthe Manager of the company who was driving the car and\tthat
\n\tthe  Manager was acting in the course of his  employment  in
\n\tgiving lift to Purshottam. Under both the tests the respond-
\n\tents would be liable.\n<\/p>\n
\t   We  will  now refer to the three cases relied on  by\t the
\n\tHigh  Court for coming to the conclusion that  the  accident
\n\tdid  not  take place during the course of  employment.\t The
\n\tfirst case referred to is Sitaram Motilal Kalal v.  Santanu-
\n\tprasad Jaishankar Bhatt(1).  The owner of a vehicle entrust-
\n\ted it to A for plying it as a taxi.  B who used to clean the
\n\ttaxi was either employed by the owner or on his behalf by A.
\n\tA trained B to assist him in driving the taxi and took B for
\n\tobtaining  a licence for driving.  While taking the  test  B
\n\tcaused\tbodily injury to the respondent.  A was not  present
\n\tin the vehicle at the time of the accident.  On the question
\n\twhether the owner was liable the majority held the view that
\n\tthe owner was not liable.  On the facts the court found that
\n\tthe  person  who had borrowed the taxi for  taking   out   a
\n\tlicence\t and the driver who lent the same was not acting  in
\n\tthe course of his business.  The court on an application  of
\n\tthe  test laid down in various decisions held that there  is
\n\tno proof that the second defendant, the driver, was  author-
\n\tized to coach the cleaner so that the cleaner’
\n\t(1) [19661 3 S.C.R. 527.]
\n\t381<\/span>
\n\tmight  become  a driver and drive the taxi and that  it\t ap-
\n\tpeared more probable that the second defendant wanted  some-
\n\tone  to assist him in driving the taxi for part of the\ttime
\n\tand  was training the third defendant to share the  task  of
\n\tdriving.   The owner’s plea that it had not given  any\tsuch
\n\tauthority  was accepted by the court.  Holding that  it\t had
\n\tnot been proved that the act was impliedly authorized by the
\n\towner  or to come within any of the extensions of  the\tdoc-
\n\ttrine  of scope of employment the court held that the  owner
\n\tis not liable.\tThis Court has held that the test is whether
\n\tthe  act  was done on the owner’s business or  that  it\t was
\n\tproved\tto have been impliedly authorized by the owner.\t  At
\n\tpage 537 it is stated that the law is settled that master is
\n\tvicariously  liable for the acts of his servants  acting  in
\n\tthe course of his employment.  Unless the act is done in the
\n\tcourse\tof employment, the servant’s act does not  make\t the
\n\temployer liable.  In other words, for the master’s liability
\n\tto  arise, the act must be a wrongful act authorised by\t the
\n\tmaster or a wrongful and unauthorized mode of doing some act
\n\tauthorised by the master.  The extension of the doctrine  of
\n\tthe  scope of employment noticed in the judgment  refers  to
\n\tthe decision of Ormrod and Another v. Crosville Motor  Serv-
\n\tices Ltd., and Another (1), where Lord Denning stated:\t “It
\n\thas often been supposed that the owner of a vehicle is\tonly
\n\tliable\tfor the negligence of the driver if that  driver  is
\n\this servant acting in the course of his employment.  This is
\n\tnot  correct.\tThe owner is also liable if the\t driver\t is,
\n\twith  the  owner’s consent, driving the car on\tthe  owner’s
\n\tbusiness  or  for the owner’s purposes.” The  Supreme  Court
\n\taccepted the test and to that extent this may be taken as an
\n\textension  of the doctrine of scope of employment. Thus,  on
\n\tthe  facts  as we have found that the  accident\t took  place
\n\tduring\tthe  course of employment the  decision\t in  Sitaram
\n\tMotilal Kalal is of no help to the respondents.
\n\t  The  next ease which is referred to by the High  Court  is
\n\tCanadian  Pacific Railway Company v. Lockhart(2).   In\tthat
\n\tcase one S was employed as a carpenter by the railway compa-
\n\tny.  In the course of his employment he was required to make
\n\trepairs of various kinds to employer’s property.  He made  a
\n\tkey for use in a lock in the station at N far away from\t his
\n\theadquarters  at  W.  He was paid per hour and\tthe  railway
\n\tcompany kept vehicles to be used by S available for him.  S,
\n\thowever, had a car of his own and without communicating\t his
\n\tintention to anyone he used it on his way to N.\t An accident
\n\thappened on the way owing to S’s negligence.  It was also in
\n\tevidence  that the railway company had issued notice to\t its
\n\tservants  particularly\t   to S warning\t him  against  using
\n\ttheir  private cars unless they had got their  cars  insured
\n\tagainst\t third party risk.  On the facts, the Privy  Council
\n\theld  that the means of transport used by the carpenter\t was
\n\tclearly\t incidental to’ execution of that for which  he\t was
\n\temployed.  As what was prohibited was not acting as a driver
\n\tbut using a non-insured car, the prohibition merely  limited
\n\tthe  way in which the servant was to execute the work  which
\n\the  was\t employed to do and that breach of  the\t prohibition
\n\tdid not exclude the liability of the master to third  party.
\n\tWe do not see how this case would help the respondents.\t  On
\n\t(1) (1953) 2 All. E.R. 753.\n<\/p>\n
\t(2) (1942) A.C. 591.\n<\/p>\n
\t382<\/span><\/p>\n
\tthe other hand it supports the contention of the counsel for
\n\tthe  appellants that  when the Manager was driving  the\t car
\n\tfor the purposes of the company it was in the course of\t his
\n\temployment.\n<\/p>\n
\t    The third case that is referred to by the High Court  is
\n\tConway\tv. George Wimpey & Co. Ltd. (1).  The defendants,  a
\n\tfirm  of  contractors, were engaged in building work  at  an
\n\taerodrome, and they provided lorries to convey their employ-
\n\tees to the various places of their work on the site.  In the
\n\tcab  of each lorry was a notice indicating that\t the  driver
\n\twas  under strict orders not to carry passengers other\tthan
\n\tthe employees of the defendants during the course of, and in
\n\tconnection with, their employment, and that any other person
\n\ttravelling  on the vehicle did so at his own risk.   Further
\n\tthe driver of the lorry had received clear oral instructions
\n\tprohibiting  him fro.m taking other persons.  The  plaintiff
\n\twho  was employed as a labourer by another firm Of  contrac-
\n\ttors at the aerodrome, while on his way to work, was permit-
\n\tted by the driver to ride on one of the defendants’  lorries
\n\tfor some distance across the aerodrome and while dismounting
\n\tthe plaintiff was injured owing to driver’s negligence.\t The
\n\tcourt  held that on the facts of the case the taking of\t the
\n\tdefendants’ employees on the vehicle was not merely a wrong-
\n\tful, mode of performing an act of the class which the driver
\n\tin  the\t present case was employed to perform  but  was\t the
\n\tperformance  of an act of a class which he was not  employed
\n\tto  perform  at all.  The facts stated\tabove  are  entirely
\n\tdifferent from those which arise in the present case  before
\n\tus as in the case before the Court of Appeal(2) there was  a
\n\tnotice\tindicating that the driver was under  strict  orders
\n\tnot to carry passengers and the driver was instructed not to
\n\tcarry others while in the present case a responsible officer
\n\tof  the\t company, the Manager, had permitted  Purshottam  to
\n\thave a ride in the car.\t Taking into account the high  posi-
\n\ttion of the driver who was the Manager of the company, it is
\n\treasonable to presume, in the absence of any evidence to the
\n\tcontrary, that the Manager had authority to carry Purshottam
\n\tand  was acting in the course of his employment.  We do\t not
\n\tsee  any support for the conclusion arrived at by  the\tHigh
\n\tCourt  that the driver was not acting in the course  of\t his
\n\temployment.\n<\/p>\n
\t    We\twill now proceed to refer to some cases\t which\twere
\n\tcited  by  the\tlearned counsel for  the  respondents.\t The
\n\tlearned counsel placed reliance on the decision in  Houghton
\n\tv. Pilkington.(1)  In that case the plaintiff at the request
\n\tof a servant of the defendant got into the defendant’s\tcart
\n\twhich  was  then in the chrage of the servant, in  order  to
\n\trender\tassistance to another servant of the  defendant\t who
\n\thad been rendered unconscious by an accident.  The plaintiff
\n\tfell out of the cart and was injured through the  negligence
\n\tof the servant in charge of the cart in causing the horse to
\n\tstart.\t In an action against the defendent for damages\t for
\n\tthe injuries sustained by the plaintiff it was held that the
\n\texistence  of an emergency gave no implied authority to\t the
\n\tservant to invite the plaintiff into. the cart and that\t the
\n\tdefendant was not liable
\n\t(1) (1951) (1) All. E.R. 363.\n<\/p>\n
\t(2) 62 T.L.R. 458.\n<\/p>\n
\t(3) (1912) 3 K.B. 308.\n<\/p>\n
\t383<\/span><\/p>\n
\tto the plaintiff. Justice Bankes while agreeing with Justice
\n\tBray  who delivered the leading judgment expressed his\tview
\n\tthat  the lower court had taken the view that  an  emergency
\n\thad  arisen which gave the defendant’s servant\timplied\t au-
\n\tthority\t to invite the plaintiff into the cart for the\tpur-
\n\tpose  of  rendering  assistance to. the\t injured  boy.\t The
\n\tlearned Judge was first inclined to agree with that view but
\n\tbecause\t of the case being governed by Cox v. Midland  Coun-
\n\tties Ry. Co.  (3  Ex.  268) he felt he could not consistent-
\n\tly  with  that decision hold that in the  circumstances\t the
\n\tdriver\tof the cart had any implied authority to invite\t the
\n\tplaintiff  to  get into the car.  The facts in\tHoughton  v.
\n\tPilkington are entirely different and the decision was based
\n\ton the ground that existence of the emergency did not confer
\n\ton  the driver of  the\tcart authority to invite the  plain-
\n\ttiff into the cart.\n<\/p>\n
\t    The next case that was cited by the learned counsel\t for
\n\tthe  respondents  was Twine v. Bean’s  Express,\t Limited(1).
\n\tThe  defendants provided for the use of a bank a  commercial
\n\tvan  and a driver on the terms that the driver remained\t the
\n\tservant\t of the defendants and that the defendants  accepted
\n\tno  responsibility for injury suffered by persons riding  in
\n\tthe  van  who  were not employed by them.   There  were\t two
\n\tnotices on the van, one stating that no unauthorized  person
\n\twas  allowed on the vehicle, and the other that\t driver\t had
\n\tinstructions  not  to allow unauthorized travellers  in\t the
\n\tvan, and that in no event would the defendants be  responsi-
\n\tble for damage happening to them.  One T who was not author-
\n\tized  to  ride\tin the van got a rift in the  van  with\t the
\n\tconsent\t of  the  driver.  Owing to the\t negligence  of\t the
\n\tdriver the accident occurred and T was killed.\tThe  conten-
\n\ttion that the accident arose while the driver was engaged on
\n\ta duly authorized journey was negatived and it was held that
\n\tdefendants  owed no duty to T to take care.  This  case\t was
\n\ttaken  up  on appeal which confirmed the view of  the  trial
\n\tcourt  holding that the driver in giving the lift to  T\t was
\n\tclearly\t not acting within the Scope of his  employment\t and
\n\this  employers were consequently not liable.  The facts\t are
\n\ttotally different.  The learned counsel for the\t respondents
\n\twas  not  able to produce any authority which would  support
\n\this  contention\t that on the facts of the  case\t found,\t the
\n\tcompany should not be held liable.\n<\/p>\n
\t    Before we conclude, we would like to point out that\t the
\n\trecent\ttrend in law is to make the master liable  for\tacts
\n\twhich do not strictly fall within the term “in the course of
\n\tthe employment” as ordinarily understood.  We have  referred
\n\tto  Sitaram Motilal Kalal v. Santanuprasad  Jaishankar\tBhat<\/a>
\n\t(supra) where this Court accepted the law laid down by\tLord
\n\tDenning\t in Ormrod and Another rs. Crosville Motor  Services
\n\tLtd.  and Another (supra) that the owner is not only  liable
\n\tfor  the  negligence  of the driver if that  driver  is\t his
\n\tservant acting in the course of his employment but also when
\n\tthe driver is, with the owner’s consent, driving the car  on
\n\tthe  owner’s  business\tor for the  owner’s  purposes.\tThis
\n\textension  has been accepted by this Court. The law as\tlaid
\n\tdown  by  Lord Denning in Young v. Edward Box and  Co.\tLtd.
\n\talready referred to i.e. the first question is to see wheth-
\n\ter the servant is liable
\n\t(1) 62 T.L.R. 19. 155, year 1945-56.\n<\/p>\n
\t 10–36SCI\/77
\n\t384<\/span>
\n\tand  if\t the answer is yes, the second question\t is  to\t see
\n\twhether\t the em1oyer must shoulder the servant’s  liability,
\n\thas  been uniformally accepted as stated in Salmond  Law  of
\n\tTorts, 15th Ed., p. 60’6, in Crown Proceedings Act, 1947 and
\n\tapproved  by the House of Lords in Staveley Iron &  Chemical
\n\tCo.  Ltd.  v. Jones(1) and I.C.I. Ltd. v.  Shatwell(2).\t The
\n\tscope  of  the\tcourse of employment has  been\textended  in
\n\tNavarro\t v. Moregrand Ltd. & Anr(3) where the plaintiff\t who
\n\twanted to acquire the tenancy of a certain flat, applied  to
\n\tthe second defendant, a person with ostensible authority  to
\n\tconduct the business of letting the particular fiat for\t the
\n\tfirst defendant, the landlord.\tThe second defendant demand-
\n\ted  from the plaintiff a payment of Pound 225 if  he  wanted
\n\tthe flat and ‘the plaintiff paid the amount.  The  plaintiff
\n\tsought to recover the sum from the landlord under the  Land-
\n\tlord  and  Tenant  (Rent Control) Act, 1949.  The  Court  of
\n\tAppeal held that the mere fact that the second defendent was
\n\tmaking\tan illegal request did not constitute notice to\t the
\n\tplaintiff  that\t he was exceeding his  authority  and  that,
\n\tthough the second defendant was not acting within his actual
\n\tor  ostensible authority in asking for the premium, a.s\t the
\n\tlandlord had entrusted him with the letting of the flat, and
\n\tas  it\twas in the very course of conducting  that  business
\n\tthat  he committed the wrong complained of he was acting  in
\n\tthe  course  of his employment. Lord Denning took  the\tview
\n\tthat  though  the second defendant was acting  illegally  in
\n\tasking\tfor  and receiving a premium and had  no  actual  or
\n\tostensible authority to do an illegal act, nevertheless,  he
\n\twas plainly acting in the course of his employment,  because
\n\this  employers,\t the landlords, had entrusted him  with\t the
\n\tfull  business\tof letting the property, and it was  in\t the
\n\tvery  course  of conducting that business ‘that he  did\t the
\n\twrong of which complaint is made. This decision has extended
\n\tthe  scope of acting in the course of employment to  include
\n\tan illegal act of asking for and receiving a premium  though
\n\tthe receiving of the premium was not authorized.  We do. not
\n\tfeel  called upon to consider whether this extended  meaning
\n\tshould\tbe accepted by this Court. It appears Lord  Goddard,
\n\tChief Justice, had gone further in Barker v. Levinson(4) and
\n\tstated that “the master is responsible for a criminal act of
\n\tthe  servant if the act is done within the general scope  of
\n\tthe  servant’s employment.”  Lord Justice Denning would\t not
\n\tgo  to\tthis extent and felt relieved to find  that  in\t the
\n\tauthorized Law Reports (1951) 1 K.B. 342, the passage quoted
\n\tabove  was struck out.\tWe respectfully agree with the\tview
\n\tof  Lord Denning that the passage attributed to\t Lord  Chief
\n\tJustice Goddard went a bit too far.\n<\/p>\n
\t     On a consideration of the cases, we confirm the law  as
\n\tlaid down by this Court in Sitararn Motilal Kalal v.  Santa-
\n\tnuprasad Jaishankar Bhatt (suvra) and find that in this case
\n\tthe  driver was acting in the course of his employment.\t and
\n\tas  such  the owner is liable. We therefore  set  aside\t the
\n\tfinding of the High Court that the act was not committed  in
\n\tthe  course  of\t employment or under the  authority  of\t the
\n\tmaster, and allow the appeal.\n<\/p>\n
\t(1956) A.C. 627.\n<\/p>\n
\t2) (1965) A.C. 656.\n<\/p>\n
\t(3) (1951) 2 T.L.R. 674.\n<\/p>\n
\t(4) 66 The Times L.R. (Pt. 2) 717.\n<\/p>\n
\t385<\/span><\/p>\n
\t    The only point that remains is the determination of\t the
\n\tquantum of compensation to which the appellants are entitled
\n\tto.  The  High Court did not go into this question  but\t the
\n\tTribunal  after taking into consideration the various  facts
\n\tfixed  the  compensation  at Rs. 33,209.15  with  costs\t and
\n\tdirected  that\tthe insurance company  shall  indemnify\t the
\n\towner  to  the\textent of Rs. 15,000.\tThe  Tribunal  fixed
\n\tspecial\t damages for funeral and post-funeral  expenses\t in-
\n\tcluding\t transport charges at Rs. 2,000.  This item  is\t not
\n\tdisputed.   The second item is a sum of Rs. 31,209.15  which
\n\taccording  to the Tribunal would have been the amount  which
\n\tthe  deceased would have earned by continuing to work for  a
\n\tperiod\tof  5 years.  The Tribunal  accepted  the  documents
\n\tproduced  by the claimants regarding the income of  the\t de-
\n\tceased and fixed it at Rs. 9,316.83 per annum.\tOut of\tthis
\n\tamount\tthe  Tribunal rightly excluded a sum  of  Rs.  1,875
\n\twhich is the bonus the deceased would have got as it  cannot
\n\tbe taken into account and fixed the net amount of earning at
\n\tRs. 7,441.83 per year and Rs. 37,209.15 for 5 years.   After
\n\tdeducting  Rs. 6,000 which the deceased might have spent  on
\n\thimself\t the Tribunal arrived at a figure of  Rs.  31,209.15
\n\tunder  this head.  The learned counsel for  the\t respondents
\n\treferring  to  item No. 27 pointed out that the pay  of\t the
\n\tdeceased  was only Rs. 425 per month and that  the  Tribunal
\n\twas in error in including the dearness allowance, conveyance
\n\tallowance  and\tother expenses and that the  income  of\t the
\n\tdeceased  should have been taken as only Rs. 425 per  month.
\n\tThe learned counsel for the appellants accepts this  figure.
\n\tTaking Rs. 425\/- being the monthly income the annual  income
\n\ttotals\tup  to Rs. 5,100\/-and for 5 years to  Rs.  25,500\/-.
\n\tAdding\tto this Rs. 2,000\/- which was given as special\tdam-
\n\tages the total amount will come to Rs. 27,500\/-.  We accept’
\n\tthis calculation as correct and restore the award passed  by
\n\tthe  Claims  Tribunal but restrict it to an  amount  of\t Rs.
\n\t27,500\/-.\n<\/p>\n
\t    As the Union Fire Accident & General Insurance Co. Ltd.,
\n\tParis, carrying on business at Nagpur has been nationalised,
\n\tthough the second respondent before the Tribunal was  repre-
\n\tsented by a counsel, we directed notice to the\tnationalised
\n\tinsurance company so. that they would also be heard.
\n\t    The nationalised insurance company has taken notice\t and
\n\tappeared  through Mr. Naunit Lal, advocate.   The  insurance
\n\tcompany had nothing further to add except as to the  quantum
\n\tof liability of the insurance company so far as injuries  to
\n\tthe passengers are concerned. Mr. Naunit Lal submitted\tthat
\n\tthe  scope   of the statutory insurance does not  cover\t the
\n\tinjury\tsuffered  by  the passengers and as  the  owner\t has
\n\tspecifically insured under the insurance policy the risk  to
\n\tpassengers to the extent of Rs. 15,000 only the liability of
\n\tthe  insurance company should be limited to Rs. 15,000.\t  On
\n\tbehalf\tof  the owner it was submitted\tthat  the  insurance
\n\tcover under the Act extended to the injury to the passengers
\n\talso  and sought to support his contention by  referring  to
\n\tsection 95(1)(b)(i) which provides against any liability  to
\n\tthe  owner which may be incurred by him in respect of  death
\n\tof or bodily injury to any person or damage to any  property
\n\tof a third party caused by or arising out of the use of\t the
\n\tvehicle in a public place.\n<\/p>\n
\t386<\/span><\/p>\n
\t    As section 95 of the Motor Vehicles Act, 1935 as amended
\n\tby  Act 56 of 1969 is based on the English Act it is  useful
\n\tto  refer to that.  Neither the Road Traffic Act,  1960,  or
\n\tthe earlier 1930 Act required users of. motor vehicles to be
\n\tinsured\t in respect of liability for death or bodily  injury
\n\tto passengers in the vehicle being .used except a vehicle in
\n\twhich  passengers  were\t carried for hire or  reward  or  by
\n\treason\tof or in pursuance of a contract of employment.\t  In
\n\tfact,  sub-section 203(4) of the 1960 Act provided that\t the
\n\tpolicy\tshall not be required to cover liability in  respect
\n\tof death of or bodily injury to persons being carried in  or
\n\tupon,  or entering or getting on to or alighting  from,\t the
\n\tvehicle\t at the time of the occurrence of the event  out  of
\n\twhich  the claims arise.  The provisions of the English\t Act
\n\tbeing explicit the risk to passengers is not covered by\t the
\n\tinsurance  policy.   The provisions under the  English\tRoad
\n\tTraffic\t Act,  1960,  were introduced by  the  amendment  of
\n\tsection\t 95  of the Indian Motor Vehicles Act.\tThe  law  as
\n\tregards\t general exclusion of passengers is stated in  Hals-
\n\tbury’s\tLaws of England, Third Edition, Vol. 22, at p.\t368,
\n\tpara 755 as follows :–\n<\/p>\n
\t\t\t    “Subject to certain exceptions a  policy
\n\t\t      is not required to cover liability in  respect
\n\t\t      of the death of, or bodily injury to, a person
\n\t\t      being  carried  in  or upon,  or\tentering  or
\n\t\t      getting into or alighting from, the vehicle at
\n\t\t      the time of the occurrence of the event out of
\n\t\t      which the claim arises,”\n<\/p><\/blockquote>\n
\tIt is unnecessary to refer to the subsequent development  of
\n\tthe English law and as the subsequent changes have not\tbeen
\n\tadopted\t in the Indian statute.\t Suffice it to say that\t the
\n\tMotor  Vehicle (Passenger Insurance) Act, 1971, made  insur-
\n\tance  cover for passenger liability compulsory by  repealing
\n\tparagraph  (a)\tand the proviso of sub-section\t203(4).\t But
\n\tthis Act was repealed by Road Traffic Act, 1972 though under
\n\tsection 145 of 1972. Act the coming into force of the provi-
\n\tsions  of Act 1971 covering passenger liability was  delayed
\n\tunder  December\t 1,  1972.  (vide   Bingham’s  Motor  Claims
\n\tCases, 7th Ed., p. 704).\n<\/p>\n
\t    Section  95(a)  and 95(b)(i) of the Motor  Vehicles\t Act
\n\tadopted\t the  provisions of the English\t Road  Traffic\tAct,
\n\t1960,  and excluded the liability of the  insurance  company
\n\tregarding  the risk to the passengers.\tSection 95  provides
\n\tthat  a policy of insurance must be a policy  which  insures
\n\tthe  persons against any liability which may be incurred  by
\n\thim  in respect of death or bodily injury to any  person  or
\n\tdamage to any property of a third party caused by or arising
\n\tout  of the use of the vehicle in a public place.  The\tplea
\n\tthat  the words “third party” are wide enough to  cover\t all
\n\tpersons\t except the person and the insurer is  negatived  as
\n\tthe insurance cover is not available to the passengers\tmade
\n\tclear  by the proviso to sub-section which provides  that  a
\n\tpolicy shall not be required
\n\t\t\t  “(ii) except where the vehicle is a  vehi-\n<\/p>\n
\t\t      cle  in which passengers are carried for\thire
\n\t\t      or reward or by reason of or in pursuance of a
\n\t\t      contract of employment, to cover liability  in
\n\t\t      respect  of the death of or bodily  injury  to
\n\t\t      persons being
\n\t\t      387<\/span>
\n\t\t      carried in or upon or entering or mounting  or
\n\t\t      alighting from the vehicle at the time of\t the
\n\t\t      occurrence  of the event out of which a  claim
\n\t\t      arises.”\n<\/p>\n
\tTherefore  it  is not required that a policy  of’  insurance
\n\tshould cover risk to the passengers who are not carried\t for
\n\thire or reward.\t As under section 95 the risk to a passenger
\n\tin  a vehicle who is not carried for hire or reward  is\t not
\n\trequired  to  be  insured the plea of the  counsel  for\t the
\n\tinsurance company will have to be accepted and the insurance
\n\tcompany\t  held\tnot liable under the  requirements   of\t the
\n\tMotor Vehicles Act.\n<\/p>\n
\t    The\t insurer  can always take  policies  covering  risks
\n\twhich are not covered by the requirements of section 95.  In
\n\tthis case the insurer had insured with the insurance company
\n\tthe  risk  to. the passengers.\tBy an  endorsement  to.\t the
\n\tpolicy\tthe  insurance\tcompany had  insured  the  liability
\n\tregarding  the\taccidents  to passengers  in  the  following
\n\tterms:\n<\/p>\n
\t\t\t    “In\t consideration of the payment of  an
\n\t\t      additional premium it is hereby understood and
\n\t\t      agreed  that  the Company\t undertakes  to\t pay
\n\t\t      compensation  on the scale provided below\t for
\n\t\t      bodily injury as hereinafter defined sustained
\n\t\t      by any passenger\t………..”\n<\/p><\/blockquote>\n
\tThe  scale  of compensation is fixed  at  Rs.  15,000.\t The
\n\tinsurance  company is ready and willing to pay\tcompensation
\n\tto  the extent of Rs. 15,000 according to  this\t endorsement
\n\tbut  the learned counsel for the insured submitted that\t the
\n\tliability of the insurance’ company is unlimited with regard
\n\tto risk to the passengers.  The counsel relied on Section II
\n\tof  the Policy which relates to liability to third  parties.
\n\tThe clause relied on is extracted in full:\n<\/p>\n
\t\t      “Section II–Liability to Third Parties.\n<\/p><\/blockquote>\n
\t\t\t    1.\tThe Company will indemnify  the\t in-
\n\t\t      sured  in the event of accident caused  by  or
\n\t\t      arising  out  of\tthe use\t of  the  Motor\t Car
\n\t\t      against  all sums including  claimant’s  costs
\n\t\t      and  expenses which the insured shall  become’
\n\t\t      legally liable to pay in respect of\n<\/p><\/blockquote>\n
\t\t\t (a) death of or bodily injury to any person
\n\t\t      but except so far as is necessary to meet\t the
\n\t\t      requirements of Section 95 of the Motor  Vehi-
\n\t\t      cles  Act,  1939,\t the Company  shall  not  be
\n\t\t      liable  where such death or injury arises\t out
\n\t\t      of and in the course of the employment of such
\n\t\t      person by the insured.”\n<\/p><\/blockquote>\n
\tIt was submitted that the wording of clause 1 is wide enough
\n\tto  cover all risks including injuries to  passengers.\t The
\n\tclause provides that the Company will indemnify the  insured
\n\tagainst\t all  sums including claimant’s costs  and  expenses
\n\twhich the insured shall become legally liable.\tThis accord-
\n\ting to the learned counsel would ‘include legal liability to
\n\tpay  for  risk to passengers.  The legal  liability  is\t re-
\n\tstricted to
\n\t388<\/span>
\n\tclause 1 (a) which states that the indemnity is in  relation
\n\tto  the\t legal liability to pay in respect of  death  of  or
\n\tbodily\tinjury to any person bur except so far as is  neces-
\n\tsary  to  meet the requirements of section 95 of  the  Motor
\n\tVehicles  Act.\tThe Company shall not be liable\t where\tsuch
\n\tdeath  or  injury  arises out of and in the  course  of\t the
\n\temployment  of such person by the insured.  Clause 1  and  1\n<\/p>\n
\t(a) is not very clearly worded but the words “except so\t far
\n\tas  is necessary to meet the requirements of Section  95  of
\n\tthe  Motor  Vehicles  Act, 1939,” would\t indicate  that\t the
\n\tliability is restricted to the liability arising out of\t the
\n\tstatutory requirements under section 95.  The second part of
\n\tclause 1(a) refers to the non-liability for injuries arising
\n\tin  the course of employment of such person. The meaning  of
\n\tthis  sub-clause  becomes clear when we look  to  the  other
\n\tclauses\t of the insurance policy.  The policy also  provides
\n\tfor  insurance of risks which are not covered under  section
\n\t95  of\tthe  Act by stipulating payment\t of  extra  premium.
\n\tThese  clauses would themselves indicate that what  was\t in-
\n\ttended\tto be covered under clause 1 and 1 (a) is  the\trisk
\n\trequired  to be covered under section 95 of the Motor  Vehi-
\n\tcles Act.\n<\/p>\n
\t    On a construction of the insurance policy we accept\t the
\n\tplea  of the insurance company that the policy\thad  insured
\n\tthe   owner  only to the extent of Rs. 15,000 regarding\t the
\n\tinjury\tto  the passenger. In the result we  hold  that\t the
\n\tliability  of the insurance  company  is restricted  to\t Rs.
\n\t15,000.\t  There shah be a decree in favour of the  claimants
\n\tappellants to the extent of Rs. 27,500 against’ the respond-
\n\tents  out  of which the liability of the  insurance  company
\n\twill  be  restricted to Rs. 15,000.  The appeal\t is  allowed
\n\twith  the costs of the appellant which will be paid  by\t the
\n\trespondents in equal share.\n<\/p>\n
\tP.H.P.\t\t\t\t\tAppeal allowed.\n\t389<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Pushpabai Purshottam Udeshi & Ors vs Ranjit Ginning & Pressing Co. (P) … on 25 March, 1977 Equivalent citations: 1977 AIR 1735, 1977 SCR (3) 372 Author: P Kailasam Bench: Kailasam, P.S. PETITIONER: PUSHPABAI PURSHOTTAM UDESHI & ORS. Vs. RESPONDENT: RANJIT GINNING & PRESSING CO. (P) LTD. & ANR. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-97888","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPushpabai Purshottam Udeshi & Ors vs Ranjit Ginning & Pressing Co. 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