Orissa High Court
State Of Orissa And Anr. vs Rebati Tiwari on 24 February, 1987
Equivalent citations: I(1987)ACC536, AIR1988ORI242, AIR 1988 ORISSA 242, (1987) 2 TAC 121, (1987) 64 CUT LT 78, (1987) 1 ACC 536, (1987) ACJ 915
JUDGMENT H.L. Agrawal, C.J.
1. Whether the owner of a truck would be liable for compensation for the unauthorised act of his driver carrying passengers in a goods truck in contravention of Rule 95 of the Orissa Motor Vehicle Rules, 1940 (for short, the "Rules") is the short and somewhat ticklish question which falls for determination in this appeal.
2. On 6-8-1979, the truck bearing No. ORP 6124 was going from Jamankira to Khairipalli. The victim Purna Ch. Tiwari, then aged about 35 years, was travelling in the said truck. At about3 p.m., when the truck was negotiating a ghat road on the National Highway from Sambalpur to Keonjhar, met with an accident as a result of which all the occupants fell down about 20 feet below the culvert. Purna Chandra unfortunately died in the accident.
3. A case for compensation Under Section 110A of the Motor Vehicles Act (hereinafter referred to as the 'Act') was filed before the Claims Tribunal by the young widow of the victim (aged only 31 years) claiming a compensation of Rs. 34,000/- on the ground that the death of her husband was as a result of the rash and negligent driving of the vehicle by its driver.
4. The State of Orissa and the Executive Engineer of the concerned Stores and Mechanical Division, filed their written statements. The essential pleas of defence were that the accident did not take place due to the rash and negligent driving of the truck by the driver, but it took place on account of the careless driving of a mini bus coming from the opposite direction at a turning point at a high speed. It was further urged that even assuming that the accident took place on account of the negligent driving of the vehicle, the State of Orissa could not be held to be vicariously liable for unauthorised act of the driver in carrying passengers in the truck in violation of the departmental rules prohibiting carriage of any person in a government vehicle.
5. The following facts are not disputed in this case : --
The driver of the vehicle was deputed to drive the truck in question and was going to bring iron rods from the Hirakund Re-rolling Mills. Thus, the vehicle was on official duty and the driver was driving the vehicle incourse of his employment by the owner.
6. The Tribunal on these facts held that although the act of the driver in picking up passengers was illegal, the same having been done during the course of his regular employment the State of Orissa, being the owner of the vehicle, would be liable for compensation arising out of the act of its driver. The Tribunal on the evidence also held that, the truck was not properly maintained and that the accident took place on account of the negligence of the driver of the vehicle. The Tribunal taking the monthly income of the deceased as Rs. 300/- and his age as 38 years at the time of his death, and his life expectancy as 6 5 y ears, computed the compensation of Rs, 48,000/- @Rs. 150/- as the possible monthly contribution by the deceased to his wife and children and after deducting one-sixth for the lump sum payment and one-eighth for the uncertainties of life, awarded a compensation of Rs. 34,000/- with interest at the rate of 6 per cent per annum.
7. In this appeal against the said award, the learned Additional Government Advocate took the same stand, namely, that the State was not liable for the unauthorised and illegal act of the driver. He also placed reliance upon the following decisions in support of his stand.
(1) Krishna Ramayya Gouda v. C.P.C. Motor Co., AIR 1983 Kant 176.
(2) Jiwan Dass Roshan Lal v. Karnail Singh, AIR 1980 Punj & Bar 167, and (3) Pushpabai Parshottam Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd., AIR 1977 SC1735, Rule 95, to which reference was made by Shri Panigrahi reads as follows : --
"95. Carriage of persons in goods vehicles --
(a) gave in the case of a stage carnage in which goods are being carried in addition to passengers no person shall be carried in goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle and except in accordance with this rule.
(b) to (d) xxx xxx xxx
(e) Nothing contained in this rule shall be deemed to authorise the carriage of any person for hire or reward or any vehicles."
Section 112 of the Act reads as follows : --
" 112. General provision for punishment of offences. --
Whoever contravenes any provision of this Act or of any rule made thereunder shall, if no other penalty is provided for the offence, be punishable with fine which may extend to one hundred rupees, or, of having been previously convicted of any offence under this Act he is again convicted of an offence under this Act, with fine which may extend to three hundred rupees."
8. 1 now proceed to examine the decision, cited by the learned Additional Government Advocate as mentioned above.
The Punjab & Haryana case, AIR 1980 Punj & Har 167 no doubt supports the case of 'the-appellant. Here, the deceased was a passenger in the goods truck and was allowed to board the same by its driver in contravention of a similar rule in the Punjab Motor Vehicles Rules. The accident in which the said passenger succumbed to his injuries took place due to the negligence and carelessness of the driver. But it was held that since the driver was not acting in course of his employment, being not authorised to carry the deceased in the truck as a passenger, the owner of the truck could not be held to be vicariously liable for the tortious act of the driver. The learned Chief Justice who delivered the judgment for the Bench went on to say that "the deceased must be deemed to law as a trespasser qua the owner. He, therefore, owed no duty of care to the deceased. Acting in direct contravention of a statutory provision which is made a punishable offence could not be easily conceived as in the normal course of employment and no employer could be deemed or assumed to authorise the contravention of law or the commission of an offence was the basis for taking the above view in the said case.
The learned Chief Justice had placed reliance upon the case of the Mysore High Court in Mohiddinsab Gaffarsab Kundgol v. Rohindas Hari Kindalkar, 1973 Acc CJ 424 and Twine v. Bean's Express, Ltd., (1946) 1 All ER 202 where the driver of a commercial van had unauthorisedly carried a passenger therein and it was held that the owners were not vicariously liable.
For the reasons I proceed to discuss hereinafter, with due deference to the learned Judges of the Punjab and Haryana High Court, I feel myself unable to accept their views.
9. Thereare, however, three decisions of the Karnataka High Court, namely, (1) Nagappaiah Major v. Bhaskara, AIR 1982 Kant 183; (2) K. R. Gouda v. C.P.C. Motor Co., AIR 1983 Kant 176; and (3) Oriental Fire and General Insurance Co. Ltd. v. B. Parvathamma, AIR 1986 Kant 63. All the three decisions are Bench decisions of that court, but presided over by the same learned Judge, namely, G. N. Sabhabit, J.
10. Whereas reliance has been placed on the first and the last cases AIR 1982 Kant 183 and AIR 1986 Kant 63 by the respondent, the decision in the 2nd case AIR 1983 Kant 176 was cited on behalf of the appellants which of course supports their stand. All the three decisions have also referred to the case of Pushpabai Parshottam Udeshi v. Manjit Ginning & Pressing Co. Pvt. Ltd., AIR 1977 SC 1735. This was a decision by a Bench of two learned Judges of that Court and the decision has ruled that the owner would be vicariously liable for the acts done by his servant in course of his employment, but the liability of the owner would not extend to any criminal acts done by the servant. In AIR 1983 Kant 176, where the driver of a lorry had given lift to a person in breach of the provisions of the rules similar to the Orissa Rules, it was held that neither the owner nor the insurer could be liable for the damages suffered by the person on account of an accident due to the carelessness of the driver.' This decision referred 'to the following observation of the Supreme Court in para 14:
"This decision has extended the scope of acting in the course of employment to include an illegal act of asking for and receiving a premium though the receiving of the premium. was not authorised. We do not feel called upon to consider whether this extended meaning should be accepted by this Court. It appears Lord Goddard, Chief Justice, had gone further in Barker v. Levinson, (1950) 66 TLR (pt. 2) 717 and stated that "the master is responsible for a criminal act of the servant if the act is done within the general scope of the servant's employment". Lord Denning would not go to this extent and felt relieved to find that in Authorised Law Reports (1951) 1 KB 342, the passage quoted above was struck out. We respectfully agree with the view of Lord Denning that the passage attributed to Lord Chief Justice Goddard went a bit too far."
11. Later on, the Supreme Court rendered another decision in State Bank of India v. Smt. Shyama Devi, AIR 1978 SC 1263 and made the following observations in para 24:-
"Salmon, L.J., speaking in a similar strain (1966-3 AU ER 593 at page 599) emphasised that the fact that the thiefs employment on board presented him with the opportunity to steal does not suffice to make the ship-owners liable. The conclusion drawn was :
'For an employer to be liable, however, it is not enough that the employment merely afforded the servant or agent an opportunity of committing the crime.' It must be shown that the damage complained of was caused by any wrongful act of his servant or agent done within the scope or course of the servant's or agent's employment, even if the wrongful act amounted to a crime. For this proposition, Salmon, L.J. referred to Lloyd v. Grace, Smith & Co., (1912) AC 716."
Then again in para 25, the following observation was made : --
"In United Africa Company Ltd. v. Saka Owoade, (1955) AC 130, the Privy Council laid down that a master is liable for his servant's fraud perpetrated in the course of master's business, whether the fraud was for master's benefit or not, if it was committed by the servant in the course of his employment. There is no difference in the liability of a master for wrongs whether for fraud or any other wrong committed by a servant in the course of his employment, and it is a question of fact in each case whether it was committed in the course of the employment."
The Supreme Court has thus made a departure from its earlier view expressed in AIR 1977 SC 1735 and what was held earlier to be going "a bit too far" was covered. In that view of the matter, in the latest decision of the Karnataka High Court AIR 1983 Kant 176 was held to be as per incuriam, the Supreme Court decision that would have a binding effect being later in point of time and rendered by a larger Bench having not been noticed in that case. In that view of the matter, the consensus of the judicial opinion is against the contention advanced by the learned Additional Government Advocate.
In AIR 1986 Kant 63 (supra), the driver of a tanker had given lift to two passengers who were fatally injured in an accident arising due to his negligence. It was held that the act of the driver in giving lift to the passengers being an act done in course of his employment, the owner of the tanker was vicariously liable to pay the compensation.
12. Some other decisions, namely, AIR 1983 Pat 246; AIR 1983 Mad 197; AIR 1982 Orissa 70; (1981) 52 Cut LT 357 : (AIR 1981 NOC 223) and AIR 1986 Punj & Har 414 were also cited at the, bar in support of the proposition that the owner is vicariously liable for the negligent act or the way of performance of duty of the driver, but in view of the direct authorities on the point of carrying passengers in violation of the rules of different States including of the Supreme Court, I need not discuss the facts of the cases reported in these cases to unnecessarily lengthen my judgment.
13. On the above discussion and in view of the principles enunciated in the various authorities noticed above, the following conclusions may be recorded : --
It is true that a master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business. It must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it. At this stage, I may usefully refer to a decision of the House of Lords in Century Insurance Co. v. Northern Ireland Road Transport Board, (1942) AC 509 in which the driver of a petrol lorry, while transferring petrol from the lorry to an underground tank, struck a match to light a cigarette and threw it on the floor, and thereby caused a fire and an explosion which did great damage. It was held that his employers were liable because of his negligence in the discharge of his duties though the act of lighting his cigarette was done for his own comfort and convenience and was in itself both innocent and harmless. The servant's act may be an authorised act for the purpose of vicarious liability even if it is done solely for his own purposes if in the circumstances the permission of the master can be implied. The liability of a master extends even to frauds and other wilful wrongs. If his servant does something fraudulently what he is employed to do honestly, the master must answer for the fraud.
In Salmond's Law of Torts, it has been observed that it was long supposed that where the fraud or other wilful wrong doing of the servant was committed for his own benefit and not on his master's behalf, his master was not responsible. It was, however, decided by the House of Lords in Lloyd v. Grace, Smith & Co., (1912) AC 716 distinguishing some earlier cases that this was not so. In other . words, where the acts which his servant is expressly authorised to do is lawful, the master is nevertheless responsible for the manner in which the servant executes his authority. The liability of the master, therefore, must extend also to all torts committed by the servant when purporting to act in the course of such business as he was authorised or held out as authorised to transact on account of his master. If the servant is acting within the scope of his authority, his master is liable whether he receives the benefit of the wrongful act or not (See Irwin v. Waterloo Taxi Cabs Co. Ltd., (1912) 3 KB 588).
14. Thus, the owner of the truck must be held to be liable for the driver's fraud perpetrated incourseof his master's business whether the fraud was for the master's benefit or not if it was committed by the servant in course of his employment. There is no difference in the liability of a master for the wrong, whether for fraud or any other wrong, committed by the servant in course of his employment.
The driver of the truck in question, as already said earlier, was driving the truck in course of his employment and in that view of the matter, his act which is misdemeanour or negligence and even in violation of the prohibitory rules would render his master liable.
15. The only point pressed on behalf of the appellant has therefore no merit and this appeal must fail. It is accordingly dismissed. But in view of some divergent decisions of different High Courts on the point, I shall relieve the appellants of the costs.