9911796707
TMI Blog1977 (3) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The car which was .a Hindustan Ambassador Saloon was insured with second opponent, Union Fire Accident and General Insurance Co. Ltd. The deceased was aged 58 years at the time of' his death and according to the petitioners was earning annually about ₹ 9,000. They claimed a compensation of rupees one lakh. The opposite parties, the owner and the insurance company, opposed. the claim. While admitting that the vehicle was proceeding from Nagpur on its way to Pandhurna for the purpose mentioned by the applicants they denied that the vehicle was driven in a rash and negligent manner and pleaded that the vehicle was at the time of accident in perfectly sound condition. It Was submitted that the husband of the applicant No. 1 was travelling in the said vehicle on his own responsibility and for his own purpose and absolutely gratis and not on behalf of or at the instance of the opposite party No. 1, or the driver of the vehicle and therefore the claimants are not entitled to any compensation. The opposite parties pleaded that the incident was as a result of inevitable accident and not due to any act of rashness or negligence on the part Of the driver. They opposed the claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey Co. Ltd.(3), came to the conclusion that the rash and negligent driving by the Manager was not in the course of his employment. The learned counsel for the respondent relied on some other decisions which will be referred to in due course. The High Court has not gone into the question as to whether the car was. being driven rashly and negligently by the owner's employee as it held that the act was not in the course of his employment. We feel that the question as to whether the car was being driven rashly and negligently would have to be decided on the facts of the case first for, if the claimants fail to establish rash' and negligent act no other question would arise. We would therefore proceed to deal with this question first. The claimants did not lead any direct evidence as to how the accident occurred. No eye-witness was examined. But P.W. 1, the younger brother of the deceased Purshottam Udeshi, who went to the spot soon after the accident was examined. He stated that he went with one of his relatives and an employee of his brother's employer and saw that the car had dashed against a tree while proceeding from Nagpur to Pandurna. The tree was on the right ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the result could not have been avoided. (Halsbury's Laws of England, Third Ed., Vol. 28, p. 81). No such attempt was made and before us the plea of inevitable accident was not raised. We have therefore to consider whether the claimants have made out a case of rash and negligent driving. As found by the Tribunal there is no eye-witness and therefore the question is whether from the facts established the case of rash and negligent act could be inferred. The Tribunal has applied the doctrine of resipsa-loquitur . It has to be considered whether under the circumstances the Tribunal was justified in applying the doctrine. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who. caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant, This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident speaks for itself or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her side ordinary care requires that the car should be driven at a speed in which it could be controlled'if some stray cattle happened to come into the road. From the description of the accident given by P.W. 1 which stands unchallenged the car had proceeded to the right extremity of the road which is the wrong side and dashed against a tree uprooting it about 9 inches from the ground. The car was broken on the front side and the vehicle struck the tree so heavily that the engine of the car was displaced from its original position one foot on the back and the steering wheel and the engine of the car had receded back on the driver's side. The car could not have gone to the right extremity and dashed with such violence on the tree if the driver had exercised reasonable care and caution. On the facts made out the doctrine is applicable and it is for the opponents to prove that the incident did not take' place due to their negligence. This they have not even attempted to do. In the circumstances we find that the Tribunal was justified in applying the doctrine. It was submitted by the Learned counsel for the respondents that as the High Court did not consider the question th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he servant in the course of his employment and that the master is liable. On the facts found the law is very clear but as the question of the company's liability was argued at some length we will proceed to refer to the law on the subject. It is now firmly established that the master's liability is based on the ground that the act is done in the scope or course of his employment or authority. The position was stated by Lord Justice Denning in Young v. Edward Box and Co. Ltd.( (1951) 1 T.L.R. 789 at 793). The plaintiff and fellow workmen were given a lift on one of the defendants' lorries with the consent of his foreman and of the driver of the lorry. On a Sunday evening the plaintiff, in the course of that journey, was injured by the negligence of the driver of the lorry and the plaintiff brought an action against the defendants claiming damages for his injuries. The defence was that the plaintiff, when on the lorry, was a trespasser. The traffic manager of the defendants pleaded that he had never given instructions to the foreman that he should arrange for lifts being given to the plaintiff and his fellow-workmen on Sundays and that the foreman had no authority to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority of the foreman and the plaintiff was entitled to rely on that authority as a licensee, Lord Denning based it on the ground that even though the plaintiff was a trespasser so far as the defendants were concerned, as the driver was acting in the course of his employment in giving the plaintiff a lift, it was sufficient to make the defendants liable. Applying the test laid down there can be no difficulty in concluding that the right to give leave to Purshottam to ride in the car was within the ostensible authority of the Manager of the company who was driving the car and that the Manager was acting in the course of his employment in giving lift to Purshottam. Under both the tests the respondents would be liable. We will now refer to the three cases relied on by the High Court for coming to the conclusion that the accident did not take place during the course of employment. The first case referred to is Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt ([1961 3 S.C.R. 527.]). The owner of a vehicle entrusted it to A for plying it as a taxi. B who used to clean the taxi was either employed by the owner or on his behalf by A. A trained B to assist him in driving the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that extent this may be taken as an extension of the doctrine of scope of employment. Thus, on the facts as we have found that the accident took place during the course of employment the decision in Sitaram Motilal Kalal is of no help to the respondents. The next ease which is referred to by the High Court is Canadian Pacific Railway Company v. Lockhart(2). In that case one S was employed as a carpenter by the railway company. In the course of his employment he was required to make repairs of various kinds to employer's property. He made a key for use in a lock in the station at N far away from his headquarters at W. He was paid per hour and the railway company kept vehicles to be used by S available for him. S, however, had a car of his own and without communicating his intention to anyone he used it on his way to N. An accident happened on the way owing to S's negligence. It was also in evidence that the railway company had issued notice to its servants particularly to S warning him against using their private cars unless they had got their cars insured against third party risk. On the facts, the Privy Council held that the means of transport used by the carpenter was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... river who was the Manager of the company, it is reasonable to presume, in the absence of any evidence to the contrary, that the Manager had authority to carry Purshottam and was acting in the course of his employment. We do not see any support for the conclusion arrived at by the High Court that the driver was not acting in the course of his employment. We will now proceed to refer to some cases which were cited by the learned counsel for the respondents. The learned counsel placed reliance on the decision in Houghton v. Pilkington.(1) In that case the plaintiff at the request of a servant of the defendant got into the defendant's cart which was then in the chrage of the servant, in order to render assistance to another servant of the defendant who had been rendered unconscious by an accident. The plaintiff fell out of the cart and was injured through the negligence of the servant in charge of the cart in causing the horse to start. In an action against the defendent for damages for the injuries sustained by the plaintiff it was held that the existence of an emergency gave no implied authority to the servant to invite the plaintiff into. the cart and that the defendant was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclude, we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term in the course of the employment as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhat (supra) where this Court accepted the law laid down by Lord Denning in Ormrod and Another rs. Crosville Motor Services Ltd. and Another (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 or 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 year 1945-56. and if the answer is yes, the second question is to see whether the em1oyer must shoulder the servant's liability, has been uniformally accepted as stated in Salmond Law of Torts, 15th Ed., p. 60'6, in Crown Proceedings Act, 1947 and approved by the House of Lords in Stav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he passage attributed to Lord Chief Justice Goddard went a bit too far. On a consideration of the cases, we confirm the law as laid down by this Court in Sitararn Motilal Kalal v. Santanuprasad Jaishankar Bhatt (suvra) and find that in this case the driver was acting in the course of his employment. and as such the owner is liable. We therefore set aside the finding of the High Court that the act was not committed in the course of employment or under the authority of the master, and allow the appeal. The only point that remains is the determination of the quantum of compensation to which the appellants are entitled to. The High Court did not go into this question but the Tribunal after taking into consideration the various facts fixed the compensation at ₹ 33,209.15 with costs and directed that the insurance company shall indemnify the owner to the extent of ₹ 15,000. The Tribunal fixed special damages for funeral and post-funeral expenses including transport charges at ₹ 2,000. This item is not disputed. The second item is a sum of ₹ 31,209.15 which according to the Tribunal would have been the amount which the deceased would have earned by continuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by referring to section 95(1)(b)(i) which provides against any liability to the owner which may be incurred by him in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. As section 95 of the Motor Vehicles Act, 1935 as amended by Act 56 of 1969 is based on the English Act it is useful to refer to that. Neither the Road Traffic Act, 1960, or the earlier 1930 Act required users of. motor vehicles to be insured in respect of liability for death or bodily injury to passengers in the vehicle being .used except a vehicle in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment. In fact, sub-section 203(4) of the 1960 Act provided that the policy shall not be required to cover liability in respect of death of or bodily injury to persons being carried in or upon, or entering or getting on to or alighting from, the vehicle at the time of the occurrence of the event out of which the claims arise. The provisions of the English Act being explicit the risk to passengers is not covered by the insurance policy. The provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of' insurance should cover risk to the passengers who are not carried for hire or reward. As under section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act. The insurer can always take policies covering risks which are not covered by the requirements of section 95. In this case the insurer had insured with the insurance company the risk to. the passengers. By an endorsement to. the policy the insurance company had insured the liability regarding the accidents to passengers in the following terms: In consideration of the payment of an additional premium it is hereby understood and agreed that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger ........... The scale of compensation is fixed at ₹ 15,000. The insurance company is ready and willing to pay compensation to the extent of ₹ 15,000 according to this endorsement but the learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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