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TMI Blog1976 (12) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... he driver having acted beyond the scope of his employment in giving lift to Kedarnath Gupta and Horilal Jain, the State Government of Rajasthan could not. therefore, be held vicariously liable to pay damages for the death of these gratuitous passengers. 3. The facts leading to these appeals, briefly, are these. On 12-9-1965 at about 6 P. M., the respondent No, 3 Harpal Singh, took delivery of Jeep No. RJL 4245 registered in the name of Conservator of Forest, Rajasthan, Jaipur, from M/s. Vijay Motors, Bharatpur, where it had been given for repairs. Sher Singh, the driver of the Panchayat Samiti, Sewar, P. W. 2 whose jeep was also at the workshop for repairs but was not ready, got into the jeep and he took the wheel. Harpal Singh instead of taking the jeep to the garage, went on a spree along with Sher Singh. That evening Kedarnath Gupta, Accounts Clerk, Panchayat Samiti, Sewar, along with Horilal Jain and Mewa Ram, were going to the city on foot. They stopped at the shop of Ramsingh Thakur near Kotwali, to take betels. At about 8 P. M., when the jeep happened to pass that way, the respondent No. 3 Harpal Singh persuaded them to get into the jeep for a pleasure drive. They got int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the course of his employment. 7. There can be no doubt that the respondent No. 3 Harpal Singh, along with Sher Singh P. W. 2, went on a spree, The accident occurred some three hours after the jeep was taken out of the workshop. It is needless to stress that Government vehicles cannot be put to private use : see Rules regarding the use of Motor Cars, and Jeeps, etc.. placed at the disposal of Government Departments and Officers. The respondent No. 3 Harpal. Singh was certainly not permitted by his employer, the Stats Government, to pick up person? on the way. 8. The contention that nonetheless the State Government would be vicariously liable can easily be met. The law is stated in Clerk and Lindsell on Torts, 10th Ed. p. 122, thus: A master will usually be responsible for the servant's negligence in doing something which he is merely permitted to do or does for his own purposes, but is not employed to do. If a servant does an act for his own pleasure, quoad that act he is a stranger to his master, although he may be in other respects engaged at the time upon the masters' business, and the mere fact that the master does not prohibit the doing of the act oug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... river, who had, without authority, given him a lift in the vehicle driven by him, Lord Greene said: He was in fact doing two things at once. He was driving his van from one place to another by a route that he was properly taking ..... and as he was driving the van he was acting within the scope of his employment. The other thing that he was doing simultaneously was something totally outside the scope of his employment, namely, giving a lift to a person who had no right whatsoever to be there. In Convey v. George Whimpay, (1951) 2 KB 266 (CA), Asquith LJ, in delivering the judgment of the Court of Appeal, dismissed the claim on either theory, i. e. that, vis-a-vis the employer, the passenger was a trespasser, and the servant in giving lifts to third parties acted beyond the scope of his employment. These are, of course, cases of express prohibition but that hardly makes any difference in principle. In case of employment of a driver, there exists, in our view, an implied prohibition from giving lifts to third parties. 12. In the Privy Council case of Canadian Pacific Rly. Co. v Lockhart, LR (1942) AC 591 = (AIR 1943 PC 63), Lord Dunedin said, 'there are prohibiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the Court considered it right so to define the scope of employment that what was done, namely giving somebody a lift, was outside it and was not a mode of doing that which the servant was employed to do. That also was a case of a lift: the person lifted was not in any way engaged, in the course of the lift or indeed otherwise, in doing the master's business or in assisting the servant to do the master's business; and no doubt it was somebody else's employee a lift from the airport home -- was not a mode of performing an act which the driver was employed to do, but was the performance of an act which he was not employed to perform. In a strong dissenting opinion, Lawton LJ., however, preferred to rest his decision on the view of Asquith LJ. in Convey v. George Whimpay, (1951) 2 KB 266 (supra) and hold the employer as not liable on both the grounds, stating: If between 1946 and 1951 any employers had the kind of doubts about Twine's case which in more recent years have been expressed by academic writers, their minds would have been put at rest by another decision of this Court in 1551, namely Conway v. George Wimpey Co. Ltd. That was a case in which a lorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Vehicles Rules prohibiting carriage of passengers into play, but that hardly makes any difference. For Government vehicles cannot be put to private use. In any event, the principle volenti non fit injuria applies in such cases. 13. In Amthiben Maganlal v. Superintending Geophysicist O. N. G. C., (1976) ACJ 72 (Guj) the Gujarat High Court, however, has struck a discordant note, observing: If the driver had while driving the vehicle on the master's business killed a pedestrian the master would have been liable in damages to the heirs and legal representative of the deceased. Merely because the deceased had been sitting on the truck and was not a pedestrian passing on the road, it made no difference so far as the liability of the owner is concerned. If the driver drives a truck of the master on the 'master's business, it does not make any difference if he kills a pedestrian or one sitting on the truck. With respect, we are unable to subscribe to this view which cannot be supported on principle or on balance of authority. The decision of the Gujarat High Court also does not appeal to reason. It fails to draw the distinction between the negligent act of the driver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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