1. This Appeal is filed against the award dated 6-9-1996 in M.O.P. No.345 of 1992 passed by the Motor Accidents Claims Tribunal-cum-III Addl. District Judge, Visakhapatnam. The Appellant herein is the 1st respondent in the said O.P. The petitioners herein referred to as they are arrayed in the OP. The claim was laid by the employee working as Camp Clerk in the office of the Superintendent of Police (Rural), Visakhapatnam.
2. The facts leading to the case are that the 1st respondent was working as Deputy Superintendent of Police, Chintapalli, whilethe claimant was working as Camp Clerk. On 18-2-1990 the Claimant, the 1st respondent along with two gunmen and one orderly were proceeding in a Departmental jeep bearing registration No.AHV 5158 from Chintapalli to Visakhapatnam to attend an official meeting at Visakhapatnam. While so, after driving for some time, the 1st respondent took the steering from the driver and started driving the jeep. It was drizzling at about 4-30 p.m. The 1st respondent on seeing a lorry coming from the opposite side applied sudden brakes, with the result the jeep turned turtile and the petitioner-claimant received injuries. Immediately, he was admitted in Anakapalli Hospital and thereafter he was shifted to Visakhapatnam. He was operated on his right leg and two plates were inserted in his leg. He also received number of fractures and cut injuries. On account of the injuries sustained, he is not in a position to walk and that he has to use two callipers. He cannot drive cycle or scooter. Since the accident arose on account of the rash and negligent driving of the jeep by the 2nd respondent-appellant, he laid a claim before the Tribunal claiming Rs.6.00 lakhs towards compensation on all counts. The claim was resisted by the 1st respondent and also other respondents. The Tribunal on consideration of the pleadings framed the following issues:
(1) Whether the accident has taken place that resulted in causing the injuries to the petitioner due to the rash and negligent driving of Jeep AHV 5158 by the first respondent?
(2) Whether the respondents are liable to pay compensation and, if so, to what quantum and by which respondent?
(3) To what relief?
3. On behalf of the petitioner-claimant three witnesses were examined and Exs.A1 to A6 were marked, whereas on behalf of the respondents RWs.1 to 3 were examined, but no documents were marked. Exs.X1 to X4 were marked by the Court.
4. The Tribunal held that the accident occurred due to the rash and negligent driving of the jeep by the 1st respondent and that he is responsible for the said accident. Therefore, he was made liable to pay the compensation. Accordingly, the claim was allowed on various counts for a total sum of Rs.1,22,973/- with proportionate costs and interest at 12% per annum from the date of the petition till the date of payment. Aggrieved by the said Award, the present Appeal has been filed by the 1st respondent.
5. The learned Counsel for the Appellant-lst respondent submits that the order of the Tribunal in fastening the liability on the appellant is wholly illegal and contrary to law. He further submits that on the principle of vicarious liability of the master for the acts done by the servant, the master is liable to indemnify the third parties. Therefore, the 2nd and 3rd respondents ought to have been mulcted with the liability. Even on merits also, he submits that there was no negligence on his part and that the compensation awarded is highly excessive and not in conformity with the settled principles.
6. The learned Government Pleader appearing for the respondents submits that since the appellant was found to be solely responsible for causing the accident, he alone is liable to pay the compensation to the claimant. Further, the appellant, who was working as Dy. Superintendent of Police, was not having driving licence; hence, for having driven the jeep without licence, he is to be held responsible for the said accident. The appellant knowing fully well that he did not hold any licence ought not to have driven the jeep, in which event the accident could have been avoided. Therefore, the learned Government Pleader submits that appeal has to be dismissed.
7. Now the question that falls for consideration is whether the jeep was used for official duties and whether the appellant was liable to pay the compensation?
8. As tar as the accident is concerned, there is no dispute that the jeep was involved in the accident and finding of the Tribunal that the accident had occurred due to the rash and negligent driving of the said jeep cannot be said to be contrary to the evidence. Admittedly, the appellant along with the claimant and others was travelling in the said jeep from Chintapalli to go to Visakhapatnam. Along with the 1st respondent, other gunmen and orderly were also travelling. Even in the petition filed by the claimant it is stated that the claimant, 1st respondent and other armed guards were proceeding to Visakhapatnam. Under these circumstances, the finding of the Tribunal that the 1st respondent did not establish mat he was proceeding on official duty to Visakhapatnam is erroneous. I accordingly hold that the jeep was used for the official work of the 1st respondent. The Claimant also gave statement before the Tribunal that the 1st respondent had to attend the meeting at Collectorate, Visakhapatnam. It is also the case of the 1st respondent that he was to attend official work at Visakhapatnam on the date of accident. The counter-affidavit filed on behalf of the respondents No.2 and 3, this feet was not denied and no evidence was adduced in this regard. On the other hand, they tried to support the 1st respondent. Even the liability of the State was not specifically disputed. It is true that the burden lies on the 1st respondent to prove that he was proceeding to Visakhapatnam on official duty. The factum of official duty was never disputed. It is only those facts which are disputed or denied are required to be proved. Admitted facts need not be proved. The Claimant himself admitted that the jeep was proceeding on official duty. The State also never disputed this situation. Further, it is also established that the 1st respondent, claimant were travelling along with gunmen and orderly. If the jeep was used for the private purpose, the security personnel could not have accompanied the 1st respondent. However, the Tribunal held that the evidence produced by the 1st respondent it was not established that he was travelling in the jeep for official duty andtherefore, the question of fixing vicarious liability on respondents No.2 and 3 did not arise. The learned Counsel for the appellant 1st respondent seriously disputes this finding. He submits that the factum of official work at Visakhapatnam was never disputed by the Claimant and also respondents No.2 and 3. As this aspect was admitted, the same need not be further established by adducing evidence. It is only when the same was disputed, the burden lies on the appellant to establish the same. The driver of the jeep in his evidence also stated that they started from Chintapalli for a meeting at Visakhapatnam Collectorate. I have considered the submission and found that the relevant material has not been considered to come to a conclusion that the 1st respondent did not establish that he was on official duty.
9. The next question that falls for consideration is how far the master is liable for the acts of the servant?
10. The principle of vicarious liability of master in respect of the tortuous acts of the servant in the course of his employment is now. well settled. In Halsbury's Laws of England, Fourth Edition, Volume 16, Paragraph 739, it has been stated:
'Where the act which the employee is expressly authorised to do is lawful, the employer is nevertheless responsible for the manner in which the employee executes his authority. If, therefore, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorise the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his employer.'
In Salmond's Law of Torts (Twentieth Edition) at Page 458, it is stated thus:
'.....On the other hand it has been held that a servant who is authorised to drive a motor vehicle, and who permits anunauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The master may even be responsible if the servant impliedly, and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonable foreseeable that the third party will attempt to drive it, atleast if the driver retains notional control of the vehicle.'
It is sought to be contended by the learned Govt. Pleader that the regular driver was already driving the vehicle and the steering was intentionally taken over by the appellant, that the driver could not resist handing over the steering to the appellant being a subordinate and that, therefore, the act of handing over the jeep to the appellant by the driver cannot be said to be falling within the scope of 'employment'. If the driver had voluntarily handed over the jeep to the appellant, then the State may be liable for compensation on the principle of vicarious liability of the master for the acts of the servant in the course of employment.
11. In London County Council v. Cattermoles (Garages) Ltd.,(1953) 2 A1I.ER 582, a workman was employed as a general garage hand, who is not competent to drive the vehicle and he had no licence. He got into the stationary van, started the engine, drove the van and went on to the highway. While so, it collided with another van and the employers of the garage hand were held liable. It was also held that 'a person who is a servant has always a personal independent sphere of life and at any particular time he may be acting in that sphere. In that situation, the master cannot be responsible for what he does. When the act of the servant causes injury to a third party the question is not answered by merely applying the test whether the act itself is one which the servant was ordered or forbidden to do. The employerhas to shoulder the responsibility on a wider basis. In some situation he becomes responsible to third parties for acts which he has expressly or implicitly forbidden the servant to do.'
12. Again in Ilkiw v. Samuels, (1963) 1 WLR 991, it was contended that the driver to whom the vehicle had been entrusted for driving had no authority from employer to delegate the driving of the vehicle to another person and because of that the employer cannot be made vicariously liable for the negligence of some one to whom he had purported to delegate the control of the vehicle. While negativing the said contention, it was said:
'The duty of tort of which he was in breach was, in my view, a duty delegated to him by the defendants under his contract of employment, and for that breach the defendants are vicariously liable notwithstanding that it resulted from his breach of an express prohibition by the defendants against permitting any other person to drive, for that prohibition did not limit the sphere of his employment, but dealt with the conduct of Waines within that sphere.'
13. In Staveley Iron and Chemical Co.Ltd. v. Jones, (1956) AC 627 = (1956) 1 All ER 403, it was said that ' the legislation has in no way altered the standard of care which is required from workmen or employers or that the standard can differ according to whether the workman is being sued personally or his employer is being sued in respect of his acts or omissions in course of his employment.'
14. In Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, : [1966]3SCR527 , the owner of the vehicle entrusted it to A for plying as a taxi. B used to clean the taxi. He was either employed by the owner or by A. A trained B to drive the vehicle and took B for obtaining the licence for driving. While taking the test B caused bodily injuryto the respondent. At the time of the accident, A was not present in the vehicle. On the question whether the owner was liable, it was held in the majority judgment that the owner was not liable because evidence did not disclose that owner had employed B to drive the taxi or given him the permission to drive the taxi. However, Subba Rao, J., (as he then was) held that the owner was liable because A did not exceed the authority conferred on him by the owner in employing B as a servant and permitted him to drive the vehicle in order to obtain the licence for assisting him as a driver.'
15. Let us consider the decisions of the Apex Court on this aspect. In Pushpabai v. Ranjit Ginning Co., : [1977]3SCR372 , it was a case where one Purshottam Udeshi was travelling in a car which was driven by the Manager of the first respondent-Company. The car dashed against a tree resulting in the death of Purshottam. The widow and children of Purshottam filed a claim for compensation. The High Court held that the respondent-Company could not be held vicariously liable for the act of their driver in taking Purshottam as a passenger as the said act was neither in the course of his employment nor under any authority whatsoever. Therefore, the respondent-Company was not liable to pay any compensation. It was pointed out by this Court that recent trend in law was to make the master liable for acts which do not strictly fall within the term 'in the course of the employment' as ordinarily understood. It was held that the respondent-Company was vicariously liable in respect of the accident.' In the said case, the Supreme Court said;
'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 course of the employment' as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, : [1966]3SCR527 , (supra) where this Court accepted the law laid down by Lord Denning in Ormrod v.Crosville Motor Services Ltd., (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, 1951 (1) TLR 789, already referred to i.e., the first question is to sec whether the employer must shoulder the servant's liability, has been uniformly accepted as stated in Salmond Law of Torts, 15th Edn. P.606, in Crown Proceedings Act, 1947, and approved by the House of Lords in Staveley Iron and Chemical Co., Ltd v. Jones, (1956) AC 627 and ICI Ltd v. Shatwell, 1965 AC 656.'
In Skandia Insurance Co.Ltd v. Kokilaben Chandravadan, : [1987]2SCR752 , the Supreme Court said:
'The defence built on the exclusion clause cannot succeed for three reasons, viz.,
(1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfill the promise and he himself is not guilty of a deliberate breach,
(2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.
(3) The exclusion clause has to be 'read down' in order that it is not at war with the 'main purpose' of the provisions enactedfor the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise.'
Again the Supreme Court in Kanshiram Yadav v. Oriental Fire and General Insurance Co., : [1989]3SCR811 , reiterated the view expressed in Skandia's case (supra) and observed while referring to the said case:
'.....There the facts found were quite different. The vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach.
We affirm and reiterate the statement of law laid down in the above case. We mayalso state that without the knowledge of the insured, if by driver's acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance.'
16. A somewhat identical situation arose before the Apex Court in the case of State of Maharashtra v. Kanchanamala Vijaysing Shirks, , wherein one Vijay Singh, who was driving scooter, was dashed by the jeep belonging to the Slate Government driven by a person 'X' other than the regular driver. It was alleged that 'X' was under the influence of liquor and was driving the jeep in a rash and negligent manner, which resulted in the accident and the death of the said Vijay Singh. The said person 'X' was driving the jeep with the knowledge of the regular driver of the jeep, as such the State was liable. The Tribunal found that the accident occurred on account of the rash and negligent driving of 'X', that he had no licence to drive the jeep, that the keys were snatched away from the regular driver and that, therefore, directed 'X', who drove the vehicle at the time of accident, to pay the compensation. On appeal, the High Court held that the keys of the vehicle were not forcibly taken from the driver, that it was established that the jeep was taken by the employee not for his own private purpose and that it was taken on official duty. In that background, it was held that the State is vicariously liable for the said accident. Thus, the State Government, the driver and the respondent were jointly and severally liable for payment of the compensation. Aggrieved by the said findings, the matter was carried in appeal by the State and the Supreme Court in para 9 of the judgment observed as follows:
'The question of payment of compensation for motor accidents has assumed great importance during the last few decades. The road accidents have touched a newheight in India as well as in other parts of the world. Traditionally, before Court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, it shall appear from different judicial pronouncements that the fault is being read as because of someone's negligence or carelessness. Same is the approach and attitude of the Courts while judging the vicarious liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected not to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the materials produced before the Court, It is the rule that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case, it can be found that an employee was doing an unauthorised act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting done something negligent or wrongful. A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so audiorised. On the other hand, if the act of the servant is not even remotedly connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside.'
After referring to the London County Council's case (supra) and Ilkiw's case (supra), the Supreme Court observed as follows:
'It need not be pointed out that different considerations might arise if the servant or some stranger was: using the vehicle forpurposes other than the purpose of his master's business and the accident occurred while the vehicle was being used for that other purpose. But, once it is found and established that vehicle was being used for the business of the employer, then the employer will be held vicariously liable even for the lapse, omission and negligence of his driver to whom the vehicle had been entrusted for being driven for the business of the employer.'
It was pointed out that in Pushpabai v. Ranjit Ginning Co., : [1977]3SCR372 , the Supreme Court accepted the unauthorised act of the driver being within the course of employment because of his occupying 'high position of Manager' and the principle laid down in Sitaram Motilal Kalal v. Santamtprasad Jaishankar Bhatt, : [1966]3SCR527 , was sought to be pressed into service. In that regard, the Supreme Court observed thus:
'We do not think that the ratio of the case turns on the position occupied by the driver. The real trust of the decision is acceptance of the trend to make the master liable for acts which do not strictly fall within the term 'in the course of employment' as ordinarily understood.'
It was further observed as follows:
'The crucial test is whether the initial act of the employee was expressly authorised and lawful- The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injuries caused to third parties who arc not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far as third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In the present case, it has been established beyond doubt that the driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was 'in the course of employment', the appellant-State shall be liable for the same.'
17. Sohanlal Passi v. P. Sesh Reddy, : AIR1996SC2627 , was a case where one Gurbachan Singh was the regular driver employed on the bus. However, he allowed one Rajinder Pal Singh, Cleaner/Conductor of the bus, who was not holding driving licence, to drive it and, consequently the accident took place. It was contended that the regular driver-Gurbachan Singh was not authorised to hand over the vehicle to the Conductor and the said act was without any authority from the employer and, therefore, the employer was not liable to pay compensation. The Supreme Court again considered the cases referred to above and observed that 'the crucial test is whether the initial act of the employee was expressly authorised and lawful. Then the employer shall nevertheless be responsible for the manner in which the employees i.e., the driver and the Cleaner/Conductor, executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far as third parties are concerned on the groundthat he had not actually authorised the particular manner in which the act was done.' In the said case, the Supreme Court after referring to Pushpabai 's case, : [1977]3SCR372 , observed as follows:
'Same is the position in the present case. The appellant had authorised Gurbachan Singh to drive the vehicle, but Gurbachan Singh allowed Rajinder Pal Singh, the C leaner/Conductor who was also the employee of the appellant to drive the vehicle because of which the accident took place. It is not the stand of the appellant that Rajinder Pal Singh was driving the vehicle without the knowledge or consent of Gurbachan Singh, for his personal pursuit. He was driving the bus for the business of the appellant, that is to carry the passengers. In this background, the appellant cannot escape the liability so far as the third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. As it has been established that the negligent act of Gurbachan Singh and respondent Rajinder Pal Singh was 'in the course of employment' the appellant shall be liable for the same. In the present case, the accident took place when the act authorised was being performed in a mode which may not be proper but nevertheless it was directly connected within the course of employment. It was not an independent act for a purpose which had no nexus or connection with the business of the appellant so as to absolve the appellant from the liability.'
This case was referred to three Judge Bench so as to examine the correctness of the view expressed in Skandia Insurance case (supra). The Supreme Court after referring to Kanshiram Yadav's case (supra) and Skandia Insurance case (supra), again concurred with the principle laid down in Skandia Insurance case (supra) by saying 'we are in respectful agreement with the view expressed in the case of Skandia Insurance Company's case (supra). The Supreme Court further heldthat the owner shall be deemed to be liable to pay compensation applying the principle of vicarious liability because the accident took place when the act authorised was being performed in a mode which may not be proper to see directly connected within the course of employment.
18. After considering the various dicta laid down by the foreign Courts and the Apex Court of this Country, it is clear that if the initial entrustment of the vehicle is proper, then in the event of any further entrustment by the driver to other persons during the course of employment, the master is held vicariously liable. This principle is based on public policy as the third party victims not concerned with the mode or manner of execution of the authority of the master by the servant cannot be deprived of compensation. The learned Government Pleader, however, tried to contend that because of the subordination the regular driver could not resist the appellant from taking over the steering. The said contention cannot be accepted as the Supreme Court while referring to Pushpabai's case in Kanchanamala's case (supra), observed that the real thrust of the decision is acceptance of the trend to make the master liable for the acts which do not strictly fall within the term 'in the course of employment'. In the instant case, the admitted facts are that the jeep was being used for official purpose by the appellant, in which the official driver took the jeep and after driving for some time it was taken over by the appellant-1st respondent. The regular driver could not object presumably on the ground that he was subordinate to the appellant. But, yet, keeping in view the principle to make the master liable for the acts which do not strictly fall within the term 'in the course of employment' it cannot be said that the State is not liable. When the initial entrustment was proper and when the driver allows the other person to drive the vehicle during the course of his employment and if any accident takes place, the trend must be to make the master liable for the acts of the servant. Once it is established that the negligent act of thedriver and the appellant was in the course of employment, the State shall be held to be liable.
19. However, the learned Government Pleader submits that the appellant was not having the driving licence and he was only holding learner's licence, and, therefore, when he is incompetent to drive the vehicle, the master cannot be made liable. I need not consider this issue inasmuch as when once the initial entrustment of the jeep with the driver was proper and the driver had permitted the appellant to drive the vehicle during the course of his employment and even though the person to whom the vehicle has been handed over did not possess the licence, the master is vicariously told liable for the tortuous acts of his servants during the course of employment.
20. Considering the aforesaid decisions and the facts and circumstances of the case, it has to be necessarily held that the State is liable for the acts of its servants when such acts were done during the course of employment. The accident took place while the official work, which is during the course of employment of both the driver and the appellant. In such a situation, the Tribunal is not justified in fastening the liability on the appellant only. Under these circumstances, it has to be held that the State being the master of the vehicle is liable for payment of compensation to the Claimant.
21. Accordingly, the order of the Tribunal is set aside and the State is made liable to pay the compensation as awarded by the Tribunal.
22. The C.M.A. is accordingly allowed. The 2nd and 3rd respondents shall comply with the award of the Tribunal within 2 months from the date of receipt of this order. The parties shall bear their own costs.