M.S. Rayta and anr. Etc. Vs. Gowrawwa Channabasappa and anr. Etc. - Court Judgment

Venkatachaliah, J.

1. The two appeals are by the Union of India and its Defence Department. They arise out of and are directed against the common Judgment and separate awards dated 16-1-1986 made in M.V.C. Nos. 39 of 1984 and 115 of 1984 respectively, on the file of the Motor Accident Claims Tribunal-1, Belgaum, awarding compensations in the two actions- one, a fatal accident's action and the other a personal injury action. The claims before the Tribunal arose out of an accident that occurred at 9 a.m. on 28-12-1983 involving appellants' Military Vehicle No. 76-C 13703-A.

2. InM.V.C.No.39 of l984 the claimant is Gowrawwa -- the mother of one Chandru Channabasappa Shivapure. In M.V.C. No. 115 of 1984, a certain Dada Peer is the claimant. The said Chandru, aged about 30 years, died and Dada Peer ' injured in the accident that occurred on the National High Way No. 4 near Nittur village between Khanapur and Belgaum. The driver of the said Military vehicle, though not authorised so to do, picked-up and gave a lift to these two persons after collecting some money by way of fares from them. On the way from Khanapur to Belgaum, the vehicle hit a roadside tree. Chandru died. Dada Peer sustained injuries which included a fracture of the bone of his left upper-arm. and other injuries all over his person. The mother of the deceased-Chandru and the injured Dada Peer brought the two actions for compensation. For Chandru's death, the Tribunal awarded to his mother Rs. 21,750/-as compensation. For the injuries; Dada Peer was awarded Rs. 24,700/-

3. In the Tribunal, the driver of the vehicle and the appellants filed separate defences.

The driver contended that the incident was an inevitable-accident and one caused by a mechanical failure. It was contended that the accident occurred at night .while it was raining; that owing to the jolt caused by the wheels dipping into a pot-hole, the electrical connections to the lights snapped and there was a black-out and that when he applied the brakes. the vehicle skidded, went-off the road and hit a tree. The driver also contended that the deceased and the injured hurt themselves by jumping-off the vehicle .

The appellants' defence however, was on these lines :

At the time of accident. the driver was not M. S. Rayta v. Gowrawwa on master's employment nor driving the vehicle on the master's purpose. The driver had been asked to take the vehicle to a place called Vaijanath and bring it back to the garage; but the driver did not return to the garage but on the-return-trip took a detour and went in altogether different direction, towards Khanapur, on a frolic of his own. As the accident occurred on the way back from Khanapur, it could not be field to have occurred in the course of the master's work; nor could the driver be held to have been acting in the course of employment. It was also contended that the vehicle was exclusively for military use and the driver had, no authority to pick-up any civilian passengers. The act of the driver in taking passengers in a goods vehicle (a Tempo) was an offence and also constituted a violation of the Departmental Instructions ( ' Army Instructions 53 of 1958). Such an act, which was an offence under R. 161 of the Motor Vehicles Rules and in violation of master's orders, could not be said to be in the course of employment. On an appreciation of the evidence, The Tribunal recorded findings against the appellants on all material issues. The tribunal held that the accident was attributable to the negligence on the part of the driver of the military vehicle and also negatived the contentions urged against the vicarious liability of the appellants.

4. Sri. Padmarajaiah, learned Standing Counsel for the Central Government, contended that, the findings of the Tribunal on all the material issues are erroneous and call for interference in appeal. The contentions urged by the learned Standing Counsel in support of the appeal, admit of being formulated thus :

(a) That at the time of the accident the driver was not on the master's duty and was not engaged in the course of employment; but had unauthorisedly taken the vehicle on a 'frolic of his own'. There would be no vicarious liability in such a case.

(b) That, at all events, even if it is held that the journey was in the course of the employment or for the master's purpose, the picking-up of, and giving lifts to, civilian passengers in the military vehicle was expressly prohibited - and indeed in this case amounts to an offence under the Motor Vehicles Rules - and the master would not be liable for such unauthorised acts of the servant.

(c) That, at all events, the accident was an inevitable-accident not attributable to actionable negligence on the part of the driver but attributable to a mechanical failure and therefore, no liability arises.

(d) That the quantum of compensation is, otherwise, also excessive.

5. Reg : Contention (a) : The contention is that the ,driver had been asked to go to Vaijanath and return to the military garage at Belgaum; but the driver unauthorisedly and on his own went to Khanapur which is in 4nMher direction altogether. The driver himself stated in his evidence that he returned to the garage from Vaijanath and was, thereafter, asked to go 'Jamboti' on the return journey from which the accident occurred. The route from Jamboti to Belgaum, it is not, disputed is via Khanapur' where the passengers were picked-up. The Tribunal in para 4 of its judgment, has made a careful examination of this contention and the evidence on which the contention was sought to be supported.' After critically assessing the evidence on the point, the Tribunal observed :

'This necessarily means that the vehicle has come back to the M. T. Garage. Admittedly, the vehicle has on the same day gone out again towards Khanapur. It is not explained by D. W. 1 as to how this vehicle could have gone towards Khanapur without the knowledge of the Officers of his Department. Under these circumstances, the evidence of the first respondent that after he came back from Vaijanath Temple he was asked to go to Jamboti appears to be probable.'

We agree with the reasoning of, and the conclusion reached on the point by, the Tribunal. There is, in our opinion, no substance in contention (a).

6. Re: Contention (b): Sri Padmarajaiah contended that if a driver, who is prohibited by the master from picking-up passengers, does so in violation of the master's instructions, he cannot be said to be acting in the course of the employment and the master's vicarious liability cannot be stretched and strained to take such situations also within it. Sri Padmarajaiah relied upon certain observations in Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt : [1966]3SCR527 and Krishna Ramayya Gouda v. C.P.C. Motor Co. (1982) 2 Kant U 544, in support of his contention

7. The proposition as to the vicarious liability of the master in respect of the liability to unauthorised passengers arising out of the tortious acts of the servant, who is entrusted with the master's vehicle to drive and who on his own - and, perhaps, even in violation of the master's. express instructions to him to the contrary - picks-up passengers has been a much discussed one. It is difficult to reconcile the views expressed by the High Courts and the reasoning supporting them on any common underlying principle. However, so far as the pronouncements of this Court are concerned, they are a full answer to the proposition of Sri.Padmaraiiah. The three pronouncements in Oriental Fire and General Insurance Co. Ltd., v. B. Parvathamma ILR : AIR1986Kant63 Bandaiah v. Ningappa ILR 1.985 Kant 1702 and Dhalumal Lakhimal v. Vimal Shivarudra Wajantri ILR 1986 Kant 1349 fully conclude this point against the appellants. Indeed, Krishna Ramayya Gouda's case relied upon by Sri. Padmarajaiah must now be read subject to the view expressed in the Oriental Fire and General Insurance Co.'s case where the said earlier case was- specifically referred to and distinguished. It is true that in Bandaiah v. Ningappa's case the Court seems to proceed on the basis of an implied authority to the driver. Sri. Padmarajaiah says that there was express prohibition in the present case.

8. Out of deference to the submissions of the learned Standing Counsel who questioned the correctness - and suggested a reconsideration - of the views expressed in these earlier cases, we permit ourselves a few observations on the point.

Vicarious liability is 'that which takes or supplies the place of another'. In that sense, it is the liability of the master himself and not merely a derivative liability. 'The doctrine of vicarious liability' said Lord Pearce in Imperial Chemical Industries Ltd. v. Shatwell (1965 AC 656 (685) 'has not grown from any very clear, logical or legal principle but from social convenience and rough justice.' Master is liable for the negligent act of the servant done in the course of his employment. There is however no simple test to cover every set of circumstances, whether the act was in the course of employment. It is essentially a question of fact for decision in each case. Supreme Court in Pushpabai Parshottam Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd. : [1977]3SCR372 approved the statement of Lord Denning - which somewhat expanded and liberalised the idea - that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of the 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. It is essential to avoid the approach of isolating wrongful or negligent act of the driver from its surrounding circumstances in determining whether the Act was in the course of employment or not. Diplock J., Hilton v. Thomas Burton (Rhodes) Ltd., (196 1) 1 WLR 705 (707) suggested this test :

'I think that the true test can best be expressed in these words : was the (servant) doing something that he was employed to do? If so, however improper the manner in which he was doing it, whether negligent. or even fraudulently . or contrary to express orders .... the master is liable. If, however, the servant is not doing what he is employed to do, the master does not become liable merely because the act of the servant is done with the master's knowledge, acquiescence, or permission.'

9. The idea that the master was not liable for the acts of the servant done outside the scope of employment, in relation to cases of liability arising out of the servant, entrusted with the master's vehicle, inviting passengers did, earlier, express itself in propositions generally exempting liability of the master. The question of the liability of the master in respect of injuries to unauthorised passengers, indeed, turned on a combination of principles - one based on a limited concept of 'course of employment and other as to the law as to liability towards those who were considered trespassers. The case of Twines v. Bean's Express Ltd., (1946) 1 All ER 202 is an illustrative case. In Charlesworth and Percy on Negligence 17th Edition - page 113 Para 2-122, this position is stated thus :

'A servant, who is in charge of a vehicle, is not acting in the course of his employment if, without authority, he invites his friends or other persons to come into the vehicle. Where such a person is injured, while in the vehicle, the master will not be liable for the driver's negligence.'

However, both the concepts of 'scope of employment' and the law as to obligations towards trespassers have undergone changes. There is now a wider concept of scope of employment. Supreme Court in : [1977]3SCR372 observed :

'Before we 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.'

Indeed, adverting to the decision in Rose v. Plenty (1976) 1 WLR 141 - Winfield & Jolowicz on Torts (11 th Edition) - page 563, says :

'This decision is certainly in accord with the current tendency to apply a very broad description to 'course of employment'.

The negligent acts of drivers are not isolated from the surrounding circumstances including those that are implicit in the master entrusting the motor-vehicle to the servant and the activities of the driver that are enabled and rendered feasible by such entrustment. As to the law as to the obligations towards trespassers also, the law has not been static t See : British Railways Board v. Herrington, 1972 AC 877 . As to the former, for instance, where a servant smoked during his work and caused a fire, questions arose whether smoking could be considered to be in the 'course of employment'. In Williams v. Jones, a 1865 case (1865-159 ER 668) - with Blackburn, J. dissenting - the master was held not liable.

It was held that smoking was not and could not be said, to be within the scope of employment. But in Century Insurance Company Limited v. Northern Ireland Road Transport Board 1942 AC 509 the master was, in similar circumstances, held liable on the ground that the servant did not exercise requisite care and caution. Dissent of Blackburn, J., in Williams v. Jones (1865-159 ER 668) came to be restored. What was emphasized by Lord Wright was :

'I think what plausibility the contrary argument might seem to possess results from treating the act of lighting the cigarette in abstraction from the circumstances as a separate act.'

Clerk & Lindsell on Torts - 14th Edition para 240 states :

'In determining whether a wrongful act is done by a servant in the course of his employment all the surrounding circumstances must be taken into account and not merely the particular act that leads to the damage.'

In the infinite variety of ways in which these questions arise, the determination whether the act of the servant was in the 'course of employment' or on the master's purpose or on the master's business or whether the act was incidental to the employment, cannot rest on any single criterion. The totality of all the circumstances, including the consideration as to how just the determination is, in relation to an innocent third party, has to be kept in mind. That the act of the servant would, otherwise, constitute an offence does not, by itself, put it outside the scope of employment. For instance if a driver over-speeds, or races another vehicle, violating the master's specific instructions to the contrary and causes the accident. it cannot be said that the servant's act amounted to an offence and that for that reason alone the master was exempt from the Civil liability arising out of the tort of the servant.

10. Even in the case of acts prohibited by the master, the consequences as to liability are not uniform. The test, generally, is whether the prohibition was one limiting the 'scope of employment' or one which limited the 'method of performance'. On this point, a Division Bench of this Court in General Manager v. U. Annappa Vaidya M. F. A. 198/1985, D. 18-6-1985 (reported in ILR 1985 Kant 2979) said : -

'The distinction that needs to be kept distinguished is the one between the order of the master limiting the 'scope of the employment', the disobedience to which means that -servant is not in the course of the employment on the one hand and an order limiting the 'method of performance', the. disobedience to which does not imply that the servant is outside the employment.'

Illustrating this principle, Charlesworth & Percy on Negligence 7th Edition -- para 2.123. observes:

'2.123 : For example an order that a van driver shall not allow any person to travel in his van, notice of which is displayed on the van, is an order limiting the scope of the servant's employment, with the result that a breach of the order involves the master in no liability........it is essential-to avoid the approach of isolating the wrongful act of the servant from its surrounding facts, in order to determine whether or not it was done in the course of his employment....'

The dividing line whether the prohibition is one which limits the 'scope of employment' or one which limits the 'method of performance' of the duties, is a question of fact in each case and the 'matter must be looked at broadly'.

There is surely a dividing line between a prohibition which limits the Scope of employment and one which limits the ' mode of performance. In the first the violation takes the act outside the scope of employment. In the latter the act is still in the course of employment. Where to draw the line? Other things being equal in choosing where the line is to be drawn - whether it. is to be drawn high in favour of the immunity of the master or in favour of the innocent sufferer - the following words of Sachs L. J. in Fast v. Beavis Transport Ltd. (1968) 1 QB 1.40 are worth recalling :

'The line should be drawn fairly high in favour of the innocent sufferer injured by the act of somebody who was employed by the defendant employer ........'

In Rose v. Plenty (1976) 1 WLR 141 Scarman U, summing the position up, said :

'But basically, as I understand it, the employer is made vicariously liable for the tort of his employee not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it is a case in which the employer, having put matters into motion, should be liable if the motion that he has originated leads to damage to another.'

What emerges, therefore, is that the act of the driver viewed in the background and as part of all the surrounding circumstances cannot be isolated from the course of employment or the course of the master's work.

11. Turning to the case of Sitararn Motilal Kalal : [1966]3SCR527 relied upon by Sri Padmarajaiah, it is to be mentioned that decision in that case holding the act to be outside the scope of employment turned on the particular facts. In that case, the owner of the vehicle entrusted the vehicle to the driver for plying it as a taxi. It was after the vehicle was handed over, the driver, on his own, agreed to impart driving-lessons to another person. While the vehicle was being driven by that other person to offer a driving-test the accident occurred by negligence of that other. Supreme Court : [1966]3SCR527 by the opinion of the majority of the judges Subba Rao, J, dissenting negatived the owner's liability observing

'......There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. 'It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner would not be liable in such circumstances.

'.... The third defendant had borrowed the taxi for a work of his own and the second defendant in lending it was not acting in the master's business. The second defendant was not present in the taxi so that he could be said to be in control on behalf of his employer when the taxi was driven.'

In the facts of the present case, this decision does not advance the contention of Sri.Padmarajaiah. There are no grounds to take a view different from the one taken in earlier pronouncements of this court on the point.

Contention (b) requires to be, and iii, held against the appellants.

12. Reg. Contention (c) : This relates to the negligence of the driver. Dada-Peer (P. W. 2) stated that, when the vehicle came near Nittur, it was at a high-speed and that the vehicle suffered a jolt owing to the wheel dipping into a pot-hole and the head-lights went-out. The driver, owing to the speed, could not retain control over the vehicle which swerved and hit a road-side tree. We have examined the evidence on record and its appreciation by the Tribunal. The version of the driver is that the lights went-out and that when he applied the brakes the vehicle skidded and went-off the road. But the Panchanama (Ex. P. 1) does not record any skid-marks. The road at the point was a straight stretch. The Tribunal has accepted the evidence of P. W. 2 and has held that it is highly improbable that the accident occurred in the manner spoken-to by the driver. It was a rainy night and the driver did not exercise such restraint and control over the speed of the vehicle as would enable him to bring it to a stop immediately after the electrical lights of the vehicle went out. As rightly observed by the Tribunal, it was the excessive-speed and not the alleged skidding-that must have swerved the vehicle off the road, upon sudden braking. The discussion and evaluation by the Tribunal of the evidence on the point appears to us to be quite proper and reasonable and the conclusion arrived at quite appropriate.

Contention (c) is also unsubstantial.

13. Reg. Contention (d) : In regard to quantum of compensation also, there is hardly anything that could be said against the size of the awards. In the first case, the deceased person was 30 years' of age and the loss of the dependent mother's dependency was estimated at Rs. 125/- per month and capitalised on 10 years purchase. A total of Rs. 21,750/- was awarded. The minimum awardable under Sec. 92A is Rs. 15,000/-. In the circumstances of the case, the award sum of Rs. 21,750/- does not call for any interference.

In the. personal-injury-action, claimant Dada-Peer had sustained a fracture of the 'Humerus' of the left arm. Dr. Satish (P. W. 3) spoke to the nature of the injuries and some degree of disability left behind by the injury. The injured was an in-patient for 8 days in the Hospital. When the Doctor examined Dada-Peer again on 24-8-1985, he noticed a deformity and swelling of the left arm. The 'movements of the left-shoulder, abduction and external rotations were restricted and painful'. A further radiological examination revealed mal-union of the fracture. This left behind some decree of disability as the injured ',may have difficulty in carrying weights on his head as there was restriction of movement of the left shoulder.' The claimant could not lift his left-hand above shoulder level. DadaPeer was a fish-monger, an occupation which involved for its pursuit, some degree of manual work. In a personal injury action, the heads of the award include 'injury, pain and suffering', 'loss of amenities of life' which are non-pecuniary heads and include under the pecuniary heads 'loss of earning' and 'loss of earning capacity'. In appropriate cases, award should also be for 'shortened expectancy of life'.

In these circumstances, we find that the awards under appeal do not suffer from any vice-of excessiveness. On the contrary, they seem to be somewhat conservative. Appeals are accordingly rejected at the admission stage.

14. Appeals dismissed.