TMI Blog1966 (2) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... xi in Ahmedabad. The 2nd defendant appointed the 3rd defendant as a cleaner for the taxi. Presumably because the 2nd defendant wanted another to assist him in driving the car during his absence from the city, he trained the 3rd defendant to drive the car and on April 11, 1940, the 2nd defendant took the 3rd defendant to the Regional Transport Authority for obtaining a licence for him. On that date a test was being conducted by the Regional Transport Officer on the capacity of the 3rd defendant to drive a car for the purpose of issuing to him a permanent licence for driving. At about 5 p.m. on that day, the plaintiff, who is a pleader practising in the courts of the district of Ahmedabad, was going out of the compound of the office of the Regional Transport Authority. At that time, the 3rd defendant was driving the car towards Lal Darwaja side; without giving any signal, he took a sudden turn towards the gate of the Office of the Regional Transport Authority, accelerated the speed and dashed the car with great force against the pillar of the gate of the said office. In that process, the plaintiff's leg was pinned between the compound wall and the gate, with the result it was cru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleaner, was the servant of the 1st defendant and that the 2nd defendant was authorised to secure a licence for the cleaner to drive the car were vitiated by its reliance on two pieces of inadmissible evidence, namely, the alleged admissions found in the 3rd defendant's written-statement and in the reply notice given by him to that issued to him on behalf of the plaintiff. He further contended that the 1st defendant could not be made liable for the acts of either the 2nd defendant or the 3rd defendant committed outside the scope of their employment. Mr. Pershad, learned counsel for the respondent, though at first made an attempt to sustain the admissibility of the said two pieces of evidence, later on clearly conceded that they could not be relied upon against the 1st defendant. But, he contended that even after the exclusion of the said two pieces of evidence, on the remaining evidence, the circumstances established and the probabilities arising therefrom it could be held, as the High Court did, that the 3rd defendant was the servant of the 1st defendant, that the 2nd defendant was authorised by the 1st defendant to train the 3rd defendant as a driver and get a licence for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omnibus in the right direction for the next journey, drove it through some by-streets so negligently that it mounted the foot pavement and knocked down and seriously injured the plaintiff. The Court of Appeal held that there was evidence of negligence on the part of the driver in allowing the omnibus to be negligently driven by the conductor. In so holding, Buckley, L. J., laid down the following test : It is a question for the jury whether the effective cause of the accident was that the driver committed a breach of his duty (which was either to prevent another person from driving or, if he allowed him to drive, to see that he drove properly), or whether the driver had discharged that duty. Pickford, L. J., said much to the same effect thus : It seems to me that the fact that he allowed somebody else to drive does not divest him of the responsibility and duty he has towards his masters to see that the omnibus is carefully, and not negligently, driven. This decision followed the decision in Englehart v. Farrant ([1897] Q.B. 240). There, the facts were : A man was employed by the defendants to drive a cart by which delivery was to be made of parcels. The cart wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eces of evidence, alternatively came to the same finding after excluding them from evidence. For the purpose of this judgment I am assuming that the said pieces of evidence are not relevant against the 1st defendant. Therefore, I will exclude the same from my consideration. Now let me take the case of the 3rd defendant and ascertain his legal relationship with the 1st defendant. The 1st defendant was examined as D.W. 1. He deposed as follows : He had agricultural lands in Kathwada which he was personally cultivating and he resided at Kathwa;year and a half before April 11, 1949, he had given his car to the 2nd defendant for plying the same ,as a taxi; the 2nd defendant I had to manage it and he had full ,control over it; the 2nd defendant paid taxes for the car, spent for petrol, kept the said car always a the railway station stand, rendered accounts for the income he got from plying the said taxi whenever the 1st defendant went to Ahmedabad from Kathwada and met him; the 2nd defendant was paid ₹ 90 p.m. He admitted in the cross-examination that the 2nd defendant was a straightforward and honest man, that he managed the taxi on his behalf, that upto May 1949 he did not go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that context, if the 2nd defendant in the interest of the employer, instead of engaging a third party as an assistant driver trained the 3rd defendant as such and sought to obtain a licence for him, it is not possible to suggest that the 2nd defendant in doing so exceeded the authority conferred on him by the 1st defendant. 1, therefore, find that the 2nd defendant did not exceed the authority conferred on him by the 1st defendant in employing the 3rd defendant as a servant and permitting him to drive the car in order to obtain a licence for assisting him as a driver. If so, it follows that the 3rd defendant was the employee of the 1st defendant in his capacity as an assistant to the driver. In that even the 1st defendant would certainly be liable in damages for the accident caused by the 3rd defendant's negligence during the course of his employment. Though I am prima facie inclined to accept the second proposition also as correct and that the 2nd defendant's negligence in permitting the third defendant to drive the car was the effective cause of the accident, in view of my first finding it is not necessary to express my final opinion thereon. Now let me turn to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner was not liable. The decision in Emperor v. Shantaram Ram Wadkar ((1932) 34 Bom. L.R. 897) turned upon the meaning of the word allowed in s. 6 of the Motor Vehicles Act, 1914, and is not of any help in deciding the present case. The decision in The Managing Director, R.U.M.S. Ltd., Rasipuram v. Ramaswamy Goudan (L.R. 1957 Mad. 513) followed Ricketts v. Thos. Tilling, Ltd., (L.R. [1915] I.K.B. 644) and held that where the servant who was charged with the duty of driving a bus was responsible for allowing the conductor to drive and if he was so responsible he must be equally responsible for the negligent driving by the person who was permitted to drive. The last decision accepted the second proposition and applied it to the facts of the case before the court. The said decisions do not in any way detract from the view expressed by me. Both the Courts below concurrently found on the evidence that the 3rd defendant was guilty of negligence in causing the accident. We did not permit the learned counsel for the appellant to question the correctness of the said finding. I accept it. No argument was advanced on the question of the quantum of damages. In the result, agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free. Either he was a servant or an agent. The difference between a servant and an agent is that the principal has the right to order what should be done, but the master has an additional right to say how it should be done. The evidence does not establish that the owner directed how the taxi should be run and the relationship would be that of principal and agent. The owner, however, stated that he paid ₹ 90 per month to the second defendant and this would show that the second defendant was his servant. We shall consider the matter under both heads. The relationship between the third defendant (who was at the wheel when the accident happened) and the owner on the one hand and the second defendant on the other is in dispute. There is, however, evidence which has been believed that the third defendant used to clean the taxi. He was probably employed by the owner or on his behalf by the second defendant. In addition, it appears, that he was being trained to take out a driver's licence, presumably with the idea of taking a share in the driving of the taxi. There is nothing to show that in this arrangement, the owner had taken any part whatever. The trial Judge held that the th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is evidence, however, to show that the second defendant was present when the vehicle was borrowed for taking the test and had willingly allowed the third defendant to drive the vehicle fox the purpose. On these facts, the question is whether the owner of the vehicle can be held responsible. The law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if be commits an accident. But it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n General Omnibus Co. the conductor attempted to turn the omnibus an his own initiative and caused an accident. The company was held not liable, because it was not a part of the conductor's duty to drive the omnibus. It was not negligence in the course. of his employment. Similarly, in Engelhart's case, two servants were engaged, upon their master's business. One was to drive a cart and mind the horses and the other-a boy travelling in the cart was to deliver parcels. The driver left the cart unattended and the boy drove it to deliver the parcels and caused the accident. The master was held responsible. The driver ought to have known that if he left the cart the boy would drive it in the fulfillment of the work of the master. When the driver left the cart in the charge of the boy he acted negligently in the course of his master's business. No doubt, 'the effective cause' was the negligence of the servant which made the master responsible but that is not the whole of the matter. In Ricketts'(L.R. [1915] 1 K.B. 644) and Engelhart's([1897] 1 Q.B. 240) cases each servant was acting on the master's business at the time. If the two servants in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e abstract and was a negligent method of conducting the master's work. Similarly, in .Smith v, Martin ([1911] 2 K.B 775, 784) a school authority was held liable when a 'teacher, during school hours sent a girl aged 14 wearing a print pinafore to poke the fire and to draw out the damper in a grate in the teacher's common room and the child was burnt. It was held that the teacher's duty was to provide education in the widest sense and included expecting obedience from the pupils and this was an act of negligence in the discharge of such duty. We know of no further extension of the doctrine of a master's liability for the act of his servants during the course of his employment which would cover this case. It cannot possibly be stated today that the master is responsible for the acts of his servant done, not in the course of employment, but outside it. In the present case, the third defendant was not doing the master's work nor was the second defendant acting within the scope of his employment when he lent the taxi. 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 busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gligence, in the course of his employment as servant. or as Lush J. put it, The question in all such cases as the present is whether the servant was doing that which the master employed him to do. There has been in recent years another extension of the responsibility of the principal for the act of an agent. In Ormrod and another v. Crosville Motor Services Ltd., and another ([1953] 2 All E.R. 753) the owner was attending the Monte Carlo motor car rally. He asked a friend to drive the car from Birkenhead to Monte Carlo. The friend was carrying a suit case belonging to the owner. Later they were to go a holiday together in the car. While the motor car was being driven it collided with a motor omnibus and the owner of the car was held responsible for the damage. Singleton, L. J. observed : It has been said more than once that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner. The mere fact of consent by the owner to the use of a chattel is not proof of agency, IT but the purpose for which this car was being taken down the road on the morning of the accident was either that it should be used by the owner, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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