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Machiraju Vishalakshi and ors. Vs. the Treasurer, Council of India Mission of the Luthern Church in America Guntur and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 19 and 20 of 1976
Judge
Reported inAIR1978AP310
ActsMotor Vehicles Act, 1939 - Sections 110-B
AppellantMachiraju Vishalakshi and ors.
RespondentThe Treasurer, Council of India Mission of the Luthern Church in America Guntur and ors.
Appellant AdvocateN.V. Suryanarayana Murthy, Adv.
Respondent AdvocateA.S. Prakasam, Adv.
Excerpt:
.....of motor vehicles act, 1939 - master had never told driver to pick up any passenger en route but driver had picked some passengers to make some money for himself - when is master's vicarious liability attracted - if driver drives vehicle contrary to purpose for which it was intended and entrusted to him then master will not be vicariously liable - for master to be liable negligence or wrongful act of his servant must be committed in course of that business so as to form part of it and not be merely coincident in time with it. - - 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. 6. in the result, the civil miscellaneous appals fail and they..........its onward journey to guntur, the accident resulting the death of the police constable and the two deceased passengers occurred when it went off the road and dashed against a tree. the dependants of the police constable did not file an application under s. 110-a of the act, but the dependants of the two deceased passengers filed the two application claiming compensation at the rates stated above.3. the first respondent resisted the action on the ground that he had not authorised the driver to take any passengers in the car, that he did not know anything about the two deceased passengers having got into the car at the bus stand or the driver having permitted them to board it on payment of some charges and that it was not part of the duty or business of the driver to take passengers on the.....
Judgment:

S. Obul Reddi, C.J

1. These two miscellaneous appeals arise out of two awards passed by the motor Accidents Claims Tribunal, West Godavari at Eluru in O. P. Nos. 75 and 76 of 1969. the claimants who are the legal representatives of the two deceased persons are the appellants before us. They filed separate applications under S. 110-A of the Motor Vehicles Act read with R. 514 of the Rules for awarding compensation.

2. In O. P. No. 75 of 1969 out of which C. M. A. No. 19 of 1976 arises, the claimant asked for compensation of an amount of Rs. 50,000/- and in O. P. No. 75 of 1969 out of which C.M. A. No. 20 of 1976 arises, they asked for compensation of Rs. 40,000/- On 15-4-1969, a Fiat Car A. P. G. 8138 belonging to the first respondent, the Treasurer Council of India Mission of the Luthern Church in America, Guntur, was involved in an accident between milestones 310/5 and 310/4 Grand Trunk Road, while it was being taken from Rajahmundry to Guntur. The Fiat Car was driven by the Second Respondent, driver who was in the employment of the First respondent. A Police Constable who wanted to go from Rajahmundry to Guntur got into the care with the permission of the first respondent. The driver took the car up to a bus stand at Rajamundry and there parked it to have tea in a nearby tea stall. After he returned, the two deceased persons who wanted to go to Guntur and two others got into the car with the permission of the driver. While the Fiat Car was on its onward journey to Guntur, the accident resulting the death of the Police Constable and the two deceased passengers occurred when it went off the road and dashed against a tree. The dependants of the Police Constable did not file an application under S. 110-A of the Act, but the dependants of the two deceased passengers filed the two application claiming compensation at the rates stated above.

3. The first respondent resisted the action on the ground that he had not authorised the driver to take any passengers in the car, that he did not know anything about the two deceased passengers having got into the car at the bus stand or the driver having permitted them to board it on payment of some charges and that it was not part of the duty or business of the driver to take passengers on the way and therefore, his liability is not attracted. The driver of the car, in his counter, stated that he drove the car with due care and diligence, but on account of the lorry that came in the opposite direction, the accident occurred. According to him, there was another lorry and therefore to avoid dashing against the second lorry, he swerved his car to the left and as there was no sufficient space, the car dashed against the tree. He however, survived, but the constable and two other passengers who boarded the car died in the accident. According to him, the first respondent had not given him any permission to pick up any passengers from the bus stand.

4. The Tribunal on the pleadings framed appropriate issues and found on the main issues that the second respondent was rash and negligent in driving the motor vehicle, that the two deceased passengers were unauthorised passengers in the motor car and that the driver was not acting within the scope of his employment and authority. In that view, it held that the first respondent and the Insurance Company are not liable. He, however, held that the driver alone is liable to pay compensation at the rates awarded.

5. Mr. Suryanarayana Murthy, the learned counsel appearing for the appellants claimants contended that the averments in the counter filed by the first respondent and his evidence would show that there was implied authority to the driver and that he had acted in the course of his employment and duty assigned to him, in taking the two deceased passengers, and therefore, the Tribunal was in error in holding that the liability of the owner of the vehicle and the insurance company was not attracted. It is therefore necessary to refer to the counter filed by the first respondent, the Treasurer of the Luthern Church. He had entrusted the car to the driver, the second respondent on the night of 14-4-1969 for getting it serviced at Guntur and permitted Yesudas, a police constable who had requested for a free ride to travel in the car up to Guntur. The reason for permitting Yesudas to travel in the car as stated by him to his evidence was that Yesudas's mother-in-law was working in the Mission hospital and therefore, he permitted the constable to go to Guntur in the car. He averred that he specifically told the driver not to give lift to any other person and in spite of his definite instructions, the driver gave lift to four more persons including the two deceased and therefore, it is a case where he acted wholly outside the scope of his employment and contrary to the instructions given to him. The evidence of the first respondent as R. W. 1 and of the driver as R. W. 2 establishes that only Yesudas got into the care when it left the Mission Compound at Rahahmundry. The car was parked en route at the bus stand in Rajahmundry. The two deceased passengers and two others, who survived, did not get into the car only at the bus stop where it was by the driver to have tea. The fact that the car was stopped at the bus stop goes to establish that the owner of the vehicle had no idea about what the driver did with the care after the car left his house or compound. We can understand the argument of Mr. Suryanarayana Murthy that the driver had implied authority to take passengers in the car if the deceased and two others got into the car when the car was in the compound of the first respondent's residence or the first respondent was present at the bus stand when the two deceased and two others got into the car. According to Mr. Suryanarayana Murthy, it is a matter of presumption when the first respondent had permitted Yesudas, Police constable to travel from Rajahmundry to Guntur in the car that he had impliedly permitted the driver to take other also in the car. There is absolutely no warrant for drawing any such presumption on the material placed before us. The first respondent is the Treasurer of the Luthern Church Mission. His specific case is that he permitted only Yesudas, whose mother-in-law happened to work under him, to travel in the car, and he had given specific instructions to his driver not to take anybody else in the car. The first respondent had never told the driver to stop the vehicle at the bus stand. It is therefore a case where the second respondent-driver on his own allowed the two deceased and two others to get into the car on receiving some payment from them. The car was being taken from Rajahmundry to Guntur to have free servicing from the premier automobiles which had supplied the car. It was a new car entitled to free servicing therefore it was being sent to Guntur. The learned Counsel, Mr. Suryanarayana Murthy also commented on the fact that two of the passengers who had survived have not been examined by the first respondent. The first respondent stated in his evidence that he heated about the accident only the next day evening. He could not have possibly known who the other passengers were. Admittedly, the two deceased persons and the two survivors are absolute strangers to the first respondent. It is rather improbable that he would have permitted four absolute strangers to travel by the Fiat car, that too when it was going for servicing to Guntur. The learned counsel, Mr. Suryanarayana Nurthy sought to place reliance upon a judgement of the Gujarat High Court in Amthiben Maganial v. Superintending Geophysicist ONGC 1976 ACJ 72 to contend that even when a driver picks up passengers en route, provided he was on duty in the course of his employment, the master would still be vicariously liable in the event of the death or injuries to those passengers involved in the accident. That was a case where a Deputy Engineer had picked up the deceased person and another injured claimant in his jeep and had gone with them for a visit to a site. On return journey, the jeep met with an accident. That was due to an O. N. G. C. truck dashing against the jeep. The material question which arose for consideration in that case was whether there was sole negligence or composite actionable negligence or contributory negligence so that the liability could be apportioned between various responsibility. The O. N. G. C., which was one of the respondents had taken up an alternative plea of contributory negligence of the deceased on the ground that the deceased was sitting in the front seat in the jeep. In other words, if the deceased was not sitting in the front seat, he would not have died in that accident. it may be pointed out that, that was a case where the Deputy Engineer had picked up two persons in the jeep. That was therefore not a case where the two persons got into the jeep on their own. They were taken into the jeep by the Deputy Engineer. That was not a case where the driver without the permission of the master had picked up passengers to travel in the vehicle. The Supreme Court had occasion to consider in Sitaram v. Santanuprasad, : [1966]3SCR527 as to when the master's vicarious liability is attracted. Hidayatullah, J. per majority observed that 'a master is vicariously liable for the acts of his servant acting in the course of his employment. For the master's liability to arise, the act must be 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 he 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.'

Indisputably, in this case, the Fiat car was being driven on the master's business by the driver employed by the master's liability arises only if the accident occurs while the driver drives the car on the master's business, but if the driver drives the vehicle contrary to the purpose for which it was intended and contrary to the purpose for which it was entrusted to him, then the master will not be vicariously liable. This is a case where the driver in the course of his employment was doing some thing for himself. The master had only ordered that the car should be taken with Yesudas to Guntur for servicing. He had never told the driver to pick up any passengers en route. The driver had picked up passengers on the way to make some money for himself. This is some thing which he did for himself and therefore, it cannot be said that what he did for himself is also part of the duty or job entrusted to him. It was no part of the driver's duty or business to pick up passengers on the way. The fact that the master had permitted one known person to be taken in the vehicle will not give rise to a presumption that the master had permitted the driver to pick up passengers on the way and collect some fare from them. The master as pointed out by the Supreme Court, is not liable for the negligence or wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business. It must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it. The accident resulting in the death of the two deceased persons cannot therefore be said to be due to a lawful or authorised act done by the driver in the course of his business. We are therefore unable to disturb the findings recorded by the Tribunal.

6. In the result, the Civil Miscellaneous Appals fail and they are accordingly dismissed, but without costs.

7. the learned counsel Mr. Suryanarayana Murthy made an oral application for leave to appeal to the Supreme Court. we are unable to certify that any substantial question of law of general importance which, in our opinion, needs to be decided by the Supreme Court arises in this case. The oral application is therefore rejected.

8. Appeals dismissed.


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