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Uttar Pradesh Government Vs. Ram Milan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Civil Appeal No. 6 of 1957
Judge
Reported inAIR1967All287; (1968)ILLJ604All
AppellantUttar Pradesh Government
RespondentRam Milan and ors.
Appellant AdvocateKesribir Prasad, Standing Counsel
Respondent AdvocateS.C. Das, Adv.
DispositionAppeal dismissed
Excerpt:
.....is not acting in the course of his employment but has gone outside it. ' 9. so far as the text books are concerned the principle of law applicable in such cases is clearly enunciated in 'salmond on the law of torts'.13th edition, at page 122 thus: in the present case it is admitted that both the driver as well as the mechanic were servants of defendant no. 14. the present case, therefore, falls clearly within the principle laid down in rickett's case, 1916-1 kb 644 and there can be no manner of doubt that the master, i. 5,929. in the circumstances ofthe case, we direct that the parties shall beartheir own costs of this appeal as well as ofthe cross-objections......by him when he was travelling in the defendant's bus the conductor of which was permitted by the driver to drive the bus. the driver was sitting by the side of the conductor when the accident had occurred on account of the negligence on the part of the conductor who was actually driving the bus at the time. the learned judge in that case referred to rickett's case and, following the principle laid down therein, held that the plaintiff was rightly entitled to damages from the master. 12. the same principle was also followed by a division bench of the assam high court in the case of sardar nand singh v. abhyabala debi air 1955 assam 157. 13. the facts established in the present case may now be examined in the light of the principles 'enunciated above. in the present case it is admitted.....
Judgment:

N.U. Beg, J.

1. This is a first appeal by the U. P. Government which was defendant No. 1 in the trial Court. It arises out of a suit for damages filed by respondent no 1 Ram Milan who was the plaintiff in the trial Court. Respondent No. 1 Mohd. Rasool and respondent No. 3 Jharkhande were the servants of defendant No. 1, the U. P. Government, and were defendants Nos. 2 and 3 respectively in the trial Court Along with the appeal we have a cross-objection filed by Ram Milan, the plaintiff This judgment disposes of both the first appeal filed by defendant No. 1 and the cross-objection filed by the plaintiff.

The suit of the plaintiff was based on the allegation that defendant No. 1 had been carrying on motor bus service in the district of Gonda for the last several years, that on the 2nd of June, 1952 a bus belonging to defendant No. 1 left Wazirganj for Gonda at about 1.30 P. M The plaintiff was a passenger in the upper class Defendant No. 2 Mohd Rasool was the driver of the said bus, and defendant No. 3 Jharkhande was its mechanic Owing to the negligence, misconduct and wrongful act of defendant No. 1's servants, i.e., Mohd Rasool and Jharkhande, there was an accident on the 2nd of June, 1952 which resulted in serious injuries to the plaintiff on the head chin, knees and left hand The bones of the plaintiff's left hand were also broken. He bled profusely The plaintiff along with other injured persons was brought to the Sadar Hospital at Gonda in an unconscious condition He regained consciousness after five days The plaintiff remained an indoor patient in the Sadar Hospital, Gonda on account of the aforesaid injuries from 2-6-1952 to 10-8-1952.

During this period he could neither attend to his work as a District Board teacher at Wazirgani nor could he look after his household duties and cultivation. The plaintiff had outside treatment also. Subsequently the plaintiff had to get himself admitted in the Gandhi Memorial and Associated Hospitals, Lucknow, for his treatment. The plaintiff was admitted there on the 31st of May 1953 and remained there till the 12th of June, 1953 On account of the injuries suffered by the plaintiff he could not join service till the 10th of April. 1953, and was deprived of one of his hands permanently The plaintiff alleged that he had suffered loss to the extent of Rs 30,000/-. He, accordingly, claimed a decree for this amount against all the three defendants.

2. The suit was contested by defendant No. 1 the U. P. Government only even though written statements were filed by all the three defendants Defendant No. 1 admitted that bus No. 2366 which had met with the accident on the 2nd of June, 1952, belonged to it. It further admitted that defendant No. 2 Mohd. Rasool was the driver of the said bus, that defendant No. 3 Jharkhande was its mechanic, and that both defendants 2 and 3 were its servants. The main plea raised by defendant No. 1 was that defendant No. 3, i.e. Jharkhande, was merely a mechanic and was not authorised by defendant No. 1 to drive the bus. Defendant No. 1 was, therefore, not liable for any act done by defendant No. 3. The version of defendant No. 1 was that the bus had developed some machine trouble at Lakarmandi and defendant No. 3 was deputed to remove the defects of the bus. In order to test the soundness of the machinery of the said bus defendant No. 3 took the steering wheel in his own hands from Wazirganj without any authority and the bus met with the accident when he was driving it.

3. The case set up by defendants Nos. 2 and 3 in their written statements was that defendant No. 3 was a mechanic employed in the U. P. Government Roadways and was deputed to remove the defects of bus no. 2366, that the aforesaid bus had started from Lakarmandi on 2-6-1952 for Gonda and defendant No. 3 was also coming back to Gonda by the same bus and that when the bus reached Wazirganj it again developed some trouble and did not start. The driver, defendant No. 2, reported the matter to defendant No. 3, the mechanic, who examined the machinery and the bus and removed the defect discovered by him Thereafter, defendant No. 3 took the steering wheel in his own hands and started driving the bus in order to test and ascertain as to whether the defect in the bus was removed or not After going some distance a goat came in the way, and in his attempt to save the goat, defendant No. 3 who was driving the bus, turned it to the right side The goat was saved, but the bus swerved to the left, went out of control and dashed against a tree. This was, therefore, a case of accident beyond their control and they are not liable for damages. Defendants Nos. 2 and 8, however,did not produce any evidence in support of the version set out on their behalf and the case proceeded ex parte against them.

4. The trial Court framed a number of issues in the case and gave its findings to the effect that bus No. 2366 belonged to defendant No. 1, that it had started from Lakarmandi on 2-6-1952, that defendants Nos. 2 and 3 were the servants of defendant No. 1, that defendant No. 2 was the driver and defendant No. 3 was the mechanic attached to the said bus, that Ram Milan plaintiff was travelling in the said bus on that date, that after the bus had left Wazirganj for Gonda the driver of the bus handed over the steering wheel to defendant No. 3, the mechanic and that the bus dashed against a tree and met with the accident while the mechanic was driving the bus at the instance of the driver. In view of the aforesaid findings the trial Court came to the Conclusion that defendant No. 1, i.e. the U. P. Government which was the employer of defendants Nos. 2 and 3, was liable for the damages along with its servants, viz. defendants Nos. 2 and 3. So far as the amount of damages is concerned the trial Court was of the opinion that the plaintiff has failed to prove that damages to the extent of Rs. 30,000/- were suffered by him. The trial Court found that an amount of Rs. 5,569/- was the approximate amount of damage suffered by the plaintiff and awarded the plaintiff a decree for the said amount. Dissatisfied with the judgment and decree of the trial Court the U. P. Government has filed the present appeal in this Court.

5. The plaintiff Ram Milan also filed cross-objections in respect of an amount of Rs. 5,000/-.Both the cross-objections and the appeal were heard by us together.

6. So far as the appeal filed by the U. P. Government is concerned the findings of fact arrived at by the trial Court have not been seriously challenged before us by the learned counsel for the appellant. It may, therefore, be taken to be established that in the present ease bus No. 2366 belonging to the U. P. Government met with an accident on 2-6-1952, that defendant No. 2 was the driver of the said bus an employee of the U. P. Government, that defendant No. 3 was a mechanic and also an employee of the U. P. Government, that at the time of the accident, the mechanic, defendant No. 3 was driving the said bus and that Rom Milan, the plaintiff was travelling as a passenger along with others in the same bus. The main contention of the learned Counsel for the appellant was that, on the above facts, the U. P. Government could not be made liable for any damages caused to the plaintiff as a result of the aforesaid accident, as the U. P. Government had not authorised the mechanic to drive the bus. The act of the driver in permitting the mechanic to drive the bus was, in fact, against the direction given by the U. P. Government. The argument of the learned Counsel raises the question as to the principle which governs the liability of the master for the tortious acts of his servants. So far at thisquestion is concerned it may be said that ordinarily the master is not liable for the tortiousacts of his servants. This general rule is, however, subject to certain exceptions. The masterwould be liable for the wrongful acts of hiiservants in at least two cases. The first classof cases are those where the tortious act itself is committed under the authority of themaster. In such cases there is no difficultyabout fastening liability on the master. Themaster, having himself authorised the servantto commit the tortious act, becomes in a wayprivy to the wrongful act itself. In such acase the servant will be treated as the agentof the master for committing the act, and themaster would, therefore, be equally liable withthe servant for the damages suffered by theparty as a result of the tort committed by theservant. Difficulty, however, may arise in caseswhere the master has not authorised the servantto commit the tortious act. In such cases thequestion as to whether the master is liablefor the tortious acts of the servant woulddepend on the facts of each case. If the tortious act committed by a person constitutesmerely a mode of doing the authorised act,i.e. an act which falls within the scope ofemployment of a servant, the master would beliable for the damages suffered by the victim.as a result of such an act. This would be soin cases where the tortious act is so connectedwith the scope of employment of the servantas to have a causal relation with the same orto be an incidental result of it. The occasionfor the tortious act in such cases is providedby the authorised act with the result that onebecomes ancillary to the other. The principlemay be illustrated by an example: if themaster has authorised the servant to drive thecar, then the master would be liable fordamages for all acts or negligence committedby the servant in respect of the scope of hisemployment, i.e. the driving of the car. Thus,for example, if the driver permits a thirdperson to drive the car, even though the actof the servant in this regard be against theinjunctions of the master, the master wouldstill be liable for the damages suffered by aparty because the tortious act committed relates to the scope of employment of the servant.The damage was caused by a third party whiledriving the car--a matter which fell within thescope of employment of the servant. There isin this case a nexus between the tortious actand the scope of employment of the servant.If a driver permits another person, who happens to be a novice, to drive the car, the act of the driver in permitting another person to be in charge of the car would itself be anegligent act relating to the scope of hisauthority.

7. The leading case on torts in English Law in which the above principle was laid down is that of Ricketts v. Thos. Tilling Ltd. (1915) 1 K. B. 844. In this case the driver of an omnibus had permitted the conductor of the omnibus belonging to the defendant to drive the bus. While the bus was being driven by the conductor it met with an accident. In thissituation the master of the driver was held liable on the ground that the driver's act in entrusting the driving of the bus to the conductor was in itself a negligent mode of the performance of his duty as a driver In this case Buckley, L. J. referred to the case of Engelhart v Farrant and Co., (1897) 1 Q. B. 240 and quoted with approval the following observations of Lord Esher M R. in the said case:

'Now, for what is the defendant liable? He is liable for the negligence of Mears'--that was the driver--'If that negligence was 'an effective cause' of the subsequent damage to the plaintiff'

He also referred to the case of Beard v. London General Omnibus Co.. (1900) 2 Q. B 530 where the principle laid down was that the master would be liable for the tortious act of his servant even if it was shown that the said act was the result of negligence of the servant acting within the scope of his employment. In the said case Buckley. L. J also distinguished the case of Gwilliam v. Twist (1895) 2 Q. B. 84 in which the facts were that a Police Constable had told a driver not to drive thinking that the driver was drunk. In this situation the driver had authorised a bystander to drive. When the bystander was driving the vehicle, it met with an accident The master, however, was not held liable for the tortious act of the servant in this case because the question at issue in the said case was the competence or the right of the servant to delegate his authority to drive the omnibus to the stranger The question as to what would have happened if it was a case where the driver had acted negligently in the discharge of the duty was not raised in Gwilliam's case. The principle laid down by Buckley, L. J in his judgment was approved of by Phillimore. L J. and Pickford. L J in the same case.

8. The above principle laid down in Rickett's case was also followed in the case of Marsh v. Moores (1949) 2 K B. 208. In this case one John Moores, the driver of a company had allowed a girl Patricia Moores, his cousin to have a driving lesson from him in the car which John Moores was authorised to drive by the company his master While Patricia Moores was driving the vehicle it met with an accident The principle of law applicable to such cases is laid down by Lynskey, J. in the following words:

'John Moores was a servant of the company and as such was entrusted by the company with the control, management and driving of the vehicle in question on August 30, 1948 It is well settled law that a master is liable even for acts which he has not authorised provided that they are so connected with the acts which he has authorised that they may rightly be regarded as modes, although improper modes, of doing them On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing itbut is an independent act, the master is not responsible, for, in such a case the servant is not acting in the course of his employment but has gone outside it. See Booth v. Mister, (1835) 7 C. and P. 66, (1800) 2 Q. B. 530, and Canadian Pacific Ry. v. Lockhart, (1942) A. C. 591. (599) : (AIR 1943 PC 63). In the course of the argument we were referred to (1915) 1 K. B. 644, (649, 651). That case was an example of the application of these principles.'

9. So far as the text books are concerned the principle of law applicable in such cases is clearly enunciated in 'Salmond on the Law of Torts'. 13th Edition, at page 122 thus:

'A master is not responsible for a wrongful act done by his servant unless It is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.. .. .. .. ..In other words, a master is responsible not merely for what he authorises his servant to do but also for the way in which he does it. If a servant does negligently that which he was authorised to do carefully, or if he does fraudulently that which he was authorised to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud or mistake. 'In all those cases', said Willes J., delivering the judgment of the Court of Exchequer Chamber in Barwick v. English Joint Stock Bank, (1867) 2 Ex. 259 at p. 266 it may be said that the master has not authorised the act. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.'

Later on at page 123 the learned author states as follows:

'There are, however, cases in which it has been held that a servant who is authorised to drive a motor vehicle, and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive is 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 reasonably foreseeable that the third party will attempt to drive it.'

The principle governing the cases of express prohibition by the master and its effect is discussed in the same book at pages 126 and 127 thus:

'Even express prohibition of the wrongful act is no defence to the master, if that act was merely a mode of doing what the servant was employed to do. Thus in Limpus v. LondonGeneral Omnibus Co.. (1862) 1 H. and C. 526 the defendant company was held liable for an accident caused by the act of one of its drivers in driving across the road so as to obstruct a rival omnibus. It was held to be no defence that the company had issued specific instructions to its drivers not to race with or obstruct other vehicles:

The driver whose conduct was in question was engaged to drive and the act which did the mischief was a negligent mode of driving for which his employers must answer, irrespective of any authority or of any prohibition. So in (1942) A. C. 591 : (AIR 1943 PC 63) the employers were held liable where their servant in disobedience to orders not to use uninsured motor cars drove his own uninsured car whilst on a journey for the purpose of the work he was employed to do.'

10. The same principle is enunciated in paragraphs 194 to 197 at pages 120 to 125 of 'Clerk and Lindsell on Tort', 11th Edition and in Batt's book on 'The Law of Master and Servant' at pages 239 and 258.

11. High Courts in India have also followed the principle of liability laid down in Rickett's case in a number of cases. In Managing Director. R.U.M. Service Ltd., Rasipuram v. Ramaswamy : AIR1956Mad641 , a suit was brought by the plaintiff in respect of damages for injuries sustained by him when he was travelling in the defendant's bus the conductor of which was permitted by the driver to drive the bus. The driver was sitting by the side of the conductor when the accident had occurred on account of the negligence on the part of the conductor who was actually driving the bus at the time. The learned Judge in that case referred to Rickett's case and, following the principle laid down therein, held that the plaintiff was rightly entitled to damages from the master.

12. The same principle was also followed by a Division Bench of the Assam High Court in the case of Sardar Nand Singh v. Abhyabala Debi AIR 1955 Assam 157.

13. The facts established in the present case may now be examined in the light of the principles 'enunciated above. In the present case it is admitted that both the driver as well as the mechanic were servants of defendant No. 1, the Government of Uttar Pradesh, which is the appellant in this appeal. It is further admitted that it was the driver who was put in charge of the vehicle and was authorised by the master to drive, control and manage the vehicle. It is further admitted that the duty of the mechanic was only to repair the defects in the said vehicle and not to drive the same. It is also established that while the vehicle was on the road the driving of the vehicle which was within the scope of employment of the driver, was entrusted by him to the mechanic. In fact, the uncontroverted evidence is that the driver was sitting by the side of the mechanic who was put in charge of the vehicle. Thus, in the present case the conduct of the driver itself indicatesthat he was a consenting party to the act of the entrustment of the vehicle to the mechanic for the purpose of driving it. It is also admitted that the vehicle met with the unfortunate accident while the mechanic was driving it. It is also established that Ram Milan sustained serious injuries during the course of this incident, and that the damages claimed by him in the present case arise out of these very injuries. The act of the driver in entrusting the mechanic with the task of driving the vehicle was an improper mode of performance of his own duty as a driver and was, therefore, an unauthorised mode of acting within the scope of his employment. The driver took no steps to have the vehicle vacated by the passengers before he entrusted the driving of it to the mechanic. We see no reason why the driver should have entrusted the vehicle in the hands of the mechanic for the purpose of testing the defect in it. It was not the task of the mechanic to drive. The driver could have had the defect rectified and the repair tested while driving the vehicle himself. Even supposing for a moment the driver thought it necessary to allow the vehicle to be tested by the mechanic, the most elementary precaution that should have been taken by him was to have the bus vacated by the passengers. He did not ask the passengers to leave the bus. He did not prevent the mechanic from driving the bus while the passengers were sitting in it. On the other hand, the fact that he was sitting by his side all the time shows that he was conniving at it. The bus was moving on a public road and the driver must, therefore, have anticipated the grave risk that was being taken by him in entrusting the task of driving to the mechanic. The duty of driving was vested in the driver and his act in handing it over to the mechanic was an improper mode of doing the authorised act.

14. The present case, therefore, falls clearly within the principle laid down in Rickett's case, 1916-1 KB 644 and there can be no manner of doubt that the master, i.e., the Government of Uttar Pradesh, must be held liable for the damages caused to the plaintiff because the damages were a result of the negligent performance of his duty by the driver. Even supposing for a moment that the Government had issued instructions to the driver not to delegate his duty, the Government would still be liable on the principle enunciated in Rickett's case, 1915-1 KB 644.

15. So far as the amount of damages is concerned, the learned counsel for the appellant has not seriously argued before us that the amount of damages awarded by the trial Court was excessive. We must, therefore, take it that the appeal is not pressed on that ground.

16. We must, accordingly, hold that this appeal has no force and must be dismissed.

17. Coming now to the cross-objections, the learned counsel for Ram Milan has argued that the trial Court has allowed the plaintiff five thousand rupees in respect of the physical and mental pain suffered by him and expensesfor his treatment. Further, the trial Court has allowed Rs. 569 as salary which would have been paid to the plaintiff if he had remained in service. The grievance of the learned Counsel Cor Ram Milan, who has filed the cross-objections, is that while allowing damages, the trial Court has ignored altogether the evidence produced by the plaintiff indicating that he had to engage a servant named Ham Dularey whom he had paid salary at Rs. 15 per month with meals The evidence of Rarn Dulare is corroborated by the evidence of Ram Milan (P W 2). Ram Milan has also stated that the meals given by him to the servant cost him about Rs 15 per month The evidence of Ram Milan also indicates that his treatment continued for a period of about a year.

In view of the above evidence the learned counsel for Ram Milan submitted that the trial Court should have awarded a further sum of Rs. 360 at least as damages being the amount of salary given by Ram Milan to Ram Dularey and the expenses incurred by Ram Milan in respect of boarding charges of Ram Dularey. We are of the opinion that his arguments in this regard have force. We see no reason to reject the evidence of Ram Milan and Ram Dularey on the above point. We are, accordingly, of the opinion that the plaintiff is entitled to a further amount of Rs. 360 by way of damages; The trial Court has already awarded the plaintiff damages to the extent of Rs. 5,569. The total amount to which the plaintiff is found entitled by us would, therefore, come to Rs. 5,929. No case is made out by Ram Milan for allowing further damages. We are, accordingly, of the opinion that the cross-objections of Ram Milan should be partly allowed, and the damages awarded to him be enhanced to an amount of Rs. 5929. To this extent the judgment of the trial Court is modified.

18. We, accordingly, dismiss the appealof the U. P. Government, defendant No. 1, andallow the cross-objections of the plaintiff byenhancing the damages awarded to him to anamount of Rs. 5,929. In the circumstances ofthe case, we direct that the parties shall beartheir own costs of this appeal as well as ofthe cross-objections. So far as the costs incurred in the trial Court are concerned, theorder passed by the trial Court is maintained.


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