1. These two appeals under Section 110-D of the Motor Vehicles Act, 1939, preferred by two sets of claimants, directed against the judgment of the Motor Accidents Claims Tribunal, Bharatpur, dated 27-1-1973, raise a common question and therefore are disposed of by this common judgment.
2. The Claims Tribunal has allowed the claim of compensation of Keshav Deo and others to the extent of Rupees 30,000/- for the death of Kedarnath Gupta, and that of Smt. Premwati Soni Jain and others to the extent of Rs. 15,000/-, for the death of Horilal Jain against the respondent No. 3 Harpal Singh who is a driver employed in the office of the District Forest Officer, Bharatpur, on its finding that the accident resulting in their death, was caused due to his rash and negligent driving of a Government jeep. It has, however, disallowed their claim for compensation against the employer, i. e., the State of Rajasthan which owns the jeep, holding that the respondent No. 3 Harpal Singh, the driver having acted beyond the scope of his employment in giving lift to Kedarnath Gupta and Horilal Jain, the State Government of Rajasthan could not. therefore, be held vicariously liable to pay damages for the death of these gratuitous passengers.
3. The facts leading to these appeals, briefly, are these. On 12-9-1965 at about 6 P. M., the respondent No, 3 Harpal Singh, took delivery of Jeep No. RJL 4245 registered in the name of Conservator of Forest, Rajasthan, Jaipur, from M/s. Vijay Motors, Bharatpur, where it had been given for repairs. Sher Singh, the driver of the Panchayat Samiti, Sewar, P. W. 2 whose jeep was also at the workshop for repairs but was not ready, got into the jeep and he took thewheel. Harpal Singh instead of takingthe jeep to the garage, went on a spree along with Sher Singh. That evening Kedarnath Gupta, Accounts Clerk, Panchayat Samiti, Sewar, along with Horilal Jain and Mewa Ram, were going to the city on foot. They stopped at the shop of Ramsingh Thakur near Kotwali, to take betels. At about 8 P. M., when the jeep happened to pass that way, the respondent No. 3 Harpal Singh persuaded them to get into the jeep for a pleasure drive. They got into the jeep and Sher Singh took the jeep towards Bharatpur Railway Station.
4. It appears from the testimony of Mewaram P. W. 3 and Sher Singh P. W. 2 that the three passengers got down on the way near Murli Chitralok Cinema. After half an hour, while they were proceeding on foot they again boarded the jeep on seeing it returning from the station and at that time, the respondent No. 3 Harpal Singh, was driving the jeep. It also appears that he was under influence of liquor and he was driving the jeep very fast. The passengers cautioned him time and again to drive slowly and at one time asked him to stop the jeep, so that they could get down but he did not pay any heed, and drove on the jeep still faster. At about 9 P. M., the jeep suddenly swerved to the right near Kuttawali Bagichi outside Kumher Gate, went off the road, struck against a mile stone and fell into a ditch. All the five occupants of the jeep were seriously injured. Of these, Kedarnath Gupta and Horilal Jain succumbed to their injuries three days after the accident.
5. In the circumstances, it cannot be doubted that though the act of the respondent No. 3 in bringing the jeep from the workshop at 6 P. M. that evening was undoubtedly in the course of his employment, but his act of going on a spree that night, and the act of giving lifts to third parties, was something beyond the scope of his employment, for which the State Government cannot be saddled with liability.
6. It is true that, when the driver of a owner is driving his motor vehicle, strong presumption arises that he is acting in the course of his employment. Otherwise, both would combine in trotting out a false defence. But that presumption like any other presumption, is a rebuttable one. Thus, in Sitaram Motilal Kalal v. Santanuprasad Jaishankar, AIR 1966 SC 1697, their Lordships held thatthe owner was not liable. There, themaster had entrusted his car to one M for plying the same as a taxi. M was not merely the driver but was in the entire charge of plying the vehicle. M trained C, the cleaner of the taxi, to drive the car and had taken him to the Regional Transport Authority for obtaining a driving licence. When an officer was taking a test of C, the latter without giving a signal suddenly took a turn and met with an accident. In those circumstances, their Lordshipg exonerated the owner of the liability because M was acting outside the course of his employment.
7. There can be no doubt that the respondent No. 3 Harpal Singh, along with Sher Singh P. W. 2, went on a spree, The accident occurred some three hours after the jeep was taken out of the workshop. It is needless to stress that Government vehicles cannot be put to private use : see Rules regarding the use of Motor Cars, and Jeeps, etc.. placed at the disposal of Government Departments and Officers. The respondent No. 3 Harpal. Singh was certainly not permitted by his employer, the Stats Government, to pick up person? on the way.
8. The contention that nonetheless the State Government would be vicariously liable can easily be met. The law is stated in Clerk and Lindsell on Torts, 10th Ed. p. 122, thus:
'A master will usually be responsible for the servant's negligence in doing something which he is merely permitted to do or does for his own purposes, but is not employed to do. If a servant does an act for his own pleasure, quoad that act he is a stranger to his master, although he may be in other respects engaged at the time upon the masters' business, and the mere fact that the master does not prohibit the doing of the act ought not render him liable.'
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 such act authorised by the master. On the other hand, if the un-authorised and wrongful act of the servant is not connected with his employment but is an independent act of his own, 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 of it. The act of permittinganother to drive may be a mode, albeit an improper one, of doing the authorised act. But the act of giving lifts to third parties is clearly outside the scope of employment: Salmond's Law of Torts, 16th Ed. pp. 474, 475.
9. A chauffeur who takes his employer's car without authority for a joy-ride is obviously bent 'on a frolic of his own'. Fleming in his Law of Torts, 3rd Ed., at p. 337, observes that, in such circumstances, the employer is not accountable for a tort committed by the servant, stating :
'In excusing the master, the argument has been invoked that, vis-a-vis him, the plaintiff was a trespasser and therefore not the beneficiary of an independent duty of care. The conventional approach would have been content with an inquiry whether the prohibition took the servant's conduct outside the course of his employment.'
10. Cases concerning drivers who give lifts to third parties have unique features, as the judgment of Lord Greene in Twine v. Bean's Express Ltd., (1946) 62 TLR 458, indicates. In that case, the employers had expressly instructed their driver not to allow unauthorised persons to travel on their vehicle and had affixed a notice in the driver's cap. Despite this, the driver gave a lift to a person who was killed by reason of the driver's negligence. Uthwatt, J. in Twine v. Bean's Express Ltd., (1946) 1 All ER 202, held that the employer was not liable because Twine, vis-a-vis Beans remains simply a trespasser on the van. The decision was affirmed by the Court of Appeal on the conventional approach that the driver had acted outside the scope of employment.
11. Holding that Bean's Express were not liable for injuries to the plaintiff caused by the negligent driving of their driver, who had, without authority, given him a lift in the vehicle driven by him, Lord Greene said:
'He was in fact doing two things at once. He was driving his van from one place to another by a route that he was properly taking ..... and as he wasdriving the van he was acting within the scope of his employment. The other thing that he was doing simultaneously was something totally outside the scope of his employment, namely, giving a lift to a person who had no right whatsoever to be there.'
In Convey v. George Whimpay, (1951) 2 KB 266 (CA), Asquith LJ, in deliveringthe judgment of the Court of Appeal, dismissed the claim on either theory, i. e. that, vis-a-vis the employer, the passenger was a trespasser, and the servant in giving lifts to third parties acted beyond the scope of his employment. These are, of course, cases of express prohibition but that hardly makes any difference in principle. In case of employment of a driver, there exists, in our view, an implied prohibition from giving lifts to third parties.
12. In the Privy Council case of Canadian Pacific Rly. Co. v Lockhart, LR (1942) AC 591 = (AIR 1943 PC 63), Lord Dunedin said, 'there are prohibitions which limit the sphere of employment and prohibitions Which only deal with conduct within the sphere of employment'. The recent decision of the Court of Appeal in Rose v. Plenty, (1976) 1 All ER 97, has by a majority per Lord Denning, MR., and Scarman, LJ., appears to have rejected the theory of trespass and rested the employer's liability on the scope of employment. The test according to Denning, MR., is;
'In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done. If it is done for his employers' business, it is usually done in the course of his employment, even though it is a prohibited act. But if it is done for some purpose other than his master's business, as, for instance, giving a lift to hitchhiker, such an act, if prohibited, may not be within the course of his employment. Both Twine v. Bean's Express Ltd. and Conway v. George Wimpey & Co. Ltd., (1951) 2 KB 266 are to be explained on their own facts as cases where a driver had given a lift to someone else contrary to a prohibition and not for the purposes of the employers.'
Scarman, LJ., observed:
'In Twine's case, at the very end of the judgment, Lord Greene MR said : 'The other thing that the (i. e. the servant) was doing simultaneously was something totally outside the scope of his employment, namely, giving a lift to a person who had no right whatsoever to be there. In that case the conclusion of fact was that the express prohibition on giving lifts was not only a prohibition but was also a limiting factor on the scope of the employment; and, of course, once a prohibition is properly to be treated as a defining or limiting factor onthe scope of employment certain results follow. In Twine's case the driver engaged to drive his employers' van, his employers having a contract with the Post Office. When so doing, he gave Mr. Twine a lift from A to B. True A and B happened to be, both of them, offices of the Post Office. Yet I can well understand why the Court reached the conclusion that in the circumstances of that case it was not possible to say that the driver in giving Mr. Twine a lift was acting within the scope of his employment or doing improperly that which he was employed to do. Similarly when one looks at Conway's case, one again sees that on the facts of that case the Court considered it right so to define the scope of employment that what was done, namely giving somebody a lift, was outside it and was not a mode of doing that which the servant was employed to do. That also was a case of a lift: the person lifted was not in any way engaged, in the course of the lift or indeed otherwise, in doing the master's business or in assisting the servant to do the master's business; and no doubt it was somebody else's employee a lift from the airport home -- was not a mode of performing an act which the driver was employed to do, but was the performance of an act which he was not employed to perform.'
In a strong dissenting opinion, Lawton LJ., however, preferred to rest his decision on the view of Asquith LJ. in Convey v. George Whimpay, (1951) 2 KB 266 (supra) and hold the employer as not liable on both the grounds, stating:
If between 1946 and 1951 any employers had the kind of doubts about Twine's case which in more recent years have been expressed by academic writers, their minds would have been put at rest by another decision of this Court in 1551, namely Conway v. George Wimpey & Co. Ltd. That was a case in which a lorry driver employed by a firm of contractors on a site where many other contractors were working, contrary to his express instructions, gave an employee of another firm of contractors a lift in his lorry. This man was found injured whilst a passenger. The problem for the Court was whether the injured man could claim against the employers of the lorry driver who had given him a lift. This Court, in a unanimous decision, adjudged that the injured man could not claim. The leading judgment was given by Asquith LJ; he gave his reason for saying that what the lorry driver had done had not been donein the course of his employment. He said: '.....I should hold that taking menother than the defendant's employees on the vehicle was not merely a wrongful mode of performing an act of the class which the driver ..... was employedto perform but was the performance of an act of a class which he was not employed to perform at all.'
These two cases have not been overruled by the House of Lords.'
'It would I think be most unfortunate if this court departed from clear decisions save on good and clear grounds.'
'Having regard to what has been decided in the past, in my judgment it would be wrong now, without the authority either of the House of Lords or of Parliament, not to follow the 1946 and 1951 cases.' In Bhaiyalal Godre v. Smt. Rajrani, AIR 1960 Madh Pra 147, it is observed:
'The principle is that the act of giving a lift to an unauthorised person is not merely a wrongful mode of performing an act of the class which he was employed to perform but the performance of an act of a class which he was not authorised to perform at all. In the instant case, unlike the English case, the prohibition existed in consequence of a statutory rule.'
To the same effect is the decision in Mohiddinsab Gaffarsab Kundgol v. Rohi-das Hari Kindalkar, (1973) ACJ 424 (Mys). The Court had in these cases in view Rule 88 of the Motor Vehicles Rules, 1940, which provides that no person shall be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle, like Rule 133 of the Rajas-than Motor Vehicles Rules, 1951. In Smt. Padmavati v. Smt Dugganaika, (1975) ACJ 222 (Kant), the vehicle was a jeep as here. It is true that two of these cases were cases involving the use of trucks which brought the relevant Rule 80 of the Motor Vehicles Rules prohibiting carriage of passengers into play, but that hardly makes any difference. For Government vehicles cannot be put to private use. In any event, the principle volenti non fit injuria applies in such cases.
13. In Amthiben Maganlal v. Superintending Geophysicist O. N. G. C., (1976) ACJ 72 (Guj) the Gujarat High Court, however, has struck a discordant note, observing:
'If the driver had while driving the vehicle on the master's business killed a pedestrian the master would have beenliable in damages to the heirs and legal representative of the deceased. Merely because the deceased had been sitting on the truck and was not a pedestrian passing on the road, it made no difference so far as the liability of the owner is concerned. If the driver drives a truck of the master on the 'master's business, it does not make any difference if he kills a pedestrian or one sitting on the truck.' With respect, we are unable to subscribe to this view which cannot be supported on principle or on balance of authority. The decision of the Gujarat High Court also does not appeal to reason. It fails to draw the distinction between the negligent act of the driver in driving the vehicle which injures a pedestrian and the act of wrongfully giving a lift to third parties. As stated by Street on Law of Tort, 5th Ed., p. 429 'the employer will be liable to the pedestrian but not to the passenger'.
14. That apart, the decision in Amthiben Maganlal v. Superintending Geophysicist O. N. G. C., 1976 ACJ 72 (Guj) (supra) is also distinguishable on facts. There, the truck in question was driven by the Deputy Engineer of the O. N. G. C., who gave a lift to a person returning from the works. The distinction is brought out by Street on Law of Torts, 5th Ed. p. 429 stating, 'whereas giving a lift to hitch-hikers would be outside the scope, the giving of lifts to employees returning home from work was within the course of employment of the driver'.
15. In the result, both the appeals fail and are dismissed. There shall be no order as to costs.