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B. Govindarajulu Chetty Vs. M.L.A. Govindaraja Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 139 of 1964
Judge
Reported inAIR1966Mad332
ActsMotor Vehicles Act - Sections 94, 96, 96(2), 110 and 110-A to 110-F
AppellantB. Govindarajulu Chetty
RespondentM.L.A. Govindaraja Mudaliar and ors.
Cases ReferredNew Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani.
Excerpt:
motor vehicles act (iv of 1939),section 110-b--meaning of--claims tribunal dismissing claim for compensation--whether appeal lies thereon under section 110-d of act--tort--negligence-- owner of lorry handing it over to workshop for repair--employee in workshop driving lorry and killing cyclist by running over--liability of lorry owner to pay compensation to deceased's father--relationship between lorry owner and proprietor of workshop, whether one of master and servant--liability of insurance company--proprietor of workshop only independent contractor--his liability for negligence of his servant--proof required ; the appellant's son while going on a cycle met with an accident and was killed as a result of a lorry coming behind him hitting him and throwing him off the ground. the first..... (1) this appeal arises out of a claim made before the motor accidents claims tribunal under section 110 of the motor vehicles act. the appellant's son, aged about 24 years, while going on a cycle from elephant gate to the central station met with an accident and was killed as a result of a lorry coming behind and hitting him and throwing him off the ground. this took place in the walltax road on 22-1-1962 at about 6-15 p.m. the first respondent is the owner of the lorry, the second respondent is the insurance company; the third respondent is the owner of a work-shop and a lorry repairer to whom the lorry has been entrusted for repairs by the first respondent at the time of the accident, while the 4th respondent is the person who drove the lorry which was involved in the accident.(2).....
Judgment:
(1) This appeal arises out of a claim made before the Motor Accidents Claims Tribunal under Section 110 of the Motor Vehicles Act. The appellant's son, aged about 24 years, while going on a cycle from Elephant Gate to the Central Station met with an accident and was killed as a result of a lorry coming behind and hitting him and throwing him off the ground. This took place in the Walltax Road on 22-1-1962 at about 6-15 p.m. The first respondent is the owner of the lorry, the second respondent is the insurance company; the third respondent is the owner of a work-shop and a lorry repairer to whom the lorry has been entrusted for repairs by the first respondent at the time of the accident, while the 4th respondent is the person who drove the lorry which was involved in the accident.

(2) Respondents 1 and 2 contested the claim and respondents 3 and 4 remained ex parte. The Accidents Claims Tribunal found that the accident took place on account of the negligent way in which the lorry was driven by the 4th respondent, and that the appellant, the father of the deceased would be entitled to a sum of Rs. 8000 as compensation. The main defence of respondents 1 and 2 was that the first respondent was not liable inasmuch as he had entrusted the lorry to the 3rd respondent, an independent contractor for effecting certain repairs to the lorry that the 4th respondent had no licence, that the lorry was used by him unauthorisedly and without the permission of the third respondent, and that in any event, whatever may be the liability of the 3rd and the 4th respondents, respondents 1 and 2 could not be held vicariously liable for the negligent or careless action of the 4th respondent. Even though the Claims Tribunal found that there was no proof that the 4th respondent had no licence, it held that the relationship between the first and the 3rd and 4th respondents was not that of a master and servant but that of an independent contractor, and that no relief could be granted as against respondents 1 and 2. As it was conceded before the Tribunal that respondents 3 and 4 could not be made liable and were joined only as pro forma parties to the proceeding, no relief was granted even as against them and the claim was rejected. Hence the present appeal.

(3) We must at the outset state that we were unable to follow and appreciate a major portion of the argument of learned counsel for the appellant, as it was unintelligible, besides being opposed to well settled principles of law of torts on the question of vicarious liability. The substance of the argument of the learned counsel for the appellant was that the 3rd respondent would be clearly liable for the tortious act of the 4th respondent, and that even if the 3rd respondent should be held to be an independent contractor of the first respondent (not standing in the relationship of an agent or a servant of the first respondent) the act of the first respondent in entrusting the lorry to the 3rd respondent was by itself a dangerous and hazardous act, that a lorry is an inherently dangerous chattel and that by entrusting such a dangerous chattel to some other person that the first respondent cannot escape the liability for the consequences which would result if the lorry was taken out by any person whosoever it may be. According to learned counsel the entrustment of a lorry for repairs to a repairer is an act inherently dangerous, and that in the natural course of things the first respondent must anticipate such an injurious consequence, and that he was under an absolute liability to do everything and to prevent the lorry, being taken out and being exposed to such a risk. In substance his argument is that the first respondent cannot escape liability for the accident by proving that he had entrusted the lorry for repairs to some other contractor and that what he had done must be at his peril and he should have in any event foreseen some one in the workshop taking out the lorry. We have no hesitation in holding that the extreme contention put forward by learned counsel for the appellant is clearly untenable and the decisions which are cited, far from supporting him, are against his contention. We are clearly of the opinion that the relationship between the 1st and the 3rd respondent is only that of an independent contractor, and certainly not of a master and servant, judged by any test. An independent contractor is one who undertakes to produce a given result or perform a particular work, but in the actual execution of that work he is not under the order or control of the person for whom the work is done and he is at liberty to use his own discretion and judgment. In the instant case, the first respondent cannot possibly direct and control the manner in which the repair work should be done and it is impossible to hold that proprietors of automobile workshops and repairers stand in the relationship of master and servant in regard to the owners of the cars or lorries. Indeed learned counsel did not seriously contest this position.

(4) The question next arises whether the entrustment of a lorry for repairs by itself is an inherently dangerous and hazardous act and a lorry should be regarded as an inherently dangerous chattel so as to be governed by the exception to the rule that a person is not vicariously liable for the commission of tort consequent upon the negligence of a third party. In other words is a lorry such a dangerous chattel as to attract the doctrine of absolute liability?

(5) We may first refer to the statement of the law dealing with the exceptions to the general rule that an employer is not liable for the negligence of an independent contractor. In Clerk and Lindsell on Torts. 11th Edn the law is stated in these terms:

"Section 213: Exceptions to the general rule that an employer is not liable for the negligence of an independent contractor or his servants, there are three exceptions in addition to the one note above, viz, interference by the contractor's employer.

(1) Where the act which the contractor is employed to do is one which if done by the employer, would, though lawful in itself, be done at his peril.

(2) Where the contractor is employed to execute certain work which the employer is under positive statutory obligation to execute.

(3) Where the work which the contractor is employed to do is, on the face of it, unlawful.

Section 214: Rule in Bower v. Peate (1875-1 QBD 321). In each of the foregoing classes of cases it is obvious that the employer cannot free himself from liability merely by employing a contractor to do the work for him. And it is believed that all the cases in which an employer has been held responsible, for the negligence of a contractor may be referred to one or other of those exceptions. It was indeed laid down 'on a broader ground' in the case of 1875-1 QBD 321, that a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing someone else, whether it be the contractor employed to do the work from which the danger arises or some independent person, to do what is necessary to prevent the act he has ordered to be done from becoming wrongful".

(6) We may also refer to the following statement of the law in 28 Halsbury pp. 24 and 25 paras 22 and 23:

"22 Personal duty of the employer of an independent contractor. The classes of cases in which a personal duty exists at common law are not well defined. The two principal categories are where the work to be done involves either (1) special damage to others, or (2) danger on the highway.

Outside these categories of special dangers and highways, a master has been held liable to his servant for failure to take reasonable care to provide a safe place of work although he had engaged for this purpose contractors who, while generally competent, were negligent in the particular case; and a government department has been held liable where under statutory powers it employed to enter the plaintiff's land contractor who was negligent, 23. Special damages, examples of special dangers are dangerous building operations, the blasting of rock, work adjacent to gas pipes, use of a bensoline lamp which exploded on the highway, driving a cow and calf on the highway with only one driver, the deposit of dangerous paint scrapings, photography by magnesium flash and the use of an oxy-acetylene burner in an oil tank ship. The arranging of an aeroplane journey does not it seems, set in motion a thing dangerous in itself, such as would render an employer liable at common law for the act of an independent contractor".

Learned counsel contends that the instant case is governed by the first exception, namely, even though the entrustment of the lorry for repair by itself is lawful the owner can do so only at his peril on the principle of the case, Ryland v. Flectcher (1868) LR 3HL 330) and the cases in which that principle had been applied. We have no doubt that exception (1) has no application to the instant case. The rule is intended to cover and apply to cases like building operations, withdrawal of support of a party wall, excavation work when a duty is cast on the servient owner, to see that no damage should happen to the dominant owner and that the responsibility cannot be absolved by merely employing an independent contractor to do the work in question, excavation, rebuilding or such other operations. In the nature of things it is impossible to exhaustively define and classify what are inherently dangerous and hazardous chattels and what are not and what are the acts which a man could do only at his peril. We are wholly unable to accept the argument of learned counsel that the case of a lorry should be governed by the principle which is applied to an outbreak of fire, gas explosives, electricity, poison or dangerous animals and wild beasts. Life will become impossible if in these days of fast locomotion of heavy lorry traffic it were to be held that the owing of a motor lorry or an automobile and the entrusting of the same for repair is in its very nature inherently dangerous and hazardous. On the other hand there is ample authority for the view that the lorry is not in itself a nuisance or a hazardous chattel so as to attract the doctrine of absolute liability.

(7) We may first refer to the following statement of the law in Clerk and Lindsell on Torts, 11th Edn. p. 666 Par. 1132:

"1132. Dangerous chattel left in easily accessible position. If the dangerous chattel is not entrusted to any person at all, but is placed in a situation easily accessible to a third person, who sustains damage from it the owner is liable for the resulting damage. A man who leaves a loaded gun in a public place is liable for damage caused by the act of a boy in shooting a third person, and a school master is liable to one of his pupils who is injured by phosphorous which has been left in a place to which the pupils have access. If the chattel is not a dangerous one, this rule does not apply. Accordingly, when a motor lorry was left unattended to in the highway and third person started it and caused it to damage a shop, the owner was held not liable, Lush J. saying. 'The county court Judge based his decision on this ground: If, he said, a man chooses to leave a dangerous thing about in such a position that somebody else by interfering and meddling can do damage, the original person who leaves the particular thing about is liable in damages.' I agree. If this motor lorry could be properly described as a dangerous thing, the defendants, if they had placed it on the highway, would be taken to contemplate that persons lawfully using the highway might remove it; and if in the course of moving it these persons caused damage to a third person, the defendants who originally caused the obstruction would be liable".

(8) In Ruoff v. Long and Co., 1916-1-KB 148, the defendants' servants left temporarily unattended a steam motor lorry in a highway, which can be started by withdrawing a handpin from the gear lever and then moving it along with the two other levers. Two soldiers not knowing how to start the same set the lorry in motion and it started backwards and ran into the plaintiff's shop and did some damage. It was held that in the circumstances of that case it could not be held that the defendants' servants were negligent in leaving the lorry unattended. The argument on behalf of the plaintiff was that a reasonable man should have anticipated that a number of careless and mischievous persons would interfere with the lorry and set it in motion. But this argument was not accepted by the court of Appeal. Avory J. stated the law in these terms:

"This is not the case of a horse left unattended in the street, which may start of its own accord, and which, however quiet, may yet be started by a sudden noise or other cause accidental or intentional. It is impossible to say that those who leave standing unattended in a road a machine which will not move unless some person intentionally puts it in motion are prima facie guilty of negligence......... That leads to the question whether the defendants, assuming that they were guilty of negligence in leaving the lorry unattended ought as reasonable men to have anticipated that soldiers or other persons would mount the engine, pull out the safety pin, manipulate three different levers, and so set the lorry in motion. It cannot be said that any reasonable man ought to have anticipated such a set of circumstances: in other words, there was no evidence on which this or any other court could come to the conclusion that this accident ought to have been anticipated. No evidence of any similar accident was tendered, and no evidence that soldiers or sailors in Portsmount are addicted to pranks of this kind. The case is not analogous to those where the intervention of a child with a machine or vehicle has been held not to constitute an excuse. Nor is it a case of a dangerous article left lying about, as in Dixon v. Bell, (1816) 5 M and S 198, or of chevaux de friso obstructing a highway and likely to be interfered with, as in Clark v. Chambers, (1878) 3 QBD 327. Those cases were decided on the ground that the defendant had in each case left a dangerous or a noxious thing in such a position that injury was likely to arise from interference with it. It is evident from the latter part of his judgment that the county court Judge treated the present case as one of that class. But it is not such a case. "Dangerous" is not the word whereby to describe a machine which cannot move by mere accident but only after a series of operations so complicated as to be beyond the power of a person unacquainted with the mechanism. In this case, the first soldier failed to put the machine in motion". Lush J. agreed with this view holding that a person will not be liable for the consequences of the mischievous act of a third party making that dangerous which by itself is innocuous, and that the only duty is that a person must take reasonable means to prevent such mischief as he ought to contemplate as likely to arise in a particular situation. He observed as follows at page 157:

"But in the present case, there is no ground for saying that the defendants placed a dangerous thing or an obstruction upon the highway, or in any sense used the highway unlawfully. They left a motor lorry in the street for a few minutes. It could not start of itself. In leaving it standing in the street for that short time they did nothing unlawful. Then what is the duty of a person situated as the defendants were? He must take reasonable means to prevent such mischief as he ought to contemplate as likely to arise from his user of the highway. As a matter of fact the country Court Judge did not find that this accident was likely to arise from the defendants' user. If he had so found. I agree that there was no sufficient evidence to support the finding. There would have been no danger if these two persons had not by their irresponsible acts converted into a source of danger a thing which in itself was perfectly safe and could do no harm to anybody"

The principle of this case clearly applies to the instant case. It is not the duty of the first respondent to anticipate or guard against somebody in the repairer's workshop taking the lorry and involving the same in such an accident. It is not possible for the owner of the lorry to take any precautions against such mischievous acts on the part of third parties when the lorry has left his custody and has been entrusted to the proprietor of the workshop.

(9) We may next refer to the decision in Phillips v. Britannia Hygienic Laundry Co. Ltd. 1923-1-KB 539. In that case the defendant, the owner of a lorry had entrusted it for repairs to a firm of known competence and while the lorry was being driven in public highway after such repairs an accident occurred, as a result of which the van of the plaintiff in the action was seriously damaged. In an action by the plaintiff for the damages sustained it was held, amongst other things, that the defendant (the owner) was not liable for the alleged negligence of the repairers even though the latter had not properly repaired the vehicle and that the lorry by itself was not a dangerous and a hazardous chattel as to impose an absolute duty of care upon its owner, and that the defendant will be liable only if he is himself guilty of negligence or had actual knowledge while driving the lorry that the repairs had not been properly effected Mcardia J rejected the argument that the owner of the lorry owed an absolute duty at common law to the plaintiff, to see that the lorry should be in a safe and proper condition and should be run without any negligence. The learned Judge observed as follows at pp. 554-555:

"Without statutory power the interference with a highway would be an indictable nuisance. In the case of a motor car, however, there is nothing at common law which prevents it from being run on a highway, subject to liability for negligence and nuisance. Sadler's case, (1889) 23 QBD 17 must rest either on negligence or on the obvious and avoidable breach of a particular statutory duty. It seems to be, so far as I follow it sui generis. Secondly it was suggested that the defendants' lorry must, having regard to the defective axle, be regarded as nuisance. Now it is plain that a motor car is not in itself a nuisance although liable to skid in wet whether; see Wing v. London General Omnibus Co. 1909-2-KB 652"

(10) This decision was affirmed by the Court of Appeal in Phillips V. Britannia Hygienic Laundry Co, 1923-2-KB 832. In our view this is clear authority for the principle that no absolute duty at common law exists on the part of the owner of the lorry.

(11) Reference may also be made to the decision of the court of Appeal in 1909-2-KB 652, in which in was held that the rule of absolute liability laid down in Rylands v. Fletcher, 1868-LR 3HL 330 was inapplicable to a motor vehicle, it was also held that if an accident occurred a person would be liable only on proof of an evidence of negligence. In that case, the motor omnibus belonging to the defendants skidded upon a road the surface of which was greasy from rain and ran into an electric light stand, and the plaintiff was injured in consequence. Apart from the injury occasioned to the plaintiff there was no other evidence in the nature of negligence on the part of any of the servants of the defendants in the driving or the management of the omnibus. It was argued that the mere act of the defendants allowing the motor omnibus to run under the circumstances constituted a nuisance. The Jury was of the view in that case that motor omnibus and other vehicles propelled by motor power had a tendency to skid and that it was negligence to place on the road a vehicle liable to become uncontrollable in slippery conditions of the road and thus was a nuisance. This view was not accepted by the Court Vaughan Williams L. J. explained the legal position thus at page 662:

"If this was the question which the jury presented to themselves and answered, I think that the fact that the defendant company placed such a carriage on the road to ply for passengers was no evidence of negligence or nuisance, having regard to the fact that motor omnibus have been running in the streets of the metropolis for several years"

Fletcher Moulton L.J. taking the same view pointed out that the defendants will be liable only when the direct cause of the accident and so much of the surrounding circumstances as was essential to its occurrence were within the sole control and management of the defendants or their servants so that the responsibility for the same could well be attributed to them. He stated:-

"An accident in the case of traffic on a highway is in marked contrast to such a condition of things. Every vehicle has to adopt its own behaviour to the behaviour of other persons using the road, and over their actions those in charge of the vehicle have no control. Hence the fact that an accident has happened either to or through a particular vehicle is by itself no evidence that the fault, if any, which led to it was committed by those in charge of that vehicle".

At page 665 the learned Law Lord has explained as to why the rule in Rylands v. Fletcher, (1868-LR 3 HL 330) would not apply to the ownership of a motor vehicle. From this decision it is absolutely clear that in the case of a motor vehicle liability can be fastened as against a person only on proof that he was negligent and that that negligence was responsible for the accident in question. It is impossible to hold that the first respondent owed any duty or could have exercised any control or taken any precaution about the lorry once it had been entrusted to the workshop of the repairer. We have no doubt that there is no law which throws a duty upon the owner to speculate and anticipate that some unauthorised person would take the lorry out from the garage of the repairer. It is not one of the necessary natural consequences that would be expected to arise in the matter of entrustment of a lorry for repair.

(12) In Stennett v. Hancock & Peters 1939-2 All ER 578, the question as to how far the rule of absolute liability would apply to a motor lorry came up again for consideration and the decision in 1923-1 KB 539 was followed. In that case the owner of a motor lorry got certain repairs effected to the wheels of the lorry by a repairer and when the lorry was driven by the owner's servant, after the said repairs the flang of the lorry came off on the highway and the lorry on account of the accident mounted the pavement and caused injuries to the plaintiff. It was held that the lorry owner having entrusted the lorry for repairs to a competent repairer was not liable for either negligence or nuisance, to a third person who suffered injury upon the road by reason of the fact that the repairer was negligent in effecting the repairs. It was also held that the lorry owner did not owe any duty to ascertain for himself whether the repairer had properly effected the repairs and that the only person that would be liable was the repairer for his negligence in the matter of repairs. Branson J. held that after having entrusted the lorry for repairs to a competent repairer the owner was not under any further duty or responsibility in the matter. The ratio of this decision is that it is only on proof of negligence either on his part or on the part of his servant that the owner of a motor vehicle could be held liable for any injury caused as a result of an accident. The liability for negligence in the case of chattels which can be set in motion has to be applied with care and the foundation of the liability, is the negligence of the owner either in the actual act or in failing to foresee reasonably or anticipate such an accident would occur. Applying any strict test, we are unable to see how the first respondent could be held liable in the instant case.

(13) It only remains for us to refer to the two cases on which considerable reliance was placed by learned counsel for the appellant. The first is the decision in Pickard v. Smith, (1861) 10 CB (N. S.) 470: 142 ER 535. In that case the railway company let the refreshment rooms along with a coal cellar opening on the arrival platform to a lessee S. The lessee had employed some coal merchants for shooting coals into the cellar and the plaintiff, a passenger while passing in the usual way, out of the station, without any fault of his own fell into the cellar and sustained some injuries as the cellar was left insufficiently guarded by the servants of the coal merchants. It was held that the lessee as the occupier of the refreshment rooms and the cellar, was responsible for the negligence of the coal merchants. The argument on behalf of the lessee was that he was absolved from any liability the moment he had employed the coal merchants to put the coal into the cellar and that the relationship between the lessee and the coal merchants was that of an independent contractor. The rule that if an independent contractor is employed to do a lawful act and in the course of the work he or his servants committed some act of wrong or negligence the employer would not be liable or answerable therefor was not questioned. On the facts of that case it was held that the coal merchants were actually employed as agents and not as independent contractors. We may refer to the following observations at page 539 to show as to how the principle of that case is not applicable to the instant case.

"That rule is however inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do; nor, by a parity of reasoning, to cases in which the contractor is entrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned. Now in the present case, the defendant employed the coal merchant to open the trap in order to put in the coals; and he entrusted him to guard it whilst open; and to close it when the coals were all put in. The act of opening it, was the act of the employer, though done through the agency of the coal merchant, and the defendant having thereby caused danger, was bound to take reasonable means to prevent mischief. The performance of this duty he omitted and the fact of his having entrusted it to a person who also neglected it, furnishes no excuse either in good sense or law"

(14) Learned counsel next relied upon the decision in Honeywill and Stain Ltd v. Lakin Bros Ltd., 1-934-1 KB 191. That case arose out of a claim for indemnity for damages. The plaintiff's who were specialists did some accoustic work in a cinema theatre and for their own advertisement purposes they desired to take photographs of the interior of the cinema. The owners of the theatre granted the requisite permission to have a photograph. The photograph taken without flashlight, was found to be unsatisfactory. So the respondents arranged for taking photographs with flashlight. The defendants who were the photographers took photographs of the interior of the theatre but owing to the defendant's negligence the premises i.e., the cinema theatre was damaged by fire. It was held that the plaintiffs were liable to the owners of the theatre for the damage caused by the negligence of the defendants and therefore they were entitled to recover damages from the defendants. It will be seen that the claim for indemnity would arise only if it is held that the plaintiff's would be liable to the owners of the cinema theatre for the damage caused by the photographers. The court took the view that taking a photograph by flash-light by it self is inevitably attended with great danger as it involves the making of either a fire or explosion or both involving the ignitionary metal tray of certain amount of magnesium powder or Agfa. It was found that the above mixture on being ignited flares up and develops an intense heat and is therefore dangerous when brought into close proximity with fabrics or other inflammable material used in a cinema theatre. The defendants were held liable on the ground that taking of flash light photographs was an extra hazardous act which involves in its very nature in the eyes of law, a special danger to others and that the fire and explosion occurring are obvious and established instances. Slesser L. J. speaking for the court explained the legal position in these terms at page 199.

"The principle is that if a man does work on or near another's property which involves danger to that property unless proper care is taken, he is liable to the owners of the property for damage resulting to it from the failure to take proper care, and is equally liable if, instead of doing the work himself, he procures another, whether agent, servant or otherwise, to do it for him. A like principle applies to work done in or near a highway involving danger to those who use it; see e. g. Holliday v. National Telephone Co., 1899-2-QB 392. In our opinion, the principles enunciated by Talbot J. are correct, and are applicable to the present case. To take up the photograph in the cinema with a flashlight was, on the evidence stated above, a dangerous operation in its intrinsic nature, involving the creation of fire and explosion on another person's premises, that is in the cinema the property of the cinema company. The appellants, in procuring this work to be performed by their contractors, the respondents, assumed an obligation to the cinema company which was, as we think, absolute, but which was at least an obligation to use reasonable precautions, to see that no damage resulted to the cinema company from these dangerous operations; that obligation they could not delegate by employing the respondents as independent contractors, but they were liable in this regard for the respondent's acts. For the damage actually caused the appellants were accordingly liable in law to the cinema company, and are entitled to claim and recover from the respondents damages for their breach of contract or negligence in performing their contract to take the photographs.

The learned Judge has found for the respondents because he has held (founding himself on the words of Lord Watson in Dalton v. Angus, (1881) 6 AC 740 that the work to be done by the respondents for the appellants was not necessarily attended with risk. It was work which, as a general rule, would seem to be of quite a harmless nature. But, with respect, he is ignoring the special rules which apply to extra hazardous or dangerous operations. Even of these it may be predicated that if carefully and skilfully performed, no harm will follow; as instances of such operations may be given those of removing support from adjoining houses, doing dangerous work on the highway, or creating fire or explosion; hence it may be said, in one sense, that such operations are not necessarily attended with risk. But the rule of liability for independent contractors' acts attaches to these operations, because they are inherently dangerous, and hence are done at the principal employer's peril".

From what has been extracted above, it is clear that this case has no relevance. It is unnecessary to refer to other cases cited by learned counsel like the one in (1881) 6 AC 740 dealing with the law of collateral support and right of easement of adjoining buildings as those cases are governed by an entirely different principle, namely, the very act however lawful it may be involves danger and damage independent of any question of negligence or otherwise.

(15) There is also another important aspect, which learned counsel has overlooked in the course of his arguments. The employer is never held responsible, for what is called the casual or collateral negligence of the contractor or his servants. In other words, there must be proof of negligence committed in the doing of the act itself which the servant or the contractor was employed to do. If the act of the repairing of the car by itself in that process of repair would cause any damage like a explosion or skidding, bursting, the position may be different. The accident in this case was not as a result of the act of repair by itself but on account of a collateral circumstance altogether totally unconnected with the work of repair. In such a case, it is impossible to hold the employer liable. For instance in the midst of the repair work of the car in the garage, if the car rolled down and caused some damage or injury to any person or property the repairer would be liable for negligence and the question might arise as to how far the employer the owner of the car would also be liable for the same. It is impossible to hold that the act of the driver taking out the lorry on his own purposes was an act of negligence committed in the doing of the very act, namely, the repair work of the lorry.

(16) Lastly, we may refer to the recent decision of the court of Appeal in Norton v. Canadian Pacific Steamships Ltd., 1961-2 All ER 785, in which there is a discussion of the scope of the decisions in (1861) 142 ER 535 and (1881) 6 AC 740 on which strong reliance was placed by learned counsel for the appellant. In that case the porters at a certain landing stage in a port were allowed to use some electric bogies for carrying on passengers' luggage to and from the ships which facility was arranged by the shipowners for the benefit of the passengers. The porters used the electric bogies indiscriminately irrespective of the ship owners who were the owners of the bogies and while using one of the bogies a porter caused some injuries to the plaintiff in the action. It was held that the ship owner did not exercise any control over the porter in question when he used the bogie and he did so on his own behalf and not as an agent or delegate of the defendants, and that the defendants have assumed no responsibility to any one as to the driving of the bogies, and that the defendants were therefore not responsible for the porters' negligence. At page 788 the principle was stated in these terms:

"If consideration is given to control in the driving or the right to control the driving which has arisen in many cases the defendants are clearly not responsible for that and it was in the performance of that task that the accident to the plaintiff happened. The independent porter under possibly the general control of the head porter detailed to the ship, was manipulating the bogies and directing its use. I can see no agency or responsibility on the part of the defendants and would allow the appeal".

Applying this rule it is obvious that the first respondent exercised and could exercise no control whatsoever over the lorry or its driver from the moment it was entrusted to the third respondent for repair.

(17) Finally learned counsel relying upon the recent decision of the Supreme Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani. contended that in any event the insurance

company would be liable for the damage caused whatever may be the circumstances, once it is found that the lorry was involved in an accident while being driven on the road, whether or not the owner of the lorry had any control over the driver. In other words, learned counsel contended that according to this decision of the Supreme Court the insurance company would be liable under the policy for the injuries or damage sustained as a result of a motor accident, independently of any theory of independent contractor. We are not inclined to hold that this decision is an authority for the extreme contention urged by learned counsel for the appellant. In that case, the owner of the Chevorelet car, who had insured the same with the insurance company had permitted one Pessumal to drive the car and when Pessumal was driving the car along with two other persons in the car it met with an accident, as a result of which one of the two died and the other received injuries. The heirs of the deceased person, and the injured person claimed damages against Pessumal, the driver and notices were issued to the insurance company under Section 96(2) of the Act. The insurance company disputed liability on the ground that the driver was not a person insured under the policy and that the company is not liable as the driver did not effect the insurance. The Supreme Court took the view that under the insurance policy the company undertook to indemnify any driver driving the motor car on the insured's word or with his permission and the right of indemnity of such a driver against the insurance company could be worked out in the action at the instance of the heirs of the deceased person & the injured passenger. After dealing with Ss. 94 & 96 of the Motor Vehicles Act, & the certificate of insurance prescribed i.e., Motor Vehicles Third Party Insurance Rules of 1946, the Supreme Court held that the liability of the company for indemnity is towards a driver who drives the motor car with the consent or order of the insured and in the case Pessumal, the driver, drove the car with the permission of the owner, who had effected the policy with the result that the company must be held to have under taken to indemnify the driver in accordance with the terms of the policy. The situation here is entirely different as there s no proof that the 4th respondent took the lorry out with the permission or order of the first respondent. The essential facts for fastening the liability on the insurance company are totally absent in the instant case.

(18) We may now deal with the preliminary objection raised by learned counsel for the respondents as to the competency of the appeal. Relying upon the language of Section 110-B and Section 110-D of the Motor Vehicles Act, learned counsel for the respondents urged that an appeal would lie only if the Claims Tribunal delivers an award holding that the applicant would be entitled to some compensation not less than Rs. 2000 and that when the Claims Tribunal dismisses altogether and rejects the claim no appeal would lie under Section 110-D. We may now set out the relevant provisions, Sections 110-B and 110-D. Section 110 B is in these terms:

"On receipt of an application for compensation made under Section 110-A the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensations shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer".

Section 110-D runs thus:

"(1) Subject to the provisions of Sub-section (2) any person aggrieved by an award of a Claims Tribunal, may within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(3) No appeal shall lie against any award of Claims Tribunal, if the amount in dispute in the appeal is less than two thousand rupees"

In substance, the argument of learned counsel in support of the preliminary objection is that the word "award" in Section 110-D is used in the same sense and with the same meaning as comprehended in Section 110-B and that according to Section 110-B an award can only mean a decision of the Claims Tribunal determining the amount of compensation and specifying the amount which shall be payable by the insurer, and that a decision dismissing the application would not be an award within the meaning of Section 110-B. We are unable to agree with this contention as it overlooks the main object and purpose with which the special provisions, Sections 110-A to 110-F, have been enacted under Act 110 of 1956. The specific object was to constitute Accidents Claims Tribunal and facilitate an adjudication of claims and disputes arising out of motor accidents. Under Section 110-F the jurisdiction of the civil court to entertain any question relating to any claim for compensation had been expressly taken away in the area in which a Claims Tribunal had been constituted, the result being that the Claims Tribunal has been constituted as the exclusive forum in which claims arising out of motor accidents have to be necessarily made. It is obvious that any interpretation which would defeat this specific purpose of the special provision should be avoided and an interpretation which effectuates the purpose should be accepted and preferred. Taking the Section 110-D itself there is nothing to indicate that the intention of the Legislature was to restrict the right of appeal only in a case in which the decision of the Claims Tribunal resulted in imposing a liability for compensation. In other words, there is nothing in the Section to warrant the view that an appeal would lie only at the instance of the insurance company or the owner of the motor vehicle or the person who is held responsible for the accident in question. Such a view would render the right of appeal expressly provided under Section 110-D futile when the clear avowed object of the provision is not to make the decision of the Claims Tribunal final, but on the other hand to make the decision of the High Court alone final and conclusive.

In our opinion, the expression 'award' in S. 110-D must be understood as the decision of the Claims Tribunal whether a total dismissal of the claim or the determination of a particular amount of compensation. S. 110-B merely provides as to how the Claims Tribunal should conduct the enquiry and what its decision, should contain, in case the decision involves a determination of the amount of compensation payable. It is familiar knowledge that in the case of a claim for compensation the claim is made against a plurality of persons including the insurer and the total amount of compensation will and may have to be apportioned as between the several persons making the claim Section 110-B enjoins a duty upon the Claims Tribunal not to make an award or decision en masse but to apportion the liability and specify the amount that will have to be paid by the insurer and at the same time specify the person or persons to whom the compensation should be paid and as to how the compensation amount will have to be apportioned between several persons making the claim. In such a situation the use of the expression "award" in Section 110-B is more appropriate than the use of the words "decision of the Claims Tribunal". But that does not mean that the word "award" in Section 110-D is used in the same narrow and limited sense. There is no justification whatsoever for discriminating the claimant and the opposing parties in the matter of right of appeal, which would be the anomalous result if the contention of learned counsel for the respondents were accepted. We are of the opinion that in Section 110-B the word "award" and the particulars that should be contained in an award are used in a descriptive sense and not with a view to exclude altogether a "decision" of the Claims Tribunal, either from the purview of Section 110-B or Section 110-D. The significance of the following words in Section 110-B "an award determining the amount of compensation which appears to it to be just" should not be lost sight off even if a literal or restricted meaning is given to the word 'award'. We do not see why a decision of the Tribunal which holds that the compensation payable is "nil" and "being just" on the facts of a particular case will not amount to an award within the meaning of Section 110-B. The Claims Tribunal may hold that the injured person was guilty of negligence, that the accident arose purely on account of his negligence or that the opposing parties are not liable in any manner for the accident in question or for some other rule of law. In such a circumstance, the Claims Tribunal in its award may rightly hold that nil compensation is just and such a decision would be clearly governed by the clause "award determining the amount of compensation which appears to it to be just". We are therefore of the view that on a proper interpretation of Section 110-B, an award would comprehend every decision of the Tribunal, whether for or against the claimant or the opposing parties.

(19) Even otherwise we do not see why, having regard to the avowed purpose of the enactment, the word "award" in Section 110-D should receive the same restricted meaning as in Section 110-B. No doubt it is a sound rule of construction to give the same meaning to the same words occurring in different parts of an Act of a legislature. But this presumption that the same words are used with the same meaning is however very slight, and if sufficient reason can be assigned it may be legitimate and proper in order to effectuate the purpose of an enactment and to arrive at a harmonious construction of the statute as a whole to construe a word in one part of an enactment in a different sense from that which it bears in another part of the enactment. Vide Craise on Statutes 6th Edn, page 168. Learned counsel for the respondents accepted the position that if the Claims Tribunal had upheld the claim of the claimant in part, the claimant would be entitled to prefer an appeal in respect of the portion disallowed under Section 110-D. It will lead to strange results and absurd anomalies to say that the claimant will have a right of appeal if a portion of the claim is rejected but he is denied a right of appeal when his claim is rejected in its entirety. We see nothing in the language of Section 110-B and Section 110-D or any compelling context to warrant such a view with such anomalous consequences. For all these reasons, we have no hesitation in holding that there is no substance in the preliminary objection.

(20) In the result, the appeal is dismissed. There shall be no order as to costs.

(21) Appeal dismissed.


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