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Abdul Jabbar Vs. Muniammal - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 125 of 1977
Judge
Reported inAIR1981Mad112
ActsMotor Vehicles Act, 1939 - Sections 110-B
AppellantAbdul Jabbar
RespondentMuniammal
Cases ReferredYoung v. Edward Box and Co.
Excerpt:
.....above said act - whether owner and insurer of vehicle can be made liable for unauthorised act of lorry driver in carrying passenger contrary to specific terms - driver of lorry engaged for business of owner of lorry by carriage of goods from one place to another - prohibition cannot in any sense be treated as limitation on scope or sphere of his employment - this can be taken only as limitation on manner of performance of his duties in course of his employment - owner of lorry vicariously liable for injuries caused to claimant who travelled in lorry with permission of driver of lorry - liability of insurer restricted to death or bodily injury to employees - claimant not being employee insurer not liable. - - it is not his ca~e that he had paid any luggav separately for the cloth..........a case the owner and the insurer of the vehicle can be made liable for the unauthorised act of the lorry driver mi arrying the passenger contrary to the ,specific terms.9. on the question as to whether the owner of the lorry is liable for the unauthorised carrying of a passenger in a lorry by its driver, we have the decision in young v. edward box and co., (1951) 1 tlr 789, where lord justice denning observed-'the next question is how far the employers are liable for their servant's conduct. in order to make the employees liable to the passenger it is not sufficient that they should be liable for their servant's negligence in driving. they must also be responsible for his conduct in giving the man a lift if the servant had been forbidden or is unauthorised to give any one a lift, then no.....
Judgment:

Ramanujam, J.

1. This appeal arises out of an award passed by the Motor Accidents Claims Tribunal. harmapuri. at Krishnagiri, in M. A. C. T. 0. P. No. 6 of 1972.

2. On 29th September 1971, at about 8-30 1). m. the lorry MYA 1065 proceeding towards east between Kilorhetres 10 and I I on Krisbanagiri Madras road dashed against a stationary lorry parked on the left margin of the road and this resulted in certain injuries to the appellant herein who was a cloth merchant at Krishanagiri and who travelled in the lorry along with a bundle of textile goods. On the ground that the accident took Place due to the rash and negligent driving of the lorry by its driver. he filed a claim for comnensation of Rs. 50.000 before the Motor Acciden!s imsbunal. Dharmanuri.

3. His specific case in the claim petition was that he used to visit various places to do cloth business, that on the~ night in question he was waiting at, Krishnagiri with a bundle of textiles to go to Natrampalli to do his business there on the next day at the shandy, that the lorry MYA 1065 came from Bangalore and the driver of the lorry offered to give him a lift on his payment of Rs. 2, that after paying the said amount be travelled in thd' lorry with the bundle of textiles, that the accident took Place due to the rashness and negligence on the Dart of the driver of the lorry, that on account of the injuries sustained by him his left hand was amputated at the Chrlstian Medical College Hospital, , vellore and because of the permanent disability resulting from the amputation of his left hand, he is entitled to the said compensation.

4. The said claim if the appellant was resisted by the first respondent, the owner of the lorry MYA 1065 and the third respondent which is the Insurance Company with which the said lorry had been insured. The driver of the lorry, the second respondent herein, did not file any counter statement. The first respondent took up the. stand that the driver of the lorry give a lift to the that the lorry in time engaged under a contract with K B. T. Company to transport goods to various places from Bangalore, that the duty of the driver was merely to carry the consigned goods to the respective destinations, that he had no authority to enter into any contract to carry any other goods or passengers, that on the contrary the driver was strictly forbidden from carrying any passenger. that the Permit of the vehicle also did not Permit any passengers to be carried and that therefore he cannot be made liable for the claim. The first respondent also denied th-3t the accident was due to the rash and negligent driving of the lorry by its driver. The third respondent also took up the same stand. In addition it took up the plea that it is not liable to meet the appellant's claim for compensation as the policy does not cover such risk.

5. On these pleadings the three substantial questions that were considered by the Tribunal were (1) whether the accident was due to the rashness and negligence on the part of the driver of the lorry (2) What is the quantum of compensation payable and- (3) who as between the respondents is liable to meet the claim for compensation. The Tribunal, after analysing the evidence with reference to each of the said three points held that the accident had occurred only due to the rashness and negligence on the part of the driver of the lorry which resulted in the said lorry hitting against a stationary lorry parked on the left side of the road. On the quantum of compensation-, the Tribunal held that a sum of Rs. 25,000/- can be fixed as compensation for the permanent disability, a sum of Rs. 150 towards loss of income during the period when he was treated as an inpatient in the hospital, a sum of Rs. 2500 for pain and suffering and Rs. 4695-25 towards medical expenses and thus aggregating to Rs. 32345-25. On the question as to who is to pay the compensation to the claimant the Tribunal has taken theview that the driver of the lorry, the second respondent alone is liable and respondents 1 and 3 who are the owner of the lorry and the insurance company respectivelv are not liable for the claim. According to the Tribunal the driver was in fact Prohibited by the owner of the lorry from carrying any passenger in the vehicle. that he carried the claimant in the lorry on receipt of Rs. 2 contrary to the said prohibition, that the insurance company is not liable for the claim for compensation as the insurance policy does not cover the said risk as is seen from Section 95(1)(c) of the Motor Vehicles Act, and that the lorry not being a vehicle in which passengers are carried for hire or reward the claimant must establish that he was a Person entitled to travel in the vehicle by reason of or in pursuance of a contract of employment, In this view, the tribunal passed an award only as against the second respondent, the driver of the lorry and dismissed the claim as against others.

6. Aggrieved against the said award the claimant has come in appeal. In this appeal it is contended that even if the driver had Permitted the claimant 'to travel in the lorrv contrary to the specifie instructions of its owner or contrary to the statutory prohibition still, vicarious liability for the injuries sustained by the appellant as a result of the accident should be fastened on the owner of the lorry and the Insurance Company and that, in any event, the claimant should be taken to have travelled in the lorry accompanying his bundle of - textiles which was being carried in the lorry for a luggage of Rs. 2. The learned counsel refers to certain decisions as supporting the stand taken by him.

7. Before 4paling with the said decisions, it is necessary to scan through the evidence as to how the appellant happened to travel in the lorry mi question at the time of the accident. The claimant as PW 1 has deposed that the driver himself offered to give him a lift while he was waiting for a bus at Krishanagiri and that he paid the said sum of Rs. 2 to the driver and travelled in his lorry with his cloth bundle. RW 1. the driver of the lorry deposed that PWI storped the lorry and begged him to give him a lift stating that his wife was in a critical condition at the hospital at Ambur and therefore he gave a free life to the appellant. PW 1 has filed Ex. A-19 a chit said to have been given by the driver on 28th September 1971 for pavment of Rs. 2. RW 1 had denied having issued it. The tribunal however found that the signature in the chit produced by PW 1. Ex. A 19 does not tally with the admitted signature of the drive r contained in Ex. B 1 Vakalat and Ex. B 2 the specimen signature obtained in open court and, therefore, exhibit B 19 cannot be relied on at all. The Tribunal, however, proceeded to hold that PW 1 should have been given a lift only for consideration and not gratis, in view of the fact that the driver who has been impleaded as the second respondent has not chosen to file any counter statement denying the allegation in the claim petition regarding payment of Rs. 2 as hire. We are inclined to agree with the said reasoning of the Tribunal. The second respondent against whom an allegation has been made in the claim petition that he received a sum of Rs. 2 for carrying the claimant in the lorry has not chosen to file any counter statement denying the allegation and it is only in his evidence before the Tribunal that he has chosen to deny that fact. Even apart from this, it is not nossible to assume that the driver of the lorry who is an utter stranger to, the claimant will give him a free lift from Krishnagiri, the place where he boarded to go to the hospital. at Ambur. We have to therefore accept the finding of the Tribunal that the claimant travelled in the lorry on Payment of Rs. 2 for his cloth bundle The' fact that the accident was due to the rash and negligent driving of the lorry has not been disputed before us and that it resulted in certain injuries on the person of the claimant is also not disputed. On these facts we have to find out as to whether respondents 1 and 3, the owner of the lorry and its insurer respectively are also liable to meet the claim for the compensation.

8. The learned counsel for the appellant has referred to the decision in the Venguard Insurance Co. Ltd. v. Chinnammal, : AIR1970Mad236 the Commonwealth Assurance Co. Ltd. v. Rahimkhan Sahib, : AIR1971Mad415 and South India Insurance Co. Ltd. v. Subramania, : AIR1972Mad49 , in suoport of his submission that liability cannot be avoided by respondents 1 and 3 as the passenger here had travelled in the lorry in pursuance of a contract of employment with himself as the owner of the goods carried, that a contract of employment referred to in Section 95(2)(b) of the Motor Vehicles Act need not necessarily be with the owner of the insured vehicle and that it can also be with the owner of the goods transported in the vehicle. But the applicability of these decisions will depend on the fact whether the lorry was utilised by the injured for carrying his goods on hire and he accompanied the goods or ,vhether he travelled in the lorry for hire In this case the evidence of the claimant as PW I is specific that he accepted an offer of lift by the driver of the lorry on payment of Rs. 2 and travelled in the lorry ,ilr.ng ,with his cloth bundles. It is not his ca~e that he had paid any luggav separately for the cloth bundle and that the offer was to carry his aoods and he accompanied the good-, to be carried in the lorry. The contract pleaded in t his case is a contract to carry the passenger and not the goods. There being no contract to carry goods and the owner accompanyinv his goods. the above decisions hav(- no armlication hore. This is a simple case of a person being carried in a lorry for hire when there is a specific prohibition Preventing the lorry from carrying passengers for hire by the owner and also by the terms of the insurance Policy. The question is whether in such a case the owner and the insurer of the vehicle can be made liable for the unauthorised act of the lorry driver mi arrying the passenger contrary to the ,specific terms.

9. On the question as to whether the owner of the lorry is liable for the unauthorised carrying of a passenger in a lorry by its driver, we have the decision in Young v. Edward Box and Co., (1951) 1 TLR 789, where Lord Justice Denning observed-

'The next question is how far the employers are liable for their servant's conduct. In order to make the employees liable to the Passenger it is not sufficient that they should be liable for their servant's negligence in driving. They must also be responsible for his conduct in giving the man a lift If the servant had been forbidden or is unauthorised to give any one a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned, but that is not of itself an answer to the claim. In my opinion, when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in a position not only to drive it but also to give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey, not only in the driving of it, but also in giving lifts in it, provided. of course. that in so doing the servant is acting in the course of his employment.'

According to Lord Justice Denning, if the driver is Proved to have acted in the course of his employment in giving the passenger a lift, this fact is sufficient to make the master vicariously liable. This view of Lord Justice Denning has been , approved by the Supreme Court in Sitararn Mc )6lal v. Santanu Prasad Jaishanker, : [1966]3SCR527 and in Pushpa Bai v. Ranjit G. and P. Co., : [1977]3SCR372 . As to what are the acts of servant which 'fell within the purview of the expression 'in the course of the employe the Supreme Court in the later case has pointed out that the master is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is with the master's consent driving the vehicle as the master's business for the master's purposes. The Supreme Court also pointed out -he recent trend in law is to make the master liable for acts which do not strictly fall within the term in the course of the employment' as ordinarily considered. We have referred to Sitaram. Motilal Jalal v. Santanu Prasadaishankar Bhatt where this court accepted the law laid down by Lord Denning in Ormrod v. Crosville Motor Services Ltd', (1953) 2 All ER 753, that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is with the owner's consent, driving the car on the owner's business or for the owner's purposes. This extension has been accepted by this court. The law ailaid down by Lord Denning in Young v. Edward Box and Co. Ltd., already referred to, i.e. the first question is to see whether the servant is liable and if the answer is yes, the second question is to see whether the employer must shoulder the servant's liability, has been uniformly accepted as stated in Salmond Law of Torts, 15th Edn. Rage 606, in Crown Proceedings Act, 1947 and approved by the House of Lords in Stavelev Iron and Chemical Co. Ltd. v. Jones 1956 AC 627 and Imperial Chemi cal Industries v. Shatwell, 1965 AC 656'

10. In the case before the Supreme Court (Pushpa Bai's case) the manager of a -company had permitted one Purushotham, to travel in a car owned by the company which he was driving and the question arose as to whether for the death caused to Purushotharn as a result of an accident due to rash and negligent driving of the said manager, the company was liable. The High Court of Madhya Pradesh had held that so far as the owners of the vehicle are concerned, Purushotham was no better than a trespasser and, therefore, the owners were not vicariously liabip. On appeal, the Supreme Court however, took the view that taking into account the high Position of the driver who was the manager of the company, it is reasonable to conclude in the absence of any evidence to the contrary, that 'he manager, who was driving the car was acting within the term 'in the course of his employment' and that the High Court was in error in holding that the driver was not acting in the course of his employment.

11. The further point for consideration is as to whether in Riving a lift to the passenger the driver had acted in disregard of the prohibition either by the master or by any provision of law. and whether such an unauthorised act of the driver is outside the scope of the employment of 'he driver so that it could be said the master cannot he. held to be vicariously liable. We are of the view that even if the driver has acted in disregard of the prohibition either by the master or by any provision of law, such prohibition cannot be taken to be a limiting factor on the scope of the employment. There is 2 clear cut distinction between a prohibition which limits the scope of the employment of a servant and a prohibition which only limits the manner in which the servant is required to execute the work which he is employed to do as pointed 'out in Canadian Pacific Railway Co. v, Lockhart, AIR 1943 PC 63. Of course, if the prohibition by the master or by any provision of law relates to the sphere of employment, then the act performed in contravention of the prohibition will fall outside the sphere of his employment. But where the prohibition merely deals with the conduct of the employee within the sphere of employment, then his act cannot be taken to be outside the scope of his employment. In this case there is no acceptable evidence except the interested testimony of R. W. 1, to indicate that there was a prohibition by the owner of the vehicle not to take any passenger for hire in the lorry, Though there is a rule providing that, no person should be carried in a goods vehicle other than a bona fide employee of the owner, this rule merely deals with the conduct of the driver within the sphere of employment which is to drive the vehicle in execution of the master's business. That sphere is not in any manner limited by the prohibition contained in the statutory rule,

12. The learned counsel for the appellant also referred to a recent Full Bench decision of the Madhya Pradesh High Court in Naravanlal v. Rukhmani-bai, : AIR1979MP74 while answering the following question referred to it-

'Whether the act of a driver of a vehicle in giving lift to a person disregard of any statutory rule or prohibition, while driving the vehicle in execution of the owner's business, . can be held to be the performance by the servant of an act for which the owner of the vehicle cannot be held vicariously liable'

The Full Bench expressed the view that the act of a servant employed to drive a vehicle in giving a lift' to a person in disregard of a statutory rule or prohibition whi14 14,riving the vehicle in execution of the owner's business is an act for which the owner is vicariously liable. The Full Bench after referring to the historical origin of the doctrine of vicarious liability as set out by Scarman L. J, in Rose v. Plenty, 1976 Ace CJ 387 where the learned Judge pointed out that the principle of vicarious liability is one of the public policy and itis nota principle which derives from a critical or refined consideration of other concepts in the common law namely the concept of trespass or indeed the concept of agency, observed that the concept of trespass and the concept of agency in determining the master's liability for the act of his servant was not relevant for finding out the vicarious liability in the case of motor accidents and that the only relevant consideration before the master is held liable for the act of his servant was to 'see whether the servant is liable and whether the act is done by the servant in the course of his employment. The Full Bench also referred with approval the decision in Young v. Edward Box and Co.. Ltd., (1951) 1 TLR 789 and the decision of the Privy Council in Canadian Railway Co. v. Lockhart, AIR 1943 PC 63, which have been referred to above.

13. The learned counsel for the respondents, however, referred to a decision of the Mysore High Court in Mohideen Gafforseb Kundgol v. Robidas Hari Kindelker 1973 AC. J. 424 and also the decision of the Punjab and Haravana High Court in Jiwan Das v. Karnail Singh, where the owner of the vehicle was held not liable to pay compensation in similar circumstances. These two decisions are based on the decisions in Twine v. Beans Express Ltd. (1946) 1 All ER 02 and Conway v. George Wimpey and Co. Ltd. (1951) 1 All ER 363. In Twine v. Beans Express Ltd. (1946) 1 All ER 202, the owner of a commercial van was held not vicariously liable for -the action of the driver who had unauthorisedly carried a passenger therein with the following observations -

'On the facts as I have stated then, it was outside the scone of the driver's employment for him to bring within the class of persons to whom a duty is to take care was owed by the employer a man to whom, contrary to his instructions he gave a lift on a commercial van. On this basis. Twine vis-a-vis Bean's remained simply a trespasser on the van, who came there in particular circumstances. the question is whether Bean's in the circumstances in which Twine was a passenger owed to him any duty to the care as to the proper driving of the van. In my opinion. they did not.'

In Conway v. George wimpey and Co. Ltd., (1951) 1 All ER 363 it was held that the owners of a. lorry designed for carrying goods were not vicariously liable for the unauthorised action of the driver in allowing a lift to a passenger who was not an employee of the owners. In that case Asquith L. J. observed am follows -

'To put it differently, I should hold that taking men other than the deferidant's employees on the vehicle was not merely a wrongful mode of performing an act of the class which the driver in the present case was empIoyed to perform. but was the performance of an act of a class; which he was not employed to perform at all. In other words, the act was outside the scope of his employment, for the same reason that the act complained of in Twine's case was held to be outside the scope of the driver's employment there'

The Supreme Court in Pushpa Bai, v. Raniit G. and P. Co., : [1977]3SCR372 has however pointed out after referring to this decision that it should be confined to the facts of that case and preferred to follow the decision in Young v. Edward Box and Co. Ltd., (1951) 1 TLR 789. As regards the decision in Twine v. Bean's Express Ltd. (1946) 1 All ER 202 it is seen that he express prohibition of giving lift was-taken to be not only a prohibition but also a limiting factor on the others of the employment. As already pointed out, it is not possible to trust all the prohibitions as limiting the sphere of the employment. Some of the prohibitions and restrictions may amount to limitations on the manner of performance of the work in the course of his employment which he is employed to do. Therefore that decision may not have any application in cases w here there is a contravention of restriction or prohibition as regards the mode of carrying on the work for which he has been employed. In this case the driver of the lorry had been engaged for doing the business of the owner of the lorry by carriage of goods from one place to another. The prohibition not to carry a passenger cannot in any sense be treated as a limitation on the scope or sphere of his employment., That can be taken only as a limitation on the manner of the Performance of his duties in the course of his employment.

14. Thus following the decision of the Supreme Court above referred to which in turn approves the decision in Young v. Edward Box and Co., (1951) 1 TLR 789, we have to hold that the owner of the lorry is vicariously liable for the injuries caused to the appellant claimant who had travelled in the lorry with the permission of the driver of the lorry. As pointed out by Lord Justice Denning in Young's case, (1951) 1 TLR 789. if the servant had been forbidden or is unauthorised to give any one a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned. Bit' ' that is not by itself an answer to the claim.

15. Coming to the question as to whether the insurance company, the third respondent is liable to meet the claim, it is seen that under S. 95 (2) (a) of the Motor Vehicles Act, as amended by Central Act 100 of 1956 the liability of the insurer is limited to the death of or bodily injury to the employees (other than the driver) not exceeding 6 in number being carried in the vehicle. In view of the fact that the liability of the insurer is restricted to the death or bodily injury to the employees not exceeding six in number, the claimant being not an employee the insurer is not liable to mcer. the claim for admitediy the clamant was not an employee when he tralvelled in the lorry and when the accident occurred. Though ~Section 95 requires a policy of insurance being taken against any liability which may be incurred by the insured in respect of the death or bodily iniury of any person or damage to any property of a third party arising out of the use of the vehicle in a public place and against the death of or bodily injury to any passenger of a public service vehicle caused bV or arising out of the use of the vehicle in a public place, that liability has been limited by sub-section (2), and sub-section (2) spe cificallv says that where the vehicle is a goods vehicle the insurer's liability can onlv be in respect of death or bodily injury of emplovees not exceeding six in nu mber. Apart from this, the policy issued in this case which has been marked as Ex. B-3, clearly excludes the liability in respect of persons being carried in the lorry. Clause 4 of the policy is in these terms -

'4. Liability at Law for (including law costs of any claimant)for death of or bodily injury to any person caused by or arising out of the use of the motor vehicle (including the the High Court of Republic of Singapore loading and/or unloading of such vehicle)but excluding liability for death of or bodily injury to

(a) any person in the employment of the insured arisings out of and in the course of such employment (b) any person being carried in or upon or entering or getting on to or alialiting from such vehicle at the

time of the occurrence of the event out of which any claim arises.'

Therefore, the Insurance Company cannot be held liable for the injury sutained by the claimant while travelling in the lorry either under Section 95 of the Motor Vehicles Act or under the terms of the policy.

16. The result of the above discussion is that in addition to the driver, the owner of the lorry is also liable to pay the compensation. The appeal is, therefore, partly allowed. There will be an ward as against the driver as also the owner of the lorry. No costs.

17. Appeal Partly allowed.


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