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Annamalai Vs. Abithakujambal and ors - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 536 of 1974
Judge
Reported inAIR1979Mad276; (1979)1MLJ464
AppellantAnnamalai
RespondentAbithakujambal and ors.
Cases ReferredSitaram Motilal Kalal v. Santanu Prasad Jaishanker Bhatt
Excerpt:
.....state is vicariously liable for the tortuous act of the third respondent.;held, where a servant is acting within the scope of his employment and in so acting, does something negligent or wrongful, the employer is liable even though the acts done may be the very reverse of that which the servant was actually directed to do. in the present case, the third respondent was travelling in the jeep in the course of his duties for the purpose of delivering certain medicines. the driver suddenly took ill and the problem was either to stop the vehicle and make some arrangement for transport or to take the medicines and deliver them at their destination. the third respondent had a licence to drive the vehicle he had also been authorised to drive the government vehicle in case of..........in that case, the following passage occurs--"a master is vicariously liable for the acts of his servant acting in the course of his employment. for the master's liability to arise, the act must be a wrongful act authorised by the master of a wrongful and unauthorised mode of doing some act authorised by the master. the driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident, is not acting within the course of his employment but is doing something for himself the master is not liable. there is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met".thus, the principle is clear that where a servant is acting within the scope of his employment and in so.....
Judgment:
1. This appeal has been filed by the third respondent in M.A.C.T.O.P. No. 39 of 1971, in the court of the Motor Accidents Claims Tribunal, North Arcot at Vellore On 24-5-1971 at about 3-50 p.m. one Jeevaratna Mudaliar was run over by a Willy's jeep van belonging to the Malaria Eradication and Maintenance department of the Government of Tamil Nadu. The vehicle was driven by one Annamalai, who is the third respondent in the O.P. It was going on the Bangalore-Madras trunk road and at place near the Shenbakkam cross road, very close to the Vellore town, the accident occurred. The widow of the deceased Jeevaratna Mudaliar and her two daughters filed the O.P. claiming compensation of Rs. 15000. There are three respondents; the first is the State Government; the second is the driver and the third is the Officer who was travelling in the said vehicle at the time of the accident. Some time before the accident occurred, the second respondent had complained of chest pail and therefore, he handed over the vehicle with the third respondent, who had a driving licence and who was also authorised to drive the vehicle in case of necessity. Thus, at the time when the accident occurred, it was the third respondent who was actually at the steering. The allegation of the petitioner was that the death of Jeevaratna Mudaliar was the direct result of the rash and negligent act on the part of the second and third respondents who are employees of the first respondent. The first respondent resisted the petition contending that the death of the victim was not due to any rash and negligent driving; that it was entirely due to the imprudent act on the part of the deceased, viz., in darting across the road in the cycle that was coming behind; that the police who had registered a case in this behalf, had 'referred' the matter and that the State could not be vicariously liable as the third respondent was not acting in accordance with the authority conferred on him. The third respondent in his counter disputed the allegation that he was driving the vehicle in a rash and negligent manner. According to him, he was driving the vehicle only at 15 to 20 miles per hour. Since there was heavy traffic on the road, he had kept himself to the extreme left. At the time of the accident, a lorry was coming opposite to him when Jeevaratna Mudaliar tried to dart across the road. Finding the lorry coming on the opposite direction, the victim got panicky and dropped the cycle on the middle of road and dashed across the road obviously to avoid being knocked down by the lorry. It was, therefore, submitted that he was not at all liable.

2. The Tribunal framed the following two substantial issues or points for consideration, viz.--(1) Whether the accident was due to the rash and negligent act on the part of the third respondent; (2) and if the accident is due to the rash and negligent driving of the third respondent, whether the first respondent was not liable for the tortious act of the third respondent.

3. On this point, it was held that the accident has occurred on account of the rash and negligent act of the third respondent and that both the first and third respondents would be liable for compensation. The compensation was fixed at Rs. 7500. The second respondent was exonerated as he was not driving the vehicle, and the first and third respondents had to pay the compensation as fixed by the Tribunal. The third respondent has alone filed this appeal.

4. Learned counsel for the appellant submitted that the Tribunal was wrong in proceeding as if there was any rash and negligent act on the part of the third respondent. According to the learned counsel, the vehicle was proceeding only at a moderate speed and it was the negligence of the deceased that brought about the accident and loss of life. The Tribunal has discussed this aspect in paras 7 and 8 of its judgment. This is a case of the victim dying on account of running over of the jeep. The victim proceeding towards Vellore on his cycle on the northernmost portion of the road when the vehicle driven by the third respondent knocked him down. There was no suggestion to P.W. 2, who was the only witness examined on behalf of the claimant and that the victim darted across the road, got panicky over the lorry coming from the opposite side and was rushing towards the other side after leaving his cycle in the middle of the road. P.W. 2 is a third party and an eye-witness to the occurrence. There is no reason to doubt his evidence which was to the effect that there was some negligence or rashness on the part of the third respondent, the appellant before me. After considering his evidence, I am not at all satisfied that the plea that the third respondent (appellant) was not negligent, can be accepted.

5. The next contention urged before me was that the appellant ought not to be made personally liable and that as he was driving the vehicle in the course of his duty, the liability was only that of the first respondent, the State. On this point, the decision of the Delhi High Court in the case of P. N. Khanna v. Balbir Singh Kohli, 1972 ACJ 148 was cited before me. That case has considered some of the earlier pronouncements on the same point. In Vanguard Fire and General Insurance Co. Ltd. v. Sarala Devi, ; a Division Bench of the Punjab High Court, enunciated the principles regarding the master's liability for a tort committed by a servant in the following terms:--

"It is well established that the master is bound by the acts of the servant even if the act was unauthorised or prohibited provided the act was within the scope of the service or employment. The principle is that when a servant does any act which he is authorised by his employment to do under certain circumstances and conditions and does it in a manner which is unauthorised and improper even then the employer is liable for the wrongful act of his servant."

This decision of the Punjab High Court is itself based on an earlier decision in Bayley v. Manchester Sheffield and Lincolnshire Railway Co. (1873) 8 CP 148. In that case the principle laid down was that:--

"Where a servant is acting within the scope of his employment, and in so acting does something negligent or wrongful, the employer is liable even though the acts done may be the very reverse of that which the servant was actually directed to do".

These cases were followed in Vimal Rai v. Gurcharan Singh, 1967 ACJ 115 (Delhi) and also in the case in P. N. Khanna v. Balbir Singh Kohli, 1972 ACJ 148 (Delhi) cited by the learned counsel for the appellant.

In fact, there is an earlier decision of the Supreme Court on this point in Sitaram Motilal Kalal v. Santanu Prasad Jaishanker Bhatt, 1966 ACJ 89. In the majority judgment in that case, the following passage occurs--

"A master is vicariously liable for the acts of his servant acting in the course of his employment. For the master's liability to arise, the act must be a wrongful act authorised by the master of a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met".

Thus, the principle is clear that where a servant is acting within the scope of his employment and in so acting, does something negligent or wrongful, the employer is liable even though the acts done may be the very reverse of that which the servant was actually directed to do. In the present case, the third respondent was travelling in the jeep in the course of his duties for the purpose of delivering certain medicines. The driver suddenly took ill an the problem was either to stop the vehicle and make some arrangement for transport or to take the medicines and deliver them at their destination. The third respondent had a licence to drive the vehicle and he had also been authorised to drive the Government's vehicle in case of necessity. If in the present circumstances, he considered that he had exercised his authority to drive, I do not consider that there is anything unreasonable on his part. It may be that on account of some negligence on his part, he ran over the deceased. But, that he was acting within the scope of the authority cannot be in dispute here. It would, therefore, follow that he had committed a tort in the course of his employment. By the decisions already mentioned, the vicarious liability of the master is clearly applicable. He had to drive, in order to ensure the medicines reaching their destination. His driving was not by choice but by necessity. To make him personally liable in such a situation would be manifestly unjust. Consequently, I consider that in the present case, it is enough to pass the decree against the only first respondent and not as against the third respondent. The decree is accordingly modified. The appeal is allowed and there will be no order as to costs.

6. Appeal allowed.


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