M. Natesan, J.
1. These Second Appeals arise out of a suit instituted by the Trustees of the Port Trust, Madras, for recovery of a sum of Rs. 3,360 which they had to pay their workman one Danapal under the Workmen's Compensation Act of 1923. S.A. No. 1005 of 1962 has been preferred by the plaintiff, the Port Trust, against the decree of the Additional Judge, City Civil Court, Madras, dismissing the suit on the ground that the civil Court had no jurisdiction in the matter. The Court of first instance held the other way and, finding on other issues also in favour of the plaintiff, decreed the suit as prayed for. S.A. No. 1550 of 1962 has been preferred by the defendant for costs disallowed on appeal.
2. The case raises certain interesting questions and I shall first set out the relevant and material facts as they have emerged finally for consideration in the Second Appeal. The injured workman Dhanapal formed part of the shore labour force at Madras Harbour of the Port Trust and, when on duty on the nth of June, 1955, at South Quay I in the Harbour, he sustained injuries from a cart belonging to the defendant heavily loaded with iron mesh. As a result of the injury, the workman lost completely and permanently the use of both his legs and had to be declared unfit for further service. The injured workman, by Exhibit A-14, applied to the Commissioner, Workmen's Compensation, for securing the compensation amounts. The Commissioner for Workmen's Compensation addressed the Port Trust by letter dated the 7th of January, 1956, regarding/the steps taken to compensate the workman, and the Port Trust worked out the disablement compensation at Rs. 3,360 and made the payment under the provisions of the Workmen's Compensation Act, The suit out of which the present Second Appeal arises was instituted on the averment that the disablement of the workmen was due to the negligence and carelessness of the defendant, and the Port Trust referring to Section 13 of the Workmen's Compensation Act, hereinafter called the Act, claimed that under the provisions of the said Section, the plaintiff had a right to be indemnified by the defendant. In defence it was inter alia contended that the accident was brought about by the workman himself by his own negligence, that the amount paid to the workman though within the limits set out by the Workmen's Compensation Act, was not reasonable, that the defendant is not liable under the Act, and that in any event the suit was not maintainable and was liable to be dismissed. The principal issues of fact that arose for consideration at the trial were, whether the injury was the result of the negligence of the workman himself as pleaded for the defendant and whether the compensation claimed was reasonable. There was also an issue of fact whether the permanent and total disablement was the result of the alleged accident. The Court of first instance rejected the contention that the accident was caused by the negligent act of the workman himself and found that the accident had been caused by the negligence of the cart men of the defendant who had given evidence on behalf of the defendant as D.Ws. 1 and 2. It was held that the defendant was clearly responsible for the consequences of the accident and that it had resulted in the permanent and total disablement of the workman. The amount of compensation paid to the workman was found reasonable. It was further held by the Court of first instance that, as an employer is liable whenever his servant committed tort in the course of his employment, the defendant was liable and answerable for the tort of his servants, the cartmen. The contention that a suit in the civil Court was not maintainable was overruled. On appeal, the learned City Civil Judge has confirmed the finding of the trial Court that the injury to the workman Dhanapal was caused by the negligence on the part of the defendant's servants and the quantum of compensation was not questioned. However, the learned Additional Judge, City Civil Court, accepted the contention on behalf of the defendant that by reason of Section 19 of the Act, the civil Court had no jurisdiction to try the suit. In that view, the suit was dismissed. In the view that the defendant had failed in its contention on merits, the appellate Court directed the parties to bear their respective costs throughout.
3. The principal question that has arisen for consideration and argued at some length is the question of the jurisdiction of the civil Court to entertain the suit. Learned Counsel for the defendant, no doubt, addressed some arguments on the question whether the accident was caused by the negligence of the defendant's servants. But this is a pure question of fact on which both the Courts below have concurred and I see no reason to differ firom the finding that it is a tortious act of the defendant's servant's that resulted in the permanent disablement of the plaintiffs workman.
4. The bar to the maintainability of a suit in the civil Court is rested on the provisions of Section 19 of the Act which runs thus:
(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation, including any question as to whether a person injured is or is not a workman, or as to the amount or duration of compensation including any question as to the nature or extent of disablement, the question shall, in default of agreement, be settled by a Commissioner.
(2) No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.
The provision for indemnity on which the plaintiff has relied is Section 13 of the Act which runs thus:
Where a workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid to pay damages in respect thereof, the person by whom the compensation was paid and any person who has been called on to pay an indemnity under Section 12 shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.
While learned Counsel for the plaintiff would contend that the liability under Section 13 is not a matter which -the Commissioner has to settle, decide or deal with under the Act, learned Counsel for the defendant submits that the matter is in the exclusive competence of the Commissioner. Learned Counsel for the plaintiff would contend that Section 13, merely declares an existing common law remedy and that even if Section 13 had not been there, the plaintiff would be entitled to claim compensation or damages from the defendant for tort to its servants. Contra, it is argued for the defendant that apart from the right under Section 13 the plaintiff could not get any compensation from the defendant and that any such claim would savour of an assignment of tortious liability or a mere claim in damages and would therefore be invalid, and also outside the Act any such claim could be maintained only on an assignment by the injured workman. It is submitted that such an assignment would be an assignment of a right of action in tort and so illegal and void. Section 13 of the Act, it is argued, provides by statute a right to subrogation and enables the employer to maintain action for recovery of the damages which he had paid to the workmen. It is contended that the workman, himself cannot, having accepted compensation under the Act, maintain a civil suit against the tortfeasor and so the plaintiff who under the provisions of Section 13 gets subrogated to his position, also cannot maintain a civil suit against the tortfeasor.
5. The main contention on behalf of the defendant is that the claim as laid and the plaint as framed, rest solely on the provision for indemnity found in Section 13 of the Act. It is submitted that it would not be open to the plaintiff at this stage to travel outside the plaint and seek to fasten a liability on the defendant in tort.. There is much to be said for this plea that the action is based only under Section 13 of the Act. But on the facts of this case and the findings, this aspect of the matter may not be of much consequence. The defendant had an opportunity of contesting the amount claimed and the Court below has found that the amount paid as compensation to the workman is fair and reasonable. However as the liability of the defendant to compensate the plaintiff outside the provisions of Section 13, is otherwise also a more difficult problem for consideration, I have first addressed myself to the question whether a suit could be maintained in the civil Court for enforcing a claim to indemnity in terms of Section 13 of the Act.
6. Certain principles in regard to the jurisdiction of a civil Court are well established. As observed by the Judicial Committee in Secretary of State for India v. Mask and Co. L.R. 67 IndAp 222 : (1939) F.L.J. 15 : (1940) 2 M.L.J. 140 : I.L.R. 1940 Mad. 599 (P.C.) 'it is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicittly expressed or clearly implied.' In Kamala Mills v. Bombay State : 57ITR643(SC) speaking for the Supreme Court, Gajendragadkar, C.J., observes at page 1952:
Whenever it is urged before a civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the civil Court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.
It is well established that where the right claimed is not purely a creature of a statute but is a common law right and the statute entrusting the special tribunal with certain, disputes relating to the right does not expressly oust the jurisdiction of the civil Court wholly and the language of the statute does not in unmistakable terms make out that the right must only be exercised or enforced in a manner provided by the statute, the jurisdiction will not be barred. Also where the statute does not provide any special machinery for the determination of any particular right recognised or provided by the statute, recourse to the civil Court for the assertion and determination of the right should be and therefore would be available. It is a general principle of law that where there is a right, there must be a remedy: ubi jus ibi remedium. Of course, where a right is created by statute and a special tribunal or forum is provided for its assertion and enforcement, the ordinary civil Court would have no jurisdiction to entertain disputes relating to the determination and enforcement of the right in question. When and in what circumstances there could be an inference of the ouster of jurisdiction of the civil Court is summarised by Willes, J., in Wolverhampton Mew Water Works Co. v. Hawkesford (1860) 7 C.A.N.S. 795 affd. in (1861) H.C.B.N.S. 456 thus as found in Maxwell on the Interpretation of Statutes, Eleventh Edition, page 123:
There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of case is, where the statute gives the right to sue merely, but provides no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.
7. Whilst learned Counsel for the defendant would bring the present case under the third category, learned Counsel for the plaintiff seeks to place it under the first category, and failing would bring it under the second category. As in every case where the question of the exclusion of the civil Court's jurisdiction is pleaded, the matter has to be considered in the light of the words used in the statutory provision on which the exclusion is rested, I shall take up for consideration the provisions of the Act in question, and examine the Act with reference to its scheme, the particular provisions, their object and purpose. The Preamble to the Act recites that it is expedient to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. The Section which fixes the liability of the employer is Section 3 and the relevant part of the Section for the purpose of the present discussion runs as follows:
(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Section:
Provided that the employer shall not be so liable-
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period not exceeding three days ;
* * * * * * *(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a civil Court a suit for damages in respect of the injury against the employer or any other person ; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury-
(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or
(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.
It should be noticed that the workman has an option to either claim compensation under the Act or have recourse to the civil Court for damages in respect of the injury. If he had exercised his option and gone to the civil Court, he forfeits his right to compensation under the Act. Similarly, he cannot maintain a suit for damages in a civil Court if he had instituted a claim for compensation before the Commissioner under the Act. The workman has the liberty to elect and avail himself of. a remedy in tort for damages for negligence or wilful act against an employer or against some other person. The next important Section is Section 12 which runs thus:
(1) Where any person (hereinafter in this Section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him, and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.
(2) Where the principal is liable to pay compensation under this Section, he shall be entitled to be indemnified by the contractor, or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this Section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner
(3) Nothing in this Section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal. * * * * * *
8. It will be seen that under the Act, a new liability is created and the employer even though he may not in the least be culpable is made liable to pay his contractor's workman where he employs a contractor for his trade or business. The liability is fastened on the employer vicariously and by Sub-clause (2) he is given an indemnity by the contractor. Obviously the object behind these provisions of the Act is to secure compensation to the workman who cannot fight out his battle for compensation, by a speedy process. One sees in the provision the view that a person who employs others to advance his own business and interest should be a more promising and certain source of recompense to the injured workman than the intermediary who may be a man of straw. May be, this principal liability of the employer may-have an admonitory value in accident prevention, the principal employer being in a strategic position to reduce accidents by efficient organisation and supervision of his staff. This Section, it will be seen, provides only for indemnity by the intermediary between the employer and the actual workman. The intermediary also is a person who is engaged by the employer himself. The workman may, under Section 12 recover the compensation from the intermediary instead of the employer, referred to as the principal in the Section. The Section provides not only for the immediate contractor working under the principal, but a contractor working under the immediate contractor. Section 13, which has already been referred to, deals with a different situation. The marginal heading, which, of course, cannot determine the interpretation to be given to the Section or define the content of the Section, refers to the Section as ' Remedies of employer against stranger'. Section 13 by its very language excludes the liability determinable under Section 12. Under Section 13 the person by whom compensation was paid and any person who has been called on to pay an indemnity under Section 12, shall be entitled to be indemnified by the person who, in the circumstances of the case, is under a legal liability to pay the damages in respect of the injury. Section 13 provides for cases where the workman under an employer is injured by the tortious act of a stranger. It may be that the workman is employed by a contractor or sub-contractor under the employer. Then by virtue of Section 12, the workman may claim compensation under the Act from the ultimate employer that is the principal employer. The principal employer can claim indemnity for the compensation paid from his immediate contractor. The immediate contractor is given a right to claim indemnity from his sub-contractor. But there the liability for indemnity stops. If there is a sub-contractor further down there is no provision for recourse against him even if he should be the tortfeasor. But the person who had finally been made to pay under Section 12 could claim an indemnity if he could come under Section 13. However Section 13 does not in so many words provide for settlement of the compenation or indemnity amount in default of agreement between the parties. Only the right to indemnity is declared. Section 12(2) specifically provides for such settlement as between the principaland the contractors in respect of claims for indemnity amount in default of agreement between the parties. Only the right to indemnity is declared. Section 12(2) specifically provides for such settlement as between the principal and the contractors in respect of claims for indemnity. It looks as if the framers of the Act had in view only the claim of workmen, that is, those engaged or employed by the employer, for consideration by the authorities under the Act. The contractor, the sub-contractor and the workmen at the end are all persons employed one under the other under the principal employer. The Act itself as stated at the outset is intended to provide for payment by certain classes of employers to their workmen of compensation for injury by accident. The stranger is neither an employer nor a workman. As Section 13 runs the right against him is only preserved as Counsel for defendant would have it declared.
9. Two rulings under Section 12 read with Section 13 may be referred to as they give a clear lead on the point now under discussion. In Sir Dhunjibhoy Bomanji v. Ganpa Khandu I.L.R. 57 Bom. 699 the plaintiff was a contractor for the coaling of the steamers of a steamship company. He employed the defendants in the suit for supplying labour for shipping coal. One of the labourers engaged by the defendants on the work of shipping coal was killed and the widow of the deceased workman claimed compensation against the steamship company under the Workmen's Compensation Act. The steamship company claimed indemnity for the said claim against the plaintiff and the plaintiff paid the amount and brought a civil suit under the provisions of Section 13 of the Act against the defendants claiming to recover the said amount from them on the ground that as the deceased was in the employment of the defendants the plaintiff was entitled to recover the amount from the defendants by way of indemnity. Under the Act as it stood before 1933, there was no provision for claiming indemnity against a sub-contractor by the contractor working under the employer. The provisions in the present Act for indemnity by the sub-contractor was inserted by Act XV of 1933. In those circumstances it was held in the aforesaid decision that Section 12(2) of the Act as it then stood contemplated only one principal and only one contractor and if therefore there was any sub-letting of the contract indemnity cannot be obtained under the Act and must be sought by recourse to the civil Court. The decision of a Division Bench of the Calcutta High Court on a reference by the Commissioner under the Workmen's Compensation Act in Machuni Bibi v. Jardine Menzies & Co. : AIR1928Cal399 . was relied on the learned Judge Wadia, J.; observing:
Taking the words of Section 12(2) and Section 13 together, I agree with the construction put upon them by the High Court of Calcutta, and I hold therefore that this suit is maintainable.
The head-note in the Calcutta case may be set out:
Where A undertakes work which is ordinarily part of his trade or business, but for his business he contracts with B for the execution of part of this work, and B similarly contracts with C for the execution of the whole or a part of the work he himself has contracted for and one of C's workmen is killed by accident, the principal for the purpose of Section 12 is A and he is entitled to be indemnified by B, and as regards the question whether B is entitled in turn to be indemnified by C, the Act does not provide for such a contingency. The 'contractor' referred to in Section 12(2) is the contractor who contracts directly with the principal as defined in Section 12(1). If there is any further sub-letting of the contract indemnification cannot be obtained under the Act and must be sought by-recourse to the civil Courts.
These two cases clearly recognise the civil Court's jurisdiction to entertain claims of indemnity which do not strictly fall within the scope of Section 12. In the present case the indemnity claim can be rested under Section 13 of the Act but there is no provision for its settlement or determination on dispute. Falling outside Section 12 but coming under Section 13 on the principle of the above decisions the civil Court will be competent to entertain the claim. Learned Counsel for the defendant refers to Section 22 which provides for the form of application and submits that these is nothing to preclude the submission of the dispute in relation to the indemnity claim before the Commissioner. I do not see anything in Section 22 to warrant the invoking of the jurisdiction of the Commissioner for determination of the dispute between the employer and a third party. He is a tribunal of limited jurisdiction-and neither analogy nor expediency could give him jurisdiction on a matter which is not specifically provided for. The Act does not purport to exclude the jurisdiction of civil Courts generally in all matters relating to compensation. At the very outset I have pointed out that even the workman has been given an option to initiate proceedings under the Act or to have recourse under the common law if he could maintain a claim in tort. Section 19 provides only for the settlement by the Commissioner of any question that may arise in any proceedings under the Act. Section 19 therefore applied only to proceedings initiated under the Act and the bar of the civil Court's jurisdiction is limited to matters which, under the Act are required to be disposed of by the Commissioner.
10. In this connection it is relevant to refer to Rule 3.9 of the Rules framed under the Act where procedure is prescribed for the decision of the indemnity claims under Section 12(2). Where an indemnity is claimed against a person not a party to the case notice to that person is provided for and there is provision for the contest of the claim for indemnity by that person. There is also provision for notice and hearing of the claim for indemnity by the third person called in by the principal employer against his sub-contractor. No procedure is prescribed under the Rules for determination of any indemnity that may be claimed under Section 13. No provision is made for notice to a stranger against whom the indemnity could be claimed under Section 13. There is one other indication in the Act itself that the jurisdiction of the civil Court is not ousted for the determination of any right claimed under Section 13. : absence of any provision for an appeal on any determination under Section 13. Section 30 of the Act provides for an appeal to the High Court inter dlia against orders awarding compensation, orders relating to the distribution of compensation among the dependents of a deceased workman and against an order allowing or disallowing any claim on the amount of indemnity under the provisions of Sub-section (2) of Section 12. The absence of any provision for appeal on a determination under Section 13 while providing for an appeal in regard to indemnity claims under Section 12 is significant, and clearly indicative of the fact that no determination by the Commissioner under Section 13 is contemplated by the Act.
11. In my view even taking that the right of indemnity provided under Section 13 does not exist outside the Act and is a right specifically conferred by the Act, this will be a case where the statute, while giving a right, has not provided any particular form of remedy. The party affected can therefore have recourse to the ordinary civil Court and have his rights determined.
12. Some stress was laid by learned Counsel for the defendant on that part of Clause (2) of Section 19 whereby the civil Court's jurisdiction to enforce any liability incurred under the Act is taken away. Learned Counsel submitted that under Section 13 there is a liability for indemnity cast on the strangertort-feasor, and as the employer is seeking to enforce the same, Sub-clause (2) bars the suit. But the language employed in the Section is 'to enforce any liability incurred under this Act'. The .Section precludes the enforcement of a ' liability incurred ' under the Act and not the enforcement of the liability itself. Learned Counsel for the appellant contends that sufficient effect must be given to the word ' incurred ' in relation to the liability found in the sub-Section. It is pointed out that when it is a question of determination of a dispute, the same Sub-section uses the words 'settle, decide, or deal with any question '. Further the question must be one which is by or under the Act required to be settled, decided or dealt with by the Commissioner. It is in this context and background that the subsequent clause to enforce any ' liability incurred ' under the Act should be interpreted. While considering the meaning of the word ' incurred ' in Stroud's Judicial Dictionary it is stated ' but the phrase ' have incurred expenses' means at least that the local authority has paid those expenses, or become liable to pay them as distinguished from estimated expenses '. In the present context, the liability incurred can only refer to a liability determined after the Commissioner has settled, decided or dealt with a matter under the Act-not a matter yet to be determined. One has to bear in mind another principle that when there is any doubt about the ousting of jurisdiction of any existing Court, the Court will lean to an interpretation which would maintain the existing jurisdiction.
13. I shall now take up for consideration the alternative contention of the learned Counsel for the appellant that even apart from the provisions of Section 13, the plaintiff could, under the common law, seek reimbursement against the defendant for the compensation it had been by law compelled to pay the injured workman. The argument is developed thus : A master is liable for the tort committed by his servant in the course of the latter's employment. Therefore, the defendant would be liable to the injured workman for the tort committed on him. Of course, this proposition, as a question of law, is not controverted. Equally, it is recognised that a master can sue a person who injures his servant and thereby causes loss of service to the master. The cause of action for the master against thetort-feasor is the loss of service and the damages will have to be evaluated on that basis. Injury to the servant is a wrong which will give a right to the servant to proceed against thetort-feasor and it can also give a cause of action for damages to the master for loss of service. But the basis of assessment for damages in the two cases would be different. In this case, as pointed out at the outset, the plaint is not laid on the basis of damages for loss of service.
14. Learned Counsel for the plaintiff submits that he could rest his claim for restitution under Section 69 of the Contract Act. Under Section 69 of the Contract Act, a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other. Learned Counsel submits that the word ' bound by law to pay ' under Section 69 does not exclude those obligations of law which arose inter-parties whether by contract or tort. It is pointed out that they extend to any obligation which is an effective bond in law. But the liability which the plaintiff was called upon to meet and has met is one cast on him by statute. This amount which he has paid is not one in the payment of which he was merely interested. The statute cast an inescapable liability on him to make this payment. This payment, it cannot be said, is an amount which at the time of the payment the defendant was bound by law to pay. It may be that the defendant may be made liable in tort. He may be liable to the plaintiff or may be liable to the injured workman or he may not be liable at all. The liability had yet to be determined and ascertained. As pointed out in Nandlal Singh v. Ram Kirit Singh : AIR1950Pat212 , the use of the word ' reimbursed ' in Section 69 is significant. Learned Counsel referred to the principle of implied indemnity set out in Chitty on Contracts, Twenty-second Edition, Volume II, in para. 1035 at page 455. The principle as regards implied indemnities is thus stated:
In many cases the law implies a promise to indemnify. If the circumstances are such that the law imposes on any person a legal or equitable duty to indemnify, it will imply a promise on his part to do that which under the circumstances he ought to do.
Reference was also made to the observations of Vaughan Williams, L.J., in Bonner v. Tottenham and Edmonton Permanent Investment Buildings Society L.R. (1899) 1 Q.B. 161. of the report the following passage from Leake on Contract is set out:
Where the plaintiff has been compelled by law to pay, or, being compellable by law, has paid money which the defendant was ultimately liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability, under such circumstances the defendant is held indebted to the plaintiff in the amount.
But proceeding further the principle is thus elaborated in the judgment at page 174:
I am now dealing only with the principle upon which the common law liability is based. There is a common law principle of liability, and also a principle of liability in equity, and these two principles differ. The common law principle requires a common liability to be sued for that which the plaintiff had to pay, and in interest of the defendant in the payment in the sense that he gets the benefit of the payment, either entirely, as in the case of the assignee of a lease, or pro tanto, as in the case of a surety who has paid, and has his action for contribution against his co-surety. The principle in equity seems wide enough to include cases in which there is community of interest in the subject-matter to which the burden is attached, which has been enforced against the plaintiff alone, coupled with benefit to the defendant, even though there is no common liability to be sued.
Neither of the principles above said would apply to the present claim. The first principle ex facie has no application and for the application of the second one, there must be a community of interest in the subject-matter to which the burden is attached and the present is not of that kind.
15. It is possible to view the claim as one for cent per cent contribution or indemnity against the wrongdoer. The rules against contribution and indemnity are limited to manifestly illegal act or wilful wrong doing and to wrongful acts done by negligence. As an example, where contribution had been ordered against a wrongdoer, Ramaswamy Iyer in his Law of Torts, Fifth Edition, at page 688, gives as illustration Palmer v. Wick and Pulteneytown Steam Shipping Company L.R. (1894) A.G. 318. There a stevedore who was engaged in discharging pig-iron from the plaintiff's ship, caused the death of a workman by his negligence. It was found that the accident was due also to the negligence of the plaintiffs in not providing safe tackle. The representatives of the deceased workman got a decree for damages against both the stevedore and the plaintiffs. The stevedore was held liable to contribute a half of the damages to the plaintiffs who paid the whole.
16. In Salmond on Law of Torts, Eleventh Edition, at page 92, the following rule is found:
It would seem clear on principle that in all cases of true vicarious liability the person held vicariously liable for the tort of another should have a right of indemnity as against that other. Thus, a master who has paid for the negligence of his servant should be able to sue that servant for indemnity. That this is generally so cannot be doubted, provided that the negligence of the employer himself or one of his other servants has not contributed to the damage.
In Semtex Ltd. v. Gladstone (1954) 1 W.L.R. 945, wherein this passage has been quoted as a true principle, Finnermore, J., observes at page 949 ;
For some reason that I have never been quite able to understand, the master who is vicariously responsible for his servant is referred, to as, and apparently treated as, a joint tortfeasor. This point was elaborated by Denning, L.J., in Jones v. Manchester Corporation L.R. (1952) 2 Q.B. 852. I could never see why an employer, whose only liability is the vicarious liability of being responsible for what his servant does, should be called a joint tort-feasor, which should mean a person who took some part in the tort which is the subject of the action.
In a case of the present kind, the plaintiff who was compelled by statute to pay for the tort committed by another on the servant, cannot be held to be tort-feasor in any sense of the word. And there can be no question of his claim to indemnity being hit at or vitiated by any principle of public policy. There is one case,Muthuswami Reddiar v. Sirkar A.I.R. 1951 T.C. 171, wherein it has been held that apart from the Workmen's Compensation Act, a plaintiff, as in the present case, could claim indemnity under the general law. At page 175 of the report is found the following observation:
Section 3, Workmen's Compensation Act, imposes a liability on the employer to pay compensation to the workman who sustains personal injury by an accident during the course of his employment. Hence the payment made by the plaintiff to the driver of the bus who had sustained injury as a result of the collision between the lorry and the bus cannot be said to have been a voluntary payment. On the other hand, it was a payment in discharge of a statutory obligation under Section 15 of the Act, the party paying a compensation is entitled to be indemnified by the person who has been responsible for the injuries sustained by the workman. Thus the plaint claim for Rs. 406-12-9 is clearly sustainable as against defendant 1. Even apart from the provisions of the Workmen's Compensation Act, the general law also enables the plaintiff to claim this amount from defendant 1. It is a principle of common law that a master can maintain an action for the loss of service of his servant by the tortious act of another person.
While hesitant to give a definitive opinion, on the authorities now placed before me, I am inclined to hold that even outside Section 13, the plaintiff in a case like the present could claim reimbursement against the tort-feasor of the amount he had been compelled to pay under the Act. By the payment the tort-feasor is relieved of his liability to the injured workman, and the reimbursement claimed is only of a pecuniary demand the employer had to meet as a consequence of the tort, besides suffering loss of service. Of course the employer will have to establish against the third party the tort which resulted in the injury and the connection and reasonableness of his claim as in any action in tort. But it is unnecessary to carry this discussion further, as the plaintiff's right of suit could clearly be rested on the ground that neither expressly nor by implication the right of suit for a claim under Section 13 of the Act has been taken away.
17. It is submitted for the defendant that the plaintiff's claim is really one of subrogation and that as the plaintiff cannot have any higher rights than the workman he is barred as the workman will now be barred from instituting a suit against the defendant for damages in tort. I am unable to appreciate the scope of this argument. Learned Counsel for the defendant would equate the plaintiff to the position of an insurer. It may be that the workman having elected to claim compensation under the Act is precluded from filing a suit for damages in tort against thetort-feasor. But that does not preclude the employer from pursuing his remedies against the tort-feasor having satisfied the workman's claim'. The causes of action in the two cases are entirely different.
18. In the result S.A. No. 1005 of 1962 succeeds. The decree and judgment of the lower appellate Court are set aside and those of the trial Court are restored. In the circumstances, S.A. No. 1550 of 1962 has to fail and is, therefore, dismissed, without costs. S.A. No. 1005 of 1962 is allowed but parties will bear their respective costs throughout.