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General Manager, Ksrtc Vs. Vijayalaxmi - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberM.F.A. No. 389 of 1985
Judge
ActsMotor Vehicles Act, 1939 - Sections 110A
AppellantGeneral Manager, Ksrtc
RespondentVijayalaxmi
Advocates:G. Lingappa, Adv.
DispositionAppeal rejected
Cases ReferredIn Jones v. Manchester Corporation
Excerpt:
.....and several. where damage is caused to a person by two or more wrongdoers they may either be joint-tort teasers or independent tort-feasors. a case of vicarious liability is a case of joint-tort teasers. indeed, the word 'vicarious' itself lexicographically means one that takes the place of another. vicarious liability means that one person takes the place of another so far as the liability is concerned. there, is therefore, no substance in the contention that in an action against the master for the tortious act of the servant, the latter himself is a necessary party and that his non-joinder is fatal to the action. the case being one of joint and several liability the master alone can be sued ; but, of course, in the action the tort of the servant, in the course of the employment, must..........tortious act of the servant in the course of employment. they are both in the position of joint-tort teasers and their liability is joint and several. the position is too well settled to admit of doubt. however, out of deference to the learned counsel who seemed to set some store by this contention we might refer to some authorities.8. in clerk & lindsell on torts (14th edition, 1975) the statement of the law on the point is this :'a master is saddled with responsibility to a third party in the event of his servant committing a tort in the course of his employment. the servant himself is also liable, and he and his master are joint-tort teasers, though in practice it is the master who is sued since he is better able to pay the damages. for vicarious liability to arise three things.....
Judgment:
ORDER

Venkatachaliah, J.

1. This appeal is by the General Manager, Karnataka State Road Transport Corporation (KSRTC) and is directed against the award dated 29-3-1984, made in M.V.C. No. 670 of 1982, on the file of the Motor Accidents Claims Tribunal, IV; Bangalore City, awarding a total compensation of Rs. 60,000/- in a fatal accident's action.

2. Saravanavelu, aged 42 years, working at the B.E.M.L., was killed in a motor-accident which occurred at about 11-30 A.M. on 3-10-1982. Saravanavelu was riding his scooter on the Kempegowda Road at Bangalore. The appellant's bus hit the scooter from behind. Saravanavelu succumbed to the injuries. The dependants brought the present action for compensation. The Tribunal on a consideration of the evidence on record determined the total compensation at Rs. 1,00,000/-. It deducted a sum of Rs. 40,235/-- towards benefits arising out of the death and awarded the balance of Rs. 59,765/-- rounding it off to Rs. 60,000/--.

3. Sri G. Lingappa, Learned Counsel for the appellant has urged three contentions. The first is as to the correctness of the finding of the Tribunal as to actionable-negligence on the part of the driver of the bus. The second is as to the quantum of compensation. The third is that since the driver of the bus who was originally impleaded to the proceedings had later been given-up by the claimants, no liability could be fastened on the owner and consequently on the insurer. This, in substance, means that a driver is a necessary party to the action.

4. On the first question as to the actionable-negligence, P.W.1, the pillion rider on the scooter tendered evidence. He gave an eye-witness account of the occurrence. He stated as to how the Bus came all on a sudden from the rear with a high speed and hit the scooter. In a busy road like the Kempegowda Road in Bangalore the Bus hit the scooter with velocity which dragged the scooter 30 feet further after the impact. The facts speak for themselves. The Tribunal has accepted the evidence of P.W. 1, which was found to be corroborated by documentary evidence. In this case it appears not only that actionable-negligence is established but the evidence suggests a degree of recklessness on the part of the Driver also. This reckless act of the driver has snuffed-out a precious life and snatched away the bread-winner of the family. There is absolutely no merit in the contention of Sri Lingappa against this finding of the Tribunal, as to actionable-negligence.

5. As to the quantum of compensation, the grievance of the appellant is that out of the admitted monthly earning of Rs. 1,048/- the Tribunal had taken Rs. 750/- as the value of the dependency lost. His point is that something more than Rs. 298/- should have been allowed for the living and personal expenses of the deceased himself.

There is no hard and' fast rule about the extent of the deduction to be made towards the personal and living expenses of the deceased. It all depends upon the facts and circumstances of each case. In some English cases seventy per cent of the earnings has been suggested as the value of dependency. But it all depends on the extent of income, the size and the standards of living of the family and the habits of the deceased. If the deceased was devoted to the family and had no expensive habits and lead a spartan life, deduction on this score would, relatively, be less. If on the contrary the deceased was a Bohemian and a spend-thrift and had many favourite follies, the deduction towards the expenses of his living--and for his pleasures -- should be accommodated by appropriate deductions. That depends on the evidence on record as to the life-style and personal habits of the deceased. No hard and fast rule, applicable to all cases, could be made as to what amount, or what percentage of the income, should be deducted for such living and personal expenses.

6. In the present case, the deceased was the head of a family with 4 children and wife. There is nothing unreasonable in the estimate of the Tribunal which provided Rs. 750/- out of the earnings of Rs. 1.048/- for the maintenance of the family. This estimate does not, in our opinion, suffer from any infirmity, so as to call for interference in appeal. We find no substance in the second contention either.

7. What remains to be considered is the contention that the non-joinder of the Driver is fatal to the action. The owner's liability in this case is the vicarious liability of the Master for the tortious act of the servant in the course of employment. They are both in the position of Joint-Tort teasers and their liability is joint and several. The position is too well settled to admit of doubt. However, out of deference to the Learned Counsel who seemed to set some store by this contention we might refer to some authorities.

8. In Clerk & Lindsell on Torts (14th Edition, 1975) the statement of the law on the point is this :

'A master is saddled with responsibility to a third party in the event of his servant committing a tort in the course of his employment. The servant himself is also liable, and he and his master are Joint-Tort teasers, though in practice it is the master who is sued since he is better able to pay the damages. For vicarious liability to arise three things have to be established: a master-servant relationship ; that the servant committed a tort ; and that he did so in the course of his employment.'

As to who are Joint-Tort teasers, it is stated :

'Who, then, are Joint-Tort teasers One way of answering the question is to see whether the cause of action against each tort-feasor is the same. If the same evidence would support an action against each, they are Joint-Tort teasers. They will be jointly liable for a tort which they both commit ....'

(vide : para 201 at page 114)

Where damage is Caused to a person by two or more wrongdoers they may either be Joint-Tort teasers or independent Tort-feasors. A case of Vicarious liability is a case of Joint-Tort teasers. On the question as to the nature of the Vicarious liability of the Master for the tortious act of the servant, Salmond on 'Torts' (18th Edition, 1981) states :

'A Master is jointly and severally liable for any tort committed by his Servant while acting in the course of employment. This is by far the most important of the various cases in which vicarious responsibility or vicarious liability is recognised by the law. Vicarious liability means that one person takes or supplies the place of another so far as liability is concerned........'

In Jones v. Manchester Corporation, (1952) O.B. 852 Denning, L.J. said :

'In all these cases it is of importance to remember that when a master employs a servant to do something for him. he is responsible for the servant's conduct as if it were his own. If the servant commits a tort in the course of his employment, then the master is a tort-feasor as well as the servant. The master is never treated as an innocent party............'

Indeed, the word 'Vicarious' itself lexicographically means one that takes the place of another. Vicarious liability means that one person takes the place of another so far as liability is concerned.

9. There is, therefore, no substance in the contention that in an action against the master for the tortious act of the servant, the latter himself is a necessary party and that his non-joinder is fatal to the action. The case being one of Joint and several liability the master alone can be sued ; but, of course, in the action the tort of the servant, in the course of the employment, must be established.

10. There is, thus, no merit in this appeal which is, accordingly, rejected at the admission stage.


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