1. This appeal is directed against an award dated 3-5-1980, of the Motor Accidents Claims Tribunal, Srinagar.
2. The case out of which this appeal has arisen relates to an accident which took place near Gupt-Ganga, Srinagar, on 3rd March, 1977. Respondent No. 1 was driving a truck, bearing registration No: JKA 4347. The said truck had a head on collision with vehicle No. JKB 3465, coming from the opposite direction, and being driven bv Daulat Singh respondent No. 3. Respondent No. 2 is the owner of truck No. 4347. As a result of the accident, respondent No. 1 received some iniuries and the truck was extensively damaged. According to the claimants, the accident was caused due to rash and negligent driving of respondent No. 3. The case of respondant No. 3 and the appellant, before the Motor Accidents Tribunal, on the other hand, was that the accident had occurred due to the negligence of respondent No. 1 and not due to the negligence of respondent No. 3, It was, however, not disputed that respondent No. 3, a driver of the B. S. F. was an employee of the Union of India, the appellant. From the pleadings of the parties, the following issues were framed by the Tribunal on 18-11-1977:
1. Was the accident which resulted in causing damage and injuries to the applicant's vehicle and to him respectively caused by rash and negligent driving of non-applicant No. 1. O. P. Applicant.
2. If the issue No. 1 is proved in affirmative, to how much compensationthe applicant is entitled to and from whom and in what proportion. O. P. Applicant.
3. The learned Tribunal on an appreciation of evidence decided issue No. 1 in favour of respondants 1 and 2 and held that the accident, which had resulted in injuries to respondent No. 1 and damage to vehicle No: JKA 4347, was caused by the rash and negligent driving of respondent No.3. While deciding issue No. 2 also in favour of respondents 1 and 2, the Tribunal held that an amount of Rs. 15,000/- was payable, as compensation, to respondents 1 and 2 by the appellant, the employer of respondent No. 3.
4. Mr. S. T. Hussain, learned counsel for the appellant has not questioned the findings of the Tribunal on issue No. 1 at all and rightly so. Therefore without referring to the evidence on the record which, in our opinion, justifies that finding, we confirm the finding of the Tribunal on issue No. 1.
5. Learned counsel for the appellant has, however, urged that since respondent No. 3 a driver of the Border Security Force, is an employee of a statutory force, no liability, in tort, could be fastened on his principal, the Union of India, and therefore the direction of the Tribunal, while deciding issue No. 2. that the payment of compensation would be made by the appellant was erroneous. Learned counsel has not questioned the quantum of compensation awarded but only the liability of the appellant to pay it.
6. The precise argument of Mr. Hussain is that the Union of India is not liable for tortious act of its 'statutory employees' because such statutory employees are not 'employees of the State in the traditional and ordinary sense of the term'. It is urged that since the Border Security Force, is a creation of a statute and its employees are governed by the said statute, therefore, the relationship of 'master and servant'' between the personnel of the B. S. F. and the Union of India, in so far as vicarious liability in tort is concerned, does not exist. Learned counsel has relied upon a note, appearing in the Modern Law Review (1953) at page 97 in support of his argument.
7. Admittedly no such defence, as is now sought to be raised, was pleadedby the appellant in its written statement before the Tribunal and no issue was struck by the Tribunal on that question and therefore the appellant cannot be allowed to assail the Award on the basis of that defence, for the first time in the appeal. More so, because whether or not respondent No. 3 is an employee of the appellant and whether or not the accident was caused during the course of his employment are mixed questions of law and fact and had to be specifically pleaded and proved and cannot be allowed to be raised in the appeal for the first time. We also find, from what follows, that the argument of the learned counsel, has even otherwise no merits or substance.
8. The facts are not in dispute. It is not disputed that respondent No. 3 is a driver of the BSF. It is also not disputed that the accident took place during the course of his employment with the B. S. F. It is further not disputed that the act, during the course of which the accident took place, is not referable to the exercise of any sovereign powers delegated to respondent No. 3 by the Union of India. The contention of Mr. Hussain is that since respondent No. 3 is a 'statutory employee' and is governed and controlled by the Border Security Force Act. the Union of India cannot be fastened with the liability for his tortious acts because the Union of India has 'no control' over its statutory employees. The argument is misconceived. The Border Security Force Act, no doubt regulates the working of the force and the allied matters, but merely because of that, the personnel of the BSF do not lose their status of being employees of the Union of India. The B. S. F. Act itself starts with the preamble that the BSF is a force of the Union of India. Section 5 of the B. S. F. Act lays down that 'the general superintendance, direction and control of the force shall vest in and be exercised by the Central Government'. Thus, the fallacy of the argument of Mr. Hussain is exposed by Section 5 of the Act itself and it is futile to urge that the Union of India has no control over the personnel of the BSF.
9. Mr. Hussain has next urged that the nature of the duty of the personnel of the force being original the Union of India has no control over the manner in which such statutory employees perform their duties and in the absence of the control over the mode of working of its employees, the Union of India cannot be fastened with any liability in tort for the acts of its employees. This argument, though attractive, does not bear closer scrutiny.
10. The importance, to the element of 'control', which Mr. Hussain wants to extend in such cases is not justified. For a long time, no doubt, the test for determining the relationship of master and servant was that of 'control only' but this 'control' test was the product of a primitive society, where the employer had the competence to instruct the workman as to the methods to be followed in the performance of his work. In the recent years, however. with the advancement of science and technology, the 'control' test to determine the relationship of 'master and servant' has fallen into disrepute and the old test of 'control' cannot be strictly applied in each and every case. Right of control remains an important factor in those cases where it can be applied but it is not the only matter to be taken into account to determine the existence of the relationship of master and servant. The test of 'hire' and 'fire' has of late assumed more importance. The right of 'hire' and 'fire' under the BSF Act. in relation to the personnel of the BSF, undoubtedly vests in the Union of India. If it was only the 'control' test which was to be applied in every case, then the house surgeons and medical assistants of State owned hospitals cannot be regarded as servants of the State and consequently the State cannot be held liable for the torts committed by these doctors. Same would be the position with the Engineers employed by the Municipal Corporation because no instructions can be given by the Health Authorities to the surgeons as to the manner in which the operation should be performed nor can the municipal corporations control the methodology employed by its engineers in carrying out their duties. Nonetheless, it is well settled that the Health Authorities or the Municipal Corporation, as the case may be, is liable for the tortious acts of its employees committed during the course of their employment. In Cassidy v. Ministry of Health, (1951)2 KB 343, where the plaintiff's hand was rendered useless by the negligent post-operational treatment given by the house surgeon and others, it was held that though the authorities had no control over the method of working of its employees, yet, this lack of control did not absolve them of their vicarious liability for the torts committed by its employees. Dennins, L. J. observed :
'..... .Whenever hospital authoritiesaccept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen through the stethoscope, and no hands to hold the surgeons knife. They must do it by the staff they employ; and if their staff are negligent in giving the treatment, they are just as liable for the negligence as is anyone else whoemploys other to do his duties for him .....'
11. It. therefore, follows that a master is responsible not merely for what he authorises his servant to do but also for the way in which the servant does it. Thus, the nature of employment determined the extent of the applicability of the test of 'control'.
12. In view of what has been said above. I am of the opinion, that the relationship of master and servant exists between Respondent No. 3, a driver of the BSF and the appellant. Union of India and the argument to the contrary has no merit.
13. Under what circumstances, generally, is a master liable for the tortious act of his servant was considered by the Supreme Court of India in Sitaram Motilal Kalal v. Santanuprasad. Jaishanker Bhatt, AIR 1966 SC 1697. The court observed; (at p. 1704)
'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 or 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. But it is equally well settled that if the servant, at the time of the 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.'
14. The question under what circumstances is the Union of India liable for the tortious act of its servants has also been debated a number of times before the Supreme Court and other courts in the country. In Kasturi Lal Ralia Ram Jain v. State of U. P., AIR 1965 SC 1039 their Lordships observed: (at p. 1046)
'There is a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any soverign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimatel v based on, the delegation of the sovereign powers of the State to such public servant If the answer is in the affirmative the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of the employment is. in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose.....'
15. Thus, so far as the liability of the State for the tort committed by its servant is concerned, it stands concluded by the Supreme Court that if the act of the employee of the State, in discharge of his statutory functions is not referable to any delegation of sovereign powers, the State would be liable for the tortious act committed by him in the same manner in which an ordinary master is liable for the tortious act of his servant, committed during the course of his employment.
16. A somewhat similar argument, as has been raised by Mr. Hussain, was raised before this court earlier also in Union of India v. Miss Savita Sharma, AIR 1979 J & K 6, repelling the argument it was observed by Mir J., speaking for the court: (at Pp. 8 and ID'Mr. Salaria next vehemently argued that the Union of India, appellant No. 1 was not responsible and could rot be asked to give compensation to the respondent because the driver of the military vehicle appellant No. 2, was performing statutory duty in exercise of the sovereign powers delegated to him by the competent authority, lie contended that the vehicle was being driven by appellant No. 2 to the Railway station to bring therefrom Jawans of the army to the Unit Headquarters, He argued that this was a statutory duty being performed by appellant No. 2 and neither the driver nor the Union of India could be held liable to pay damages or compensation as the act of the driver during which the accident took place was being performed by him in exercise of the sovereign power.' ......... 'Even if it beconceded that the driver of the truck Pillai, was driving the motor vehicle in question to Railway Station to bring the Jawans to Unit Headquarters, it could not be said that the statutory duty he was performing was referable to the exercise of the delegated sovereign powers.'
17. Mr. Hussain has attempted to get over this authority and the Supreme Court Judgment (Supra) by urging that the point raised by him in the instant appeal was not 'fully' considered in those cases. Apart from the fact that the assumption made by Mr. Hussain is wholly unjustified, and the point raised by him has no substance, otherwise too AIR 1980 SC 1762 is a complete answer to the argument of Mr. Hussain. It was observed by Krishna Iyer, J. ..... (at p. 1764 and1765).
'Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent ......It is wise to remember that a decision does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned.'
18. I must, however, hasten to add that AIR 1965 SC 1039 and AIR 1979J & K 6 (supra) were neither badly argued, inadequately considered nor fallaciously reasoned.'
19. In the instant case, it was neither pleaded nor even urged on behalf of Union of India, that the act of respondent No. 3 in driving the water tank of the BSF was referable to any delegation of sovereign powers. In fairness to Mr. Hussain it must be recorded that the learned counsel conceded that the act during the course of which the accident took place was not at all referable to the delegation of any sovereign powers. The learned Tribunal in my opinion was therefore right in holding that the Union of India, the principal of Respondent No. 3 was vicariously liable for the tortious act committed by respondent No. 3 and as such the fastening of the liability, on the Union of India, for the payment of compensation, was absolutely correct.
20. Before parting with the judgment, I would like to deal with the note appearing in the Mordern Law Review (1953), relied upon by Mr. Hussain. That note does not suggest or support what Mr. Hussain has urged at the bar. There is nothing in that note to show that the author opined that relationship of master and servant does not exist between the Crown and the police personnel, who are governed by a statutes. As a matter of fact, the author of the note, has advocated that so long as the Crown's vicarious liability for its servant exists, it would be in the public interest that the claim of the Crown for the loss of service of its employees, caused due to negligence of others, should also be admitted in order to 'cast no doubt on _the scope of the former's liability'. The author at no stage disputed the vicarious liability of the Crown for the tortious acts of its statutory servants, committed during the course of latters employment. The note, therefore, runs counter to all that has been urged by Mr. Hussain and the reliance on the said note is absolutely misplaced.
21. For what has been stated above, this appeal fails and is dismissed with costs. Counsel fee Rs. 150/-.