Sitaram Motilal Kalal Vs.
Santanuprasad Jaishankar Bhatt  INSC 40 (8 February 1966)
08/02/1966 SUBBARAO, K.
CITATION: 1966 AIR 1697 1966 SCR (3) 727
F 1977 SC1735 (15)
The owner of a vehicle entrusted it to A for
plying as a taxi. A drove the taxi, collected the fares, met the expenditure
and handed the balance with accounts to the owner. B who used to clean the taxi
was either employed by the owner or on his behalf by A. Presumably because A
wanted another to assist him in driving the taxi he trained B to drive the
vehicle and took B for obtaining a licensed for driving. While taking the test
B caused bodily injury to the respondent. At the time of the accident, A was
not present in the vehicle. On the question whether the owner was liable,
HELD: (Per Hidayatullah and Bachawatt, JJ.)
The owner was 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. It was negatived in this case.
The acts of A and B viewed separately or
collectively were not within the scope of their respective or even joint
employment. The evidence did not disclose that the owner had employed B to
drive the taxi or given him permission to drive the taxi or had asked him to
take test for obtaining a driving licence; nor did it disclose that that the
owner had given any authority to A to employ strangers to drive the taxi or to
take the driving test. A was not present in the vehicle .so that he could be
said to be in control on behalf of his employer when the vehicle was driven.
[537 H; 540 D;
542 F] 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.[1537 G] Rule in Storey v.
Aston, (1868-69) 4 Q.B.D. 476, by Cockburn C.J., applied.
Case law referred to.
An agent could make the principal liable only
for acts done within the scope of the. agent's authority or under the actual
control of the principal. The extension of the doctrine that the act of the
servant or the agent must be for the master's benefit, is not correct. It is
doubtful whether the principle can be extended by the. introduction of the
doctrine of implied authority. [540 G] Smith v.. Martin,  2 K.B. 775 and
Barwick v. English Joint Stock Bank, (1867) L. 2 Ex. 259, doubted.
Per (Subba Rao, J. dissenting) : The owner
528 A was not a mere driver of the vehicle
but was the owner's manager to carry on the business of running his taxi. A
was, therefore, given the authority to do all things, necessary to keep the
taxi in a good condition and to run it effectively, and if for plying the taxi
throughout day and night and during the absence of A an assistant was necessary
to drive the vehicle, A could employ one. A employed B with the approval of the
owner to keep the vehicle in good condition. A in the interest of the employer
instead of engaging a third party as an assistant driver trained B as such and
sought to obtain a licence for him. Therefore, A did not exceed the authority
conferred on him by the owner in employing B as a servant and permitting him to
drive the vehicle in order to obtain a licence for assisting him as a driver.
[533 E-H] Case law referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 615 of 1963.
Apeal from the judgment and decree dated
April,5, 1957 of the Bombay High Court in First Appeal No. 260 of 1952.
M. V. Goswami, for the appellant.
S. N. Prasad, J. B. Dadachanji, 0. C. Mathur
and Ravinder Narain, for the respondent.
SUBBA RAO, J. delivered a dissenting Opinion.
The Judgment of HIDAYATULLAH and BACHAWAT, J.J. was delivered by HIDAYATULAH J.
Subba Rao, J. I regret my inability to agree.
Sitaram Motilal Kalal, hereinafter called the
1st defendant is in agriculturist having lands at Kathwada village. He owned a
motor-car bearing registration No. BYD 316. He entrusted the said car to
Mohmmed Yakub Haji, herinafter called the 2nd defendant, for plying the same as
a taxi in Ahmadabad. The 2nd defendant ran the taxi, collected the fare, met
the expenditure incurred connection with the said service, rendered account to
the 1st defendant and remitted the balance to him. In short, the 2nd defendant
was not merely the driver of the taxi but it was also in entire charge of
plying the taxi in Ahmadabad. The 2nd defendant appointed the 3rd defendant as
a cleaner for the taxi.
Presumably because the 2nd defendant wanted
another to assist him in driving the car during his absence from the city, he
trained the 3rd defendant to drive the car and on April 11, 1940, the 2nd
defendant took the 3rd defendant to the Regional Transport Authority for
obtaining a licence for him. On that date a test was being conducted by the
Regional Transport Officer on the capacity of the 3rd defendant to drive a car
for the purpose of issuing to him a permanent licence for driving. At about 5
p.m. on that day, the plaintiff, who is a pleader practising in the courts of
the district of Ahmadabad, was going out of the compound of the office of the
Regional Transport Authority. At that time, the 3rd defendant was driving the
car towards Lal Darwaja side; without giving any 529 signal, he took a sudden
turn towards the gate of the Office of the Regional Transport Authority,
accelerated the speed and dashed the car with great force against the pillar of
the gate of the said office. In that process, the plaintiff's leg was pinned
between the compound wall and the gate,with the result it was crushed and later
After recovering, from a long illness' the
plaintiff filed a suit, being Special Suit No. 66 of 1950, in the Court of the
Civil Judge, Ahmadabad, for recovery of damages in a sum of Rs. 80,000 from
defendants 1, 2 and 3 and the 4th defendant, the Indian Globe Insurance
Company, Limited, with whom the said car was insured. All the defendants denied
The learned Civil Judge held that the 3rd
defendant was negligent in driving the taxi, that he was the servant of the 2nd
defendant and not of the 1st defendant, and that even if he was the servant of
the 1st defendant as a cleaner of the car, he did not act within the scope of
his authority when he drove the car and caused the accident. In the result, he
gave a decree against defendants 2 and 3 in a sum of Rs. 20,000 and dismissed
the suit against the 1st defendant; he also dismissed the suit against the 4th
defendant, as the 1st defendant, who insured the car, was exonerated from
liability. Against the said judgment and decree the plaintiff preferred an
appeal to the High Court of Bombay in so far as the decree went against him. A
Division Bench of the said High Court came to the conclusion that the entire
management of the car was given to the 2nd defendant, that in discharge of his
duty as such manager he appointed the 3rd defendant with the consent of the 1st
defendant and that by clearest implication the 1st defendant, in the circumstances
of the case, must be regarded as having authorised the act of the 2nd defendant
in training the 3rd defendant as a car-driver and that, therefore, he would be
liable in damages for the accident caused by the negligence of the 2nd and 3rd
defendants in the course of their employment. So, far as the 4th defendant was
concerned, the High Court held that in view of s. 96(1) of the Motor Vehicles
Act, 1939, no decree could be directly passed against it, but the decree
against the 1st defendant could be executed against it in terms of the said
section. It raised the quantum of damages from Rs. 20,000 to Rs. 25,000.
The suit was decreed in favour of the
plaintiff against defendants 1, 2 and 3 with costs. The 1st defendant, by
certificate, has preferred the present appeal.
Mr. M. V. Goswami, learned counsel for the
1st defendant appellant, contended that the findings of the High Court that the
3rd defendant, the cleaner, was the servant of the 1st defendant and that the
2nd defendant was authorised to secure a licence for the cleaner to drive the
car were vitiated by its reliance on two pieces of inadmissible evidence,
namely, the alleged admissions found in the 3rd defendant's written-statement
and in the reply 530 notice given by him to that issued to him on behalf of the
plaintiff. He further contended that the 1st defendant could not be made liable
for the acts of either the 2nd defendant or the 3rd defendant committed outside
the scope of their employment.
Mr. Pershad, learned counsel for the
respondent, though at first made an attempt to sustain the admissibility of the
said two pieces of evidence, later on clearly conceded that they could not be
relied upon against the 1st defendant.
But, he contended that even after the
exclusion of the said two pieces of evidence, on the remaining evidence, the
circumstances established and the probabilities arising therefrom it could be
held, as the High Court did, that the 3rd defendant was the servant of the 1st
defendant, that the 2nd defendant was authorised by the 1st defendant to train
the 3rd defendant as a driver and get a licence for him so that he might assist
him in driving the car during his absence, that the accident took place during
the course of the employment of the 3rd defendant by the 1st defendant and
that, therefore, the 1st defendant was liable in damages for the accident. That
apart, he further argued that the 2nd defendant in discharge of his duty in the
course of his employment negligently entrusted the car to the 3rd defendant for
the purpose of assisting him in the discharge of his duty and, therefore, the
1st defendant would be liable for the accident.
Before we consider the problem presented to
us, it will be useful to notice briefly the relevant aspects of the law of
torts vis-avis the liability of a owner of a car for the acts of his driver.
The doctrine of constructive liability is in
a process of evolution. It is a great principle of social justice. A court no
longer need be overweighed with the old decisions on the subject given under
radically different circumstances, for now the owner of a car in India is not
burdened with an unpredictable liability as there is a statutory compulsion on
him to insure his car against thirdparty liability and his burden within the
framework of the Motor Vehicles Act is now transferred to the insurer.
The general principle is well settled and it
is neatly given by Pearson, L. J., in Norton v. Canadian Pacific Steamships.
" The owner of a car, when he takes or
sends it on a journey for his own purposes, owes a, duty of care to other road
users, and if any of them suffers damage from negligent driving of the car,
whether by the owner himself or by an agent to whom they had delegated the
driving, the owner is liable." The limitation on this principle has been
succinctly stated by Cockburn, C. J., in Storey v. Ashton(2) thus (1)  2
All E.R. 785, 790.
(2) [1868-69] L.R. 4 Q.B. 476,479.
531 .lm15 "The true rule is that the
master is only responsible so long as the servant can be said to be doing the
act, in the doing of which he is guilty of negligence, in the course of his
employment as servant." A valuable test to ascertain whether a servant was
negligent or not is found in Ricketis v. Thos. Tilling, Limited.(1) There the
facts were : the conductor of an omnibus belonging to the defendants, in the
presence of the driver, who was seated beside him, for the purpose of turning
the omnibus in the right direction for the next journey, drove it through some
by-streets so negligently that it mounted the foot pavement and knocked down
and seriously injured the plaintiff. The Court of Appeal held that there was
evidence of negligence on the part of the driver in allowing the omnibus to be
negligently driven by the conductor. In so holding, Buckley, L. J., laid down
the following test :
"It is a question for the jury whether
the effective cause of the accident was that the driver committed a breach of
his duty (which was either to prevent another person from driving or, if he
allowed him to drive, to see that he drove properly), or whether the driver had
discharged that duty." Pickford, L. J., said much to the same effect thus
"It seems to me that the fact that he allowed somebody else to drive does
not divest him of the responsibility and duty he has towards his masters to see
that the omnibus is carefully, and not negligently, driven." This decision
followed the decision in Englehart v. Farrant.(2) There, the facts were : A man
was employed by the defendants to drive a cart by which delivery was to be made
of parcels. The cart was manned by a man and a boy.
The man's duty was to drive; the boy's duty
was to deliver the parcels. The boy had nothing to do with the horses.
The man's instructions were not to leave the
cart. The driver did in fact leave the cart, and while he was absent the lad
drove on and came into collision with the plaintiff's carriage and injured it.
The question was whether the en was liable. Lord Esher, M. R., in his judgment
posed the question to be decided thus : "Now, for what is the defendant
liable ?" and answered it as follows "He is liable for the negligence
of Mears (that was the driver) if that negligence was "an effective cause'
of the subsequent damage to the plaintiff." Then lower down the learned
Judge said "If a stranger interferes (with the driving) it does not follow
that the defendant is liable; but equally it does not (1) L.R.  1 K.B.
644, 646, 650.
(2)  Q.B. 240.
532 follow that because a stranger
interferes, the defendant is not liable if the negligence of a servant of his
is an effective cause of the accident." The said decisions lay down the
following two propositions :
(1) An owner of a car would be liable in
damages for an accident caused by his servant in the course of his employment;
and (2) he would also be liable if the effective cause of the accident was that
the driver in the course of his employment committed a breach of his duty in
either not preventing another person from driving the car or neglecting to see
that the said person drove it properly. We are not concerned in this case with,
accidents caused by a driver or a third party outside the scope of the
employment, for in this case whether the 3rd defendant was authorised to drive
the car by the 1st defendant or not the accident was caused when the car was
being driven for the purpose of efficiently plying the taxi for hire for which
the 2nd defendant was employed by the 1st defendant.
Before considering the evidence in this case,
at the outset some controversial ground may be cleared. The High Court relied
upon the admissions made by the 3rd defendant in his written statement and the
reply given by him to the plaintiff as evidence against the 1st defendant. As I
have indicated earlier, learned counsel for the respondent fairly conceded that
those pieces of evidence could not be relied upon as admissions against the 1st
defendant. Indeed, the High Court, though it accepted the said two pieces of
evidence, alternatively came to the same finding after excluding them from
evidence. For the purpose of this judgment I am assuming that the said pieces
of evidence are not relevant against the 1st defendant. Therefore, I will
exclude the same from my consideration.
Now let me take the case of the 3rd defendant
and ascertain his legal relationship with the 1st defendant. The 1st defendant
was examined as D.W. 1. He deposed as follows : He had agricultural lands in
Kathwada which he was personally cultivating and he resided at Kathwa;year and
a half before April 11, 1949, he had given his car to the 2nd defendant for
plying the same ,as a taxi; the 2nd defendant I had to manage it and he had
full ,control over it; the 2nd defendant paid taxes for the car, spent for
petrol, kept the said car always a the railway station stand, rendered accounts
for the income he got from plying the said taxi whenever the 1st defendant went
to Ahmadabad from Kathwada and met him; the 2nd defendant was paid Rs. 90 p.m.
He admitted in the cross-examination that the 2nd defendant was a
straightforward and honest man, that he managed the taxi on his behalf, that
upto May 1949 he did not go beyond his instructions, that the car was plying
for hire during day and night and that there were no fixed hours of service. He
further stated that he entrusted the 2nd 533 defendant with the duty of purchasing
materials from Bombay.
This witness no doubt denied that he had
authorised the 2nd defendant to engage the 3rd defendant or permitted the 2nd
defendant to teach the 3rd defendant carrying. He also denied that there was
debit of Rs. 30 as pay of the 3rd defendant in the accounts submitted to him by
the 2nd defendant. But the accounts were not produced; and, therefore, an
inference should be drawn against him to the effect that if they were produced
they would show that a salary of Rs. 30 was paid to the 3rd defendant and he
was the servant of the 1st defendant.
The plaintiff was examined as P.W. 1. He
deposed that the 3rd defendant was the cleaner of the car and that he had
personally seen the 3rd defendant cleaning the car in question. The evidence of
this witness so far as he said that he had seen the 3rd defendant cleaning the
car could be accepted particularly when it is consistent with the probabilities
of the case.
From the said facts it can reasonably be held
that the 2nd defendant appointed the 3rd defendant as cleaner of the car,
trained him as a driver and on the day of the accident took him to the office
of the Regional Transport Authority and permitted him to drive the car to
obtain a permanent licence for him.
On the said evidence and the probabilities
arising there from the following inference can reasonably be drawn: The 1st
defendant, being the absentee owner of the car used as taxi, entrusted the
entire management of running the said car as taxi to the 2nd defendant. The 2nd
defendant was not a mere driver of the 1st defendant's car, but was his manager
to carry on the business of running his taxi. The 2nd defendant was, therefore,
given the authority to do all things necessary to keep the taxi in a good
condition and to run it effectively to earn profit. It is also implicit in the
said arrangement that if for plying the taxi throughout day and night and
during the absence of the 2nd defendant from the city an assistant was
necessary to drive the car the 2nd defendant could employ one. The 2nd
defendant employed the 3rd defendant as a cleaner with the approval of the 1st
defendant to keep the car in good condition. In that context, if the 2nd
defendant in the interest of the employer, instead of engaging a third party as
an assistant driver trained the 3rd defendant as such and sought to obtain a
licence for him, it is not possible to suggest that the 2nd defendant in doing
so exceeded the authority conferred on him by the 1st defendant. 1, therefore,
find that the 2nd defendant did not exceed the authority conferred on him by
the 1st defendant in employing the 3rd defendant as a servant and permitting
him to drive the car in order to obtain a licence for assisting him as a
If so, it follows that the 3rd defendant was
the employee of the 1st defendant in his capacity as an assistant to the
driver. In that even 534 the 1st defendant would certainly be liable in damages
for the accident caused by the 3rd defendant's negligence during the course of
Though I am prima facie inclined to accept
the second proposition also as correct and that the 2nd defendant's negligence
in permitting the third defendant to drive the car was the effective cause of
the accident, in view of my first finding it is not necessary to express my
final opinion thereon.
Now let me turn to the other decisions cited
at the Bar.
The decision of the Court of Appeal in
Donovan v. Laing.
Wharton, and Down Construction Syndicate,
Ltd.(1) deals with a case where, though the man in charge of a crane in the
working whereof an accident was caused was the general servant of the
defendants, they had parted with the power of controlling him with regard to
the matter on which he was engaged. They had lent to a firm which was engaged
in loading a ship at their wharf the crane with a man in charge of it. It is,
therefore a case where when the accident took place the man, who was operating
the crane, was not the servant of the defendants.
In Britt v. Galmoye and Nevill(2) the first
defendant, who had the 2nd defendant in his employment as a van driver, lent
him his private car after the day's work was finished to take friends to a
theatre and the 2nd defendant by his negligent driving injured the plaintiff.
It was held that the journey was not on the master's business and the master
was not in control and, therefore, he was not liable for the servant's act. The
principle of this decision is that a owner of a car will not be liable for the
accident caused by his employee if it was caused outside the master's employment.
The decision in Girijashankar Dayashankar
Vaidya v. The B.B. and C.I Railway(3) turned upon the construction of S. 108 of
the Indian Railways Act. The servants of the railway assaulted the plaintiff
for pulling the communication chain.
The Court held that the railway was not
liable as the servants were not authorised under the statute to arrest the
plaintiff for pulling the communication chain and, therefore, they were not
liable for the assualts committed by their servants.
In Nalini Ranjan Sen Gupta v. Corporation of
Calcutta(4) when a chauffeur, who was taking his master's car to a workshop for
repairs, finding the lane leading to it impassable, left the car in charge of
the cleaner, whose duty was only to clean the car and who was forbidden to
drive it, and went to the workshop, and during his absence the cleaner drove it
against and broke a municipal lamppost, it was held on the facts of the case
that the (1) L.R.  1 B.629.
(3) (1918) 20 Bom. L.R. 126.
(2) (1927-28) 44 T.L.R. 294.
(4) (1925) I.L.R. 52 Cal. 983.
535 chaufeur was not negligent and that the
cleaner caused the accident outside the scope of his employment and,
therefore,the owner was not liable.
The decision in Emperor v. Shantaram Ram
Wadkar (1) turned upon the meaning of the word "allowed" in s. 6 of
the Motor Vehicles Act, 1914, and is not of any help in deciding the present
case. The decision in The Managing Director, R.U.M.S. Ltd., Rasipuram v.
Ramaswamy Goudan (2) followed Ricketts v. Thos. Tilling, Ltd., (3) and held
that where the servant who was charged with the duty of driving a bus was
responsible for allowing the conductor to drive and if he was so responsible he
must be equally responsible for the negligent driving by the person who was
permitted to drive.
The last decision accepted the second
proposition and applied it to the facts of the case before the court. The said
decisions do not in any way detract from the view expressed by me.
Both the Courts below concurrently found on
the evidence that the 3rd defendant was guilty of negligence in causing the
accident. We did not permit the learned counsel for the appellant to question
the correctness of the said finding.
I accept it. No argument was advanced on the
question of the quantum of damages.
In the result, agreeing with the High Court,
I hold that the 1st defendant is liable in damages to the plaintiff for the
accident caused by the 3rd defendant. The appeal fails and is dismissed with
Hidayatullah, J. The facts need not be stated
elaborately for there is little dispute about them. We shall therefore content
ourselves with such facts as serve to introduce the reasons for our opposite
The respondent sued three persons for damages
for personal injuries which led to the amputation of one of his legs in a
motorcar accident. The vehicle belonged to the appellant (first defendant) who
had entrusted it to the second respondent for being plied as a taxi. We shall
refer to the appellant as the owner of the vehicle or, shortly, owner.
At the time of the accident, it was driven by
the third defendant to whom it had been handed over by the second defendant for
the purpose of taking a driving test to obtain a driver's licence. In fact, the
motor inspector taking the test was by the side of the third defendant when he
was driving. The second defendant was not present in the car but was present
when the third defendant took the car and had given permission. The suit was
defended by the owner of the vehicle for himself, The second defendant remained
absent at the trial. The third defendant filed a written (1) (1932) 34 Bom.
L.R. 897. (2) L.R. 1957 Mad. 513.
(3) L.R.  I.K.B. 644.
536 statement but took no further interest.
The Trial Judge decreed a part of the claim against the second and third
defendants, but held that the owner of the vehicle was not liable. On appeal to
the High Court of Bombay, the owner of the vehicle was also held responsible
and the decree of the court below was also enhanced. The present appeal is by
the owner of the vehicle on a certificate of fitness granted by the High Court.
We are not concerned with the quantum of
damages and the above facts therefore suffice for the purpose of our judgment.
Since the responsibility of the owner of the vehicle is vicarious, the relationship
between him and the other two defendants must be properly determined and
something may now be said about that relationship.
Admittedly the owner of the vehicle had
handed it over to the second defendant to ply it on hire as a taxi in Ahmadabad.
The second defendant drove the taxi, collected the fares, met the expenses and
handed over the balance with accounts to the owner. The second defendant, of
course, did not do this free. Either he was a servant or an agent. The
difference between a servant and an agent is that the principal has the right
to order what should be done, but the master has an additional right to say how
it should be done. The evidence does not establish that the owner directed how
the taxi should be run and the relationship would be that of principal and
agent. The owner, however, stated that he paid Rs. 90 per month to the second
defendant and this would show that the second defendant was his servant. We
shall consider the matter under both heads.
The relationship between the third defendant
(who was at the wheel when the accident happened) and the owner on the one hand
and the second defendant on the other is in dispute.
There is, however, evidence which has been
believed that the third defendant used to clean the taxi. He was probably
employed by the owner or on his behalf by the second defendant. In addition, it
appears, that he was being trained to take out a driver's licence, presumably
with the idea of taking a share in the driving of the taxi. There is nothing to
show that in this arrangement, the owner had taken any part whatever. The trial
Judge held that the third defendant was a servant of the second defendant and
relied for this purpose on a statement (Ex. P-97) made by the second defendant
to the police when proceedings were taken against the driver for negligently
causing hurt to the respondent. The Trial Judge further held that the third
defendant was not employed by the owner and the owner Was not liable.
Alternatively, he held that even if the third defendant was employed by the
owner, the duty of the third defendant was to clean the car and not to drive
it, and the owner was again not liable because the cleaner was not acting
within the scope of his employment. The High Court relying on the reply of the
third defendant (Ex. P-87) in answer to give a notice from 537 the respondent
and on the written statement (Ex. 16) filed by him in the suit held that the
third defendant was himself probably a servant and in any event, the second
defendant as manager of the taxi was clearly authorized to allow the third
defendant to drive it The High Court therefore decreed the claim against the
owner also and enhanced the amount of damages awarded by the court of trial.
The first question is whether Exs. 97, 87,
and 16 are admissible against the appellant or not. Admission of the documents
means admission of facts contained in the documents. The facts were not deposed
to by any one and the truth of these statements was not in any way tested. To
admit them would be prejudicial to the appellant and strictly speaking no
provision of law makes the admissions admissible against a person other than
the person making them, unless such person can be said to be bound by the
admission. This condition does not obtain here. Learned counsel for the
respondent, although he attempted to do so at first, did not also, rely upon
them. We are of the opinion that these documents. were inadmissible against the
owner. With this evidence excluded. there is nothing to show that the owner had
employed the defendant to drive the taxi or given him permission to drive the
taxi or asked him to take a test to obtain a driver's licence. There is also
nothing to show that he had given any authority to the second defendant to
employ strangers to drive the taxi or to take driving tests. The upshot thus is
that second defendant was a servant of the owner and the third defendant was a
servant of the second defendant or at best a cleaner of the taxi. There is
evidence, however, to show that the second defendant was present when the
vehicle was borrowed for taking the test and had willingly allowed the third
defendant to drive the vehicle fox the purpose. On these facts, the question is
whether the owner of the vehicle can be held responsible.
The law is settled that master is vicariously
liable for the acts of his servants acting in the course of his employment.
Unless the act is done in the course of
employment, the servant's act does not make the employer liable. In other
words, 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 be 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. It was negatived in this case, because the vehicle was
proved to be driven by an unauthorised person and on his own 538 business. The
de facto driver was not the driver or the agent of the owner but one who had
obtained the car for his own business not even from the master but from a
servant of the master. Prima facie, the owner would not be liable in such
Ricketts'(1) case which was relied upon by
the respondent is a ,case in which the driver of an omnibus asked the conductor
to drive the omnibus and turn it round to make it face in the right direction
for the next journey. The master was held liable vicariously, because the
driver was negligent in the performance of the master's work. The driver was in
fact seated by the side of the conductor at the time when the omnibus was
turned round. In other words, the turning round of the vehicle was an act
within the employer's business and not something outside it. When the driver
asked the conductor to drive the omnibus for his master's business, he ,did the
master's work in a negligent way. The master was therefore rightly held
responsible. In Ricketts'(1) case, all the three Judges expressed the opinion
that there should be a new trial. As it was a jury trial and the driver was
sitting by the side of the conductor and had control, the question was whether
it should not have been found what was the "effective cause" of the
accident, that is to say, the act of an utter stranger or that of a servant
acting negligently in the course of his employment. It is significant that in
Trust Co. Ltd., v. de Silva,(2) Ricketts' case was cited but was not referred
to by Lord Tucker pronouncing the judgment on behalf of the Judicial Committee.
The reason was that the case before the Privy Council fell within the rule
which was stated by Lord Tucker to be :
"It is now well settled that the person
in control of a carriage or motor vehicle... ....
though not actually driving.... is liable for
the negligence of the driver over whom he has the right to exercise
control." The above principle is applicable When the person owning the
vehicle is present. In Ricketts'(1) case the driver was present and he asked
the conductor to do the work which he was employed to do and this negligence
made the omnibus company liable. In Beard v. London General Omnibus Co.(3) the
conductor attempted to turn the omnibus an his own initiative and caused an
accident. The company was held not liable, because it was not a part of the
conductor's duty to drive the omnibus. It was not negligence in the course. of
Similarly, in Engelhart's(4) case, two
servants were engaged ,upon their master's.business. One was to drive a cart
and mind the (1) L.R.  1 K.B. 644, 646, 650.
(2)  1 W.L.R. 376.
539 horses and the other-a boy travelling in
the cart was to deliver parcels. The driver left the cart unattended and the
boy drove it to deliver the parcels and caused the accident. The master was
held responsible. The driver ought to have known that if he left the cart the
boy would drive it in the fulfillment of the work of the master. When the
driver left the cart in the charge of the boy he acted negligently in the
course of his master's business. No doubt, 'the effective cause' was the
negligence of the servant which made the master responsible but that is not the
whole of the matter.
In Ricketts'(1) and Engelhart's(2) cases each
servant was acting on the master's business at the time. If the two servants in
the Engelhart's case(2) had gone for a picnic or the boy had borrowed the cart
to give a joy ride to his friends, the master would not have been liable
although the effective cause would still have been the elder servant's
negligence. The difference lies in this that in the two cases the negligent act
took place in the execution of the master's business and in the examples
suggested by us, no question of master's business or the scope of the servant's
or agent's employment arises because the acts are clearly outside that scope.
Going for a picnic or lending the cart so that the co-servant's friends may go
for an outing is not in the course of the master's employment. Beard's case(3)
when compared with Ricketts' case(1) brings out the difference. In Britt v.
Golmoye and Nevill(4) the master himself lent the car to the servant for the
latter's private work and the master was not held responsible for the
negligence of the servant in causing injury because neither was the journey on
the master's account nor was the master in control at the time. Sir John
Salmond (13th Edn. p. 124) has summed up the law thus :
". . . . a master is not responsible for
the negligence or other wrongful act of his servant simply because it is
committed at a time when the servant is engaged on his master's business. It
must be committed in the course of that business, so as to form a part of it,
and not be merely coincident in time with it.,', The scope of employment of a
servant need not of course be viewed narrowly, but the essential element that
the wrong must be committed by the servant during the course of the employment,
i.e. in doing the master's business ought always to be present. In Century
Insurance Co. v. Northern Irelwu Road Transport Board,(5) the driver of a
petrol lorry while transferring petrol from the lorry to an underground tank,
struck a match to light a cigarette and threw it on the floor, and thereby
caused a fire and explosion which did great damage. The masters were held
liable because the negligence was in the discharge of the duty by the servant.
Although the act (1) L.R.  1 K.B. 644.
(2)  1 Q.B. 240.
(3)  2 Q.B. 53D. (4) (1927-29) 44
(5)  A.C. 509.
540 of lighting the 'cigarette was something
the driver did for himself and was by itself quite harmless, it could not be
regarded in the abstract and was a negligent method of conducting the master's
work. Similarly, in .Smith v, Martin(1) a school authority was held liable when
a 'teacher, during school hours sent a girl aged 14 wearing a print pinafore to
poke the fire and to draw out the damper in a grate in the teacher's common
room and the child was burnt. It was held that the teacher's duty was to
provide education in the widest sense and included expecting obedience from the
pupils and this was an act of negligence in the discharge of such duty.
We know of no further extension of the
doctrine of a master's liability for the act of his servants during the course
of his employment which would cover this case. It cannot possibly be stated
today that the master is responsible for the acts of his servant done, not in
the course of employment, but outside it. In the present case, the third
defendant was not doing the master's work nor was the second defendant acting
within the scope of his employment when he lent the taxi. The third defendant
had borrowed the taxi for a work of his own and the second defendant in lending
it was not acting in the master's business. The second defendant was not
present in the taxi so that he could be said to be in control on behalf of his
employer when the taxi was driven.
The law with regard to agents is the same. As
was observed by Lord Atkinson in Samson v. Aitchison(2) it is a matter of
indifference whether a person be styled a servant or agent since it is the
retention of control which makes the owner or the principal responsible. Just
as the tort must be committed by a servant either under the actual control of
his master or while acting in the course of his employment, the act of the agent
will only make the principal liable if it is done within the scope of his
authority. By a process of ratiocination, the courts have made a slight
distinction by attempting to find a 'right of control' as the basis of the
master's liability and have distinguished it from a 'right to control' in cases
of simple agency to bring the two cases together. We find it simpler to state
the law that an agent will make the principal responsible so long as the agent
does the act within the scope of his authority or does so under the actual
control of the principal. We do not subscribe to the extension of the doctrine
that the act of the servant or the agent must be for the master's benefit. This
extension was made by Willes J. in Barwick v. English Joint Stock Bank(3). The
Word 'benefit' is vague and it is better to adhere to the words 'course of
employment or the scope of authority'. There is much institutional criticism of
such extension. Similarly, we are doubtful whether the extension of the
principle by the introduction of the doctrine (1)  2 K.B 775, 784.
(3)  L.R. 2 Ex. 259.
(2)  A.C. 884.
541 of implied authority, which was relied
upon in the school master's case referred to above, was quite correct. If the
dictum is accepted, not only the master would be liable for what he may be
supposed to have 'impliedly authorised' the servant to do (however illegal but
also for all the servant's negligence not in doing his duty but in doing
something on his own account when he should be properly acting for the master.
The true rule in such cases is the one stated by Cockburn C. J. in Storey v.
Ashton(1) thus "...... that the master is only responsible so long as the
servant can be said to the doing the, act, in the doing of which he is guilty
of negligence, in the course of his employment as servant." or as Lush J.
put it, "The question in all such cases as the present is whether the
servant was doing that which the master employed him to do." There has
been in recent years another extension of the responsibility of the principal
for the act of an agent. In Ormrod and another v. Crosville Motor Services
Ltd., and another(2) the owner was attending the Monte Carlo motor car rally.
He asked a friend to drive the car from Birkenhead to Monte Carlo. The friend
was carrying a suit case belonging to the owner. Later they were to go a
holiday together in the car. While the motor car was being driven it collided
with a motor omnibus and the owner of the car was held responsible for the
damage. Singleton, L. J.
"It has been said more than once that a
driver of a motor car must be doing something for the owner of the car in order
to become an agent of the owner. The mere fact of consent by the owner to the
use of a chattel is not proof of agency, IT but the purpose for which this car
was being taken down the road on the morning of the accident was either that it
should be used by the owner, the third party, or that it should be used for the
joint purposes of the male plaintiff and the third party when it reached Monte
Carlo." Lord Denning (then Lord Justice) observed:
"It has often been supposed that the
owner of a vehicle is only liable for the negligence of the driver if that
driver is his servant acting in the course of his employment. This is not correct.
The owner is also liable if the driver is, with the owner's consent, driving
the car on the owner's business or for the owner's purposes.
.... The law puts an especial responsibility
on the owner of a vehicle who allows it to go on the road in charge of some(1)
[1868-69] 4 Q.B.D. 476.
(2)  2 All E.R. 753.
1SupCI/66-3 542 one else, no matter whether
it is his servant, his friend, or anyone else. It is being used wholly or
partly on the owner's business or for the owner's purpose, the owner is liable
for any negligence on the part-of the driver.
The owner only escapes liability when he
lends it or hires it to a third person to be used for purposes in which the
owner has no interest or concern." Even these dicta which make the owner
or principal responsible when the vehicle is driven partly on their account and
partly on the business of the driver, do not take the matter much further. The
learned Judges found the agency from the desire of the owner that the friend
should carry his suit case and keep the car ready at Monte Carlo for a holiday.
Applying the above tests to the facts of this
case, we find that there is no proof that the second defendant was authorised
to coach the cleaner so that the cleaner might become a driver and drive the
taxi. It appears more probable that the second defendant wanted someone to
assist him in driving the taxi for part of the time and was training the third
defendant to share the task of driving.
The owner stated on oath that he had not
given any such authority to the second defendant. The trial Judge accepted that
evidence. The High Court differed from the trial Judge by relying upon
inadmissible evidence. Once the inadmissible evidence is rightly excluded, it
is quite clear that this was an act done not on the owner's business but either
on the business of the third defendant or that of the third and the second
defendants together. It has not been proved to have been even impliedly
authorised by the owner or to come within any of the extensions of the doctrine
of scope of employment which we have noticed above. The High Court would
probably not have passed a decree against the owner if it had not been
persuaded to hold the three pieces of evidence to be admissible and relevant.
In the absence of that evidence the acts of the second and the third defendants
viewed separately or collectively were not within the scope of their respective
or even joint employment and the owner was therefore not responsible. We would
accordingly allow the appeal, in so far as the appellant is concerned but in
the circumstances of the case would direct that there should be no order as to
ORDER In accordance with the opinion of the
majority the appeal is allowed in respect of the appellant. In the
circumstances of the case there would be no order as to costs throughout.