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Report No. 01

20. Vicarious liability of the master.-

The question that arises in limine is to consider who a "servant" is. Section 38(2) of the Act defines an "officer" in relation to the Crown as including any servant or agent of His Majesty and accordingly (but without prejudice to the generality of the foregoing provision) includes a Minister of the Crown. "Agent" is defined in section 38(2). Section 2(6) defines "officer" for the purpose of section 2.

This definition has been severely criticised on the ground that it excludes very many officers who hold office under common law such as the police who are appointed by the local authorities in England. It is unnecessary to consider these difficulties as under the Indian Constitution the question of definition of an officer or servant or agent of the Union and the States does not present any such difficulties.

The definition of "Agent" includes an independent contractor. But section 40(2)(d) makes it clear that the Crown is under no greater liability in respect of the acts or omissions of an independent contractor employed by the Crown than those to which the Crown would be subject in respect of such acts or omissions if it were a private person. The exceptional cases in which a private person is liable even for torts of an independent contractor are enumerated in all the text-books1.

1. Clerk & Lindsell on Torts, 11th Edn., p. 137.



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