NARAYANAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE Revision Petitions arise from the order passed by the Sub Magistrate, Kozhikode in C. C. Nos. 505/66,482/66 and 488/1966, and confirmed in appeal by the District Magistrate, Kozhikode in Criminal Appeal Nos. 118,119 and 120 of 1966 respectively, in cases of over-loading in buses belonging to the Cooperative Society for ex-servicemen, panniyankara. The first accused in these cases is the conductor in the respective buses and the second accused in all these cases is the Secretary of the Society who is a Government officer whose services were lent to the society.

(2.) THE conviction of the second accused is challenged before me in these cases. THE point taken is that the 2nd accused as Secretary, is not responsible for the alleged overloading and even if overloading is a fact he had not authorised the conductor to have the overloading. In other words, the contention is that vicarious liability on the basis of which the 2nd accused has been made liable, has not been established in these cases. THE courts below seem to have followed the decision of this court in Ahamed v. State of Kerala (1964 KLT. 686) where the learned single Judge has held that in cases where the owner is seen to have been benefitted financially by the unauthorised act of the driver or the conductor he should be made liable. I am afraid the ruling has been misconstrued by the courts below. THE question, broadly speaking, is one of relative responsibility of master and servant. A master is normally liable for all the wrongs of the servant if committed in the course of employment. But if the act complained of falls outside the scope of employment, that is to say, an act not authorised by the master, no liability can be fastened on him. THE test of liability in such cases is whether the wrong committed by the servant is of the class of acts which are expressly authorised by the employer or is incidental to such act, or in other words, whether the wrong is an improper mode of doing an act which is authorised, or is incidental to such an act. THE Madhya Pradesh High court has held in Mannasingh v. State (AIR. 1960 MP. 151) Gwalior Bench): "if the conductor and the bus driver conspire together and overload a bus, the owner cannot be punished unless, of course, it is proved that the overloading was done at the instance or with the approval of the owner. " So also, Justice Horwill of the Madras High Court would observe in In Re. Devaraja Mudaliar (AIR. 1938 Mad. 998): "the wording of R-15a and the general plan of the M. V. Act show that the burden is on the prosecution to show that an accused knew that the lorry was overloaded. Such knowledge could be proved by adducing evidence that, for example, the lorry had just left the owner's premises or that all the goods on the lorry had come from there. " That was a case like the present one, of overloading at the instance of the driver and the conductor, without the knowledge of the owner. THE learned judge held that unless the owner was fixed with knowledge of the overloading, no liability could be fastened on him therefor. Knowledge or acquiescence in the act can be presumed in cases where the lorry was already overloaded when it left the garage or that the goods of the lorry came from the premises of the owner,

(3.) I do not think this is an unfailing or sound test to fasten knowledge on the master of the unauthorised acts of the servant. In a case of overloading, the accounts maintained in the office might show that the society was benefitted; but from that how could it be presumed that the overloading was authorised by the master or that he was privy to the said unauthorised act? The prosecution, in such cases, must further show that the collections were checked up by the secretary and he was satisfied that the excess collection came from overloading and in such a case if no steps were taken by him to stop it, some sort of a knowledge could be imputed to him. In the present case, there is no such knowledge imputable to the Secretary. In the circumstances, the conviction and sentence passed on the secretary must be vacated.