PIRTHI SINGH Vs. BINDA RAM

JUDGEMENT

(1.) Kanwar Pal son of the appellant died of the injuries received by him on Nov. 29-11-1976 while travelling in Truck No. HYB 5137 driven by Mahavir respondent 2. In the claim petition filed against the owners of the truck, driver and the Insurance Company, the appellants were awarded Rs. 5,000/- as compensation and Mahavir alone was held responsible for its payment. The owner of the truck was exonerated on the ground that as the deceased was carried as a passenger unauthorisedly in contravention of Rule 4.60, Punjab Motor Vehicles Rules, 1940, he could not be fastened with vicarious liability for the tortuous act committed by the rash and negligent driving of the truck by his employee. Reliance for this view was placed by the Tribunal on the Division Bench decision of this Court in Jiwan Dass Roshan Lal v. Karnail Singh, 1980 Acc CJ 445. When the matter came up in appeal before my learned brother Sodhi, J. he thought that the decision in Jiwan Dass Roshan Lal's case (supra) required reconsideration in view of the decision of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., 1977 Acc CJ 343 and referred the case to the larger Bench. This is how we are seized of this matter.

(2.) In Pushpabai Purshottam Udeshi's case (supra) Purshottam Tulsidas met with his death in a motor car accident when he was travelling in the car which was driven by Madhavjibhai, Manager of the opponent company, Messrs Ranjit Ginning and Pressing Co. Private Limited, in a rash and negligent manner. The heirs of the deceased claimed compensation from the owner as well as the Insurance Company. One of the pleas raised in defence was that the deceased was travelling in the said vehicle on his own responsibility, for his own purpose and absolutely gratis and not on behalf of or at the instance of the owner or the driver of the vehicle and, therefore, the respondents could not be made vicariously liable for any negligence on the part of the driver. The High Court found that the car was going on the business of the Company and so was Madhavjibhai but further held that there being no pleading or the material on the record to establish that Purshottam Tulsidas was travelling in the vehicle either for some business of the owner or under any ostensible authority from them, the accident could not be said to have taken place in the course of the employment of Madhavjibhai or under the authority of the company. Relying on the statement of law expressed by Lord Justice Denning in Young v. Edward Box and Co. Ltd. (1951) 1 TLR 789, the Supreme Court reversed the judgement of the High Court observing thus :-

(3.) Now, we may notice the decisions relied upon by the learned counsel for the respondents. In Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 1966 Acc CJ 89, the Supreme Court referred to the English case, Britt v. Galmoye and Nevill (1928 (44) TLR 294) in para 27 and pointed out that the owner of the car will not be liable for the accident caused by his employee if it was caused outside master's employment. What happened there was that the owner lent the van to his driver after day's work was over to take his friends to a theatre and the driver by his negligent driving injured the plaintiff. On these facts it was held that the journey was not on the master's business and, therefore, he was not liable for the servant's act. The rule laid down in this case obviously is of no help to the respondents. In Krishna Ramayya Gouda v. C. P. C. Motor Co., AIR 1983 Kar 176, the Bench relying on the observations quoted Pushpabai Purshottam Udeshi (AIR 1977 SC 1735) held that the owner was not vicariously liable because the deceased was carried in the truck in direct contravention of R.161. The Supreme Court in Pushpabai Parshottam Udeshi's case only disapproved the observation of Lord Goddard, Chief Justice, in Barkar v. Levinson (1950 (60) TLR (Pt. 2) 717) to the effect that the master is responsible for the criminal act of the servant if the act is done within the general scope of the servant's employment. The disapproval of the said observation cannot be interpreted to mean that the master would not be liable for the civil consequences of the act of his employee done in the course of his employment because in doing so, he has contravened some rule or the provision of the Act. Causing the death by rash and negligent driving by an employee of the master is also a criminal act punishable under the law of crimes. Even though the act of the employee amounts to a criminal act still the master is liable for the civil consequences of the act of his employee. With due respect to the learned Judges, we feel that the observations of the Supreme Court in Pushpabai Parshottam Udeshi's case (supra) were not correctly interpreted in Krishna Ramayya Goude's case (supra) and are, therefore, unable to subscribe to the rule laid down therein. In United India Insurance Co. Ltd. v. Abdul Munaf, 1984 0 ACJ 653, the Bombay High Court on appreciation of the evidence took the view that the driver was expressly prohibited from taking the passengers in the vehicle and as such it was held that the conveyance of the passengers by the driver was not during the course of his employment. With due respect to the learned Judges we are unable to accept the proposition that if the driver had been expressly prohibited not to take passengers in the truck, the owner would be absolved of his liability. The express prohibition by the master cannot have better sanction than the provisions of the rule framed under the Act which prohibited the carrying of passengers in a truck. The determining factor as already stated above so far as the liability of the owner is concerned is whether the act was committed by the driver in the course of his employment or not. If the driver was acting in the course of his employment then the owner would be liable even though acted against the express instructions of the owner or in violation of the Rules framed under the Statute.