The Gondara Transport Company (P) Ltd. vs Ram Nath

D.S. Tewatia, J.—The facts leading to the present appeal (F.A.O. 127 of 1968) are that on 11th August, 19616, bus No. PNB-5088, belonging to the Appellant-company, Gondhara Transport Company Limited, while carrying passengers, met with an accident. As a result of the said accident, many passengers were injured and out of the injured passangers, one Gurjant Rai, a boy of about seventeen years of age, succumbsd to his injuries received in the said accident. Five persons made applications claiming compensation and Ram Nath, father of Gujrant Rai, was one of them, who claimed compensation, vide his claim application No. 306/CT/66.

Since all the claim applications related to one and the same accident and the Respondents'' evidence regarding the facts of accident as well as the defence taken up by them being the same in all the applications, they were consolidated by the Tribunal with the consent of the parties. He also ordered the evidence to be recorded in claim application No. 303/CT/66 which was to be read in all the other claim applications. Thus the Tribunal disposed of all the claim applications by one award, dated 10th July, 68. The Company, one of the Respondents, being dissatisfied by the award of the Tribunal has challenged the same in this Court by way of an appeal, (F.A.O. 127 of 1968). Ram Nath Applicant in claim application No. 306/CT/ 66, who was awarded Rs. 12,500/- as compensation, has also filed an appeal (being F.A.O. 89, of 1969) against the said award of the Tribunal. Both these appeals will be disposed of by this Judgment.

Mr. J.S. Wasu, learned Counsel for the Appellant-Company in F.A.O. 127 of 1968, has urged that the Tribunal has gravely erred in holding the Appellant-Company to be vicariously liable for the negligence of the driver who was not authorised by it to drive the ill-fated bus. To appreciate the contention of the learned Counsel it will be appropriate at this stage to notice the facts regarding the accident. It is admitted on all sides that one Mal Singh was the driver of the bus involved in the accident and it was he who was authorised to drive the said bus to its destination. It is also admitted on all sides that at the time when the bus met with the accident it was Gurbachan Singh mechanic, also an employee of the Appellant company, who was at the steering wheel. It has not been urged by the learned Counsel that the accident did not occur because of rash and negligent driving by Gurbachan Singh mechanic.

Now the question that arises for determination in this case is as to what is the extent of the vicarious liability of a master for the negligent act of his servant. The learned Counsel for the Appellant company, in support of his contention that the Appellant-company could not be held responsible for the negligence on the part of the driver of the ill-fated bus, referred to a decision of their Lordships of the Supreme Court reported in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt and Ors. 1966 A.C.J. 89 and specifically relied on para 13 of the Judgment, which reads--

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 a 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 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 Defendant 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 and in the circumstances of the case would direct that there should be no order as to costs throughout.

I have carefully gone through the judgment referred to by the: learned Counsel for the Appellant-company and am of the opinion that the facts of that case were different from that of the present case. It was found as a fact in that case that the cleaner was driving the car with a view to learn driving and the driver of the car was not in it and was not exercising any control over the cleaner, while in the present case the driver of the bus Mal Singh was in the bus and was exercising control over the mechanic who happened to drive the bus at a fatal moment for the deceased. The facts of this case are somewhat similar to the facts of Ricketts v. The Thomas Tilling Limited L.R. (1915) 1 K.B. 644. That 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. In that case, on those facts, the master was held liable vicariously because the driver was negligent in the performance of the master''s work. The driver in fact sat by the side of the conductor at the time when the omnibus was turned round and the accident occurred and it was held that 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. Similarly, in the present case, the driver landed over the bus to be driven by Gurbaohan Singh mechanic, an employee of the Appellant-company, for the reasons best known to the driver himself or the mechanic, who have not been examined as witnesses. However, it is not strange for the motor mechanic to be at the steering wheel of the said bus because to repair and test the vehicle is also a part of his duties, though to repair or test a vehicle at a time when it is full of passengers may be a negligent way of doing his job. So, in the circum stances of the present case, I am of the opinion that the Tribunal has rightly found the Appellant-company vicariously liable for the negligent manner of doing its job on the part of the driver, Mal Singh, inasmuch as he instead of performing his duties himself acted negligently in allowing Gurbachan Singh mechanic to drive the vehicle.

Mr. L.M. Suri, learned Counsel for the Respondent, has drawn my attention, in support of his contention that a master is vicariously liable for the negligent acts of his servants, to a Single Bench decision of this Court reported in Behari Lal v. Surinder Singh and Ors. ILR (1965) P&H 155, wherein Shamsher Bahadur J. made the following observations--

Thus when the driver has delegated his duty to be performed by a cleaner as in this case this negligent act of the driver would make the master liable on the principle of delegation.... In the instant case the driver himself handed over the steering wheel to the cleaner while he was himself sitting next to him and it cannot be said that the vehicle was not being run in the course of the driver''s employment.

I am in respectful agreement with the view expressed by Shamsher Bahadur, J (as he then was) in Behari Lal''s case. So, F.A.O. 127 of 1968 has no merit.

As regards the inadequacy of compensation raised in the connected appeal (F.A.O. 89 of 1969), I am of the opinion that the Tribunal has correctly assessed the amount of compensation. The learned Counsel for the Appellant, Mr. L.M. Suri, in that case, has urged that the Tribunal has taken the life expectancy of the deceased to be only-sixty-five years, when in fact the life expectancy in Punjab has been taken to be seventy years by this Court in a case reported as Sukhdev Singh v. Pepsu Road Transport Corporation, Patiala 1969 A.C.J. 197 The question as to whether a person is likely to live up to a certain age is, more or less a guess work and unless the evidence of a compelling nature has been ignored in arriving at the possible age, which a person would have attained before dying, it is not desirable to interfere with the finding of the Tribunal and the learned Counsel has not pointed out to any piece of evidence which the Tribunal has not taken into consideration or which is so compelling that this Court will be inclined to hold that the person, whose age is under consideration, would have lived for more than sixty-five years or up to the, age of seventy years. The learned counsel has further urged that the amount, which the deceased would have contributed for the maintenance of the Applicant-Appellant, is very inadequate. Here again, the finding of the Tribunal is unassailable, as it cannot be said with any amount of certainty that the deceased would have contributed more for the maintenance of the Applicant-Appellant. The learned Counsel has not even pointed out to any evidence which could show that the deceased would have contributed more for the maintenance of the Applicant-Appellant than that has been calculated by the tribunal. Hence there is also no merit in F.A.O. 89 of 1969.

In view of the above conclusions arrived at by me, both the appeals fail and are dismissed, but there is no order as to costs.