VICARIOUS LIABLITY OF A DRIVER

ANALYSIS & CASE STUDY

SUBMITTED BY

NIHAL KUMAR

1 YEAR BA LLB(HONS.)
ST

REGD. NO.- 221FU01008

SUBMITTED AS INTERNAL ASSESMENT

TO

DR. PRAVEEN KUMAR

LLB, LLM, [PHD]

DIRECTOR

VIGNAN INSTITUTE OF LAW

You got hurt in a car accident. Now, you find out that the at-fault driver didn’t
even own the car he was driving. So what does that mean for your rights? Does
the driver owe you damages? Does the car’s owner? Do both of them?
We have to understand what does liability means in accident?
When lawyers talk about “liability” for a car accident, they’re referring to a
legal obligation to pay financial compensation for the injuries and losses
suffered by an accident victim.

That legal obligation typically arises from the law and/or from a contract, most
commonly an insurance contract (also known as an insurance policy):
Fault for the Accident
The law assigns liability for a car accident in several ways. First, and most
importantly, the party at fault for a crash generally owes financial compensation
to anyone who suffers injuries in it.

The most common form of fault in the law is negligence, which occurs when:

 Someone owes a duty of care to another person to refrain from

acting in an unreasonably dangerous manner;

 That someone breaches the duty of care by acting in an

unreasonably dangerous manner, thereby putting another person in
harm’s way;

 Those unreasonably dangerous actions cause the other person to

suffer an injury; and

 The injury is of the type that it can be remedied by payment of

financial damages or other forms of legal relief.
 Here’s an illustration of how the principle of negligence works in a car
accident case. All drivers owe everyone else on and near the road a duty
of care not to engage in dangerous or reckless actions behind the wheel.

A driver breaches that duty of care by, for example, speeding, driving drunk, or
texting-and-driving. If those (or any other) unreasonably dangerous activities
while driving cause an accident that injures others, the law deems that driver
negligent and the driver will owe financial compensation to the crash victims.
In addition to negligence, the law can assign fault for an accident in other ways.

For example, an individual or entity can cause an accident if they:

 Engage in intentionally harmful conduct (such as road raging);

 Manufacture or sell defective automotive products;

 Sell or provide alcohol to a minor or (in some states) an already

intoxicated person who goes on to cause a drunk driving accident.

We will have to see different scenarios where liability in case of accident can be
decided :
First, as we’ve explained, the general rule is that an at-fault driver who causes
an accident through negligence or other blameworthy conduct will have a legal
liability to the victims of a crash. Those victims will usually have the right to
take legal action against the driver for monetary damages unless they registered
their car in a no-fault insurance state and their own no-fault insurance covers all
of their injuries and losses.

Next, if the vehicle owner was the driver’s employer, and the owner allowed the
driver to use the car knowing that the driver was dangerous or incompetent, or if
the accident happened, then chances are good that the owner will also have a
legal liability to the crash victims.

Finally, depending on the types and amounts of insurance coverage carried by

the driver, the victims, and the owner, and the law of the state governing the
rights and obligations of the parties, one or more insurance companies may have
a contractual obligation to pay financial compensation to the victims on behalf
of a legally liable party.
Analysing the vicarious liability of a driver in case of
accident.

In the past, a defendant would only have been vicariously liable for
the negligence of a driver if the driver was acting in the course of their
employment for the defendant. The law has developed significantly since then.
If the driver was not an employee of the defendant, a potential claimant will
now need to consider the relationship between the driver and the defendant and
the connection between that relationship and the driver’s negligence.
A personal injury claimant will typically be seeking to establish the fault,
whether negligence or breach of a statutory duty, of the identified defendant (for
instance the employer). However, an alternative route to liability may often be
available—that of the vicarious liability of the employer for the act or omission
of its employee or agent.
Vicarious liability has developed steadily. Originally, the application of the
doctrine was largely confined to the simple case of the employee in the course
of their duties negligently causing injury to another person, often a fellow
employee. The claimant was required to show that the negligence or other
breach of duty (usually an act rather than an omission) was committed by an
employee acting in the course of their duties. Where this is established, liability
is said to be strict in the sense that there is no requirement to establish fault on
the part of the employer.

Although the test of whether the negligence was committed by an employee in

the course of their duties still has some relevance and application, there has
been significant development in the law following the decision some cases.
Now we will study some cases to see such developments and liability of
driver and employer :

We can understand that there is no universal criterion for vicarious liability

John Davies Q.C. and T. E. Lewis-Bowen for the respondents. There is no

universal criterion for vicarious liability. The common law has always been
very careful about dangers in the highway, putting especial responsibility on
those who create them. The principle which justifies differentiating a motor
vehicle from other chattels is that a motor vehicle is on the highway where it is
productive of very great injury. As soon as other chattels, for example, guns,
present a similar threat to society then no doubt the common law will be equal
to the occasion and evolve a stricter rule than it at present applies .

If someone takes a car without permission and gets into an accident, the owner
is not responsible. However, if the driver was uninsured, injured victims may
still be able to make claims against the owner’s insurance .
Here difficult thing is to decide driver’s liability in the cases of accident,
because its not fair to declare the owner always liable just due to the reason that
the owner had employed him for his services. In my view law should be
constructive in nature to see every aspect of the matter where someone else
have to suffer for any one else act. Although it is acceptable in civil case at
some extent where owner have to only compensate for driver’s act which have
occurred loss to plaintiff, but if same picture we apply in to criminal cases,
where not only fine but punishment is also applicable. Then the harsh side of
deciding the liability comes.

Case study [1st case] TRILOK SINGH V. KAILASH BHARATI AND

OTHERS 1986, ACJ 757(P & H)
S.S. Sodhi, J.-The accident here was between a cycle and a motor-cycle,
resulting in the death of the cyclist - Jagdish Chander Bharti, who later died in
hospital on account of the injuries sustained. This happened at Yamuna Nagar
on September 22, 1978, 2. It was the finding of the Tribunal that the accident
here had been caused by the rash and negligent driving of Sukhdev Singh, the
driver of the motor-cycle. A sum of Rs. 36,000 was awarded as compensation to
the claimants, they being the widow and children of Jagdish Chander Bharti
deceased. 3. Assailed in appeal now, is the finding recorded on the issue of
negligence as also the liability fastened upon Trilok Singh - the owner of the
motor-cycle, for the compensation awarded. The contention raised being that
the deceased had died as a result of the injuries sustained on falling from his
cycle when he suddenly turned it and not on account of the motor-cycle hitting
into it. As regards Tirlok Singh, the case pleaded was that he was in Dubai at
the time of the accident and Sukhdev Singh - his younger brother, had taken the
motor-cycle without his knowledge or consent and he could not, therefore, be
held vicariously liable for the accident that occurred. 4. The case pleaded by the
claimants was that Jagdish Chander Bharti, deceased, was proceeding towards
his Transport Company on cycle when the motor-cycle came from behind and
hit into his cycle as a result of which he fell down and sustained injuries. It was
said that the motor-cycle was being driven at a fast speed and in a rash negligent
manner when this happened. 5. The driver of the tor-cycle, Sukhdev Singh, on
the other hand, came forth with the version that Jagdish Chander Bharti had
suddenly came on to the road from an approach road and then abruptly turned to
his right when somebody had shouted to him to get a truck unloaded. Seeing
this, he (Sukhdev Singh) had to immediately apply his brakes as a consequence
of which he fell off the motor-cycle and it was then that the cycle of Jagdish
Chander Bharti came and hit into the fallen motor-cycle as a result of which he
too fell down and sustained a head injury. 6. Further, it was said that after this
accident, he (Sukhdev Singh) signalled to a truck standing nearby which then
came and took him and Jagdish Chander Bharti and left them at the gate of the
Civil Hospital, Yamunana Nagar. 7. The accident, as per the case of the
claimants was deposed to by A. W.2 Madan Lal Taneja, who stated that he was
an eye-witnesses to it. According to him, Jagdish Chander Bharti was on his
correct side of the road when the motor-cycle came from behind at a very fast
speed and struck against his cycle, knocking him down unconscious. It was
further his testimony that it was he and Om Parkash who then removed Jagdish
Chander Bharti to the Civil Hospital, Yamuna Nagar in a truck where he died in
the early hours of the next morning. 8. When the driver of the motor cycle
R.W.6 - Sukhdev Singh came to the witness box, he had a some- what different
story to narrate than one given in his return, namely, that when he suddenly
applied the brakes on seeing Jagdish Chander abruptly turn his cycle, he became
unconscious "on seeing the situation". 9. He made a categoric statement that his
motor-cycle did not strike the cyclist nor did he made any mention of the cycle
hitting the motor-cycle as had been stated in the written statement. The two
witnesses examined in support, namely, R.W.4 - Tara Singh and R.W.5 -
Charanjit Singh also did not depose to any collision between the cycle and the
motor-cycle. 10. The Tribunal rightly relied upon the testimony of A.W.2 -
Madan Lal considering the fact that it was on his statement that the first in-
formation report relating to this accident was recorded, which was consistent
with what he had de- posed in court. Further it was he who had taken the
deceased to the hospital and there is also his un- challenged testimony that he
had come with the police from the hospital to the place of accident after leaving
the deceased there. On the other hand, it deserves note that while in his written
statement Sukhdev Singh had stated that it was he who took Jagdish Chander
Bharti, deceased, to the hospital in a truck, when he came to the witness box, he
deposed differently, namely, that he became unconscious when the accident
occurred. He made no mention of the deceased being taken to the hospital by
him and in what manner. The two witnesses examined by him namely, R.W.4
Tara Singh and R.W.5 Charanjiit Sigh, did not join in the investigation of the
case and it was the first time in court that they had came and deposed in this
manner. The Tribunal, therefore, rightly did not rely upon their testimony or
that of Sukhdev Singh. 11. Mr. R.S. Bindra, counsel for the appellant sought to
impeach the credibility of A.W.2 - Madan Lal by seeking to brand him as an
interested witness on the ground that he shared his office and telephone with
Jagdish Chander Bharti, deceased. This cannot be taken as a circumstance
against this witness. Great stress was also laid upon the fact that there was a
delay in the recording of the first information report. In the circumstances, the
delay here cannot be treated as a matter of much significance considering the
fact that it was this witness who took the injured to the hospital and was with
the police when they went to the place of accident. The delay in making of the
statement to the police cannot thus be attributed to Madan Lal. 12. A point was
also sought to be made of the fact that the motor-cycle and the cycle involved in
the accident were not exhibited in this case. It deserves note that at no stage was
any such request made by any of the parties. This circumstance, cannot,
therefore, be taken as any ground for questioning the finding of the Tribunal on
the issue of negligence. 13. Taking an over-all view of the circumstances of the
case in the light of the evidence on record, no exception can be taken to the
finding of negligence recorded against the driver of the motorcycle. 14. In the
matter of assessment of compensation payable to the claimants, the Tribunal
clearly fell in error in taking '12' to be the appropriate multiplier. The settled
rule now is that '16' is the normal multiplier in such cases. With the deceased
here being only 44 years of age are having a widow and four children to
support, no occasion was provided for adopting any lesser multiplier. Taking
the loss at Rs. 3,000/- per annum, as determined by the Tribunal the claimants
must be entitled to Rs. 48,000 as compensation. 15. The main contest in the
present appeal was with regard to the liability of Trilok Singh - the owner of the
motor-cycle for payment of the compensation awarded. The evidence on record
would show that Tirlok Singh was out of the country on the day when the
accident occurred. According to his wife R.W.2. Kulwant Kaur, the motor-cycle
was lying locked and parked in the verandah of their house when in her
absence, her husband's younger brother - Sukhdev Singh, without her
knowledge or consent took it away. R.W.6, Sukhdev Singh admitted that he had
taken away the motor-cycle after getting a duplicate key made from the Bazar.
16. The position in law is in- deed well settled that mere ownership of a motor
vehicle and permission by its owner to another to drive it, would not render the
owner vicariously liable for the damages recoverable from the driver for the
accident caused by his negligence. In Klein v. Caluori, 1971 A.C.J. 448, it was
held that mere per- mission to drive the car cannot by itself constitute the driver,
the agent of the person who grants permission or who has the right either by
way of ownership or as a bailee to control the car. In order to become liable for
the driving of a car the owner or the bailee of the car, who has the general
control of it and who allows somebody else to drive it, must either have
authorised that other person to drive wholly or partially for purposes of the
owner or bailee of the car, as the case may be. A similar view was expressed in
Hewitt v. Banvin, (1940) 1 K.B. 188, where a son driving his father's car with
the consent of his father, caused an accident. In dealing with the liability of the
car-owner, Du Parcq L.J. observed that it was plain that ownership of the car
could not by itself impose any liability on the owner. The owner, without
further information was prima facie liable, because the court was entitled to
draw the inference that the car was being driven by the owner, his servant or
agent, but when the facts were given in evidence, the court was not left to draw
an inference. The owner would be liable if the driver had authority, express or
implied, he drive on the owner's behalf. This depends not on ownership, but on
the delegation of a task or duty. Permission to drive the car is consistent with a
mere loan or bailment. The relationship of father and son is not of itself
evidence of agency. 17. Next to note is the decision of the House of Lords in
Morgans v. Launchbury and another, 1973 A.C.J. 21, where it was held, that
mere permission to drive a motor vehicle is not enough to establish vicarious
liability of its owner. In order to fix vicarious liability on the owner of the car, it
must be shown that the driver was using it for the owner's purpose under
delegation of a task or duty. This authority was followed by the High Court of
Allahabad in Devki Devi Tewari and others v. Raghunath Sahai Chatrath and
others, 1978 A.C.J. 169, when a jeep had been given by its owner to the
Congress Party for election purposes. While with them the jeep was involved in
an accident with a petrol tanker. It was held, that the owner of the jeep was not
liable as the jeep was at that time under the control or management of the
Congress Party and the driver thereof could not be said to be the agent of the
owner. 18. Turning to the present case, it would be seen that there is no material
on record to warrant Trilok Singh - the owner of the motor-cycle being held
vicariously liable for accident. Sukhdev Singh - his younger brother cannot be
deemed to be his agent or to have been driving the motor-cycle for any purpose
of the owner-Tirlok Singh. There is thus no escape from the conclusion that no
liability for the compensation awarded could be fastened upon the owner -
Tirlok Singh. 19. It may be mentioned here that in an effort to fasten liability for
the compensation awarded, upon the owner - Tirlok Singh, Mr. Gopi Chand,
counsel for the claimants had sought to rely upon Mohinder Singh and another
v. Gurdial Singh and another, 1978 A.C.J. 279, Nimayi Chand Mahapatra and
others v. Kartika Chandra Sahu and others, 1977 A.C.J. 58, and Association
Pool, Bombay v. Radhabai Babulal, 1976 A.C.J. 362. Neither of these
authorities lays down any proposition of law contrary to the position as set out
above. All the cases cited were decided on their own facts where the owner was
held liable on the ground that at the time of the accident, the driver was engaged
in some business of the owner. These cannot, therefore, be taken to support the
point sought to be canvassed by the counsel for the claimants. 20. In the result,
the compensation payable to the claimants is hereby enhanced to Rs. 48,000,
which they shall be entitled to along with interest at the rate of 12 per cent per
annum, from the date of the application to the date of the payment of the
amount awarded. Half of the amount awarded shall be payable to the children of
the deceased in equal shares and the balance to his widow. The liability for the
compensation awarded shall be that of the driver - Sukhdev Singh
only. No liability can be fastened upon its owner Tirlok Singh. 21. The appeal
filed by Tirlok Singh and the cross-objections of the claimants are accordingly
accepted, while the appeal of Sukhdev Singh is hereby dis- missed. The
claimants shall, however, be entitled to their costs of these proceedings. Counsel
fee Rs. 300. Appeal allowed.
Conclusive remark of this case :
In this case, the owner of the motorcycle was out of country and in the absence
of the owner, his younger brother took the motorcycle without the owner’s
permission and knowledge and caused accident. It was held that the owner was
not vicariously liable as younger brother is not deemed to be the agent of the
owner. This case shows the right approach to deal with such cases and paved
way for other cases in future, the owner liability should be limited only to the
prior knowledge and employment relations only.

[2 case]
nd

SECRETARY H.P.S.E.B. AND ANR. V. RICHARD AND ORS. A.I.R. 2006

H.P. 37. (JUDGEMENT DEEPAK GUPTA, J.)
1. A claim petition under Section 166 of the Motor Vehicles Act for grant of
compensation was filed by the husband and minor children of deceased Kamla
Verma alleging that the deceased who was an employee in the H.P. State
Electricity Board (hereinafter referred to as 'the Board') had to work after 5.00
p.m. Therefore, at about 6.30 p.m. she was permitted to take the official vehicle
to go home. This vehicle met with an accident due to the rash & negligent
driving of the driver resulting in her death.
2. On the other hand, the version of the driver is that he in fact along with the
vehicle was at Bhata Kuffer on 29-10-1998. According to the driver he had
received a telephonic call at the shop of one Mast Ram from Kamla Verma.
Mast Ram had given him a message and he in turn had rung up Kamla Verma
deceased. The deceased had asked the driver to bring his vehicle to her
residence at Housing Board Colony to take her to hospital as she was feeling
unwell. According to the driver he took the vehicle and after picking up the
deceased he had just gone a little distance when the lights of the vehicle
suddenly went off and he could not see the road and the vehicle rolled down
from the edge of the road.
3. The case of the Board is that the driver was not authorised to carry the
deceased. According to the appellant/Board only the Assistant Executive
Engineer was authorised to grant permission for an employee to take the
vehicle. The Assistant Executive Engineer appeared as R.W. 1. He stated that
permission in this behalf could only be granted by him and in his absence by the
Junior Engineer. On 29-10-1998 i.e. on the date of accident the Assistant
Executive Engineer was not present at Shimla.
4. The case set up by the driver is that he in fact had taken permission from the
Junior Engineer. The Junior Engineer appeared in the witness box as RW-2. No
question was asked by any one of the parties as to whether he granted any
permission or not. Therefore, I shall proceed on the basis that no permission
was taken from the Junior Engineer.
5. I have heard Shri Kuldip Singh, Sr. Advocate appearing on behalf of the
Board. He has contended that the driver was driving the vehicle in an
unauthorized manner. According to the terms of his appointment the driver
could not have taken the vehicle without their permission of either the Assistant
Executive Engineer or the Junior Engineer. In this case since he took the vehicle
without their permission, the Board cannot be held vicariously liable for the
totally unauthorized act of the driver. He has relied upon the judgment in case.
Sita Ram Motilal Kalal v. Santanuprasad Jaishanker Phatta , in which the
Hon'ble Apex Court held as under:
(27) The law is settled that a master is vicariously liable for the acts of his
servant 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
authorized by the master or a wrongful and unauthorized mode of doing some
act authorized 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. There is a presumption that vehicle is driven on the master's
business and by his authorized 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
unauthorized person and on his own 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 circumstances.
6. The law with regard to the various liability is evolving and developing. Over
the years, the approach of the Courts is becoming more liberal and the trend is
moving towards making the master liable for the acts of the servant. The
concept of no fault liability has been introduced in Motor Accident cases. Even
in such cases of no fault liability the trend is to make the master responsible for
the acts of the servant. In Sita Ram's case (supra), the owner of the vehicle
entrusted it to person A for plying a taxi. B used to clean the taxi. He was
neither employed by the owner or by A. A trained B to drive the vehicle and
took B for obtaining licence for driving. While taking the test B caused the
accident. A Was not present when the accident occurred. By a majority view,
the Apex Court held that the owner was not liable since the person who
borrowed the taxi and the driver had not acted in the course of the business of
the owner. The Court held that the test was -- whether the act was done on the
owner's business or that it was proved that it has been impliedly authorized by
the owner. It was further held that unless the act is done in the course of his
employment, the servant's act does not make the employer liable.
7. This judgment was considered by the Hon'ble Supreme Court in Pushpabai
Purshottam Udeshi v. Ranjit Ginning and Pressing Co. . In this Case one 'P' was
travelling in the car being driven by the Manager of the respondent-company.
The car dashed against the tree resulting in the death of 'P'. The widow of 'P'
filed claim petition under the Motor Vehicle Act against the company -- the
owner of the Car. The High Court following the decision of Sita Ram Motilal
Kalal case (supra) held that the owner cannot be held to be vicariously liable in
taking Purshotam as a passenger as the said act was neither in the course of
employment nor under any authority of the owner. The Supreme Court upset the
findings of the High Court and held that the owner was liable to pay the
compensation. The Apex court in Pushpabai Purshottam Udeshi v. Ranjit
Ginning and Pressing Co. held thus:
Lord Denning in Young v. Edward Box and Co. Ltd. (1951) 1 ILR 789 has
made the following pertinent observations:
The next question is how far the employers are liable for their servant's conduct.
In order to make the employers liable to the passenger it is not sufficient that
they should be liable for their servant's negligence in driving. They must also be
responsible for his conduct in giving the man a lift. If the servant has been
forbidden, or is unauthorized, to give anyone a lift, then no doubt the passenger
is a trespasser on the lorry so far as the owners are concerned, but that is not of
itself an answer to the claim. In my opinion, when the owner of a lorry sends his
servant on a journey with it, thereby putting the servant in position not only to
drive it, but also to give people a lift in it, then he is answerable for the manner
in which the servant conducts himself on the journey not only in the driving of
it, but also in giving lifts in it, provided, of course, that in so doing the servant is
acting in the course of his employment.
In Salmond's Law of Torts, it has been said thus:
On the other hand it has been held that a servant who is authorized to drive a
motor vehicle, and who permits an unauthorized person to drive it in his place,
may yet be acting within the scope of his employment. The act of permitting
another to drive may be a mode, albeit an improper one, of doing the authorized
work. The master may even be responsible if the servant impliedly, and not
expressly, permits an unauthorised person to drive the vehicle, as where he
leaves it unattended in such a manner that it is reasonably foreseeable that the
third party will attempt to drive it, at least if the driver retains notional control
of the vehicle.
In Halsbury's Law of England, it has been stated:
Where the act which the employee is expressly authorised to do is lawful, the
employer is nevertheless responsible for the manner in which the employee
executes his authority, If, therefore, the employee does the act in such a manner
as to occasion injury to a third person, the employer cannot escape liability on
the ground that he did not actually authorize the particular manner in which the
act was done, or even on the ground that the employee was acting on his own
behalf and not on that of his employer.
17, it may be pointed out that in motor vehicle act, 1939, Chapter VII-A
"liability without fault in certain cases" has been introduced (Chapter X of the
Motor Vehicles Act, 1988). Sub-section (1) of SECTION-92 A provides that
where the death or permanent disablement of any person has resulted from an
accident arising out of the use of a motor vehicle, the owner of the vehicle shall
be liable to pay compensation in respect of such death or disablement in
accordance with the provisions of the said section. Sub-section (2) specifies a
fixed amount for such liability without fault. In view of Sub-section (3), the
claimant is not required to plead and establish that the death or permanent
disablement in respect of which the claim has been made was due to any
wrongful act, neglect or default of the owner of the vehicle. Sub-section (4) of
that section says in clear and unambiguous words that a claim for compensation
under Sub-section (1) of that section shall not be defeated by reason of any
wrongful act, neglect or default of the person in respect of whose death or
permanent disablement the claim has been made. Section 92-B clarifies that the
right to claim compensation under Section 92-A in respect of death or
permanent disablement of any person shall be in addition to any other right i.e.
the right to claim compensation on principle of fault. The introduction of
provisions creating liability without fault gives out that Parliament has provided
for payment of compensation within certain limits, ignoring the principle of
fault. When even under the law of tort, Courts have held that the employer is
vicariously liable for an authorized act done in an unauthorized manner taking
into consideration the interest of the victims of the accident, according to us,
this approach is all the more necessary while judging the liability of the owner
of the vehicle under the statutory provisions of the Motor Vehicles Act.
18. A Division Bench of this Court has considered in detail the law with regard
to the vicarious liability in New India Assurance Co. Ltd. v. Lachhmi Devi. In
that case several persons sustained injuries when they were travelling in a truck.
The owner of the truck contended that the driver had allowed the passengers to
board the truck against his instructions and, therefore, he was not liable. After
taking into consideration, the entire law, the Division Bench of this Court
negatived the plea of the owner and held that the owner was responsible and
liable for the conduct of his driver even if the same may be unauthorized .
13. From a reading of the various judgments cited above it is clear that the law
with regard to vicarious liability has been made more liberal and the rule of
vicarious liability has been expanded by judicial pronouncements. One cannot
lose sight of the fact that the State has thought it fit to even introduce the
concept of no fault liability. After the amendment of 1985 in the Motor Vehicles
Act, 1988 the legislature has enacted Section 163-A in the Act. The claimants
can claim compensation without even having to prove negligence. Even the
Insurance Companies are held liable in cases where the owner is not at fault on
the ground that since the owner has not committed a breach of the policy, the
Insurance Company is liable. The State Governments and the State owned
Transport Corporations have been exempted from getting their vehicles insured
and they cannot be placed on a better footing than the Insurance Companies.
They must take the responsibility for the acts of their employees and as such
they are liable to pay compensation for any tortuous act of the employee. Even
if the act of the employee may be beyond the scope of his duties or he may have
acted in violation of the instructions or mandate issued to him the employer
cannot escape the liability.
14. The case of the Board is that the driver had taken the vehicle without the
permission of the authority authorized to grant such permission. Even if this
case is accepted then also in my opinion the Board has to be held vicariously
liable for the unauthorized act of the driver. The driver was employed to drive
the jeep. Neither RW1 nor RW2, i.e. the Assistant Executive Engineer and the
Junior Engineer have stated that Kishori Lal was not the driver of the vehicle.
Since he was the driver of the Jeep and the Jeep was entrusted to him, he could
have driven the Jeep. The mere fact that he unauthorisedly took the Jeep to the
house of Kamla Verma can only lead to the conclusion that he did his
authorized duty in an unauthorized manner. The Board cannot escape its
liability. The learned Tribunal has rightly held the Board vicariously liable for
the acts of its driver.
15. No other point was argued.
16. In view of the above discussion, I am of the opinion that the appeal of the
Board is without merit. The same is dismissed with no order as to costs.
Conclusive remark of this case :
In this instant case, the driver had taken the vehicle without the permission of
the authority. The vehicle being driven rashly and negligently met with an
accident causing death of the husband and children of the respondent. Mere fact
that the driver had taken the vehicle unauthorizedly to the house of one kamla
verma, could only lead to the conclusion that he did his authorised duty in
unauthorised manner, the court said. This was the only reason the board was
held liable vicariously for the acts of its driver, but when we see all acts were
wrongly committed by driver on its own while performing a minor duty even
that was not in awareness of the board. Compensation wise it was right to stand
the insurance company liable for fine, but the board was no where liable in my
view.

Conclusion with opinion

When we talk about laws in India specially its more about finding the guilty
prospective instead of an overall approach that would be positive in terms of not
only reaching to the judgement or punishing the wrong doer, but more about
excluding certain dimension of rightfully. In cases of vicariously liability it is
clearly visible that court wants to reach its decision by including any non acting
performer just for the sake of judgement view and finding a able party for
compensation. In matter of fact it can be desirable but in such acts that can lead
to criminal cases, court should confine them to the guilty mind of driver or its
negligence while driving whether it is in duty or not, a driver is more
responsible in such situation. Although if the owner or the employer is in the
vehicle where he can manage situation by his command or the accident is result
of instructions of the owner, then driver should be exempted. Thus we can hope
to see a change of view of courts in more commendable prospect as law of tort
depends most on reasoning of judges and so our legal future of society.