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PETITIONER: SITARAM MOTILAL KALAL

       Vs.

RESPONDENT: SANTANUPRASAD JAISHANKAR BHATT

DATE OF JUDGMENT: 08/02/1966

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. HIDAYATULLAH, M. BACHAWAT, R.S.

CITATION:  1966 AIR 1697            1966 SCR  (3) 727  CITATOR INFO :  F          1977 SC1735  (15)

ACT: Tort-Vicarious liability.

HEADNOTE: The  owner  of a vehicle entrusted it to A for plying  as  a taxi.   A  drove  the taxi, collected  the  fares,  met  the expenditure  and  handed the balance with  accounts  to  the owner.  B who used to clean the taxi was either employed  by the owner or on his behalf by A. Presumably because A wanted another  to assist him in driving the taxi he trained  B  to drive  the vehicle and took B for obtaining a  licensed  for driving.   While taking the test B caused bodily  injury  to the  respondent.   At the time of the accident,  A  was  not present  in the vehicle.  On the question whether the  owner was liable, HELD:  (Per Hidayatullah and Bachawatt, JJ.) The  owner  was not liable. There  is  a  presumption that a vehicle is  driven  on  the master’s business and by his authorised agent or servant but the presumption can be met.  It was negatived in this  case. The  acts of A and B viewed separately or collectively  were not  within  the  scope of their respective  or  even  joint employment.   The evidence did not disclose that  the  owner had employed B to drive the taxi or given him permission  to drive the taxi or had asked him to take test for obtaining a driving licence; nor did it disclose that that the owner had given  any authority to A to employ strangers to  drive  the taxi or to take the driving test.  A was not present in  the vehicle .so that he could be said to be in control on behalf of his employer when the vehicle was driven. [537 H; 540  D; 542 F] For  the  master’s  liability to arise, the act  must  be  a wrongful  act  authorised by the master or  a  wrongful  and unauthorised  mode  of  doing some  act  authorised  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

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himself the master is not liable.[1537 G] Rule in Storey v. Aston, (1868-69) 4 Q.B.D. 476, by Cockburn C.J., applied. Case law referred to. An agent could make the principal liable only for acts  done within  the  scope of the. agent’s authority  or  under  the actual  control  of  the principal.  The  extension  of  the doctrine  that the act of the servant or the agent  must  be for  the master’s benefit, is not correct.  It  is  doubtful whether  the principle can be extended by the.  introduction of the doctrine of implied authority. [540 G] Smith  v.. Martin, [1911] 2 K.B. 775 and Barwick v.  English Joint Stock Bank, (1867) L. 2 Ex. 259, doubted. Per (Subba Rao, J. dissenting) : The owner was liable. 528 A  was not a mere driver of the vehicle but was the  owner’s manager  to  carry on the business of running his  taxi.   A was,  therefore,  given  the authority  to  do  all  things, necessary  to keep the taxi in a good condition and to   run it  effectively, and if for plying the taxi  throughout  day and  night  and  during the absence of A  an  assistant  was necessary  to  drive  the vehicle, A could  employ  one.   A employed  B  with  the approval of the  owner  to  keep  the vehicle  in  good  condition.   A in  the  interest  of  the employer  instead of engaging a third party as an  assistant driver trained B as such and sought to obtain a licence  for him.  Therefore, A did not exceed the authority conferred on him by the owner in employing B as a servant and  permitting him  to drive the vehicle in order to obtain a  licence  for assisting him as a driver. [533 E-H] Case law referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 615 of 1963. Apeal  from the judgment and decree dated April,5,  1957  of the Bombay High Court in First Appeal No. 260 of 1952. M.   V. Goswami, for the appellant. S.   N. Prasad, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondent. SUBBA RAO, J. delivered a dissenting Opinion.  The  Judgment of HIDAYATULLAH and BACHAWAT, J.J. was delivered by HIDAYAT- ULAH J. Subba Rao, J. I regret my inability to agree. Sitaram Motilal Kalal, hereinafter called the 1st  defendant is  in agriculturist having lands at Kathwada  village.   He owned  a  motor-car bearing registration No.  BYD  316.   He entrusted  the  said car to Mohmmed Yakub  Haji,  herinafter called  the 2nd defendant, for plying the same as a taxi  in Ahmedabad.   The 2nd defendant ran the taxi,  collected  the fare, met the expenditure incurred connection with the  said service, rendered account to the 1st defendant and  remitted the  balance  to him.  In short, the 2nd defendant  was  not merely  the  driver of the taxi but it was  also  in  entire charge  of plying the taxi in Ahmedabad.  The 2nd  defendant appointed  the  3rd  defendant as a cleaner  for  the  taxi. Presumably  because  the  2nd defendant  wanted  another  to assist  him in driving the car during his absence  from  the city,  he trained the 3rd defendant to drive the car and  on April 11, 1940, the 2nd defendant took the 3rd defendant  to the Regional Transport Authority for obtaining a licence for him.   On  that  date  a test was  being  conducted  by  the Regional  Transport  Officer  on the  capacity  of  the  3rd defendant to drive a car for the purpose of issuing to him a

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permanent licence for driving.  At about 5 p.m. on that day, the plaintiff, who is a pleader practising in the courts  of the district of Ahmedabad, was going out of the compound  of the  office  of the Regional Transport Authority.   At  that time,  the  3rd defendant was driving the  car  towards  Lal Darwaja side; without giving any                             529 signal, he took a sudden turn towards the gate of the Office of  the Regional Transport Authority, accelerated the  speed and  dashed the car with great force against the  pillar  of the  gate  of  the  said  office.   In  that  process,   the plaintiff’s leg was pinned between the compound wall and the gate,with the result it was crushed and later on  amputated. After recovering, from a long illness’ the plaintiff filed a suit, being Special Suit No. 66 of 1950, in the Court of the Civil Judge, Ahmedabad, for recovery of damages in a sum  of Rs. 80,000 from defendants 1, 2 and 3 and the 4th defendant, the  Indian Globe Insurance Company, Limited, with whom  the said  car  was  insured.  All the  defendants  denied  their liability. The  learned  Civil Judge held that the  3rd  defendant  was negligent  in driving the taxi, that he was the  servant  of the  2nd  defendant and not of the 1st defendant,  and  that even if he was the servant of the 1st defendant as a cleaner of the car, he did not act within the scope of his authority when  he  drove  the car and caused the  accident.   In  the result, he gave a decree against defendants 2 and 3 in a sum of Rs. 20,000 and dismissed the suit against the 1st  defen- dant; he also dismissed the suit against the 4th  defendant, as  the 1st defendant, who insured the car,  was  exonerated from  liability.  Against the said judgment and  decree  the plaintiff preferred an appeal to the High Court of Bombay in so far as the decree went against him.  A Division Bench  of the  said High Court came to the conclusion that the  entire management  of the car was given to the 2nd defendant,  that in  discharge of his duty as such manager he  appointed  the 3rd defendant with the consent of the 1st defendant and that by  clearest  implication  the 1st defendant,  in  the  cir- cumstances   of  the  case,  must  be  regarded  as   having authorised the act of the 2nd defendant in training the  3rd defendant  as a car-driver and that, therefore, he would  be liable in damages for the accident caused by the  negligence of  the  2nd  and  3rd defendants in  the  course  of  their employment.  So, far as the 4th defendant was concerned, the High  Court  held  that in view of s.  96(1)  of  the  Motor Vehicles  Act,  1939,  no decree could  be  directly  passed against  it, but the decree against the 1st defendant  could be  executed  against it in terms of the said  section.   It raised the quantum of damages from Rs. 20,000 to Rs. 25,000. The  suit  was decreed in favour of  the  plaintiff  against defendants  1,  2 and 3 with costs.  The 1st  defendant,  by certificate, has preferred the present appeal. Mr.  M. V. Goswami, learned counsel for the  1st  defendant- appellant,  contended  that the findings of the  High  Court that the 3rd defendant, the cleaner, was the servant of  the 1st  defendant and that the 2nd defendant was authorised  to secure  a  licence  for the cleaner to drive  the  car  were vitiated  by  its  reliance on two  pieces  of  inadmissible evidence,  namely, the alleged admissions found in  the  3rd defendant’s written-statement and in the reply 530 notice  given by him to that issued to him on behalf of  the plaintiff.   He  further contended that  the  1st  defendant could  not  be made liable for the acts of  either  the  2nd defendant  or the 3rd defendant committed outside the  scope

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of their employment. Mr.  Pershad, learned counsel for the respondent, though  at first  made an attempt to sustain the admissibility  of  the said two pieces of evidence, later on clearly conceded  that they  could  not be relied upon against the  1st  defendant. But, he contended that even after the exclusion of the  said two  pieces  of  evidence, on the  remaining  evidence,  the circumstances  established  and  the  probabilities  arising therefrom it could be held, as the High Court did, that  the 3rd defendant was the servant of the 1st defendant, that the 2nd  defendant was authorised by the 1st defendant to  train the  3rd defendant as a driver and get a licence for him  so that  he  might  assist him in driving the  car  during  his absence,  that the accident took place during the course  of the employment of the 3rd defendant by the 1st defendant and that, therefore, the 1st defendant was liable in damages for the  accident.  That apart, he further argued that  the  2nd defendant  in  discharge of his duty in the  course  of  his employment   negligently  entrusted  the  car  to  the   3rd defendant for the purpose of assisting him in the  discharge of  his  duty  and, therefore, the 1st  defendant  would  be liable for the accident. Before  we consider the problem presented to us, it will  be useful to notice briefly the relevant aspects of the law  of torts  vis-avis  the liability of a owner of a car  for  the acts of his driver. The  doctrine of constructive liability is in a  process  of evolution.   It is a great principle of social  justice.   A court  no longer need be overweighed with the old  decisions on    the   subject   given   under   radically    different circumstances,  for now the owner of a car in India  is  not burdened  with  an  unpredictable liability as  there  is  a statutory compulsion on him to insure his car against third- party  liability and his burden within the framework of  the Motor Vehicles Act is now transferred to the insurer. The general principle is well settled and it is neatly given by Pearson, L. J., in Norton v. Canadian Pacific Steamships. Ltd.(1) thus:               "  The owner of a car, when he takes or  sends                             it  on a journey for his own purposes,  owes  a,               duty  of care to other road users, and if  any               of them suffers damage from negligent  driving               of the car, whether by the owner himself or by               an  agent  to  whom  the  had  delegated   the               driving, the owner is liable." The limitation on this principle has been succinctly  stated by Cockburn, C. J., in Storey v. Ashton(2) thus (1)  [1961] 2 All E.R. 785, 790. (2) [1868-69] L.R. 4 Q.B. 476,479. 531 .lm15 "The  true  rule is that the master is only  responsible  so long as the servant can be said to be doing the act, in  the doing of which he is guilty of negligence, in the course  of his employment as servant." A valuable test to ascertain whether a servant was negligent or  not is found in Ricketis v. Thos.  Tilling,  Limited.(1) There the facts were : the conductor of an omnibus belonging to  the defendants, in the presence of the driver,  who  was seated beside him, for the purpose of turning the omnibus in the  right direction for the next journey, drove it  through some  by-streets  so negligently that it  mounted  the  foot pavement   and  knocked  down  and  seriously  injured   the plaintiff.  The Court of Appeal held that there was evidence

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of  negligence  on the part of the driver  in  allowing  the omnibus  to be negligently driven by the conductor.   In  so holding, Buckley, L. J., laid down the following test :               "It  is  a question for the jury  whether  the               effective  cause of the accident was that  the               driver  committed a breach of his duty  (which               was  either  to prevent  another  person  from               driving or, if he allowed him to drive, to see               that he drove properly), or whether the driver               had discharged that duty."               Pickford, L. J., said much to the same  effect               thus               "It seems to me that the fact that he  allowed               somebody else to drive does not divest him  of               the responsibility and duty he has towards his               masters to see that the omnibus is  carefully,               and not negligently, driven." This   decision  followed  the  decision  in  Englehart   v. Farrant.(2)  There, the facts were : A man was  employed  by the  defendants to drive a cart by which delivery was to  be made  of parcels.  The cart was manned by a man and  a  boy. The  man’s duty was to drive; the boy’s duty was to  deliver the  parcels.   The boy had nothing to do with  the  horses. The  man’s  instructions were not to leave  the  cart.   The driver  did in fact leave the cart, and while he was  absent the   lad  drove  on  and  came  into  collision  with   the plaintiff’s  carriage  and  injured it.   The  question  was whether  the  en  was liable.  Lord Esher,  M.  R.,  in  his judgment  posed the question to be decided thus : "Now,  for what is the defendant liable ?" and answered it as follows               "He  is  liable for the  negligence  of  Mears               (that  was the driver) if that negligence  was               "an effective cause’ of the subsequent  damage               to the plaintiff."               Then lower down the learned Judge said               "If  a stranger interferes (with the  driving)               it  does  not  follow that  the  defendant  is               liable; but equally it does not               (1) L.R. [1915] 1 K.B. 644, 646, 650.               (2) [1897]  Q.B. 240.               532               follow that because a stranger interferes, the               defendant is not liable if the negligence of a               servant  of his is an effective cause  of  the               accident." The said decisions lay down the following two propositions : (1)  An  owner of a car would be liable in  damages  for  an accident  caused  by  his  servant  in  the  course  of  his employment; and (2) he would also be liable if the effective cause  of the accident was that the driver in the course  of his employment committed a breach of his duty in either  not preventing another person from driving the car or neglecting to  see that the said person drove it properly.  We are  not concerned in this case with, accidents caused by a driver or a  third party outside the scope of the employment,  for  in this case whether the 3rd defendant was authorised to  drive the car by the 1st defendant or not the accident was  caused when the car was being driven for the purpose of efficiently plying  the  taxi for hire for which the 2nd  defendant  was employed by the 1st defendant. Before considering the evidence in this case, at the  outset some  controversial ground may be cleared.  The  High  Court relied upon the admissions made by the 3rd defendant in  his written  statement  and  the  reply  given  by  him  to  the plaintiff as evidence against the 1st defendant.  As I  have

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indicated earlier, learned counsel for the respondent fairly conceded  that those pieces of evidence could not be  relied upon  as admissions against the 1st defendant.  Indeed,  the High  Court,  though  it accepted the  said  two  pieces  of evidence,  alternatively  came  to the  same  finding  after excluding  them  from  evidence.  For the  purpose  of  this judgment I am assuming that the said pieces of evidence  are not  relevant against the 1st defendant.  Therefore, I  will exclude the same from my consideration. Now let me take the case of the 3rd defendant and  ascertain his  legal  relationship with the 1st  defendant.   The  1st defendant was examined as D.W. 1. He deposed as follows : He had  agricultural lands in Kathwada which he was  personally cultivating and he resided at Kathwa;year and a half  before April  11, 1949, he had given his car to the  2nd  defendant for  plying the same ,as a taxi; the 2nd defendant I had  to manage  it  and  he  had full  ,control  over  it;  the  2nd defendant paid taxes for the car, spent for petrol, kept the said  car  always  a the  railway  station  stand,  rendered accounts  for  the income he got from plying the  said  taxi whenever  the 1st defendant went to Ahmedabad from  Kathwada and  met  him;  the 2nd defendant was paid Rs.  90  p.m.  He admitted in the cross-examination that the 2nd defendant was a  straightforward and honest man, that he managed the  taxi on  his behalf, that upto May 1949 he did not go beyond  his instructions,  that the car was plying for hire  during  day and night and that there were no fixed hours of service.  He further stated that he entrusted the 2nd 533 defendant with the duty of purchasing materials from Bombay. This witness no doubt denied that he had authorised the  2nd defendant  to engage the 3rd defendant or permitted the  2nd defendant  to teach the 3rd defendant car-driying.  He  also denied  that  there was debit of Rs. 30 as pay  of  the  3rd defendant  in  the  accounts submitted to  him  by  the  2nd defendant.   But  the  accounts  were  not  produced;   and, therefore,  an inference should be drawn against him to  the effect  that  if they were produced they would show  that  a salary  of Rs. 30 was paid to the 3rd defendant and  he  was the servant of the 1st defendant. The  plaintiff was examined as P.W. 1. He deposed  that  the 3rd  defendant  was the cleaner of the car and that  he  had personally  seen  the  3rd defendant  cleaning  the  car  in question.   The evidence of this witness so far as  he  said that he had seen the 3rd defendant cleaning the car could be accepted  particularly  when  it  is  consistent  with   the probabilities of the case. From  the said facts it can reasonably be held that the  2nd defendant appointed the 3rd defendant as cleaner of the car, trained him as a driver and on the day of the accident  took him  to the office of the Regional Transport  Authority  and permitted him to drive the car to obtain a permanent licence for him. On the said evidence and the probabilities arising therefrom the  following  inference can reasonably be drawn:  The  1st defendant, being the absentee owner of the car used as taxi, entrusted  the entire management of running the said car  as taxi to the 2nd defendant.  The 2nd defendant was not a mere driver  of the 1st defendant’s car, but was his  manager  to carry  on  the  business  of  running  his  taxi.   The  2nd defendant  was,  therefore, given the authority  to  do  all things necessary to keep the taxi in a good condition and to run  it effectively to earn profit.  It is also implicit  in the said arrangement that if for plying the taxi  throughout day  and night and during the absence of the  2nd  defendant

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from  the city an assistant was necessary to drive  the  car the  2nd  defendant  could employ one.   The  2nd  defendant employed the 3rd defendant as a cleaner with the approval of the  1st  defendant to keep the car in good  condition.   In that  context, if the 2nd defendant in the interest  of  the employer, instead of engaging a third party as an  assistant driver  trained  the  3rd defendant as such  and  sought  to obtain a licence for him, it is not possible to suggest that the  2nd  defendant  in  doing  so  exceeded  the  authority conferred  on him by the 1st defendant. 1,  therefore,  find that  the  2nd  defendant  did  not  exceed  the   authority conferred  on him by the 1st defendant in employing the  3rd defendant  as a servant and permitting him to drive the  car in order to obtain a licence for assisting him as a  driver. If so, it follows that the 3rd defendant was the employee of the  1st  defendant in his capacity as an assistant  to  the driver.  In that even 534 the  1st defendant would certainly be liable in damages  for the accident caused by the 3rd defendant’s negligence during the course of his employment. Though  I  am  prima facie inclined  to  accept  the  second proposition  also  as correct and that the  2nd  defendant’s negligence  in permitting the third defendant to  drive  the car  was the effective cause of the accident, in view of  my first  finding  it  is not necessary  to  express  my  final opinion thereon. Now  let  me turn to the other decisions cited at  the  Bar. The  decision  of the Court of Appeal in Donovan  v.  Laing. Wharton, and Down Construction Syndicate, Ltd.(1) deals with a  case  where, though the man in charge of a crane  in  the working  whereof  an  accident was caused  was  the  general servant of the defendants, they had parted with the power of controlling  him with regard to the matter on which  he  was engaged.   They  had  lent to a firm which  was  engaged  in loading a ship at their wharf the crane with a man in charge of it.  It is, therefore a case where when the accident took place  the  man, who was operating the crane,  was  not  the servant of the defendants. In  Britt v. Galmoye and Nevill(2) the first defendant,  who had  the  2nd defendant in his employment as a  van  driver, lent  him his private car after the day’s work was  finished to  take friends to a theatre and the 2nd defendant  by  his negligent  driving injured the plaintiff.  It was held  that the journey was not on the master’s business and the  master was not in control and, therefore, he was not liable for the servant’s  act.   The principle of this decision is  that  a owner of a car will not be liable for the accident caused by his   employee  if  it  was  caused  outside  the   master’s employment. The decision in Girijashankar Dayashankar Vaidya v. The B.B. and C.I Railway(3) turned upon the construction of S. 108 of the Indian  Railways  Act.  The servants  of  the  railway assaulted the plaintiff for pulling the communication chain. The  Court  held  that the railway was  not  liable  as  the servants were not authorised under the statute to arrest the plaintiff   for   pulling  the  communication   chain   and, therefore,  they were not liable for the assualts  committed by their servants. In  Nalini  Ranjan Sen Gupta v. Corporation  of  Calcutta(4) when  a  chauffeur,  who was taking his master’s  car  to  a workshop  for  repairs,  finding  the  lane  leading  to  it impassable,  left  the car in charge of the  cleaner,  whose duty  was  only to clean the car and who  was  forbidden  to drive  it, and went to the workshop, and during his  absence

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the  cleaner  drove it against and broke a  municipal  lamp- post, it was held on the facts of the case that the (1)  L.R. [1893] 1 B.629. (3)  (1918) 20 Bom.  L.R. 126. (2)  (1927-28) 44 T.L.R. 294. (4)  (1925) I.L.R. 52 Cal. 983.                             535 chaufeur  was not negligent and that the cleaner caused  the accident   outside   the  scope  of  his   employment   and, therefore,the owner was not liable. The  decision in Emperor v. Shantaram Ram Wadkar (1)  turned upon the meaning of the word "allowed" in s. 6 of the  Motor Vehicles  Act, 1914, and is not of any help in deciding  the present  case.   The  decision  in  The  Managing  Director, R.U.M.S.  Ltd., Rasipuram v. Ramaswamy Goudan  (2)  followed Ricketts v. Thos. Tilling, Ltd., (3) and held that where the servant  who was charged with the duty of driving a bus  was responsible  for allowing the conductor to drive and  if  he was  so responsible he must be equally responsible  for  the negligent driving by the person who was permitted to  drive. The  last  decision  accepted  the  second  proposition  and applied  it to the facts of the case before the court.   The said  decisions  do  not in any way detract  from  the  view expressed by me. Both  the  Courts below concurrently found on  the  evidence that  the 3rd defendant was guilty of negligence in  causing the accident.  We did not permit the learned counsel for the appellant  to question the correctness of the said  finding. I  accept it.  No argument was advanced on the  question  of the quantum of damages. In the result, agreeing with the High Court, I hold that the 1st defendant is liable in damages to the plaintiff for  the accident caused by the 3rd defendant.  The appeal fails  and is dismissed with costs. Hidayatullah,  J. The facts need not be  stated  elaborately for there is little dispute about them.  We shall  therefore content ourselves with such facts as serve to introduce  the reasons for our opposite conclusions. The  respondent sued three persons for damages for  personal injuries which led to the amputation of one of his legs in a motorcar  accident.  The vehicle belonged to  the  appellant (first  defendant)  who  had  entrusted  it  to  the  second respondent for being plied as a taxi.  We shall refer to the appellant  as the owner of the vehicle or,  shortly,  owner. At  the  time of the accident, it was driven  by  the  third defendant  to  whom it had been handed over  by  the  second defendant for the purpose of taking a driving test to obtain a driver’s licence.  In fact, the motor inspector taking the test  was  by the side of the third defendant  when  he  was driving.   The second defendant was not present in  the  car but  was present when the third defendant took the  car  and had given permission.  The suit was defended by the owner of the  vehicle  for  himself, The  second  defendant  remained absent at the trial.  The third defendant filed a written (1) (1932) 34 Bom.  L.R. 897.  (2) L.R. 1957 Mad. 513. (3)  L.R. [1915] I.K.B. 644. 536 statement  but  took no further interest.  The  Trial  Judge decreed  a  part of the claim against the second  and  third defendants,  but held that the owner of the vehicle was  not liable.  On appeal to the High Court of Bombay, the owner of the vehicle was also held responsible and the decree of  the court below was also enhanced.  The present appeal is by the owner of the vehicle on a certificate of fitness granted  by the High Court.

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We  are  not concerned with the quantum of damages  and  the above  facts  therefore  suffice  for  the  purpose  of  our judgment.   Since  the responsibility of the  owner  of  the vehicle  is vicarious, the relationship between him and  the other  two  defendants  must  be  properly  determined   and something   may  now  be  said  about   that   relationship. Admittedly  the owner of the vehicle had handed it  over  to the second defendant to ply it on hire as a taxi in  Ahmeda- bad.   The  second defendant drove the taxi,  collected  the fares,  met  the expenses and handed over the  balance  with accounts to the owner.  The second defendant, of course, did not do this free.  Either he was a servant or an agent.  The difference  between  a  servant and an  agent  is  that  the principal  has the right to order what should be  done,  but the  master has an additional right to say how it should  be done.   The  evidence  does not  establish  that  the  owner directed  how  the taxi should be run and  the  relationship would  be that of principal and agent.  The owner,  however, stated that he paid Rs. 90 per month to the second defendant and  this  would  show that the  second  defendant  was  his servant.  We shall consider the matter under both heads. The relationship between the third defendant (who was at the wheel  when the accident happened) and the owner on the  one hand  and the second defendant on the other is  in  dispute. There is, however, evidence which has been believed that the third  defendant  used to clean the taxi.  He  was  probably employed  by  the  owner  or on his  behalf  by  the  second defendant.   In  addition,  it appears, that  he  was  being trained to take out a driver’s licence, presumably with  the idea of taking a share in the driving of the taxi.  There is nothing  to  show that in this arrangement,  the  owner  had taken  any  part whatever.  The trial Judge  held  that  the third  defendant was a servant of the second  defendant  and relied  for this purpose on a statement (Ex.  P-97) made  by the  second  defendant to the police when  proceedings  were taken against the driver for negligently causing hurt to the respondent.   The  Trial Judge further held that  the  third defendant  was not employed by the owner and the  owner  Was not  liable.  Alternatively, he held that even if the  third defendant  was employed by the owner, the duty of the  third defendant was to clean the car and not to drive it, and  the owner  was  again  not liable because the  cleaner  was  not acting  within the scope of his employment.  The High  Court relying  on the reply of the third defendant (Ex.  P-87)  in answer to give a notice from                             537 the  respondent and on the written statement (Ex. 16)  filed by him in the suit held that the third defendant was himself probably a servant and in any event, the second defendant as manager  of  the taxi was clearly authorised- to  allow  the third defendant to drive it The High Court therefore decreed the claim against the owner also and enhanced the amount  of damages awarded by the court of trial. The  first  question  is whether Exs. 97,  87,  and  16  are admissible  against the appellant or not.  Admission of  the documents   means  admission  of  facts  contained  in   the documents.  The facts were not deposed to by any one and the truth  of  these statements was not in any way  tested.   To admit  them  would  be  prejudicial  to  the  appellant  and strictly  speaking no provision of law makes the  admissions admissible  against  a person other than the  person  making them,  unless  such person can be said to be  bound  by  the admission.   This condition does not obtain  here.   Learned counsel  for the respondent, although he attempted to do  so at  first,  did  not also, rely upon them.  We  are  of  the

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opinion that these documents. were inadmissible against  the owner.   With  this evidence excluded. there is  nothing  to show that the owner had employed the defendant to drive  the taxi or given him permission to drive the taxi or asked  him to take a test to obtain a driver’s licence.  There is  also nothing  to  show  that he had given any  authority  to  the second defendant to employ strangers to drive the taxi or to take  driving  tests.   The  upshot  thus  is  that   second defendant was a servant of the owner and the third defendant was  a servant of the second defendant or at best a  cleaner of  the taxi.  There is evidence, however, to show that  the second  defendant was present when the vehicle was  borrowed for  taking  the test and had willingly  allowed  the  third defendant  to drive the vehicle fox the purpose.   On  these facts, the question is whether the owner of the vehicle  can be held responsible. The law is settled that master is vicariously liable for the acts of his servants 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 authorised by the master or a  wrongful  and unauthorised  mode  of  doing some  act  authorised  by  the master.  The driver of a car taking the car on the  master’s business  makes  him  vicariously liable if  be  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  a vehicle is driven on the master’s, business  and  by his  authorised 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 unauthorised person and on his own 538 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. Ricketts’(1) case which was relied upon by the respondent 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.   The master  was held liable vicariously, because the driver  was negligent  in  the performance of the  master’s  work.   The driver  was in fact seated by the side of the conductor at the time when the omnibus was turned round.  In other words, the  turning  round  of the vehicle was an  act  within  the employer’s business and not something outside it.  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.  The master was therefore rightly held responsible.  In Ricketts’(1)  case,  all  the  three  Judges  expressed  the opinion that there should be a new trial.  As it was a  jury trial  and  the  driver  was sitting  by  the  side  of  the conductor  and  had  control, the question  was  whether  it should not have been found what was the "effective cause" of the  accident, that is to say, the act of an utter  stranger or that of a servant acting negligently in the course of his employment.  It is significant that in Trust Co. Ltd., v. de Silva,(2)  Ricketts’ case was cited but was not referred  to by  Lord  Tucker pronouncing the judgment on behalf  of  the Judicial Committee.  The reason was that the case before the Privy Council fell within the rule which was stated by  Lord

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Tucker to be :               "It  is  now well settled that the  person  in               control of a carriage or motor vehicle... ....               though not actually driving.... is liable  for               the negligence of the driver over whom he  has               the right to exercise control." The above principle is applicable When the person owning the vehicle  is  present.  In Ricketts’(1) case the  driver  was present  and he asked the conductor to do the work which  he was  employed  to do and this negligence  made  the  omnibus company  liable.  In Beard v. London General Omnibus  Co.(3) the  conductor  attempted  to turn the omnibus  an  his  own initiative and caused an accident.  The company was held not liable, because it was not a part of the conductor’s duty to drive the omnibus.  It was not negligence in the course.  of his employment. Similarly, in Engelhart’s(4) case, two servants were engaged ,upon  their master’s.business. One was to drive a cart  and mind the (1) L.R. [1915] 1 K.B. 644, 646, 650. (2) [1956] 1 W.L.R. 376. 539 horses  and  the other-a boy travelling in the cart  was  to deliver  parcels.  The driver left the cart  unattended  and the  boy  drove  it to deliver the parcels  and  caused  the accident.   The  master was held  responsible.   The  driver ought  to have known that if he left the cart the boy  would drive it in the fulfillment of the work of the master.  When the  driver left the cart in the charge of the boy he  acted negligently  in  the course of his  master’s  business.   No doubt,  ’the  effective  cause’ was the  negligence  of  the servant  which made the master responsible but that  is  not the whole of the matter. In  Ricketts’(1) and Engelhart’s(2) cases each  servant  was acting  on  the master’s business at the time.  If  the  two servants in the Engelhart’s case(2) had gone for a picnic or the  boy  had borrowed the cart to give a joy  ride  to  his friends, the master would not have been liable although  the effective  cause would still have been the  elder  servant’s negligence.   The  difference lies in this that in  the  two cases  the negligent act took place in the execution of  the master’s  business and in the examples suggested by  us,  no question of master’s business or the scope of the  servant’s or  agent’s employment arises because the acts  are  clearly outside that scope.  Going for a picnic or lending the  cart so that the co-servant’s friends may go for an outing is not in  the course of the master’s employment.  Beard’s  case(3) when   compared  with  Ricketts’  case(1)  brings  out   the difference.  In  Britt v. Golmoye and Nevill(4)  the  master himself lent the car to the servant for the latter’s private work  and  the  master  was not  held  responsible  for  the negligence of the servant in causing injury because  neither was  the journey on the master’s account nor was the  master in control at the time.  Sir John Salmond (13th Edn. p. 124) has summed up the law thus :               ".  . . . a master is not responsible for  the               negligence  or  other  wrongful  act  of   his               servant  simply because it is committed  at  a               time  when  the  servant  is  engaged  on  his               master’s  business.  It must be  committed  in               the  course of that business, so as to form  a               part  of it, and not be merely  coincident  in               time with it.,’, The  scope of employment of a servant need not of course  be viewed  narrowly, but the essential element that  the  wrong

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must  be committed by the servant during the course  of  the employment, i.e. in doing the master’s business ought always to be present.  In Century Insurance Co. v. Northern  Irelwu Road Transport Board,(5) the driver of a petrol lorry  while transferring  petrol from the lorry to an underground  tank, struck  a  match to light a cigarette and threw  it  on  the floor,  and  thereby caused a fire and explosion  which  did great  damage.   The masters were held  liable  because  the negligence was in the discharge of the duty by the  servant. Although the act (1) L.R. [1915] 1 K.B. 644.    (2) [1897] 1 Q.B. 240. (3) [1930] 2 Q.B. 53D.   (4) (1927-29) 44 T.L.R. 294. (5)  [1942] A.C. 509. 540 of lighting the ’cigarette was something the driver did  for himself  and was by itself quite harmless, it could  not  be regarded  in  the  abstract and was a  negligent  method  of conducting  the  master’s  work.  Similarly,  in  .Smith  v, Martin(1)  a  school  authority  was  held  liable  when   a ’teacher, during school hours sent a girl aged 14 wearing  a print  pinafore to poke the fire and to draw out the  damper in  a grate in the teacher’s common room and the  child  was burnt.   It was held that the teacher’s duty was to  provide education  in  the  widest  sense  and  included   expecting obedience from the pupils and this was an act of  negligence in the discharge of such duty. We  know  of  no  further extension of  the  doctrine  of  a master’s  liability for the act of his servants  during  the course  of his employment which would cover this  case.   It cannot   possibly  be  stated  today  that  the  master   is responsible  for  the acts of his servant done, not  in  the course of employment, but outside it.  In the present  case, the third defendant was not doing the master’s work nor  was the second defendant acting within the scope of his  employ- ment  when  he  lent  the taxi.   The  third  defendant  had borrowed  the  taxi  for a work of his own  and  the  second defendant  in  lending  it was not acting  in  the  master’s business.  The second defendant was not present in the  taxi so  that he could be said to be in control on behalf of  his employer when the taxi was driven. The law with regard to agents is the same.  As was  observed by Lord Atkinson in Samson v. Aitchison(2) it is a matter of indifference  whether a person be styled a servant or  agent since  it is the retention of control which makes the  owner or  the  principal responsible.  Just as the  tort  must  be committed  by a servant either under the actual  control  of his master or while acting in the course of his  employment, the act of the agent will only make the principal liable  if it is done within the scope of his authority.  By a  process of ratiocination, the courts have made a slight  distinction by  attempting to find a ’right of control’ as the basis  of the  master’s  liability and have distinguished  it  from  a ’right  to control’ in cases of simple agency to  bring  the two  cases  together.  We find it simpler to state  the  law that an agent will make the principal responsible so long as the agent does the act within the scope of his authority  or does  so under the actual control of the principal.   We  do not subscribe to the extension of the doctrine that the  act of  the  servant  or  the agent must  be  for  the  master’s benefit.  This extension was made by Willes J. in Barwick v. English  Joint Stock Bank(3).  The Word ’benefit’  is  vague and  it  is  better  to  adhere  to  the  words  ’course  of employment  or  the  scope of  authority’.   There  is  much institutional  criticism of such extension.   Similarly,  we are  doubtful whether the extension of the principle by  the

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introduction of the doctrine (1)  [1911] 2 K.B 775, 784. (3) [1867] L.R. 2 Ex. 259. (2) [1912] A.C. 884. 541 of  implied authority, which was relied upon in  the  school master’s case referred to above, was quite correct.  If  the dictum is accepted, not only the master would be liable  for what  he may be supposed to have ’impliedly authorised’  the servant  to  do  (however  illegal  but  also  for  all  the servant’s  negligence  not in doing his duty  but  in  doing something  on  his own account when he  should  be  properly acting  for the master.  The true rule in such cases is  the one stated by Cockburn C. J. in Storey v. Ashton(1) thus               "...... that the master is only responsible so               long  as the servant can be said to the  doing               the,  act, in the doing of which he is  guilty               of negligence, in the course of his employment               as servant."               or as Lush J. put it,                "The  question  in  all  such  cases  as  the               present is whether the servant was doing  that               which the master employed him to do." There  has  been in recent years another  extension  of  the responsibility of the principal for the act of an agent.  In Ormrod  and  another v. Crosville Motor Services  Ltd.,  and another(2) the owner was attending the Monte Carlo motor car rally.   He asked a friend to drive the car from  Birkenhead to  Monte  Carlo.   The  friend was  carrying  a  suit  case belonging  to  the owner.  Later they were to go  a  holiday together  in the car.  While the motor car was being  driven it  collided with a motor omnibus and the owner of  the  car was  held  responsible  for the damage.   Singleton,  L.  J. observed :               "It has been said more than once that a driver               of a motor car must be doing something for the               owner  of the car in order to become an  agent               of the owner.  The mere fact of consent by the               owner to the use of a chattel is not proof  of               agency, IT but the purpose for which this  car               was  being taken down the road on the  morning               of  the accident was either that it should  be               used by the owner, the third party, or that it                             should  be used for the joint purposes   of  the               male  plaintiff  and the third party  when  it               reached Monte Carlo."               Lord Denning (then Lord Justice) observed:                "It has often been supposed that the owner of               a vehicle is only liable for the negligence of               the  driver  if  that driver  is  his  servant               acting in the course of his employment.   This               is  not correct.  The owner is also liable  if               the  driver  is,  with  the  owner’s  consent,               driving the car on the owner’s business or for               the owner’s purposes.                .... The law puts an especial  responsibility               on the owner of a vehicle who allows it to  go               on the road in charge of some-               (1) [1868-69] 4 Q.B.D. 476.               (2) [1953] 2 All E.R. 753.                1SupCI/66-3               542               one else, no matter whether it is his servant,               his friend, or anyone else.  It is being  used

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             wholly  or partly on the owner’s  business  or               for  the owner’s purpose, the owner is  liable               for any negligence on the part-of the  driver.               The owner only escapes liability when he lends               it  or hires it to a third person to  be  used               for  purposes  in  which  the  owner  has   no               interest or concern." Even   these  dicta  which  make  the  owner  or   principal responsible  when  the  vehicle is driven  partly  on  their account  and  partly on the business of the driver,  do  not take the matter much further.  The learned Judges found  the agency  from the desire of the owner that the friend  should carry  his suit case and keep the car ready at  Monte  Carlo for a holiday. 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 the  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  such 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 defendants 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 but in the circumstances of the case would  direct that there should be no order as to costs throughout.                            ORDER In accordance with the opinion of the majority the appeal is allowed  in respect of the appellant.  In the  circumstances of the case there would be no order as to costs throughout. 543