Vicarious Liability

Prof. (Dr.) C J Rawandale,

Professor, Symbiosis Law School, NOIDA
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Introduction
▪ Generally speaking, one cannot be held responsible for the commission of
torts by other.

▪ However, a person may be liable in respect of wrongful acts or omissions of

another in three ways: -

▪ Liability By Ratification;

▪ Liability By Relation;

▪ Liability By Abetment.
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1. Liability by ratification Dr C J Rawandale, Symbiosis Law

School, NOIDA

▪ An act done for another by a person not assuming to act for himself, but for
such other person, though without any precedent authority, whatever,
becomes the act of the principal, if subsequently ratified by him.

▪ It is based on the maxim, “Omnio Ratihabitio Retrorahitur Et Mandato Priori

Oequiparatur”, which means that ‘every ratification of an act relates back
and thereupon becomes equivalent to a previous request’.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

2. Liability by relation
▪ Master and Servant

▪ Employer and Independent Contractor

▪ Principal and Agent

▪ Company and Director

▪ Firm and Partner

▪ Guardian and Ward

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Dr C J Rawandale, Symbiosis Law
School, NOIDA

3. By Abatement
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Basis of the Liability of Master

▪ Why should a master be held liable for the torts committed by his servant in
doing his business even when his conduct is not blameworthy and he has
used greatest possible care in choosing the servant?
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School, NOIDA

▪ There are following four reasons:

▪ Holmes Common Law Notion: Servant’s personality was merged in

that of his family head i.e. master, survived the era emancipation.

▪ Public Policy: There ought to be a remedy against someone who can

pay the damages.

▪ Respondeat Superior: It means the superior must be responsible or let

the principal be liable. It means not only he who obeys but also he who
commands be liable.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Qui Facit Per Alium Facit Per Se : It means ‘he who acts through
another is deemed in law as doing it himself’.

▪ Bartonshill Coal Co. v. McGuire, (1858) 3 Macq 300

Chelmsford L.C. observed: “It has long been the established law that a
master is liable to third for any injury or damage done through the
negligence or unskillfulness of a servant acting in his master’s employ.
The reason of this is, that every act which is done by a servant in the
course of his duty is regarded as done by his master’s orders, and,
consequently it is the same as if it were the master’s own act, according
to the maxim qui facit per alium facit per se.”
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

A. Master and Servant

▪ To make the master liable for the torts committed by the servant, following
conditions should be satisfied:

▪ Tort is committed by the servant;

▪ The servant committed the tort while acting in the course of

employment of his master
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Who is a servant?
▪ Servant and Independent Contractor

▪ A servant and independent contractor are both employed to do some work

of the employer but there is a difference in the legal relationship which the
employer has with them.

▪ A servant is engaged under a contract of service whereas an independent

contractor is engaged under a contract for services.

▪ The liability of the employer the wrongs committed by his servant is more
onerous than his liability in respect of wrongs committed by an independent
contractor.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Why is it so?
▪ Traditional View

▪ The traditional mode of stating the distinction is that in case of a servant,

the employer in addition to directing what work the servant is to do, can
also give directions to control the manner of doing the work; but in case of
an independent contractor, the employer can only direct what work is to be
done but he cannot control the manner of doing the work.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Short v. J. & W. Henderson Ltd., (1946) 62 TLR 427 (HL)

▪ Lord Thankerton pointed out four indicia of a contract of service:

▪ Master’s power of selection of his servant;

▪ Payment of wages or other remuneration;
▪ master’s right to control the method of doing the work, and
▪ Master’s right of suspension or dismissal.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Modern View

▪ The test of control as traditionally formulated was based upon the social
conditions of an earlier age and “was well suited to govern relationships
like those between a farmer and an agricultural labourer, a craftsman and
a journeyman, a householder and a domestic servant and even a factory
owner and a unskilled hand.”

▪ When it comes to skilled and particularly professional work, it has been not
treated as an exclusive test.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Dharangadhara chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC

264

▪ The Supreme Court laid down that the existence of the right in the master
to supervise and control the execution of the work done by the servant
is a prima facie test, that the nature of control may vary from business to
business and is by its nature incapable of any precise definition, that it is
not necessary that the employee should be proved to have exercised control
over the work of the employee, that the test of control is not of universal
application and that there are many contracts in which the master could not
control the manner in which the work was done.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Silver Jubilee Tailoring House v. Chief Inspector of Shops, (1974) 3 SCC

498

▪ The Supreme Court observed:

▪ “In recent years the control test as traditionally formulated has not been
treated as an exclusive test. It is exceedingly doubtful today whether the
search for a formula in the nature of a single test to tell a contract of
service from a contract for service will serve any useful purpose.
▪ The most that profitably can be done is to examine all the factors that have
been referred to in the cases on the topic. Clearly, not all of these factors
would be relevant in all these cases or have the same weight in all cases. It
is equally clear that no magic formula can be propounded, which factors
should in any case be treated as determining ones”.
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School, NOIDA

▪ The plain fact is that in a large number of cases, the Court can only perform
a balancing operation weighing up the factors which point in one direction
and balancing them against those pointing in the opposite direction.”

▪ Hillyer v. St. Bartholomew’s Hospital, (1909) 2 KB 820

▪ A hospital authority was not held liable for the negligence of its staff in
matters requiring professional skill.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ However with the change in situation that the control test is not decisive
in all cases and it breaks down when applied to skilled and professional
work, in

▪ Gold v. Essex County Council, (1942) 2 KB 293;

▪ Collins v. Hertfordshire County Council, (1947) KB 598;
▪ Cassidy v. Ministry of Health, (1951) 2 KB 343;
▪ Roe v. Minister of Health, (1954) 2 QB 66;
▪ Amalgamated Coal field Ltd. v. Mst. Chhotibhai, (1973) ACJ 365.

▪ Hospital authorities are held liable for negligence of its professional staff
and distinction earlier drawn between professional duties and ministerial or
administrative duties has been disapproved.
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Dr C J Rawandale, Symbiosis Law
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▪ Santa Garg v. Director National Heart Institute, (2004) 8 SCC 56,

▪ The Supreme Court with approval the following proposition from Denning
L.J.’s Judgment in Cassidy’s case observed:

▪ “The hospital authority is liable for the negligence of professional men

employed by the authority under contract for service as well as under
contract of service. The authority owes a duty to give proper treatment-
medical, surgical, nursing and the like-and thought it may delegate the
performance of that duty to those who are not its servants, it remains liable
if the duty be improperly or inadequately performed by its delegates”.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Extent of Liability
▪ The law is settled that a master is vicariously liable for the act of his
servants acting in the course of employment. In other words, unless the act is
done in the course of employment, the servant’s act does not make the
employer liable.

▪ A servant is said to be acting in the course of employment if:

▪ the wrongful act has been authorised by the master; or

▪ the mode in which the authorised act has been done is wrongful or
unauthorised.

▪ It is the general rule that master will be liable not merely for what he has
authorised his servant to do but also for the way in which he does that
which he has authorised to do.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Olga Hall v. Kingston and Andrew Corporation, AIR 1941 PC 103

▪ A Municipal Corporation was held liable for the negligence of its servant in
driving a car belonging to the Corporation on the Corporation’s business.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Subbiah Reddy v. T. Jordan, AIR 1945 PC 168

▪ The owner of a car was held liable for the negligence of his son, who was
employed in the owner’s business, in driving the car which at the time of the
accident was being demonstrated to one about to join the business.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Amita Bhandari v. Union of India, AIR 2004 Guj 67

▪ A Bank was held liable when a security guard on duty by mistake shot a
customer believing that he would steal the cash box which had just arrived.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Liability of Master for Servant’s Unauthorised

Acts
▪ Salmond

▪ “A master is liable even for acts which he has not authorised provided that
they are so connected with acts which he has authorised that they may
rightly be regarded as mode-although improper modes-of doing them.

▪ One must understand that considerations of time, place, equipment and

purpose will all be relevant to this purely factual determination.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Pushpabai Purshottam Udeshi v. M/S Ranjit Ginning & Pressing Co. Pvt.
Ltd. AIR 1977 SC 1735,

▪ The Supreme Court held that the owner is not only liable for the negligence
of the driver if that driver is his servant acting in the course of his
employment but also when the driver is with the owner’s consent driving his
car on owner’s business or for the owner’s purposes.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ State of Maharashtra v. Kanchanmala Vijaysing Shirke, AIR 1995 SC

2499

▪ It was held by the court that if the unauthorised and wrongful act of the
servant is not so connected with the authorised act as to be a mode of
doing it, but is an independent act, the master is not responsible; for in such
a case the servant is not acting in the course of the employment but has
gone outside of it.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Illustration:
▪ A, master, allows, B, servant to take his vehicle so that he can come early
and join duties. B while at home allows his son C to drive. C negligently
injures D, a passer-by. In this case, A can not be held liable as he only
authorised taking of the vehicle so that he returns early to work.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ General Engineering Services Ltd. v. Kingston and Saint Andrew

Corporation, (1988) 3 All ER 867

▪ The appellants owned certain premises at Kingston, Jamaica. A fire broke

out in the said premises on which the premises the appellants promptly
informed the local fire brigade. The fire brigade took 17 minutes in
reaching the appellants’ premises which was at a distance of 1½ miles.
The normal time for covering this distance was 3½ minutes. By the time the
fire brigade reached, the premises were completely destroyed by fire.

▪ The reason why the firemen took 17 minutes instead of 3½ minutes in

covering the distance was that they were operating a ‘go slow’ policy
as part of industrial action. They had driven to the premises by moving
slowly forward, stopping, then moving slowly forward again, then stopping
and so on until they reached the premise.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Questions were whether the respondent, as employers of the firemen, were

vicariously liable to the appellants or whether the firemen acted in the
course of employment.

▪ The Privy Council observed:

▪ “Their (the firemen’s) unauthorised and wrongful act was to prolong the
time taken by the journey to the scene of the fire, as to ensure that they did
not arrive in time to extinguish it, before the building and its contents were
destroyed. Their mode and manner of driving, the slow progression of
stopping and starting, was not so connected with the authorised act, that
is driving to the scene of the fire as expeditiously as reasonably
possible, as to be a mode of performing that act.”
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, (1966) ACJ 89

(SC)

▪ The owner had entrusted his car to a driver for plying it as a taxi. The
driver lent the taxi to the cleaner for taking it to the R.T.O.’s Office for
driving test. The accident happened when the cleaner was driving while
giving the driving test. The driver was then not in the vehicle.
▪ It is clear from the fact that at the time the accident happened, the car was
not being used as a taxi for the owner’s business. The car was then
engaged in the work of the cleaner which had no connection whatsoever
with the owner’s business. The driver in lending the car to the cleaner for
taking a driving test did an act which he was not employed to perform
and thus clearly acted beyond the scope of his employment which was
to drive the car as a taxi. The owner was, therefore, held not liable.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ State of Maharashtra v. Kanchanmala Vijaysing Shirke, AIR 1995 SC

2499

▪ The accident happened when a government jeep while being used on

official duty, for bringing the employees of a government office, was driven
by a clerk with the permission of the driver who was in charge of the
vehicle and who had consumed liquor.

▪ The Supreme Court held that this was a case where an authorised act was
done in unauthorised manner and the State Government was vicariously
liable.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (1987) 2 SCC

654

▪ The driver of a truck while on masters business left the truck with the engine
running in charge of the cleaner and went to a nearby shop for bringing
snacks and the accident happened while the cleaner was on the wheels, the
master and the insurance company were both held liable.

▪ In the absence of any prohibition, it may be possible from the circumstances

to infer authority in the servant to do certain acts not covered by any
positive direction. Thus acts done within the implied authority will obviously
be in the course of employment.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Pushpabai Purshottam Udeshi v. Ranjit ginning & Pressing Co. Pvt. Ltd.
AIR 1977 Sc 1735

▪ The manager of the defendant company was driving a car of the company
on its journey from Nagpur to Pandhurna on the Company’s business. The
manager took one Purshottam as a passenger in the car. The car met with
an accident because of the negligence of the manager in driving the car
and Purshottam died.

▪ The High Court negatived the claim of the dependents of the deceased
against the Company on the reasoning that the manager in taking the
deceased as a passenger was not acting in the course of employment.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ The Supreme Court reversed the High Court’s Judgment and observed:

▪ “In the present case a responsible officer of the Company, the manager,
had permitted Purshottam to have a ride in the car. Taking into account the
high position of the driver who was the manager of the Company, it is
reasonable to presume, in the absence of any evidence to the contrary that
the manager had authority to carry Purshottam and was acting in the course
of employment.”
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Whether a servant while going to the place of work or

returning there from acts in the course of his employment
▪ Smith v. Stages, (1989) 1 All ER 833 (HL)

▪ The House of Lords has formulated some general principles to these

questions.

▪ An employee travelling from his ordinary residence to his regular place

of work, whatever the means of transport and even if it is provided by
the employer, is not on duty and is not acting in the course of his
employment.
▪ But if he is obliged by his contract of service to use the employer’s
transport, he will normally, in the absence of an express condition to the
contrary, be regarded as acting in the course of his employment while
doing so.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪Travelling in the employer’s time between workplaces or in the course of

a peripatetic occupation, whether accompanied by goods or tools or
simply in order to reach a succession of workplaces, will be in the course
of employment.

▪Receipt of wages will indicate that the employee is travelling in the

employer’s time and for his benefit and is acting in the course of his
employment and in such a case the fact that the employee may have
discretion as to the mode and time of travelling will not take the journey
out of the course his employment.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ An employee travelling in the employer’s time from his ordinary

residence to a workplace other than his regular workplace or in the
course of a peripatetic occupation or to the scene of an emergency,
such as fire, an accident or mechanical breakdown of plant, will be
acting in the course of employment.

▪ A deviation from or interruption of a journey undertaken in the

course of employment (unless the deviation is merely incidental to
the journey) will for the time being (which may include an overnight
interruption) take the employee out of the course of employment.

▪ Return journeys are to be treated on the same footing as outward

journeys.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ The above general propositions are subject to any express arrangements

between the employer and the employee or those representing his interests.
Further they are not intended to define the position of salaried employees,
with regard to whom the touchstone of payment made in the employer’s
time is not generally significant.
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Dr C J Rawandale, Symbiosis Law
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▪ Regional Director E.S.I. Corporation v. Francis De Costa, AIR 1997 Sc 432

▪ An employee met with an accident while he was on his way the place of
employment to join his duty. The accident occurred about one K.M. away
from the factory when the employee riding a cycle was hit by a lorry of the
employers.

▪ In a claim for disablement benefit under the Employee’s State Insurance Act,
1948, it was held that the accident did not arise in the course of
employment of the claimant and he was not entitled to disablement benefit
under the Act.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Effect of Prohibition
▪ It is now the law that whenever a servant does an act which his employer
has prohibited him from doing, the act so done falls outside the course of
employment. Prohibition falls under two categories: -

▪ those which limit the scope or sphere of employment; and

▪ those which merely affect or restrict the mode of doing the act for which the
servant is employed.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ If a servant violates a prohibition of the first category, his act will be

outside the course of employment and the master will not be vicariously
liable.

▪ But if the violation by the servant is only of a prohibition of the second

category, the servant’s act will still be in the course of employment making
the master liable.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Twine v. Bean’s Express Ltd. (1946) 62 TLR 458

▪ The defendants provided for the use of a bank a commercial van and a
driver on the terms that the driver remained the servant of the defendants
and that the defendants accepted no responsibility for injury suffered by
persons riding in the van who were not employed by them. There were two
notices in the van, one stating that no unauthorised person was allowed on
the vehicle, and the other, that the driver had instructions not to allow
unauthorised travellers on the van, and that in no event would the
defendants be responsible for damage happening to them.
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School, NOIDA

▪ One person who was not authorised to ride in the van got a lift in the van
with the consent of the driver. Owing to the negligence of the driver, there
was an accident and that person was killed.

▪ Lord Green, M.R. observed that his act of driving was no doubt in the
course of employment but “the other thing he was doing simultaneously was
something totally outside the scope of his employment, namely, giving a lift
to a person who had no right whatsoever to be there”.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Dishonest and Criminal Acts

▪ A master is not liable for a dishonest or criminal act of his servant where the
servant merely takes the opportunity afforded by his service to commit the
wrongful act.

▪ Illustration: If a window cleaner steals an article from the room where he is

doing the window cleaning work, his employer is not liable.
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School, NOIDA

▪ Barwick v. English Joint Stock Bank, (1867) 2 Exch. 259

▪ The master is answerable for every such wrong of the servant or agent as is
committed in the course of the service and for the master’s benefit though
no express command or privity of the master is proved.
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▪ Warren v. Henlys Ltd. (1948) 2 All ER 935

▪ When a servant assaults another, whom he meets in the course of his work,
out of personal vendetta, and the assault has no relation to the master’s
work, the master is not liable.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

When is master liable for servant’s dishonest

and/or criminal acts?

▪ If the wrongful act is committed for the benefit of the master and while
doing his business, the master is liable.

▪ The master will also be liable if the servant while doing the wrongful act
was acting within the apparent scope of his authority even though the act
was done for his own benefit or for the benefit of some person other than
the master.
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▪ Lloyd v. Grace, Smith & Co. (1912) AC 716

▪ The managing clerk of a firm of solicitors induced a client of the firm to

transfer a mortgage to him by fraudulently representing the nature of the
deed and, thereupon, obtained and misappropriated the mortgage money.

▪ The solicitors were held liable as their managing clerk in accepting the
deed was acting within the apparent scope of his authority although
fraudulently for his own benefit.
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▪ State Bank of India v. Shyama Devi, All 1978 SC 1263

▪ The plaintiff who had a saving bank account with the Bank, handed over a
cheque and cash to an employee of the Bank who was a neighbour and
friend of the plaintiff’s husband with a letter of instructions and pass book
for being credited to her account. The employee misappropriated the
amount and made false entries in the pass book. The employee was not in
the charge of the savings bank counter and the cheque and cash were not
handed over to the counter clerk concerned.

▪ The Supreme Court held that the Bank was not liable for the fraud of the
employee. The employee concerned here had no actual or apparent
authority to accept on behalf of the Bank cheque or cash for being
deposited in savings bank accounts and the money was not received by him
in the normal course of business of the Bank.
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▪ Morris v. C. W. Martin & Sons Ltd. (1965) 2 All ER 725

▪ The plaintiff delivered her mink stole to one Bedser for getting it cleaned
who with the permission of the plaintiff delivered it to the defendants for
that purpose. The defendants’ servant who was entrusted with the job
instead of cleaning it stole it. The defendants were held liable for the theft
of the article as it was in the course of employment.
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▪Lister v. Hesley Hall Ltd. (2001) 2 All ER 769 (HL)

▪The plaintiffs were resident for a few years at a school for boys with
emotional and behavioural difficulties, owned by the defendants who
employed a person to take care of the boys as warden of the school’s
boarding house. The warden systematically sexually abused the plaintiffs
while they were resident at the school.

▪In holding the defendants vicariously liable the court held that the defendant
had undertaken to care for the boys through the services of the warden and
there was a very close connection between his employment and his torts which
were committed in the premises of the defendants while he was busy caring
for the children in performance of his duties.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Master’s right to recover damages from servant

▪ The law implies a term in contract between employer and employee that
the employee will exercise reasonable care in performance of his work
and, therefore, if the master is obliged to pay damages to a third party
for wrongs committed by the servant, he can recover that amount from the
servant in a suit for damages for breach of the implied term.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Lister v. Romford Ice and Cold Storage Co. Ltd. (1957) AC 555

▪ A lorry driver employed by a company took his father, a fellow servant, with
him as a mate. In backing the lorry, he injured his father by negligent driving.
The father recovered damages in an action against the company for the
negligence of the driver.

▪ The company then brought an action against the driver claiming that, as joint
tortfeasor, it was entitled to:

▪ 1. contribution from him under Section 6 of the Law Reform (Married Women
and Tortfeasor’s) Act, 1935 and
▪ 2. damages for breach of an implied term in his contract of service that he
would use reasonable care and skill in driving .
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School, NOIDA

▪ The House of Lords held that the driver was under a contractual obligation
of care to his employer in the performance of his duty as a driver and that
the Company was entitled to recover from the driver damages for breach
of that contractual obligation even if the employer had insurance cover
against his liability to the party injured by the negligence of the servant.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787

▪ The Supreme Court held that when an officer of the government or a public
authority acts maliciously and oppressively causing harassment and agony
to the plaintiff, the government and authority made liable for damages
must recover the amount from the officers who are responsible.

▪ The real reason is that when the government or a public authority is made
to pay damages the burden really falls on the citizens as taxpayers and
there is no justification for burdening them for malicious and oppressive
conduct of the officers.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

Employer and Independent Contractor

▪ Who is an independent contractor?

▪ An independent contractor is one who undertakes to produce a given result

without being in any way controlled as to the method by which he attains
that result.
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Dr C J Rawandale, Symbiosis Law
School, NOIDA

▪ Generally speaking, an employer is not liable for the torts of his

independent contractor. There are following exceptions: -

▪ Where the employer retains his control over the contractor and
personally interferes and makes himself a party to the act which
occasion the damage;

▪ Where the thing contracted to be done is itself wrongful. In such case

the employer is responsible for the wrong done by the contractor or his
servants, and is liable to third persons who sustain damage from the
wrong doing.

▪ Illustration: If a man employs a contractor to build a house, who builds

it so as to darken another person’s windows, the remedy is not against
the builder, but the owner of the house.
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▪ Ellis v. Sheffield Gas Consumers Co. (1853) 2 E & B 767

▪ A gas company, not authorised to interfere with the streets of Sheffield,

directed their contractor to open trenches therein. The contractor’s servant,
in doing so, left a heap of stones, over which the plaintiff fell and was
injured.

▪ It was held that the defendant company was liable, as the interference with
the streets was in itself a wrongful act.
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School, NOIDA

▪ Patel Maganbhai Bapujibhai v. Patel Ishwarbhai Motibhai, AIR 1984 Guj

69

▪ The trustees of a temple employed a contractor to get electric connection

for use of lighting and mike arrangements in the temple from the well of an
agriculturist without informing and obtaining the permission of the Electricity
Board. A person was injured as the wires used by the contractor snapped.

▪ The trustees were held liable as the act of diverting electricity without
permission of the Board was in itself an illegal act.
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School, NOIDA

▪ Where the legal or statutory duty is imposed on the employer, he is

liable for any injury that arises to others in consequence of its having
been negligently performed by the contractor.
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School, NOIDA

▪ Gray v. Pullen, (1864) 5 B & S 970

▪ A was empowered under an Act to make a drain from his premises to a

sewer, by cutting a trench across a highway, and filling it up after the drain
should be completed. For this purpose he employed a contractor, by whose
negligence it was filled up improperly, in consequence of which damage
ensued to B.

▪ It was held that A was responsible in an action by B.

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▪ Where the work contracted to be done is from its nature likely to cause
danger to others, in such cases there is a duty on the part of the employer
to take all reasonable precautions against such danger, and if the
contractor does not take these precautions, the employer is liable.
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▪ Where liability is imposed by statute

▪ Illustration: Under the provisions of the Workmen’s Compensation Act,

1923, if the principal employs a contractor, such contractor’s servants
are able to recover compensation from the principal without prejudice
to the principal’s right to be indemnified by the contractor, if the
contractor is himself liable under the Act.
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▪ Principal and Agent

▪ There is no special rule dealing with the liability of the principal for the
torts committed by the agent and the rules discussed earlier in the context
of master’s liability for the torts of his servant apply here also.
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▪ Company and Director

▪ The ordinary principles of agency apply to companies which are

consequently liable for the negligence of their servants, and for torts
committed by them in the course of employment.

▪ Directors are personally responsible for any torts which they themselves
may commit or direct others to commit, although it may be for the benefit of
their company.
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▪ Firm and Partner

▪ Both under English and Indian Law, a firm is liable for torts committed by a
partner in the ordinary course of the firm. The relation of partners inter se
is that of principal and agent, and therefore each partner is liable for the
act of his fellows.

▪ Guardian and Ward

▪ Guardian are not personally liable for torts committed by minors under
their charge.
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▪ Liability of State

▪ Duguit -
“State being the greatest corporation shall be responsible for it’s or it’s servants.”

▪ As State performs vast role in modern times, one would expect that the legal principles
relating to liability of the State in tort would be easily ascertainable. It necessitates to
see whether this object is achieved in reality in India.
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▪ Article 300 (1) of the Constitution of India envisages the law in India with regard
to the liability of the State for the tortious acts of its servants.

▪ Section 65 of the Government of India Act, 1858; Section 32 of the Government of

India Act, 1915; and Section 176 of the Government of India Act, 1935 have great
influence on the making of Article 300 (1) of the Constitution with regard to liability
of State.
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▪ Article 300 (1) states:

“The Government of India may sue or be sued by the name of the Union of India
and the Government of a State may sue or be sued by the name of the State and
may, subject to any provisions which may be made by Act of Parliament or of the
Legislature of such State enacted by virtue of powers conferred by this Constitution,
sue or be sued in relation to their respective affairs in the like cases as the Dominion
of India and the corresponding Provinces or the corresponding Indian States might
have sued or been sued if this Constitution had not been enacted.”
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▪ Unfortunately, even after 67 years since the commencement of the Constitution of

India, no law has been made by the Parliament as envisaged by Article 300.
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▪ Pre-Constitutional Decisions

▪ P & O Steam Navigation Co. v. Secretary of State, (1868) 7 Bom. HR App. A. 1

▪ A servant of the plainitff company was proceeding on a highway in Calcutta, driving

a carriage which was drawn by a pair of horses belonging to the plaintiff. He met
with an accident, caused by negligence of the servants of the Government, who were
carrying a huge iron piece but walking in the middle of the road. When the plaintiff
drove nearer, he tried to warn these persons who after seeing the carriage driven
near to them, got alarmed and droped the iron bar which on noise injured one of the
horses of the planitiff.

▪ For the loss caused by the accident to the plaintiff claimed damages against the
Secretary of State for India.
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▪ After making a distinction between sovereign and non-sovereign functions, the Court
held that the Company would have been liable in tort if the activity was non-sovreign
in nature, but it would have enjoyed immunity if it was a sovereign function.

▪ Peacock C.J observed that the doctrine of the “King can do no wrong” had no
application to the East India Company. Since the workmen were carrying on an
activity which could be carried on by private persons, it was classified as non-
sovereign, and hence, the Secretary of State was held liable.
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▪ Secretary of State v. Hari Bhanji, (1882) ILR 5 Mad. 273

▪ The Madras High Court held that State immunity was confined to acts of State.

▪ The Court explained: “The act of State, of which the municipal courts of British India
are debarred from taking cognizance, are acts done in the exercise of sovereign
power, which do not profess to be justified by municipal law…where an act
complained of is professedly done under the sanction of municipal law, and in
exercise of powers conferred by that law, the fact that it is done by the sovereign
powers and is not an act which could possibly be done by a private individual
does not oust the jurisdiction of the civil court.”
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▪ Secretary of State v. Cockraft, AIR 1949 Bom. 277

▪ Making or repairing a military road was held to be sovereign function and the
Government was held to be not liable, for the negligence of its servants in the
stacking of gravel on a road resulting in a carriage accident injuring the plaintiff.
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▪ Post Constitutional Decisions

▪ State of Rajasthan v. Vidyawati, AIR 1962 SC 933

▪ The driver of a Government jeep, which was being used by the Collector of Udaipur,
injured a pedestrian. The injured person dies three days letter, in the hospital. The
legal representatives of the deceased sued the State of Rajasthan and the driver for
compensation for the tortious act committed by the driver.

▪ It was found by the Court that the driver was rash and negligent in driving the jeep
and that the accident was the result of such driving on his part.
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▪ While arriving at the judgment the Supreme Court observed: “…the State should be
as much liable for tort in respect of tortious acts committed by its servant within the
scope of his employment and functioning as such, as any other employer. The
immunity of the Crown in the United Kingdom was based on the old feudalistic
notions of justice, namely, that the king was incapable of doing the wrong, and
therefore, of authorising or instigating one, and that he could not be sued in his own
courts. In India, ever since the time of the East India Company, the sovereign has
been held liable to be sued in tort or in contract, and the common law immunity
never operated in India”.
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▪ It furher observed that

“Now that we have, by our Constitution, established a Republic form of Government,

and one of the objectives is to establish a Socialistic State with its varied industrial
and other activities, employing a large army of servants, there is no justification, in
principle, or in public interest, that the State should not be held liable against the
Crown.”
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▪ Kasturi Lal v. State of UP, AIR 1965 SC 1039

▪ The plaintiff had been arrested by the police on a suspicion of possessing stolen
property. He was found in possesion of a large quantity of gold which was seized.
On his release he demanded for the gold which was not returned to him because the
constable in charge of Malkhana had absconded with gold to Pakistan.
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▪ The distinction between sovereign and non-sovereign functions laid down in the P &
O Steam Navigation Company case was revived by the Supreme Court in the
following words:

“If a tortious act is committed by the public servant in discharge of sovereign

functions which are referable to and ultimately based on the delegation of sovereign
powers of the State to such public servant? If the answer is in the affirmative the
action for damages for loss caused by such tortious act will not lie. On the other hand,
if the tortious act has been committed by a public servant in discharge of duties
assigned to him not by virtue of the delegation of any sovereign power, an action for
damages would lie. The act of the public servant committed by him during the course
of his employment is in this category of cases, an act of a servant who might have
been employed by a private individual for the same purpose.”
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▪ The Supreme Court, while denying the claim of the plaintiff, held that:

“the act of negligence was committed by the police officers while dealing with the
property of Ralia Ram, which they had seized in exercise of their statutory powers.
The power to arrest a person, to search him and to seize property found with him,
are powers confered on the specified officers by statute…they are powers which can
be properly categorized as sovereign powers; and so, there is no difficulty in holding
that the act which gave rise to the present claim for damages has been committed by
the employee of the respondent during the course of its employment; but the
employment in question being of the category which can claim the special
characteristics of sovereign power, the claim cannot be sustained.”
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▪ The distinction between sovereign and non-sovereign functions, revived in Kasturilal,

has given rise to a lot of confusion.

▪ Many High Courts in India have expressed conflicting views on this subject. However,
the general trend appears to be in favour of broadening the scope fo tortious
liability of the State.
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▪ B.K.D. Patil v. State of Mysore, (1977) 4 SCC 358

▪ In this case, stolen property was recovered from the thieves was produced before the
Magistrate who asked the police to keep it in safe custody. Later, it was stolen from
the police station. When the owner applied to the Magistrate under Sec. 517 of the
Criminal Procedure Code for the return of the recovered property was not in the
custody of the Court.

▪ The High Court also accepted this stand, but on appeal the Supreme Court reversed
the decision of the High Court and held that the State was liable to pay the value of
the property.
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▪ N. Nagendra Rao v. State of A.P., AIR 1994 SC 2663

▪ While distinguishing between sovereign and non-sovereign functions, the Court laid
down certain legal principles as follows:

“In the modern sense, the distinction between sovereign or non-sovereign power does
not exist. It all depends on the nature of the power and manner of its exercise…It is
in public interest that for acts performed by the State, either in its legislative or
executive capacity, it should not be answerable in torts. That would be illogical and
impracticable. It would be in conflict with the modern notions of sovereignty.”
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▪ The Court further observed that-

“One of the tests to determine, if the legislative or executive function is sovereign in

nature is, whether the State is answerable for such actions in courts of law. For
instance, acts such as defence of the country, raising armed forces and maintaining it,
making peace or war, foreign affairs, power to acquire and retain territory, are
functions which are indicative of external sovereignty and are political in nature.
Therefore, they are not amenable to jurisdiction of ordinary civil court. No suit under
Civil Procedure Code would lie in respect of it. The State is immune from being sued,
as the jurisdiction of the courts in such matters is impliedly barred.”
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▪ Uncertainty of Law

▪ The definiteness of the precise contours and certainty of principles of universal

application are lacking. The Court in Nagendra Rao reaffirmed the theory of
primary and inalienable function. What is the efficacy of the judgment in Nagendra
Rao which was delivered by two judges bench whereas Kasturilal and Vidyawati
were delivered by a Constitution Bench of Five Judges.
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▪ In United Kingdom and United States of America, the liability of the State is
statutorily recognised in the form of the Crown Proceedings Act, 1947 and the
Federal Torts Claims Act, 1946.

▪ Though we claim ourselves as social welfare state, the situation is unsatisfactory as

the recommendations made by the Law Commission in 1956 and further the judicious
opinions of the Supreme Court, have not yet been given effect to.
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▪ In Kasturi Lal v. State of UP, AIR 1965 SC 1039, the Supreme Court asserted that
“…it is time that the Legislatures in India seriously consider whether they should not
pass legislative enactments to regulate and control their claim from immunity…on the
same lines as has been done in England by the Crown Proceedings act, 1947.”
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▪ Violation of Fundamental Rights & Payment of Compensation

▪ It would be appropriate to refer to the development i.e. the violation of fundamental

rights and monetary redress, which is parallel to the evolution of the law applicable
to actions in tort.

▪ In Rudal Shah v. State of Bihar, AIR 1983 SC 1086, the Court directed the State of
Bihar to pay compensation of Rs.30, 000 to the victim who was illegally kept in jail
for 14 years even after his acquittal by the Court.
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▪ In Sebastian Hongray’s case, (1984) 4 SCC 82, two persons were taken into
custody by army authorities in Manipur but they were not produced before the Court
in obedience of a writ of habeus corpus and it was presumed that they must have
met with unnatural death while in Army custody.

▪ The Supreme Court directed the Central Government to pay exemplary damages of
Rs. 1 lakh each to the wives of those persons.
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▪ In Bhim Singh v. State of Jammu & Kashmir, AIR 1986 SC 494, the Supreme Court
awarded a sum of Rs. 50,000 to the petitioner as compensation for violation of his
fundamental right of personal liberty under Article 21 of the Constitution. The
petitioner who was an MLA was illegally arrested and detained in police custody
and deliberately prevented from attending the session of the legislative assembly.
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▪ In Peoples Union for Democratic Rights v. Police Commissioner, Delhi Head

Quarter, (1989) 4 SCC 730, a labourer was taken to the police station for doing
some work. He was severely beaten when he demanded wages and as a result he
died. The Court directed the government to pay Rs. 75,000 as compensation to the
family of the deceased.
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▪ In Saheli v. Commissioner of Police, AIR 1990 SC 513, the Supreme Court in public
interest litigation directed the Delhi Administration to pay Rs. 75,000 as exemplary
compensation to the mother of 9 year old child who died due to beating by the Delhi
Police officer.
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▪ State of Maharashtra v. Ravikant Patil, (1991) 2 SCC 373

▪ An under trial prisoner was handcuffed and paraded on streets. He was suspected to
be involved in a murder case. A local newspaper carried a news item that he would
be taken in procession from Police Station through the main streets of the city for the
purpose of investigation.

▪ The Bombay High Court held that handcuffing and parading of the petitioner was
unwarranted and violative of Article 21 and directed the PSI who was responsible
for this, to pay Rs. 10,000 by way of compensation. It also directed that this act of
violation of Article 21 should also be entered in his service record.

▪ The Supreme Court upheld the judgment of the High Court directing a payment of
compensation but held that the police officer was not personally liable as he acted
as an official.
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▪ Nilabati Behra v. State of Orissa, (1993) 2 SCC 746

▪ The petitioners son aged 22 years was arrested by police in connection with
investigation of an offence of theft in a village and kept in police custody with his
hands tied. On the next day his body was found by the side of the railway track. The
mother of the deceased sent a letter to the Court alleging custodial death of her son
claiming compensation on the ground of violation of Article 21 of the Constitution.

▪ The Court treated this letter as a writ petition under Article 32 and awarded Rs.1.15
lakhs as compensation to the mother of the deceased.
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▪ State of A.P. v. Challa Ramrishna Reddy, AIR 2000 SC 2083

▪ The Supreme Court held that in the process of judicial advancement Kasturilal’s case
has pated into insignificance and no longer of any binding values. In this case a
prisoner had informed the jail authorities that he apprehended danger to his life but
no action was taken on this information and no measures were taken for his safety
and he was killed in the prison. It was also found that a police officer was a party to
the conspiracy to kill the prisoner which was hatched in the prison.

▪ The court held that in case of violation of fundamental right the defence of sovereign
immunity which is an old and archaic defence cannot be accepted and the
government and the police are liable to compensate the victim.
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Thank You!