# Ajeet Rajbhar v. Smt. Badami Devi & Anr

- **Citation:** (2023) 5 ILRA 114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-21
- **Case number:** First Appeal From Order No. 70 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajeet-rajbhar-v-smt-badami-devi-anr-50153
- **Pages:** 21

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-Whether the
owner of a motor vehicle, who hands it
over for repairs to a mechanic, would be
liable in damages to third party sustaining
injury on account of use of the motor
vehicle by the mechanic in a public place,
for the purpose of carrying out repairs-if
the owner in fact drives an uninsured
vehicle in a public place or causes it to be
driven through his servant or agent,
injuring a third party, the owner would be
liable to compensate the third party for
the injury or loss sustained-when the
vehicle is entrusted to an independent
contractor, like a mechanic, for the
purpose of service or repairs, it is held by
the mechanic or the repairer under a
contact of bailment, it is not held as a
servant or an agent of the ownerTherefore, for any injury or loss to a third
party, arising out of the use of a motor
vehicle in a public place by the mechanic
or the repairer, while he holds a motor
vehicle under a contract of bailment, the
bailee would be liable in damages or
compensation to the third party, it would
not be the owner.(Para 1 to 53)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,872 of 73,455. This is a partial read: ask again with offset=39872 for what follows._

114 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be deposited by the Insurance
Company within a period of three months
before the learned tribunal. Thereafter the
learned tribunal shall release the amount to
the claimants without delay. The amount
already disbursed to the claimants (if any)
shall be adjusted.
----------
(2023) 5 ILRA 114
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 70 of 2019

Ajeet Rajbhar ...Appellant
Versus
Smt. Badami Devi & Anr. ...Respondents

Counsel for the Appellant:
Sri
Akhilesh
Chandra
Srivastava,
Sri
Ramesh Chandra Pathak, Sri Aditya Singh
Parihar

Counsel for the Respondents:
Sri Vijay Kumar Dubey, Sri Manish Kumar
Pandey

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-Whether the
owner of a motor vehicle, who hands it
over for repairs to a mechanic, would be
liable in damages to third party sustaining
injury on account of use of the motor
vehicle by the mechanic in a public place,
for the purpose of carrying out repairs-if
the owner in fact drives an uninsured
vehicle in a public place or causes it to be
driven through his servant or agent,
injuring a third party, the owner would be
liable to compensate the third party for
the injury or loss sustained-when the
vehicle is entrusted to an independent
contractor, like a mechanic, for the
purpose of service or repairs, it is held by
the mechanic or the repairer under a
contact of bailment, it is not held as a
servant or an agent of the ownerTherefore, for any injury or loss to a third
party, arising out of the use of a motor
vehicle in a public place by the mechanic
or the repairer, while he holds a motor
vehicle under a contract of bailment, the
bailee would be liable in damages or
compensation to the third party, it would
not be the owner.(Para 1 to 53)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Naveen Kumar Vs Vijay Kumar & ors. (2018)
3 SCC 1

2. Sitaram Motilal Kalal Vs Santanuprasad
Jaishankar Bhatt (1966) AIR SC 1697

3. Minu B. Mehta & anr. Vs Balkrishna
Ramchandra Nayan & anr. (1977) 2 SCC 441

4. Pushpabai Purshottam Udeshi & ors. Vs Ranjit
Ginning & Pressing Co. (P) Ltd. & anr. (1977) 2
SCC 745

5. K. Anandan Vs Ammalu Gomathi & anr.
(1988) AIR Ker 117

6. Ramu Tolaram Vs Amichand Hansraj Gupta &
ors. (1988) AIR Bom 304

7. The Motor & Gen. Finance (India) Ltd. Vs
Mary Mony & Or (1990) SCC OnLine Ker 229

8. Devinder Singh Brar Vs Mangal Singh & ors.
(1981) AIR P&H 53

9. Guru Govekar Vs Filomena F. Lobo Miss
(1988) 3 SCC 1

10. Alias Vs E.M. Paul & ors. (2004) AIR Ker 214

11. Eagle Brand Soapnut Co. reptd. by its
Partner
No.
15,
Peria
Kammala
Street,Tiruchirapalli-8 Vs Rangasamy & anr.
(1997) SCC OnLine Mad 67

(Delivered by Hon'ble J.J. Munir, J.)
5 All. Ajeet Rajbhar Vs. Smt. Badami Devi & Anr.
115

1. This appeal under Section 173 of
the Motor Vehicles Act, 1988 (for short,
'the Act') is directed against a judgment and
award of Mr. Rakesh Kumar, Motor
Accident Claims Tribunal/ the Additional
District Judge, Court No.7, Gorakhpur
dated May the 31st, 2017 in Motor
Accident Claim Petition No.145 of 2012,
ordering the appellant to pay compensation
to the claimant-respondent No.1 for a fatal
motor accident.

2. The moot question involved in this
appeal is: Whether the owner of a motor
vehicle, who hands it over for repairs to a
mechanic, would be liable in damages to a
third party sustaining injury on account of
use of the motor vehicle by the mechanic in
a public place, for the purpose of carrying
out repairs?

3. The facts giving rise to this appeal
are these:

Indra Kumar Gupta @ Kumbhe
was
proceeding
on
his
bicycle
on
13.02.2012 toKhalilabad. As he reached
near a pond, located ahead of the Beni
Madhav Inter College, within the local
limits of P.S. Bakhira, District Sant Kabir
Nagar at about 1:00 o'clock in the afternoon
hours, the rider of motorcycle, bearing
registration No. UP-58D-4362, riding his
motorcycle, at a high sped and negligently,
appeared and without sounding a horn, hit
the bicycle that Gupta was riding. In
consequence of the impact, Gupta sustained
grievous injuries. He was being conveyed
for the purpose of medical aid to a hospital
in Khalilabad, but died on way. These are
the assertions in the claim petition
instituted by Gupta's wife, Smt. Badami
Devi. Badami Devi is the sole claimant
arrayed in the claim petition and the
respondent to this appeal. She will
hereinafter be referred to as 'the claimant'.

4. It is the claimant's case that though
the loss caused by the untimely demise of
her husband cannot be compensated in
money, but still she is entitled to
compensation. The deceased is said to have
been earning a sum of Rs.8000/- a month,
which he expended on his family. The
claimant also asserts that his untimely
demise has deprived her of his company.
Accordingly, the claimant has demanded in
compensation a sum of Rs.18,21,000/-, as
per details set forth in Column No.22 of the
claim petition.

5. The owner of the offending
motorcycle is one Ram Chandra Sahani,
arrayed as opposite party No.1 to the claim
petition. He is the second respondent to this
appeal. He will hereinafter be called 'the
owner'. The owner put in a written
statement denying the averments in the
claim petition generally. In the additional
pleas,
he
has
denied
the
accident
involving his motorcycle on the date,
time and place alleged. According to the
owner, he had entrusted the offending
motorcycle prior to the accident to one
Ajeet Rajbhar for the purpose of service.
Ajeet Rajbhar, without the permission of
the owner, was operating the motorcycle,
when he caused the accident. The owner
had no knowledge of the accident until
after the lapse of a week. It is the owner's
case that since Ajeet Rajbhar (for short,
'the
mechanic')
was
operating
the
motorcycle without the owner's consent,
it is he, who has to bear the burden of
satisfying the compensation awarded, in
case the Tribunal is of opinion that it is
the
offending
motorcycle
that
was
involved in the accident.
116 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The mechanic, who was arrayed as
opposite party No.2 to the claim petition
and is the appellant here, put in his separate
written statement dated 13.04.2016. He
generally denied the allegations in the
claim petition. In the additional pleas, it is
his case that on 03.02.2012 or at any other
date, he was not riding the offending
vehicle, but at the time when the accident is
said to have happened, he held a valid and
effective driving licence, bearing No.
A294715KN/05. The said driving licence
was issued to him on 07.07.2005 by the
Transport Officer, Sant Kabir Nagar. No
accident happened on 13.02.2012, because
of the mechanic, rashly and negligently
riding the offending motorcycle. The
claimant merely for the purpose of seeking
compensation has come up with this claim.
The mechanic has denied his involvement
in the accident.

7. On the pleadings of parties, the
Tribunal framed the following issues
(translated into English from Hindi):

"1. Whether on 13.02.2012 when
the deceased Indra Kumar Gupta @
Kumbhe was cycling his way to Khalilabad
and had reached the pond, a little ahead of
Beni Madhav Inter College within the local
limits of P.S. Bakhira, District Sant Kabir
Nagar, at about 1:00 o'clock in the
afternoon, motorcycle bearing registration
No. UP-58D-4362, operated by its rider
rashly
and
negligently
and
without
sounding
a
horn,
bumped
into
the
deceased's motorcycle, which led him to
sustain grievous injuries, of which he died
while being conveyed to the hospital?

2. Whether on the date and time
of the said accident, the rider of the said
motorcycle, bearing registration No. UP58D-4362, held a valid and effective
driving licence?

3. Whether on the date and time
of the accident, the said motorcycle No.
UP-58D-4362
was
insured
with
an
Insurance Company?

4. Whether the claimant
is
entitled to any compensation, if yes, how
much and from whom?"

8. On behalf of the claimant, the
claimant herself entered the witness box as
PW-1, besides examining another Krishna
Kumar as PW-2. The owner too entered the
witness box and testified as DW-1.
Documentary evidence was filed on behalf
of the claimant through three lists. The
relevant of the evidence for the purpose of
this appeal shall be referred to during the
course of this judgment.

9. On Issue No.1, after considering the
entire evidence on record, the Tribunal held
that the offending motorcycle was being
ridden by the mechanic at the time when
the accident happened. The finding has
been
recorded
after
considering
the
testimony of PW-2, an eye-witness, besides
that of the owner. It has also been taken
note of that the mechanic was apprehended
on the spot along with the motorcycle and
taken to the police station. The mechanic's
shop is located at a distance of 200 meters
from the site of the accident. The owner has
said in his examination-in-chief that he had
forbidden the mechanic from riding his
motorcycle in his absence or doing a trial
run, but in his cross-examination the owner
has said that he had not given any written
instructions to the mechanic not to operate
the motorcycle in his absence or to do a
trial. The Tribunal has taken note of the
fact that the owner had informed the Police
about the mechanic causing the accident,
while operating the offending motorcycle,
and further that the Police in the relative
criminal case have charge-sheeted the
5 All. Ajeet Rajbhar Vs. Smt. Badami Devi & Anr.
117
mechanic. It was, thus, held by the Tribunal
that the offending motorcycle, on the date
of the accident, caused it while being
operated by the mechanic, and in the said
accident, Gupta sustained injuries leading
to his death.

10. On Issue No.2, the Tribunal has
returned a finding that on the date of the
accident, the mechanic held a valid and
effective driving licence. So far as Issue
No.3 is concerned, the finding returned is
that on the date and time of the accident,
the offending motorcycle was not insured.

11. The most crucial findings are those
on Issue No.4. Here, apart from liquidating
the quantum of compensation to which the
claimant has been found entitled, the
Tribunal has also decided the question as to
who, amongst the owner and the mechanic,
would be liable to make it good. The
Tribunal
has
opined
that
since
the
mechanic
had
been
forbidden
from
operating the vehicle by the owner in his
absence, it is evident that the accident
happened when the mechanic was using it
for some work of his own. Therefore, the
liability to make good the compensation
awarded would fall on the mechanic's
shoulder; not the owner's.

12. With these remarks, the Tribunal
decreed the claim petition, awarding
compensation in the sum of Rs.1,88,000/-
with 6% interest from the date of institution
of the claim petition. The liability to pay
compensation was placed exclusively on
the mechanic's shoulders. The owner was
relieved of the liability.

13. Aggrieved, the mechanic has
preferred the instant appeal, asking the
liability to be shifted to the owner. It is in
this context that the question set forth in the
opening part of this judgment has arisen.

14. Heard Mr. Aditya Singh Parihar,
Advocate holding brief of Mr. Ramesh
Chandra Pathak, learned Counsel for the
mechanic and Mr. Manish Kumar Pandey,
Advocate holding brief of Mr. Vijay Kumar
Dubey, learned Counsel for the owner. No
one appears on behalf of the claimant.

15. It is argued by Mr. Aditya Singh
Parihar, learned Counsel for the mechanic,
limiting his submissions to a criticism of
that part of the Tribunal's findings on Issue
No.4, where it has been held as to who
would be liable to pay the compensation
awarded, that the Tribunal has gone utterly
wrong in holding that the mechanic is
liable. It is argued with much emphasis that
the Tribunal has failed to consider that at
the time when the accident happened, the
mechanic was test-driving the offending
motorcycle, which was part of the contract
of bailment, that is to say, service of the
offending motorcycle, under which he had
custody of it given by the owner. It is also
argued that the remark of the Tribunal that
the mechanic was operating the offending
motorcycle for his own use is bereft of any
evidence. It is argued that the fact that the
accident took place at a site, located around
200 meters from the mechanic's shop,
fortifies circumstantially, the mechanic's
stand that he was test-driving the offending
motorcycle. Mr. Aditya Singh Parihar has
then submitted that the liability to make good
the compensation under the Act would be
that of the registered owner of the offending
motorcycle. In support of his contentions, he
has placed reliance upon the decision of the
Supreme Court in Naveen Kumar v. Vijay
Kumar and others, (2018) 3 SCC 1, where
it has been held:
118 INDIAN LAW REPORTS ALLAHABAD SERIES

"13. The consistent thread of
reasoning which emerges from the above
decisions is that in view of the definition of
the expression "owner" in Section 2(30), it
is the person in whose name the motor
vehicle stands registered who, for the
purposes of the Act, would be treated as the
"owner". However, where a person is a
minor, the guardian of the minor would be
treated as the owner. Where a motor
vehicle is subject to an agreement of hire
purchase, lease or hypothecation, the
person in possession of the vehicle under
that agreement is treated as the owner. In a
situation such as the present where the
registered owner has purported to transfer
the vehicle but continues to be reflected in
the records of the Registering Authority as
the owner of the vehicle, he would not
stand absolved of liability. Parliament has
consciously introduced the definition of the
expression "owner" in Section 2(30),
making a departure from the provisions of
Section 2(19) in the earlier 1939 Act. The
principle underlying the provisions of
Section 2(30) is that the victim of a motor
accident or, in the case of a death, the legal
heirs of the deceased victim should not be
left in a state of uncertainty. A claimant for
compensation ought not to be burdened
with following a trail of successive
transfers, which are not registered with the
Registering Authority. To hold otherwise
would be to defeat the salutary object and
purpose
of
the
Act.
Hence,
the
interpretation to be placed must facilitate
the fulfilment of the object of the law. In
the present case, the first respondent was
the "owner" of the vehicle involved in the
accident within the meaning of Section
2(30). The liability to pay compensation
stands fastened upon him. Admittedly, the
vehicle was uninsured. The High Court has
proceeded upon a misconstruction of the
judgments of this Court in Reshma [HDFC
Bank Ltd. v. Reshma, (2015) 3 SCC 679 :
(2015) 2 SCC (Civ) 379 : (2015) 2 SCC
(Cri) 408] and Purnya Kala Devi [Purnya
Kala Devi v. State of Assam, (2014) 14
SCC 142 : (2015) 1 SCC (Civ) 251 : (2015)
1 SCC (Cri) 304].

14.
The
submission
of
the
petitioner is that a failure to intimate the
transfer will only result in a fine under
Section 50(3) but will not invalidate the
transfer of the vehicle. In T.V. Jose [T.V.
Jose v. Chacko P.M., (2001) 8 SCC 748 :
2002 SCC (Cri) 94] , this Court observed
that there can be transfer of title by
payment of consideration and delivery of
the car. But for the purposes of the Act, the
person whose name is reflected in the
records of the Registering Authority is the
owner. The owner within the meaning of
Section 2(30) is liable to compensate. The
mandate of the law must be fulfilled."

16. Mr. Manish Kumar Pandey,
learned Counsel appearing for the owner,
on the other hand, submits that the owner
entered the witness box as DW-1 and has
specifically said in his testimony that he
had not prohibited the mechanic to drive
the offending motorcycle after repairs in
writing, but had verbally instructed him not
to use the motorcycle in his absence. It is
argued that the mechanic has not taken a
plea in the written statement that he was
test-driving the offending motorcycle after
repairs. Rather, he has said that he never
caused the accident, a fact which has been
established to be incorrect. It is not clear,
according to Mr. Pandey, that the mechanic
was driving the offending motorcycle after
repairing it or before he had carried out the
repairs. It is also not clear if indeed he was
using it for his own purpose. It is
emphatically submitted that the plea that
the
mechanic
was
test-driving
the
motorcycle has not been raised before the
5 All. Ajeet Rajbhar Vs. Smt. Badami Devi & Anr.
119
Tribunal specifically and, therefore, cannot
be canvassed before this Court for the first
time. If the said plea were to be accepted, it
would be based on mere conjecture,
without any pleading or material.

17. It is submitted by the learned
Counsel for the owner that the mechanic
has not entered the witness box and
testified before the Tribunal. He has not
produced any witnesses either to contradict
the owner's stand. It is urged that the since
the mechanic has not rebutted the owner's
case in his pleading or in the witness-box in
any manner, the owner's testimony remains
unrebutted. It is on the aforesaid premise of
pleadings and evidence that the Tribunal
has rightfully held that the mechanic was
riding the offending motorcycle on the date
and time of the accident without the
owner's permission. He submits that the
owner under the circumstances cannot be
held vicariously liable for the mechanic's
tort in causing death of the claimant's
husband.

18. The learned Counsel for the owner
has placed reliance upon the decision of the
Supreme Court in Sitaram Motilal Kalal v.
Santanuprasad Jaishankar Bhatt, AIR
1966 SC 1697; Minu B. Mehta and
another
v.
Balkrishna
Ramchandra
Nayan and another, (1977) 2 SCC 441;
and, Pushpabai Purshottam Udeshi and
others v. Ranjit Ginning & Pressing Co.
(P) Ltd. and another, (1977) 2 SCC 745.
It is urged on the foot of these authorities
by Mr. Manish Kumar Pandey that the
master would be vicariously liable for the
accident or negligence of his servant or
driver, if the driver is acting or driving the
vehicle in the course of employment of his
master, and for the purpose of some work
of his master's. But, the master would not
be liable if the servant or driver at the time
of the accident, is not acting or driving
during course of employment, but doing
something for himself. Here, it is submitted
that on the evidence, there is nothing to
show that the mechanic was riding the
motorcycle for a purpose of the owner's. It
was, thus, in operation of the vehicle
beyond the limited scope of his authority,
and, in fact contrary to the instructions of
the owners that the accident occurred.

19. It is next submitted that the ratio of
the decision in Naveen Kumar (supra),
that has been relied upon by Mr. Aditya
Singh Parihar to say that it is always the
registered
owner
of
the
offending
motorcycle, who would be liable, is a
principle laid down in a completely
different context. He submits that the
principle has been laid down in the context
of transfer of a vehicle with delivery of
possession to the transferee, where the
transfer is not recorded under the Act. It is
in those cases that it has been laid down
that notwithstanding the purchaser of the
vehicle, who has not yet become its
registered owner causing an accident, the
liability to make good the compensation
awarded would still be of the registered
owner; not the unregistered transferee.

20. This Court has keenly considered
the submissions advanced on both sides
and perused the record.

21. The evidence in this case shows
that there is no cavil between parties that
the offending motorcycle was entrusted by
the owner to the mechanic for the purpose
of
carrying
out
routine
maintenance
service. Somewhere, it has been suggested
as repairs too. That is not very clear, but
would not make much difference because
routine maintenance service of every motor
vehicle may always involve some repair
120 INDIAN LAW REPORTS ALLAHABAD SERIES
job. The parties are sharply at issue on the
evidence adduced about the fact, if the
owner had forbidden the mechanic from
operating
or
riding
the
offending
motorcycle
in
his
absence.
In
his
examination-in-chief, the owner has taken a
stand that he forbade the mechanic from
operating it in his absence. But, in his
cross-examination, the owner has conceded
that he did not forbid the mechanic from
doing so in writing.

22. It must be said that it is necessary
to answer the question involved in this case
as to what is the nature of relationship
under the law between the owner of a
motor vehicle, who entrusts it to a
mechanic for service or repair. Is it that of
a master and servant, a principal and agent
or a bailor and bailee?

23. There are decisions, which have
regarded the relationship between the
owner of a motor vehicle and a mechanic
entrusted for repairs etc. as that of a master
and servant or principal and agent, and
some that have considered it to be of a
bailor and bailee.

24. In our opinion, these decisions
must be referred to in order to find out, if at
all a mechanic entrusted with the repairs of
a motor vehicle, can be regarded as
standing in the relationship of a servant to
the master, who is the owner. If by any
means that were the correct position of the
law, the entire body of the law regarding
the vicarious liability of master for the act
of his servant, vis-a-vis third parties might
apply to the owner, provided the servant
was acting in the course of his employment
and in accordance with the directions of the
master. In that event, in the present case,
the instructions issued by the owner to the
mechanic that he has shown in his evidence
to be one forbidding the mechanic from
riding his motorcycle in his absence, would
be very relevant. By contrast, if the
mechanic is indeed a bailee, he would be an
independent contractor, not holding the
vehicle subject to directions of the owner.
He would, of course, have his duties as a
bailee to safeguard the interest of the bailor
ex contractu.

25. Under the law of torts a bailee, as
would be presently shown, is answerable to
third parties for his tortious act while
holding the goods or a chattel under
bailment, which here is the motor vehicle.
The position under the principles governing
torts might, however, be slightly different
even in the context of a bailee, holding a
motor vehicle under bailment because of
the provisions of the Act. Nevertheless, it
has to be determined whether a mechanic
holds the vehicle on behalf of the owner for
repairs as his servant or agent or as a
bailee; and if he does in fact hold it as a
bailee, would the owner be answerable for
his tortious acts vis-a-vis third parties under
the tort principles, or the statute, that is to
say, the Act make the owner liable for the
bailee's acts vis-a-vis third parties.

26.
K.
Anandan
v.
Ammalu
Gomathi and another, AIR 1988 Ker 117
was a case where the owner, who had
entrusted his scooter for repairs to a
mechanic and who injured a third party by
his negligence, was held liable for the
mechanic's tort on the principle of master
and servant. In K. Anandan (supra), it was
held:

"4. It is the case of the first
respondent that he entrusted the scooter to
the workshop for repairs and never
authorised the second respondent to use it
on the road and hence he cannot be made
5 All. Ajeet Rajbhar Vs. Smt. Badami Devi & Anr.
121
liable for the compensation claimed by the
applicant. The question that has to be
considered is as to whether the first
respondent can be absolved of his liability
on the score that the second respondent was
not
an
employee
under
him.
Even
according to the first respondent, the
vehicle was entrusted to the workshop and
the accident occurred while the second
respondent took the vehicle on the road for
test after repairs.

Thus it can be seen that the owner
of the Vehicle (first respondent) had
entrusted the vehicle to the workshop and
the second respondent, a mechanic of the
workshop used the vehicle on the road and
it was then that the accident occurred.
Counsel for the applicant submitted that as
the accident occurred when the second
respondent used the vehicle on the road for
test after repairs the first respondent cannot
disclaim his tortious liability. There is no
evidence that the first respondent instructed
the workshop owner not to allow the
driving of the vehicle for test after the
repairs.

5. When a vehicle is entrusted to
a workshop for repairs it is only reasonable
to infer permission to take it for test driving
as part of the work. It is for the first
respondent to prove that the act of driving
of the vehicle by the employee of the
workshop owner was in excess of his
authority. It is settled law that the burden is
on the owner of the vehicle to prove that he
did not authorise the person concerned to
drive the vehicle. It is useful to refer to the
decision
reported
in
Sitaram
v.
Santanuprasad, AIR 1966 SC 1697 where
it is held as follows:

"A master is vicariously liable for
the acts of his servant acting in the course
of his employment. Unless the act is done
in the course of employment, the servant's
act does not make the employer liable. In
other words, for the master's liability to
arise, the act must be a wrongful act
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
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."

As the second respondent used
the scooter on the road the presumption
unless rebutted is to the effect that he used
it with the authority of the first respondent.
As the vehicle was entrusted for repairs to
the workshop there was every likelihood of
it to have been tested after repairs. Such a
possibility cannot be ruled out. It is not
possible to hold that the second respondent
used the vehicle on the road for a purpose
other than testing after repairs. If there is
evidence to the contrary first respondent
cannot at all be held liable. As there is
always a presumption that the machanic
drove the vehicle on master's business with
due authorization it is futile to contend that
the first respondent cannot be saddled with
vicarious liability.

6. 1978 Acc CJ 53 (Punj and
Har), (Tara Singh v. Mangala Singh) is a
case where the vehicle was given for
repairs by the owner. An unlicenced worker
drove the truck and caused accident. It was
held in that decision that as the vehicle was
driven by the worker of the workshop it
should be deemed to have been driven in
the
course
of
employment.
In
Gopalakrishnan
Embrantdiri
v.
Krishnankutty, 1966 Acc CJ 262 this Court
122 INDIAN LAW REPORTS ALLAHABAD SERIES
had occasion to consider a case where a
vehicle given for repairs was driven by the
mechanic and caused accident. In that
decision it was held that the act of driving
the vehicle was incidental to his job and as
it was within the scope of his employment
the employer had to answer for its
consequences. Savitri Kumari Das v. State
of Orissa, 1976 Acc CJ 341 is also a
similar case, where the vehicle was given
for repairs and the accident occurred when
the mechanic took the vehicle for a test
drive. As he drove the vehicle in a rash and
negligent manner and knocked down a
person, the owner was held vicariously
liable. As it was necessary to have a test
drive after the repair of the vehicle and as
this was done for the owner's benefit the
liability of the owner can never be a matter
in dispute. In Pritam Kaur v. Dal Singh,
1977 Acc CJ 326 (Punj and Har) it has
been held as follows:

"It is settled law that if a person is
found to be driving the vehicle he shall be
presumed to be so doing with the lawful
authority of its owner and if the owner
alleges that he had not authorised that
person for driving of his vehicle then the
onus is on him."

As the first respondent does not
have a specific case that the vehicle was
unauthorisedly
used
by
the
second
respondent he cannot be heard to say that
he is not in any way liable for the claim. As
the onus is upon the first respondent to
establish that he did not authorise the
second respondent to drive the vehicle and
as that onus has not been discharged it is
futile to contend that liability has been
wrongly fastened upon him by the
Tribunal.

7. Thus the settled legal position
is that there is a presumption that the
vehicle is driven on the master's business.
Of course it could be repelled by adducing
evidence. So long as that has not been done
the presumption cannot be brushed aside.
In (1977) 3 SCR 372 : (AIR 1977 SC
1735), (Pushpabai v. Ranjit Ginning Co.) it
is stated as follows (at p. 1744 of AIR):

"Before we conclude, we would
like to point out that the recent trend in law
is to make the master liable for acts which
do not strictly fall within the term "in the
course of the employment" as ordinarily
understood. We have referred to Sitaram
Motilal Kalal v. Santanuprasad Jaishankar
Bhat, (AIR 1966 SC 1697) where this
Court accepted the law laid down by Lord
Denning in Ormrod v. Crosville Motor
Services Ltd., (1953 (2) All ER 753) 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 the car on
the owner's business or for the owner's
purposes. This extension has been accepted
by this Court".

The indubitable positon is that the
owner is liable for the negligence of his
driver not only if he acted in the course of
his employment but also if he drove the
vehicle with his tacit or implied consent for
his business or other purposes."

(emphasis by Court)

27. In Ramu Tolaram v. Amichand
Hansraj Gupta and others, AIR 1988
Bom 304, the issue arose in the context of a
motor vehicle handed over to a garage for
repairs. After the repairs were over and the
car was parked in the garage with the keys
being handed over to an independent auto
electrician, who worked for the garage and
resided there. Some unknown person drove
the car out and hit four persons, one of
whom died. The question was whether the
owners of the garage, who were three
partners, or the owner of the motor vehicle
5 All. Ajeet Rajbhar Vs. Smt. Badami Devi & Anr.
123
could be held vicariously liable for the
injuries caused to third parties. In the
context of the aforesaid facts, it was held in
Ramu Tolaram (supra):

"Mr. Mhamane may be right on
this point. But what the learned Advocate
has lost sight of is that even assuming that
the Company was not liable for the
negligence of respondents Nos. 2 to 4,
actual or vicarious, it would be answerable
for the liability of respondent No. 1, the
owner of the car, and it is here that the
Court must pause to consider as to whether
respondent No. 1 was not liable vicariously
for the acts of omission of respondents
Nos. 2 to 4. It may be that respondent No. 1
will not be liable vicariously for the loss
caused by the un-identified driver, because
respondent No. 1 was not having the
control of the car at that time, the control
having been transferred by respondent No.
1 lawfully to respondents Nos. 2 to 4.
When the car is given by the owner of the
vehicle to the garage for repairs, the control
of the car certainly stands transferred to the
owner of the garage. But the point is that in
such a case the owner of the garage is
constituted by the owner of the car as his
agent. Everything done or omitted to be
done by the agent will be something for
which the principal will be vicariously
liable. It is the principal's liability' for the
acts done or omitted to be done by the
agent. I gave an illustration to Mr.
Mhamane. The owner of the garage makes
various purchases for the purpose of the
repairs of the car. The owner of the car has
to pay for those purchases. This could be so
only because the owner of the garage is the
agent of the owner of the car and the
purchases made by the former are as the
agent of the latter. If the doctrine of agency
extends to this situation, there is no reason
why it should not extend to other situation
where the car is allowed by the agent to go
out of the garage berserk. The liability of
the agent will have to be vicariously
fastened even upon the principal in such a
case.

(iv) Mr. Mhamane relied upon the
judgment of a learned Single Judge of this
Court reported in 1984, Maharashtra LJ,
page 456 (V.J. Acharya v. Ratilal Fulchand
Shah) firstly in support of the proposition
that the owner of the garage is certainly
liable for the damage caused to any person
by the car while the same is in the custody
of the owner of the garage and secondly in
support of his contention that the owner of
the vehicle can in no case, be liable for the
acts or omissions of the owner of the
garage once the control of the car is
transferred by the owner of the car to the
owner of the garage.

The facts of the case were as
follows:--

A Car got stalled up on the road
and hence the car owner went to the garage
and told the owner about the complaint.
Hearing the nature of the complaint the
garage owner asked his mechanic to
accompany the car owner to the place
where the car was parked. The mechanic
had no driving license. But all the same, he
drove the car to the garage and that too
negligently, thus knocking down the
claimant. The Tribunal awarded damages
both against the owner of the garage as also
the owner of the vehicle. A learned Single
Judge of this Court held that whether the
mechanic was authorised by the owner to
drive the car or not, the vicarious liability
for the negligence on the part of his
employees was complete. However, the
Court further held that the mechanic was
not the agent of the owner of the Car. It
was, therefore, held that the penalty for the
negligence on the part of the mechanic
could not be visited upon the car owner.
124 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) So far as the 1st proposition is
concerned, I am in full agreement with the
same. But so far as the present case is
concerned, the state of record is even more
seakes out the car for the owner. Quite
often he also drives the car out for the sake
of the owner. Kisanlal was not an ordinary
aing license. In the instant case, the
evidence of the 2nd respondent that
Kisanlal had no authority to drive the car is
just incredible and, further, in view of the
fact that the 2nd respondent has kept a very
eloquent mum about the identity of the
person driving the car at the particular time
reflects upon his evidence in this behalf.

But the above judgment is no
authority for the question as to whether the
owner of the garage was the agent of the
owner of the car or not. The perusal of the
judgment shows that what was argued
before the Court was as to whether the
mechanic having no license to drive the car
and who all the same drove the car
negligently was the agent of the owner of
the car or not. With respect, I am in full
agreement with the view taken by the
learned Single Judge that the mechanic
driver could not be considered to be the
agent of the owner as such directly. But the
point is that when the car is given by the
car owner to the owner of the garage for
repairs, the owner of the garage is
constituted an agent of the owner of the car
for various purposes and while doing that
work the owner of the garage is required to
drive the car in and out of the garage, either
himself or through his own agent. No doubt
such owner of the garage is an independent
contractor. But even an independent
contractor is an agent of the principal by
whom the contract is entrusted. I may
mention here that this aspect of the
vicarious liability of the owner of the car
was not urged before this Court when the
appeal was decided by this Court. What
was urged was that the mechanic was
directly the agent of the car owner, not that
the owner of the garage was the agent of
the car owner. In the present case, I have
held that the owner of the garage is liable
for the negligence of the driver in question.
Once we go a step further and hold that the
owner of the garage was the agent of the
owner of the car, the principal viz. the
owner of the car, must be held exposed to
the vicarious liability. Since this point was
not even urged before this Court and since
this Court had no occasion to consider this
aspect of the question in the judgment
reported in 1984 MLJ page 456, that
judgment cannot be relied upon by Mr.
Mhamane as an authority on the question as
to whether the garage owner was the agent
of the car owner or not....."

28. In Ramu Tolaram, the Court held
the owner liable by constituting the garage
owners his agents. The doctrine of agency
was invoked, making the principal liable
for the act of the agent in discharge of the
principal's assignment.

29. Thus, whereas in K. Anandan, it
has been held that a mechanic entrusted
with a car by the owner for its repair,
stands in the relationship of the owner's
servant, in Ramu Tolaram the owner of a
garage entrusted by the owner of a car for
its repair has been held to be his agent.

30. This Court must notice the three
decisions, relied upon by the learned
Counsel for the mechanic to assert that the
owner and the mechanic stand in the
relationship of the master and servant, so as
to render the master liable to third parties in
compensation for injuries sustained on
account of acts done by the mechanic,
during the course of employment. The
decision of the Supreme Court in Sitaram
5 All. Ajeet Rajbhar Vs. Smt. Badami Devi & Anr.
125
Motilal Kalal (supra), relied on behalf of
the owner, is an exposition of the law in the
context of the vicarious liability of the
owner for acts done by a servant, during the
course of employment and about the effect
on that liability, if the servant were to act
without the course of employment, where
he causes injury to third parties. There are
also remarks in the said decision about
liability of the principal, if the agent injures
a third party while acting for the principal,
but beyond the scope of his agency. The
question in that case also had arisen in the
context of use of a motor vehicle. The two
other decisions are likewise, ones rendered
in the context of the vicarious liability of
the master for the tortious acts of his
servant, vis-a-vis third parties.

31. None of these decisions were
rendered in the context of the tortious acts
of a mechanic or a garage owner, who held
the motor vehicle for repairs on the owner's
behalf and caused an accident during that
period. It is for this reason that the said
decisions, though laying down principles of
profound guidance vis-a-vis the liability of
the master for the acts of his servant, may
not be of much relevance on the point
whether a mechanic stands in the position
of a servant or agent of the vehicle owner,
when entrusted with custody of the vehicle
for repairs.

32. Here, the point that arises may be
similar or draw some analogy from the law
that applies to masters and servants,
principals and agents, but the relationship
between the owner and a mechanic is
different.