# PUSHPABAI PURSHOTTAM UDESHI & ORS v. RANJIT GINNING & PRESSING CO, (P) LTD. & ANR

- **Citation:** [1977] 3 S.C.R. 372
- **Court:** Supreme Court of India
- **Decided:** 1977-03-25
- **Bench:** M._ H. Beg, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pushpabai-purshottam-udeshi-ors-v-ranjit-ginning-pressing-co-p-ltd-anr-7237
- **Pages:** 17

## Headnote

!.fotor Vechicles Act 1939-S. 95, 110-Liability of insurance con1panyDeath of passenger not for reward-Quantum of compensation-Annual income
if on the basis of basic wa?es.
Torts-Negligence-Ru ipso loquitur-Rash and negligent driving-Meaning
of-Rationalae--course of employment-Scope of employment-If dril·er gh·cs
a lift without charging anything-If master liable-Vicario_us liability-Master
and servant.
Purshottam Udeshi was travelling in a car which was driven by 1..Janager of
the first respondent company. The car was insured with the second respondent.
The car dashed against a tree while proceeding fro°' Nagpur to Pandurna.
Purshottam, Viho was aged 58. years at that time, died in the accident. His
annual income was about Rs. 9000/-. The widow and children of Purshottam
fiied a claim for compensation for a sum of Rs. 1 1ac under section 110 of the
~fotor Vehicles Act, 1939, before the Claims Tribunal. The respondents denied
that the vehicle was driven in a rash or negligent manner and contended that
the vehicle at the time of accident was perfectly in sound condition. It \\·as
also contended that Pursbottam was travelling in the said vehicle on his ov.n
responsibility and for his own purpose absolutely gratis and not on behalf of
or at the instance of respondent No. 1 or the driver of the vehicle and, therefore, the claimants were not entitled_ to any compensation. The respondent
pleaded inevitable accident.
The Tribunal found that the accident was as a result of negligent driving of
the vehicle by the ~lanager. It also. found that the first respondent the owner
of the company was liable to pay compensation to the claimants on account of
negligence of their· employee. The Tribunal awarded Rs. 31,209 /- as general
damages on the basis of 5 years' earning less the amount which the deceased
might have spent on himself and Rs. 2,000/- as special damages for funeral
and post-funeral expenses. The Tribunal took into account the pay, D.A.,
conveyance allowance etc. for the purpose of determining income of the
deceased. Both the respondents filed appeals in the High Court. The IIigh
Court did not decide the question as to whether the accident was due to rash
and negligent driving or the quantum of compensation allowed by the Tribunal
was -proper or not on the ground- that the respondent No. 1 cannot be held
vicariously liable for the act of their
~tanager in taking Purshottam as a
passenger as the said act was neither in the course of his employment nor under
any authority whatsoever; that no evidence wa.9' led to show that the respondent
No. 1 was aware that Purshottam was being taken in the car as a passenger
by their 1-fanager. The High Court held- that Purshottam was no better than
a trespasser as far as respondent No. 1 is concerned and that, therefore, respondent No. 1 cannot be made vicariously Hable.
.
Jn an appeal by certificate, the appellants claimants contended :
(1) That the accident was due to the rash and negligent driving of the
~tanager of respondent No. 1.
(2) The accident took place during the course of the employment of the
driver.
ff
Allowing the appeal,
lIELD : lll The car was being driven rashly and negligently. Although no
eye \\itnes5 was examined P.W.I. the brother of the deceased \\rho went to the
spot soon after the accident was examined.
He depcsed that the car dashed
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PUSHPABAI v. RANJIT GINNING co; (Kai/asam, 1.)
373
•against a tree. The tree was on the right hand side of the road, 4 ft. away
A
from the right-hand side of the main metalled road. The road was 15_ft. wide
'3.nd was a metalled road. On other side of the road there were fields at lower
Jevel. The tree against vlhich the car dashed was uprooted ·about 9 to 10''
from the ground. The car dashed so violently that it was broken in the front
$ide. The vehicle struck sO violently that the machine of the car went back
about a foot from its original position~ The steering wheel o~ the engine of
the car receded back on the driver's

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372
SUPREME COURT REPORTS
PUSHPABAI PURSHOTTAM UDESHI & ORS.
..
.
v.
RANJIT GINNING & PRESSING CO, (P) LTD. & ANR.
March 25, 1977
[M._ H. BEG, C.J. AND P. S. KAILASAM, J.]
!.fotor Vechicles Act 1939-S. 95, 110-Liability of insurance con1panyDeath of passenger not for reward-Quantum of compensation-Annual income
if on the basis of basic wa?es.
Torts-Negligence-Ru ipso loquitur-Rash and negligent driving-Meaning
of-Rationalae--course of employment-Scope of employment-If dril·er gh·cs
a lift without charging anything-If master liable-Vicario_us liability-Master
and servant.
Purshottam Udeshi was travelling in a car which was driven by 1..Janager of
the first respondent company. The car was insured with the second respondent.
The car dashed against a tree while proceeding fro°' Nagpur to Pandurna.
Purshottam, Viho was aged 58. years at that time, died in the accident. His
annual income was about Rs. 9000/-. The widow and children of Purshottam
fiied a claim for compensation for a sum of Rs. 1 1ac under section 110 of the
~fotor Vehicles Act, 1939, before the Claims Tribunal. The respondents denied
that the vehicle was driven in a rash or negligent manner and contended that
the vehicle at the time of accident was perfectly in sound condition. It \\·as
also contended that Pursbottam was travelling in the said vehicle on his ov.n
responsibility and for his own purpose absolutely gratis and not on behalf of
or at the instance of respondent No. 1 or the driver of the vehicle and, therefore, the claimants were not entitled_ to any compensation. The respondent
pleaded inevitable accident.
The Tribunal found that the accident was as a result of negligent driving of
the vehicle by the ~lanager. It also. found that the first respondent the owner
of the company was liable to pay compensation to the claimants on account of
negligence of their· employee. The Tribunal awarded Rs. 31,209 /- as general
damages on the basis of 5 years' earning less the amount which the deceased
might have spent on himself and Rs. 2,000/- as special damages for funeral
and post-funeral expenses. The Tribunal took into account the pay, D.A.,
conveyance allowance etc. for the purpose of determining income of the
deceased. Both the respondents filed appeals in the High Court. The IIigh
Court did not decide the question as to whether the accident was due to rash
and negligent driving or the quantum of compensation allowed by the Tribunal
was -proper or not on the ground- that the respondent No. 1 cannot be held
vicariously liable for the act of their
~tanager in taking Purshottam as a
passenger as the said act was neither in the course of his employment nor under
any authority whatsoever; that no evidence wa.9' led to show that the respondent
No. 1 was aware that Purshottam was being taken in the car as a passenger
by their 1-fanager. The High Court held- that Purshottam was no better than
a trespasser as far as respondent No. 1 is concerned and that, therefore, respondent No. 1 cannot be made vicariously Hable.
.
Jn an appeal by certificate, the appellants claimants contended :
(1) That the accident was due to the rash and negligent driving of the
~tanager of respondent No. 1.
(2) The accident took place during the course of the employment of the
driver.
ff
Allowing the appeal,
lIELD : lll The car was being driven rashly and negligently. Although no
eye \\itnes5 was examined P.W.I. the brother of the deceased \\rho went to the
spot soon after the accident was examined.
He depcsed that the car dashed
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PUSHPABAI v. RANJIT GINNING co; (Kai/asam, 1.)
373
•against a tree. The tree was on the right hand side of the road, 4 ft. away
A
from the right-hand side of the main metalled road. The road was 15_ft. wide
'3.nd was a metalled road. On other side of the road there were fields at lower
Jevel. The tree against vlhich the car dashed was uprooted ·about 9 to 10''
from the ground. The car dashed so violently that it was broken in the front
$ide. The vehicle struck sO violently that the machine of the car went back
about a foot from its original position~ The steering wheel o~ the engine of
the car receded back on the driver's side and the said -impact on the driver's
side and by the said impact the occupants died and front seat also moved back.
u-
"'Ihe witness was not cross-examined on these facts; The maxim of "Res i_P5a
loquitur" clearly applies in the present case~ In view of the proved facts tbl':
burden was on the respondents to prove the inevitable accident. (376 B-H]
Eller v. Selfridge (1930) 46 T.L.R. 236, referred to.
The normal rule is that it is for the plaintiff to prove negligence but in some
icases considerable hardship is caused to the plaintiff as the true -cause of the
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-atcident is not known to him but is solely within the knowledge of the defendant
Vlho caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant.· Th.is hardship is
sought to be avoided by applying the principle of res ipsa loquitur. It me.ans
the accident "'speaks for itself' or "'tells its own story". The car could not
ha Ye gone to the right extremity and dashed with such' violence with the tree
if the driver had exercised reasonable -care and caution. The Court did not
1hink it necessary to remand the· matter to the High· Court to consider the
question of rash and negligent driving since the evidence \\'as convincing. [377
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(2) It is an admitted fact that the -driver of the car, the ~tanager of respondent No. 1, was proceeding from Nagpur to Pandhuma for purpose of
delivering an amount of Rs. 20,000 /-. He was driving the car in the course of
,the employment of respondent No. 1. It is now firmly established that the
1master's liability is based on the ground that the act is done in the scope or
sourse of his employment or authority. (379 A-G]
Young v. Edward Box and Co. Ltd. (1951) I T.L.R. 789 at 793, approved.
•
Sitaram MOtilal Kalal v. SantanupraSad ]aishankar Bhiitt (1966)3 SCR-.527;
Conway v. George Wimpey & Co. Ltd. 1951 All E. R. 363 and 62 T.L.R. 458,
distinguished.
Ormrod and Another v. Crosvilli Motor Services IJtd. (1953)2 All E.R. 753
and Canadian Pacific Railway Co. v.· Lockhart 1942 A.C. 591, referred to.
(3) The l\Ianager permitted Purshottam·to .have a ride in the car; Taking
into account the-high·position of the driver" who was the· l\fanager'of the com-
-iPany it is reasonable to presume in the absence of any evidence to the contrary
the l\Ianager had authority to carry Purshottam or acting in .the course of his
<>mployment. There is nothing to support the conclusion of the High Court that
the driver _was no! acting in the course of his employment. (382 D-F]
Cox v. Midland Counties Ry. Co. (3 Ex. 268) and Honghton v. ·pi[kinRfon,
{1912) 3 K.B. 308 distinguished.
.
_ Twine v. Bean's Express, Ltd. 62 T.L.R~ p. 155, yCar 1945~6 ·distinguished.
. 4. RCcent trend in law is to make the master liabie' for acts which do not
-strictly fall \\o'ithin the term "'in "the course of employment" as· ordinarily under·
stood. [3 83 Fl
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5. The Hig:h Court did not go into the question of quantum of compen.-
sation. The Tribcna1, however, ought not to have taken D.A., Conveyance
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Allowance etc., into account for the purposes· of detern1ining the income of the _
deceased.· Thus; the income of 5 "years would stand reduced from Rs. 31,000/-
to Rs. 25,500 /- over and above special damage of Rs. 2,000/-. [385 A, C-D]
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SUPREME cou:n REPORTS
.[1977] 3 S.C.R.
6. As far as respondent No. 2 Insurance Co. is concerned it contended
that since the Company had s~cifically limited its liability in respect of injurY
to passengers to Rs. 15,000/- ii cannot be made liable for anything in excess of
Rs~ 15,000/-; The respondent No. 1 contended _that the
insurance cover
under the Act
extended
to the injury to the
passengers
also and
relied on Section 95(1) (b)(i) which provides against any libility to the owner
which may· be incurred by him in respect of death or bodily injury to any
person or damage to any person of a third party caused by or arising out of
the use of the vehicle in a public place. Section 9 5 of the ~Iotor Vehicles Act
as amended by Act 56 of 1969, is based on the Road Traffic Act of 1960 or
~he earlier Act of 1930 in England. Section 95(a) and 95(b)(i) of the Act
adopts the provisions of the English Road Traffic Act, 196.P. and exclude5 the
liability of the Insurance Co. regarding the risk to the passengers. Section 95
provides that a policy of insurance must b: a policy which insures the persons
'1.gainst any liability which may be incurred by him in respect of death or
bodily injury to any person or damage to any property of a third party caused
by or. arising out of use of the vehicle in a public place. Proviso_ 2 to Section
95(b) makes it clear that it is not required that a policy of insurance should
'cover risk of the passengers :who are not carried for hire or reward. Under
section 95, the risk to a passenger in a vehicle who _is not carried for hire or
reward is not required to be insured. The Insurer can howev~r alv,:ays take
policies for a risk which is not covered by section 95. In the present case,
the insurer had insured with the Insurance Co. the risk to the passenger to the
.extent of. Rs. 15,000/-. Clause 1 of the section 2 to the. Insurance Policy
•"'hich requires the Insurance Co. to indemnify the
insured in respect of
,claimants' claim which becomes legally payable in respect of death of or bodily
injury to any person is not happily worded.
However, since the said clause
.talks of .. except so far as necessary to meet the requirements of section 9 5 of
the 11otor Vehicles Act, 1939" would indicate that the liability is restricted
.to the liability arising out of the statutory requirements under section 95. The
policy read "'·ith the other clauses makes it clear that the respondent no. 2
would be liable to the extent of Rs. 15,0001-: (385 G-H, 386 A, F, 387 B, H,
388 A-DJ
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CIVIL APPELLATE JURISDICTION : Civil Appeal No: 2071
of
1968. -·
(From the Judgment and Order dated 20-4-1967 of the Madhya
Pradesh High Court in Misc. First Appeal No. 104/66).
·
Rameshwar Nath, for the appellants
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U. R. Lalit and A. G. Ratnaparkhi, for respondent No. 1.
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Nau.nit Lal and Miss Lizlita Kohli, for.respondent No. 2.
The Judgment of the Court was delivered by
KAILASAM, J.-This is an appeal by certificate under Article 133
Cl )(a) of the Constitution granted by the High Court of Madhya
Pradesh.
The appellants filed a claim for compensation of a sum
of rupees one lakh under section 110 of the ·Motor Vehicles· Act
before the Claims Tribunal, Jabalpur. The first claimant is
the
wife and the claimants . 2 to 8 are the children of one Purshottam
Tulsidas Udeshi who met with his death· in a motor car accident on
18th December, 1960 when he was travelling in the car which was
driven by Madhavjibhai Mathuradas Ved, the Manager of the first
opponent company, M/s. Ranjit Ginning and Pressing Co. Private
Ltd., in a rash and negligent manner near a village called ChincholiVad which was 16 miles from Saoner. The car which was a Hindustan Ambassador Saloon was insured with second opponent, Union
,
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PUSHPABAI v. RANJIT GINNING co. (Kailasam, !.)
375
Fire Accident and General Insurance Co. Ltd.
The deceased was
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aged 58 years at the time of his death and according .to the petitioners
was earning annually about Rs. 9,000.
They claimed a compensation of rupe(,'S one lakh.
The opposite parties, the owner and the
insurance company, opposed the claim.
While admitting that
the
vehicle was proceeding from Nagpur on its way to Pandhurna for the
purpose mentioned by the applicants they denied that the vehicle was
driven in a rash and negligent manner and pleaded that the vehicle
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was at the time of accident in perfectly sound con~ition. It was submitted that the husband of the applicant No. 1 was travelling in the
said vehicle on his own responsibility and for his own purpose and
absolutely gratis and not on behalf of or at the instance of
the
opposite 'party No. 1, or 'the driver of the vehicle and therefore the
claimants are not entitled to any compensation.
The opposite parties
pleaded that the incident was as a result of inevitable accident and
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not due to any act of rashness or negligence on the part of the driver.
They opposed the claim of the compensation as highly exaggerated.
The Motor Accidents Claims Tribunal, Jabalpur, found that the
accident of the motor vehicle was as a result of negligent driving of
the vehicle by the Manager, Madhavjibhai Mathuradas Ved, the driver
of the vehicle, It also found that the first respondent, the owner of
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the company, is liable to pay compensation to the claimants on account of the negligence of their employee Madhavjibhai which caused the death of Purshottam Tulsidas Udeshi.
Regarding the compensation payable the Tribunal fixed Rs. 31,209.15 as general damages in addition to Rs. 2,000 as special damages for funeral
and
post-funeral ex,penses.
The owner, first opponent, preferred an appeal
to the High Court impleading the claimants and the insurance comE
pany as respondents against the award passed by the Claims Tribunal.
The High Court did not decide the question as to whether the
accident was due to the rash and negligent driving or the quantum of
compensation to which the claimants were entitled to as it allowed
the appeal by the owner on the ground that the owner cannot be
held vicariously liable for the act of Madhavjibhai in taking Purshottam as a passenger as the said act was neither in the conrse of his
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employment nor under any authority whatsoever and that there was
no evidence that the owners of the vehicle were aware that Purshottam was being taken in the car as a passenger by their Manager,
Madhavjibhai.
Holding that so far as the owners are concerned
Purshottam was no better than a trespasser the High Court held that
the owners were not vicariously liable.
On an application by the
claimants the High Court granted a certificate and thu·s this appeal
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has come before this Court.
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The qnestions that arise for consideration are whether on the
facts of the case the claimants have established (1) that the accident
was due to the rash and negligent driving of Madhaviibhai Mathuradas Ved, the Mana~er of the company, and (2) whether the incident
took place during the conrse of the employment of the driver.
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the event the claimants succeed on these two points the amount of
compensation to which they are entitled would have to be
determined.
376
SUPREME COURT REPORTS
[1977] 3 S.C.R.
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The High Court relying on three decisions in Sitaram Motilal
Kalal v. Santanuprasad Jaishankar Bhatt('), Canadian Pacific Railway
Company v. Leonard Lockhart(2), and Conway v. George Wimpey
& Co. Ltd.("), came to the conclusion that the rash and negligent driving by the Manager was not in the course of his employment.
The
learned counsel for the respondent relied on some other decisions
which will be referred to in due course.
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The High Court has not gone into the question as to whether the
car was. being driven rashly and negligently by the owner's employee
as it held that the act was not in the course of bis employment.
We
feel that the question as to whether the car was being driven ra'shly
and negligently would have to be decided on the facts of the case
first for, if the claimants fail to establish rash and negligent act no
other question would arise. We would therefore proceed to
deal
with this question first.
The claimants did not lead any' direct evidence as to how the accident occurred.
No eye-witness was examined.
But P.W. 1, the younger brother of the deceased Purshottam Udeshi,
who went to the spot soon after the accident was examined.
He
stated that he went with one of his relatives and an employee of his
brother's employer and saw that the car had dashed against a tree
while proceeding fr(lm Nagpur. to Pandurna.
The tree was on the
right hand side of the road, fonr feet away from the right hand 'side
of the main metalled road.
The vehicle will have to proceed on the
left hand side of the road.
The road was 15 feet wide and was a
straight metalled road.
On either side of the road there were fields.
The fields were of lower level.
The tree against which the car dashed
was uprooted about 9 to 10 inches from the ground.
The car dashed so heavily that it was broken in the front side.
A photograph
taken at that time was also filed.
According to the witness the vehicle
struck so heavily that the machine of the car from its original position went back about a foot.
The steering wheel and
the engine
of ihe car receded back on driver's side and by the said impact the
occupants died and front seat also moved back. The witness was not
cross-examined on what he saw about the state of the car and the
tree. It was not suggested to him that the car was not driven in
a rash and negligent manner. In fact there is no cross-examination
on the aspect of rash and negligent driving.
The Claims Tribunal
on this evidence found that "it was admittedly a mishap on the right
side of the road wherein the vehicle had dashed against a tree beyond the pavement so violently as not only to damage the vehicle
badly but also entailing death of its three occupa11ts, maxim 'res ipsa
loquitur' applies (See Ellor v. Selfridge [1930], 46 T.L.R. 236)".
· The Tribunal proceeded to discuss the evidence of P.W. 1 and found
on the evidence that it cannot help concluding that the dashing of the
car against the tree was most violent and that it was for the respondents to establish that it was a case of inevifable accident.
They have
led no evidence. It may at once be stated that though the opposite
parties had pleaded that this is a case of inevitable accident they have
(I) [1966] 3 S.C.R. 527.
(2) A.LR. 1943 P.C. 63.
(3) [19511 I A.E.R. 363.
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PUSHPABAI v. RANJIT GINNING co. (Kailasam, J.)
377
not led any evidence to establish their plea. The burden resfs on the
opposite party to prove the inevitable accident.
To succeed in such
a defence the opposite party will have to establish that the cause of
the accident could not have been avoided by exercise of ordinary
care and caution. "To establish a defence of inevitable accident the
defendant must either show what caused the accident and that the
result was inevitable, or he mu'st show all possible causes, one or more
of which produced the effect, and with regard to each of such possible causes he must show that the result could not have been avoided." (Halsbury's Laws of England, Third Ed., Vol. 28, p. 81). No
such attempt was made and before us the plea of inevitable accident
was not raised.
We have therefore to con.sider whether the claimants
have made out a case of rash and negligent driving.
As found by the
Tiibunal there is no eye-witness and therefore the question is whether from the facts established the case of rash and negligent act
could be inferred.
The Tribunal has applied the doctrine of "resipsa-loquitur". It has to be ccins;dered whe:her under the circumstances the Tribunal was justified in applying the doctrine.
The normal rule is that it is for the plaintiff to prove negligence
bu( as in some cases considerable hardship is caused to the plaintiff as
the true cause of the accident is not known to him but is. solely within
the knowledge of the defendant who caused it, the plaintiff can prove
the accident but cannot prove how it happened to establish negligence on the part of the defendant
This hardship is sought to be
avoided by μpplying. the principle of res ipsu luquitur.
The general
purport of the words res ipsa loquitur is that the accident "speaks
for itself" or tells its own story.
There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove
the accident and nothing more.
It will then be for the defendant
to establish that the accident happened due to •ome other cause that
his own negligence.
Salmond on the Law of Torts (15th Ed.)
at
p. 306 states : "The maxim res ipsa loquitur applies whenever it i's
so improbable that such an accident would have happened without
the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused." In Halsbury's Laws of
England, 3rd Ed., Vol. 28, at p. 77, the position is stated thus : "An
exception to the general rule that the burden of proof of the alleged
negligence i's in the first instance on the plaintiff occurs wherever the
facts already established are such that the proper and natural inference
arising from them is that the injury complained of was caused by the
<lefendant's negligence, or where the event charged as negligence
"tells its own story' of negligence on the part of the defendant, the
·story so told being clear and unambiguous."
Where the maxim is
applied the burden Is on the defendant to show either that in fact
ne was not negligent or that the accident might more- probably have
happened in a manner which did not connote negligence on his part.
For the application of the principle it must be shown that the car
was under the management of tile defendant and ihat the accident is
such as in ordinary course of things does not happen if those who
had the management used proper care.
Applying the principles
stated above we have to see whether the requirements of the principle
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378
SUPREME COURT REPORTS
[1977] 3 S.C.R.
have been sati'sfied.
There can be no dispute that the car was under
the management of the company's manager and that from the facts.
disclosed by P. W. 1 if the driver had used proper care in· the ordinary
course of things the car could not have gone to the right extreme of
the road, dashed against a tree and moved it a few inches away. The
learned counsel. for the respondents submitted that the road is a very
narrow road of the width of about 15 feet on either side of which
were fields and that it is quite probable that cattle might have strayed
into the road suddenly causing the accident.
We are
unable
to
accept the plea for in a country road with a width of about 15 feet
with fields on either side ordinary care requires that the car should
be driven at a speed in which it could be controlled ·if some stray
cattle happened to come into the road.
From the description of the·
accident given by P.W. 1 which stands unchallenged the car had
proceeded to the right extremity of the road which is the wrong side·
and dashed against a tree uprooting it about 9 inches from the ground.
The car was broken on the front side and the vehicle struck the tree
so heavily that the engine of the car was displaced from its original
position one foot on the back and the steering wheel and the engine
of the car had receded back on the driver's· side.
The car could
not have gone to the right extremity and dashed with such violence
on the tree if the driver had exercised reasonable care and caution.
On the facts made out tlie doctrine is applicable and if is for the
opponents to prove th:i\ the incident did not take ·place due to their
negligence.
This they have not even attempted to do.
In
the
circumstance·s we find that the Tribunal was justified in applying the
doctrine.
It was submitted by the Learned counsel for the respondents that as the High Court did not consider the question this point
may be remitted to the High Court.
We do not think it necessary
to do so for the evidence on record is convicing to prove the case
of rash and negligent driving set up by the claimants.
The 'second contention that was raised by the counsel for the
appellants is that the High Court was in error in holding that the incident did not take pJa:ce in the course of the employment or under
the authority of the company.
The High Court found that there
is no evidence that the owner of the vehicle was aware that Purshottam was being taken in !lie car as a passenger by Madhavjibhai and
in the circumstances the owner cannot be held liab1e for the tortious
act of the servant.
The High Court found that the car was going
from Nagpur to Pandhurna on the business of the company
and
it may also be that Madhavjibhai, the Manager of the owner's car,
was also going on the business of the owner and it may also be that
he had implied authority to drive the vehicle.
Having agreed
with the contentions of the claimants so far the High Court came
to the conclusion that there were no pleadings or material on record
to establish that Purshottam was travelling in the vehicle either on
some business of the owner of the vehicle or under any ostensible
authority from them to their manager Madhavjibhai lo take Purshottam as a passenger in the vehicle.
Before dealing with the right of
Purshottam as a passenger, we will consider the que·stion whether the
PUSHPABAI v. RANJIT GINNING co. (Kailasam, J.)
3 79
accident took r>lace during the course of the employmenf of MadhavA
jibhai by the company. It is admitted in the written statement by the
owner that Madhavjibhai was the Manager of opposite party No. 1
and that the vehicle was proceeding from Nagpur on its way to Pandhuma for purpose of delivering an amonnt of Rs. 20,000 to the
Ginning and Pressing factory at Pandhurna. The Tribunal found
on the pleadings that Madhavjibhai was the emp!Oyee of the company and during the course of employment oy driving the motor car
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he negligently caused the death of Purshottam.
The High
Court
also confirmed the findings and found that Madhavjibhai, the Mana-
.,
ger of the own~r of the car, was going on the business of the said
owner and that it may be that the Manager had the implied authority
to drive the vehicle.
On such a finding which is not disputed before
us, it is difficult to resist the conclusion that the accident was due to
the negligence of the servant in the course of his employment and
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that the master is liable. On the facts found the law is very clear
but as the question of the company's liability was argued at some
length we will proceed to refer to the law on the subject.
It is now firmly established that the master's liability is based on
the ground that the act is done in the scope or course of his employD
ment or authority. The position was stated by Lord Justice Denning
in Young v. Edward Box and Co. Ltd.(1). The plaintiff and fellow
workmen were given a lift on one of the defendants' lorries with the
consent of his foreman and of the driver of the lorry. On a Sunday
evening the plaintiff, in the course of that journey, was injured by the
negligence of the driver of the lorry and the plaintiff brought an action
against the defendants claiming damages for his injuries. The defence
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was \hat the plaintiff, when on the lorry, was a trespasser. The traffic
manager of the defendants pleaded that he had never given instructions
to the foreman that he should arrange for lifts being given to the
plaintiff and his fellow-workmen on Sundays and that the foreman had
no authority to consent to the plaintiff's riding on the lorry.
While
two learned Judges held that the right to give the plaintiff leave to ride
on the lorry was within the ostensible authority of the foreman, and
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that the plaintiff was entitled to rely on that authority and in tha~ respect was a licensee, Lord Denning held that although the plaintiff, when
on the lorry, was a trespasser, so far as the defendants were concerned,
the driver was acting in the course of his employmen't in giving the
plaintiff a lift and that was sufficient to make the defendants liable and
that he did not base his judgment on the consent of \he foreman. Lord
Justice Denning stated the position thus :
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" .... the first question is to see whether the servant was
liable. lf the answer is Yes, the second question is to see
whether the employer must shoulder the servant's liability.
So fa~ as the driver is concerned, his liability depends on
whether the plaintiff was on the lorry with his consent or
not. XXXXX.
(I) (1951) I T.L.R. 789 at 793.
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SUPREME COURT REPORTS
(1977) 3 S.C.R.
The next question is how far the employers are liablo for
their servant's conduct. In order to make the employers
liable to the passenger it is not sufficient that they should be
liable for their servant's negligence in driving.
They must
also be responsible for his conduct in giving the man a lift.
If the servant has been forbidden, or is unauthorised, to give
anyone a lift, then no doubt the passenger is a trespasser on
the lorry so far as the owners are concerned; but that is not
of itself au 'answer to the claim. XX X X X In my opinion,
when the owner of a lorry sends his servant on a journey
with it, thereby putting the servant in a position, not only to
drive it, but also be give people a lift in it, then he is answerable for the manner in which the servant conducts himself on
the journey, not only in the driving of it, but also in giving
lifts in it, provided, of course, that in so doing the servant
is acting in the course of his employment."
Lord Justice Denning concluded by observing that the passenger was
therefore a trespasser, so far as the employers were concerned; but
nevertheless the driver was acting in the course of his employment,
and that is sufficient to make the employers liable. It will thus be seen
that while two of the learned Judges held that the right to give the
plaintiff leave to ride on the lorry was within the ostensible authority
of the foreman and the plaintiff was entitled to rely on that authority
as a licensee, Lord Denning based it on the ground that even though
the plaintiff was a trespasser so far as the defendants were concerned,
as the driver was acting in the course of his employment in giving the
plaintiff a lift, it was sufficient to make the defendants liable. Applying the test laid down there can be no difficulty in concluding tha;t the
right to give leave to PurshoHam to ride in the car was within the
ostensible authority of the Manager of the company who was driving
the car and that the Manager was acting in the course of his employment in giving lift to Purshottam. Under both the tests the respondents would be liable.
We will now refer to the three cases relied on by the High Court
for coming to the conclusion that the accident did not take place during the course of employment. The first ease referred to is Sitarani
Motikil Kalal v. Santanuprasad Jaishankar Bhatt('). The owner of a
vehicle entrusted it to A for plying it as a taxi. B who used to clean
the taxi was either employed by the owner or on his behalf by A. A
trained B to assist him in driving the taxi and took B for obtaining a
licence for driving.
While taking the test B caused bodily injury to
the respondent. A was not present in the vehicle at the time of the
accident. On the question whether the owner was liable the majority
held the view that the owner was not liable. On the facts the court
found that the person who had borrowed the taxi for taking out a
licence and the driver who lent the same was not &Cling in the course
of his business. The court on an application of the test laid down in
various decisions held that there is no proof that the second defendant,
the driver, was authorized ~o coach the cleaner so that the cleaner
(1) (1966] 3 S.C.R. 527.
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PUSHPABAI v. RANJ!T GINNING co. (Kailasam, /.)
3 81
might become a driver and drive the taxi and that it appeared more
probable that the second defendant wanted someone to assist him in
driving the taxi for part of the time and was training the third defendant to shart< the ta.sk of driving.
The owner"s plea that it had not
given any such authority was accepted by the court. Holding that it
had not been provecl that the act was impliedly authorized by the
owner or to come within any of the extensions of the doctrine of scope
of employment the court held that the owner is not liable. This Court
has held that the test is whether the act was done on the owner's business or that il was proved to have been impliedly authorized by the
owner. At page 537 it is stated that the law is settled that master is
vicariously liable for the acts of his servants acting in the course of
his employment. Unless the act is done in the course of employment,
the servant's act does not make the employer liable. In other words,
for the master's liability to arise, the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some
act authorised by the master.
The extension of the doctrine of the
scope of employment noticed in the judgment refers to the decision of
Ormrod and Another v. Crosville Mawr Services Ltd., and Another( 1),
where Lord Denning stated : "It has often been supposed that the
owner of a vehicle is only liable for the negligence of the driver if that
driver is his servant acting in the course of his employment.
This is
not correct. The owner is also liable if the driver is, with the owner's
consent, driving the car on the owner's business or for the owner's
purposes." The Supreme Court accepted the test and to that extent this
may be taken as an extension of the doctrine of scope of employment.
Thus, on the facts as we have found that the accident took place during
the course of employment the decision in Sitaram Motilal Kalal is of
no help to the respondents.
The next case which is referred to by the High Court is Canadian
Pacific Railway Company v. Lockhart('). In that case one S was
employed as a carpenter by the railway company. In the course of
his employment he was required to make repairs of various kinds to
employer's property. He made a key for use in a lock in the station
at N far away from his headquarters at W.
He was paid per hour
and the railway company kept vehicles to be used by S available for
him.
S, however, had a car of his own and without communicating
his intention to anyone he used it on his way to N.
An accident
happened on the way owing to S's negligence. It was also in evidence
that the railway company had issued notice to its servants particularly
to S warning him against using their private cars unless they had got
their cars insured agains't third party risk.
On the facts, the Privy
Council held that the means of transport used by the carpenter was
clearly incidental to execution of that for which he was employed. As
what was prohibited was not acting as a driver but using a non-insured
car, the prohibition merely limited the way in which the servant was
to execute the work which he was employed to do and that breach of
the prohibition did not exclude the liability of the master to third
party. We do not see how this case would help the respondents. On
(I) (1953) 2 All. E.R. 753.
(2) (1941) A.C. 591.
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SUPREME COURT REPORTS
[1977] 3 s.c.R.
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the other hand it supports the contention of the counsel for the appellants that when the Manager was driving the car for the purpITTeS
of the company it was in the course of his employment.
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The third case that is referred to by the High Court is Conway v.
George Wimpey & Co. Ltd.('). The defendants, a firm of contractors,
were engaged in building work at an aerodrome, and they provided
lorries to convey their employees to the various places of their work
on the site.
Jn the cab of each lorry was a notice indicating that the
driver ·was under strict orders not to carry passengers other than the
employees of the defendants during the course of, and in connection
with, their employment, and that any other person travelling on thEO,
vehicle did so at hi~ own risk. Further the driver of the Jorry had received clear oral instructions prohibiting him from taking other persons.
The plaintiff who was employed as a labonrer by anothen firm
of contractors at the aerodrome, while on his way to work, was permitted by the driver to ride on one of the defendants' lorries for some
distance across the aerodrome and while dismounting the plaintiff was
injured owing to driver's negligence. The court held that on the facts
of the case the taking of the defendants' employees on the vehicle was
not merely a wrongful mode of performing an act of the class which
the driver in the prese1't case was employed to perform but was the
performance of al\ act of a class which he was not employed to perform at all.
The facts stated above are entirely different from those.
which arise in the present case before us as in the case before
the Court of Appeal(') there was a notice indicating that the driver
was under strict orders not to carry passengers and the driver was instructed not to carry others while 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 positiQn 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 Pursho~tam and was acting in the course
of his employment.
We do not see any support for the conclusion
arrived at by the High Court that the driver was not acting in the course
of his employment.
We will now procee<X to refer to some cases which were cited by
the learned counsel for the respondents. The learned counsel placed
reliance on the decision in Houghton v. Pilkington.(')
In that case
the plaintiff at the request nf a servant of the defendant got into the
defendant's cart which was then in the chrage of 'the servant, in order
to render assistance to another servant of the defendant who had been
rendered unconscions by an accident. The plaintiff fell out of the cart
and was in jnred through the negligence of the servant in charge of the
cart in causing the horse to start.
Jn an action against the defendent
for damages for the injnries sustained by the plaintiff it was held that
the existence of an emergency gave no implied authority to the servant
to invite the plaintiff into the cart and that the defendant was not liable
(I) (1951) (!) All. E.R. 363.
(2) 62 T.LR. 458.
(3) (1912) 3 K.B. 308.
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~PUSHPABAI v. RANJIT GINNING co. (Kailasam, !.)
383
to ihe plaintiff. Justice Bankes while agreeing with Justice Bray who
A
delivered the leading judgment expressed his view that the lower court
had taken the view that an emergency had arisen which gave the defendant's servant implied authority to invite the plaintiff into the cart for
the purpose of rendering assistance to the injured boy.
The learned
Judge was first inclined to agree with that view but because of the case
being governed by Cox v. Midland Counties Ry. Co.
(3 Ex. 268)
he felt he could not consistently with that decision hold that in the
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circumstances the driver of the cart had any implied authority to invite
the plaintiff to get into the car. The facts in Houghton v. Pilkington
are entirely different and the decision was based on the ground that
existence of the emergency did not confer on the driver of the cart
authority to invite the plaintiff into the cart.
·
The next case thait was cited by the learned counsel for the respondents was Twine v. Bean's Express, Limited('). The defendants
provided for the use of a bank a commerciail 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 on the van, one stating that no unauthorized person was allowed
on the vehicle. and the other that driver had instructions not to a!low
unauthorized travellers in the van, and that in no event would the de-
. fendants be responsible for damage happening to them.
One T who
"!as not authorized to ride in the van got a, lift in the van with the
consent of the driver.