# SITARAM MOTILAL KALAL v. SANTANUPRASAD JAISHANKAR BHATT

- **Citation:** [1966] 3 S.C.R. 527
- **Court:** Supreme Court of India
- **Decided:** 1966-02-08
- **Bench:** K. Subba Rao, M. Hidayatullah, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sitaram-motilal-kalal-v-santanuprasad-jaishankar-bhatt-3592
- **Pages:** 16

## Headnote

Tort-Vicarious liability.
The owner of a vehicle entrusted it to A for plying as a taxi. A drove
the taxi, collected the fares, met the expenditure and handed the balance
with accounts to the owner.
B who used to clean the taxi was either
employed by the owner or on ht. behalf by A. Presumably because A
wanted another to assist him in dr;ving the I.Xi he trained B to drive the
vehicle and took B for obtaining a licence for driving. While taking the
test B caused bodily injury to the respondent. At the time of the accident,
A was not present !n the vehicle. On the question whether the owner waa
liable,
HELD : (Per Hidayatullah and Bachawatt, JJ.) The owner was not
liable.
There is a presumption that a vehicle is driven on the master's business
and by his authorised agent or servant but the presumption can be met
It was negatived in this case.
The acts of A and B v:ewed separately
or collectively were not within the scope of their respective or even joint
employment. The evidence did not disclose that the owner had employ·
ed B to drive the taxi or given him permission ro drive the taxi or had
asked him to take test for obtaining a driving licence; nor did it disclose
that that the owner had given any authority to A to employ strangers to
drive the taxi or to take the driving test. A was not present in the vehicle
so that he could be said to be in control on behalf of his employer when
the vehicle was driven. [537 H; 540 D; 542 F}
For the master's liability to arise, the act must be a wrongful act
authorised by the master or a wrongful and unauthorised mode of doing
some act authorised by the master.
The driver of a car takins
the car on the master's busfness 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. [537
G]
Rule in Storey v. Aston, (1868-69) 4 Q.B.D. 476, by Cockburn C.J.,
applied.

## Text

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SITARAM MOTILAL KALAL
v.
SANTANUPRASAD JAISHANKAR BHATT
February 8, 1966
{K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT, JJ.]
Tort-Vicarious liability.
The owner of a vehicle entrusted it to A for plying as a taxi. A drove
the taxi, collected the fares, met the expenditure and handed the balance
with accounts to the owner.
B who used to clean the taxi was either
employed by the owner or on ht. behalf by A. Presumably because A
wanted another to assist him in dr;ving the I.Xi he trained B to drive the
vehicle and took B for obtaining a licence for driving. While taking the
test B caused bodily injury to the respondent. At the time of the accident,
A was not present !n the vehicle. On the question whether the owner waa
liable,
HELD : (Per Hidayatullah and Bachawatt, JJ.) The owner was not
liable.
There is a presumption that a vehicle is driven on the master's business
and by his authorised agent or servant but the presumption can be met
It was negatived in this case.
The acts of A and B v:ewed separately
or collectively were not within the scope of their respective or even joint
employment. The evidence did not disclose that the owner had employ·
ed B to drive the taxi or given him permission ro drive the taxi or had
asked him to take test for obtaining a driving licence; nor did it disclose
that that the owner had given any authority to A to employ strangers to
drive the taxi or to take the driving test. A was not present in the vehicle
so that he could be said to be in control on behalf of his employer when
the vehicle was driven. [537 H; 540 D; 542 F}
For the master's liability to arise, the act must be a wrongful act
authorised by the master or a wrongful and unauthorised mode of doing
some act authorised by the master.
The driver of a car takins
the car on the master's busfness 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. [537
G]
Rule in Storey v. Aston, (1868-69) 4 Q.B.D. 476, by Cockburn C.J.,
applied.
Case law referred to.
Ao. agent could make the principal liable only for acts done within
the scope of the agent's authority or under the actual control of the
principal. The extension of the doctrine that the act of the servant or the
agent must be for the master's benefit, is not
correct.~ It is doubtfu1
whether the principle can be extended by the introduction of the doctrine
of implied authority. [540 G]
Smith \", Martin, [1911) 2 K.B. 775 and Barwick Y. English Joint
Stock Bank, (1867) L.R. 2. Ex. 259, doubted.
Per (Subba Rao, J. dissenting) : The owner waa liable.
528
SUPREME COURT REPORTS
(1966] 3 S.C.R.
A was not a mere driver of the vehicle hut was the qWner's manager
to carry on the business of running his taxi.
A was, therefore,
given
the authority to do all things, necessary to keep the taxi in a good conditi"1' and to run it effectively, and if for plying the tlXi throughout day
and night and during the absence of A an assistant was necessary to drive
the vehicle, A could employ one. A employed B with the approval of tho
owner to keep the vehicle in good condition.
A in the interest of the
employer instead of engaging a third party. as an assistant driver trained
B as such and sought to obtain a licence for him.
Therefore, A did not
exceed the authority con~crrcci on him by the owner in employing B as
a servant and permitting him to drive the vehicle in order to obtain
a
licence· for nssistin~ htm as a driver.
[533 E-H]
Case law referred to.
Crv1L APPELLATE JuRJSDICTION: Civil Appeal No. 615 of 1963.
A peal from the judgment and decree dated April 5, 1957 of the
Bombay High Court in First Appeal No. 260 of 1952.
M. V. Goswami, for the appellant.
S. N. Prasad, J.B. Dadaclianji, 0. C. Mathur and Rani1der
Narain, for the respondent.
.
SUBDA RAO, J. delivered a dissenting Opinion. The Judgment
of HIDAYATULLAH and BACHA WAT, J.J.-was delivered by HIDAYATULLAH, J.
Sobba Rao, J. T regret my inability to agree.
Sitararn Motilal Kalal, hereinafter called the !st defendant
i& i,n agriculturist ha".ing lands at Kathwada village. He owned
a motor-car bearin~ registration No. BYD 316.
He entrusted
the said car to Mohmmed Yakub Haji, herinafter called the 2nd
defendant, for plying the same as,a taxi in Ahmedabad. The 2nd
defendant ran the taxi, collected the fare, met the expenditure
incurred connection with the said service, rendered account to
the I st defendant and remitted the balance to him. In short, the
2nd defendant was not merely the driver of the taxi but he was
also in entire charge of plying the taxi in Ahmedabad. The 2nd
defendant appointed the 3rd defendant as a cleaner for the taxi.
Presumably because the 2nd defendant wanted another to assist
him in driving the car during his absence from the city, he trained
the 3rd defendant to drive the car and on April 11, 1940, the 2nd
defendant took the 3rd defendant to the Regional Transport Authority for obtaining a licence for him.
On thl!t date a test was being
' condudoo by the Regional Transport Officer on the capacity of
the 3rd defendam to drive a car for the purpose of issuing to him
a permanent licence for driving. At about 5 p.m. on that day,
the plaintiff, wh:i is a pleader practising in the courLS of the district
of Ahmedabad, was going out of the compound of the office of the
Regional Transport Authority. At that time, the 3rd defendant
was driving the car towards Lal Darwaja side; without giving any
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s. M. KALAL v. s. J. BHATT (Subba Rao, J.)
529
signal, he took a sudden turn towards the gate of the Office of the
Regional Transport Authority, accelerated the speed and dashed
the car with great force against the pillar of the gate of th"e saicj
office. In that process, the plaintiff's leg was pinned between the
compound wall and the gate, with the result it was crushed and
later on
amputated. After recovering from a long illness, the
plaintiff filed a suit, being Special Suit No. 66 of 1950, in the
Court of the Civil Judge, Ahmedabad, for recovery of damages
in a sum of Rs. 80,000 from defendants I, 2 and 3 and the 4th
defendant, the Indian Globe Insurance Company, Limited, with
whom the said car was insured. All the defendants denied their
liability.
The learned Civil Judge held that the 3rd defendant was negligent in driving the taxi, that he was the servant of the 2nd defendant
and not of the I st defendant, and that even if he was the servant
of the !st defendant as a cleaner of the car, he did not act within
the scope of his authority when he drove the car and caused the
accident. In the result, he gave a decree against defendants 2 and 3
in a sum of Rs. 20,000 and dismissed the suit against the !st defendant; he also dismissed the suit against the 4th defendant, as the 1st
defendant, who insured the car, was exonerated from liability.
Against the said judgment and decree the plaintiff preferred an
appeal to the High Court of Bombay in so far as the decree went
against him. A Division Bench of the said High Court came to
the conclusion that the entire managment of the car was given to
the 2nd defendant, that in discharge of his duty as such manager
he appointed the 3rd defendant with the consent of the !st defendant and that by clearest implication the !st defendant, in the circumstances of the case, must be regarded as having authorised
the act of the 2nd defendant in training the 3rd defendant as a
car-driver and that, therefore, he would be liable in damages for
the accident caused by the negligence of the 2nd and 3rd defendants
in the course of their employment. So far as the 4th defendant
was concerned, the High Court held that in view of s. 96(1) of the
Motor Vehicles Act, 1939, no decree could be directly passed
against it, but the decree against the !st defendant could be executed
against it in terms of the said section. It raised the quantum of
damages from Rs. 20,000 to Rs. 25,000. The suit was decreed in
favour of the plaintiff against defendants 1, 2 and 3 with costs.
The I st defendant, by certificate, has preferred the present appeal.
Mr. M. V. Goswami, learned counsel for the !st defendantappellant, contended that the findings of the High Court that the
3rd defendant, the cleaner, was the servant of the !st defendant
and that the 2nd defendant was authorised to secure a licence for
the cleaner to drive the car were vitiated by its reliance on two
pieces of inadmissible evidence, namely, the alleged admissions
found in the 3rd defendant's written-statement and in the reply
530
SUP1'.EMP. COURT REPORTS
(1966) 3 S.C.R.
notice given by him to that issued to him on behalf of the plaintiff.
He further contended that the !st defendant could not be made
liable for the acts of either the 2nd defendant or the 3rd defendant
committed outside the scope of their employment.
Mr. Pcrshad, learned counsel for the respondent, though at
first made an attempt to sustain the admissibility of the said two
pieces of evidence, later on clearly conceded that they could not be
relied upon against the I st defendant.
But, he contended that
even after the exclusion of the said two pieces of evidence, on the
remaining evidence, the circumstances established and the probabilities arising therefrom it could be held, as the High Court did.
that the 3rd defendant was the servant of the !st defendant, that the
2nd defendant was authorised by the !st defendant to train the 3rd
defendant as a driver and get a licence for him so that he might
assist him in driving the car during his absence, that the accident
took place during the course of the employment of the 3rd defendant
by the !st defendant and that, therefore, the !st defendant wa-;
liable in damages for the accident. That apart, he further argued
that the 2nd defendant in discharge of his duty in the course of his
employment negligently entrusted the car to the 3rd defendant
for the purpose of assisting him in the discharge of his duty and,
therefore, the !st defendant would be liable for the accident.
Before we consider the problem presented to us, it will be
useful to notice briefly the relevant aspects of the law of torts vis-aA
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vis the liability of a owner of a car for the acts of his driver.
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The doctrine of constructive liability is in a process of evolution.
It is a great principle of social justice. A court no longer need be
overweighed with the old decisions on the subject given under
radically different circumstances, for now the owner of a car in
India is not burdened with an unpredictable liability as there is a
statutory compulsion on him to insure his car against third-party
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liability and his burden within the framework of the Motor Vehicles
Act is now transferred to the insurer.
The general principle is well settled and it is neatly given by
Pearson, L. J .• in Norton v. Canadian Pacific Steamships. Ltd.( 1 J
thus:
'"The owner of a c;u·, when he takes or sends it on a journey
for his own purposes, owes a duty of care to other road users,
and if any of them suffers damage from negligent drivin11: of the
car, whether by the owner himself or by an agent lo whom th"
had delegated the driving, the owner is liable."
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The limitation on this principle has been succinctly stated by
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Cockburn, C. J., in Storey v. Ashton(2) thus :
tO l196112All ~.R. 785, 790.
(2) (l868-69] I .R. 4 Q.B. 476, 479.
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s. M. KALAL v. s. J. BHATT (Subba Rao,];)
531
"The true rule is that the master is only responsible so
long as the servant can be said to be doing the act, in the doing
of which he is guilty of negligence, in the course of his employment as servant."
A valuable test to ascertain whether a servant was negligent
or not is found in Ricketts v. Thos. Tilling, Limited.(') There the
facts were : the conductor of an omnibus belonging to the defendants, in the presence of the driver, who was seated beside him, for
the purpose of turning the omnibus in the right direction for the
next journey, drove it through some by-streets so negligently that
it mounted the foot pavement and knocked down and seriously
injured the plaintiff. The Court of Appeal held that there was
evidence of negligence on the part of the driver in allowing the
omnibus to be negligently driven by the conductor. In so holding,
Buckley, L. J., laid down the following test :
"lt is a question for the jury whether the effective cause
of the accident was that the driver committed a breach of his
duty (which was either to prevent another person from driving
or, if he allowed him to drive, to see that he drove properly),
or whether the driver had discharged that duty."
Pickford, L. J., said much to the same effect thus :
"Jt seems to me that the fact that he allowed somebody else
to drive does not divest him of the responsibility and duty
he has towards his masters to see that the omnibus is carefully,
and not negligently, driven."
This decision followed the decision in En.vi,, hart v. Farrant.(2) There,
the facts were : A man was employed by the defendants to drive
a cart by which delivery was to be made of parcels. The cart was
manned by a man and a boy. The man's duty was to drive; the
boy's duty was to deliver the parcels.
The
boy had nothing
to do wit.h the horses. The man's instructions were not to leave
the cart. The driver did in fact leave the cart, and while he was
absent the lad drove on and came into collision with the pllj.intiff's
carriage and injured it. The question was whether the defendant
was liable. Lord Esher, M. R., in his judgment posed the question
to be decided thus : "Now, for what is the defendant liable ?"and
answered it as follows :
"He is liable for the negligence of Mears (that was the
driver) if that negligence was "an effective
cause' of the
subsequent damage to the plaintiff."
Then lower down the learned Judge said :
"If a stranger interferes (with the driving) it does not
follow that the defendant is liable; but equally it does not
(1) L.R. [1915] 1 K.B. 644, 646, 65J.
(2) [1897] - Q.B. 240.
532
~\;l'JU..~IE COCRT REPORTS
( 1966] 3 S.C.R.
follow that because a stranger interferes, the defendant is not
liable if the negligence of a servant of his is an clfectivc cause
of the accident."
The said decisions lay down the following two propositions : (I)
An owner of a car would be liable in damages for an accident caused
by his servant in the course of his employment; and (2) he would
also be liable if the effective cause of the accident was that the driver
in the course of his employment committed a breach of his duty
in either not preventing another person from driving the car or
neglecting to see that the said person drove it properly. We me
not concerned in this case with accidents caused by a driver or a
third party outside the scope of the employment, for in this case
whether the 3rd defendant was authorised to drive the car by the 1st
defendant or not the accident was caused when the car was being
driven for the purpose of efficiently plying the taxi for hire for which
the 2nd defendant was employed by the 1st defendant.
Before considering the evidence in this case, at the outset
some controversial ground may be cleared. The High
Court
relied upon the admissions made by the 3rd defendant in his writtenstatement and the reply given by him to the plaintiff as evidence
against the !st defendant. As I have indicated earlier, learned
counsel for the respondent fairly conceded that those pieces of
evidence could not be relied upon as admissions against the 1st
defendant. Indeed, the High Court, though it accepted the said two
pieces of evidence, alternatively came to the same finding after
excluding them from evidence. For the purpose of this judgment
I am assuming that the said pieces of evidence are not relevant
against the 1st defendant. Therefore, I will exclude the same from
my consideration.
Now let me take the case of the 3rd defendant and ascertain
his legal relationship with the !st defendant. The Isl defendant
was examined as D.W. I. He deposed as follows : He had
agricultural land> in Kathwada which he was personally cultivating
and he resided at Kathwada; a year and a half before April 11,
1949, he had given his car to the 2nd defendant for plying the same
as a taxi; the 2nd defendant had to manage it and he had full
control over it; the 2nd defendant paid taxes for the car, spent for
petrol, kept the said car always at the railway station stand, rendered
accounts for the income he got from plying the said taxi whenever
the 1st defendant went to Ahmedabad from Kathwada and met
him; the 2nd defendant was paid Rs. 90 p.m. He admitted in the
cross-examination that the 2nd defendant was a straightforward
and honest man, that he managed the taxi on his behalf, that upto
May 1949 he did not go beyond his instn:~tions, that the car wa-'
plying for hire during day and night and that there were no fixed
hours of service. He further stated that he entrusted the
2nd
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s. M. KALAL v. s. J. BHATT (Subba Rao, J.)
533
defendant with the duty of purchasing materials from Bombay.
This witness no doubt denied that he had authorised the 2nd defendant to engage the 3rd defendant or permitted the 2nd defendant
to teach the 3rd defendant car-driving. He also denied that there
was debit of Rs. 30 as pay of the 3rd defendant in the accounts
submitted to him by the 2nd defendant.
But the accounts were
not produced; and, therefore, an inference should be drawn against
him to the effect that if they were produced they would show that
a salary of Rs. 30 was paid to the 3rd defenant and he was the
servant of the !st defendant.
The plaintiff was examined as P. W. I. He deposed that the
3rd defendant was the cleaner of the car and that he had personally
seen the 3rd defendant cleaning the car in question. The evidence
of this witness so far as he said that he had seen the 3rd defendant
cleaning the car could be accepted particularly when it is consistent
with the probabilities of the case.
From the said facts it can reasonably be held that the 2nd defendant appointed the 3rd defendant as cleaner of the car, trained him
as a driver and on the day of the accident took him to the office
of the Regional Transport Authority and permitted him to drive
the car to obtain a permanent licence for him.
On the said evidence and the probabilities arising therefrom the
following inference can reasonably be drawn: The 1st defendant,
being the absentee owner of the car used as taxi, entrusted the
entire management of running the said car as taxi to the 2nd defendant. The 2nd defendant was not a mere driver of the I st defendant's car, but was his manager to carry on the business of running
his taxi. The 2nd defendant was, therefore, given the authority
to do all things necessary to keep the taxi in a good condition and
to run it effectively to earn profit. It is also implicit in the said
arrangement that if for plying the taxi throughout day and night
and during the absence of the 2nd defendant from the city an
assistant was necessary to drive the car, the 2nd defendant
could
employ one. The 2nd defendant employed the 3rd defendant as a
cleaner with the approval of the 1st defendant to keep the car in
good condition. In that context, if the 2nd defendant in the interest
of the employer, instead of engaging a third party as an assistant
driver trained the 3rd defendant as such and sought to obtain a
licence for him, it is not possible to suggest that the 2nd defendant
in doing so exceeded the authority conferred on him by the 1st
defendant. I, therefore, find that the 2nd defendant did not exceed
the authority conferred on him by the 1st defendant in employing
the 3rd defendant as a servant and permitting him to drive the
car in order to obtain a licence for assisting him as a driver, If so,
it follows that the 3rd defendant was the employee of the 1st defendant in his capacity as an assistant to the driver. In that
534
SUPREME COUKT REPORTS
(1966) 3 S.C.R.
the 1st defendant would certainly be liable in damages for the accident caused by the 3rd defendant's negligence during the course
of his employment.
Though I am prima facie inclined to accept the second proposition also as correct and that the 2nd defendant's negligence in permitting the third defendant to drive the car was the effective cause
of the accident, in view of my first finding it is not necessary to
express my final opinion thereon.
Now let me turn to the other decisions cited at the Bar. The
decision of the Court of Appeal in Donovan v. laing. Wharton,
and Down Construction Syndicate, Ltd.(1) deals with a case where,
though the man in charge of a crane in the working whereof an
accident was caused was the general servant of the defendants,
they had parted with the power of controlling him with regard
to the matter on which he was engaged. They had lent to a firm
which was engaged in loading a ship at their wharf the crane with a
man in charge of it.
It is, therefore, a case where when the accident
took place the man, who was operating the crane, was not the servant
of the defendants.
In Britt v. Galmoye and Nevil/(2) the first defendant, who had
the 2nd defendant in his employment as a van driver, lent him his
private car after the day's work was finished to take friends to a
theatre and the 2nd defendant by his negligent driving injured the
plaintiff. It was held that the journey was not on the master's
business and the master was not in control and, therefore, he was
not liable for the servant's act. The principle of this decision is that
a owner of a car will not be liable for the accident caused by his
employee if it was caused outside the master's employment.
The decision in Giriiashankar Dayashankar Vaidya v. The B.B.
and C.l. Railway(') turned upon the construction of s. 108 of the
Indian Railways Act. The servants of the railway assaulted the
plaintiff for pulling the communication chain. The Court held
that the railway was not liable as the servants were not authorised
under the statute to arrest the plaintiff for pulling the communication chain and. therefore, they were not liable for the assualts
committed by their servants.
In Nalini Ranja11 Sen Gupta v.
Corporation of Calcutta(•)
when a chauffeur, who was taking his master's car to a workshop
for repairs, finding the lane leading to it impassable, left the car
in charge of the cleaner, whose duty was only to clean the car and
who was forbidden to drive it, and went to the workshop, and
during his absence the cleaner drove it against and broke a municipal lamp-post, it was held on the facts of the case that the
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(!) L.R. ( 1893] I Q.B. 629.
(3) (t918) 20 Born. L.R. t26.
(2) (1927-28) 44 T.L.R. 294.
(4) (1925) I.LR. 52 Cal. 983.
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s. M. KALAL V. s. J. BHATT (Hidayatullah, J.)
535
chaufeur was not negligent and that the cleaner
caused the
accident outside the scope of his employment and, therefore, the
owner was not liable .
The decision in Emperor v. Shantaram Ram Wadkar (1) turned
upon the meaning of the word "allowed" in s. 6 of the Motor
Vehicles Act, 1914, and is not of any help in deciding the present
case. The decision in The Managing Director, R.U.M.S. Ltd.,
Rasipuram v. Ramaswamy Goudan (2) followed Ricketts v. Thos .
Tilling, Ltd., (3) and held that where the servant who was charged
with the duty of driving a bus was responsible for allowing the
conductor to drive and if he was so responsible he must be equally
responsible for the negligent driving by the person who was permitted to drive. The last decision accepted the second proposition
and applied it to the facts of the case before the court. The said
decisions do not in any way detract from the view expressed by
me.
Both the Courts below concurrently found on the evidence
that the 3rd defendant was guilty of negligence in causing the accident. We did not permit the learned counsel for the appellant to
question the correctness of the said finding. I accept it. No argument was advanced on the question of the quantum of damages.
In the result, agreeing with the High Court, I hold that the
1st defendant is liable in damages to the plaintiff for the accident
caused by the 3rd defendant. The appeal fails and is dismissed
with costs.
Hidayatullah, J. The facts need not be stated elaborately
for there is little dispute about them. We shall therefore content
ourselves with such facts as serve to introduce the reasons for our
opposite conclusions.
The respondent sued three persons for damages for personal
injuries which led to the amputation of one of his legs in a motorcar
accident. The vehicle belonged to the appellant (first defendant)
who had entrusted it to the second respondent for being plied as
a taxi. We shall refer to the appellant as the owner of the vehicle
or, shortly, owner. At the lime of the accident, it was driven by the
third defendant to whom it had been handed over by the second
defendant for the purpose of taking a driving test to obtain a driver's.
licence. In fact, the motor inspector taking the test was by the
side of the third defendant when he was driving. The second defendant was not present in the car but was present when the third defen -
dant took the car and had given permission. The suit was defended
by the owner of the vehicle for himself. The second defendant
remained absent at the trial. The third defendant filed a written
(I) (1932) 34 Born. L.R. 897.
(2J
LR. 1957 Mad. 513.
(3) L.R. (1915) 1.K.B. 644.

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~- M. KALAL V.
~- J. BHATT (Hidayatul/ah, J.)
537
the respondent and on the written statement (Ex. 16) filed by him
in the suit held that the third defendant was himself probably a
servant and in any event, the second defendant as manager of the
taxi was clearly authorised to allow the third defendant to drive it.
The High Court therefore decreed the claim against the owner also
and enhanced the amount of damages awarded by the court of
trial.
The first question is whether Exs. 97, 87, and 16 are admissible
against the appellant or not. Admission of the documents means
admission of facts contained in the documents. The facts were·
not deposed to by any one and the truth of these statements was not
in any way tested. To admit them would be prejudicial to the
appellant and strictly speaking no provision of law makes the
admissions admissible against a person other than the person making
them, unless such person can be said to be bound by the admission.
This condition does not obtain here. Learned counsel for the
respondent, although he attempted to do so at first, did not also·
rely upon them. We are of the opinion that these documents
were inadmissible against the owner. With this evidence excluded
there is nothing to show that the owner had employed the defendant to drive the taxi or given him permission to drive the taxi
or asked him to take a test to obtain a driver's licence. There is
also nothing to show that he had given any authority to the second'
defendant to employ strangers to drive the taxi or to take driving
tests. The upshot thus is that second defendant was a servant
of the owner and the third defendant was a servant of the second'
defendant or at best a cleaner of the taxi. There is evidence, however, to show that the second defendant was present when the vehicle
was borrowed for taking the test and had willingly allowed the
third defendant to drive the vehicle for the purpose. On these
facts, the question is whether the owner of the vehicle can be held
responsible.
The law is settled that master is vicariously liable for the acts
of his servants acting in the course of his employment
Unless
the act is done in the course of employment, the servant's act does
not make the employer liable. In other words, for the master's
liability to arise, the act must be a wrongful act authorised by the
master or a wrongful and unauthorised mode of doing some act
authorised by the master. The driver of a car taking the car on the
master's business makes him vicariously liable if 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 i5 driven on the master's
business and by his authorised agent or servant but the presumption
can be met. It was negatived in this case, because the vehicle was
proved to be driven by an unauthorised person and on his own
538
SUPRBME COURT REPORTS
[1966] 3 S.C.R.
business. The de facto driver was not the driver or the agent of the
owner but one who had obtained the car for his own business not
even from the master but from a servant of the master. Prima facie,
the owner would not be liable in such circumstances.
Ricketts'(') case which was relied upon by the respondent is a
<:ase in which the driver of an omnibus asked the conductor to drive
the omnibus and turn it round to make it face in the right direction for the next journey. The master was held liable vicariously,
because the driver was negligent in the performance of the master's
work. The driver was in fact seated by the side of the conductor
at the time when the omnibus was turned round. In other words,
the turning round of the vehicle was an act within the employer's
business and not something outside it. When the driver asked
the conductor to drive the omnibus for his master's business, he
did the master's work in a negligent way. The master was therefore
rightly held responsible. In Ricketts'(•) case, all the three Judges
expressed the opinion that there should be a new trial. As it was a
jury trial and the driver was sitting by the side of the conductor
and had control, the question was whether it should not have been
found what was the "effective cause" of the accident, that is to say,
the act of an utter stranger or that of a servant acting negligently
in the course of his employment. It is significant that in Trust Co.
Ltd., v. de Silva,(2) Ricke/ls' case was cited but was not referred to by
Lord Tucker pronouncing the judgment on behalf of the Judicial
Committee. The reason was that the case before the Privy Council
fell within the rule which was stated by Lord Tucker to be :
"It is now well settled that the person in control of a carriage
or motor
vehicle ........ though not actually driving ... .
is liable for the negligence of the driver over whom he has the
right to exercise control."
The above principle is applicable when the person owning the vehicle
is present. In Ricke/ls'(') case the driver was present and he asked
the conductor to do the work which he was employed to do and this
negligence made the omnibus company liable. In Beard v. London
General Omnibus Co.(') the conductor attempted to turn the omnibus
on his own initiative and caused an accident. The company was
he1d not liable, because it was not a part of the conductor's duty
to drive the omnibus. lt was not negligence in the course of his
employment.
Similarly, in Eng~lhart' s(~ case, two ~rvants were e?gaged
upon their master's business. One was to dnve a cart and mmd the
(I) L.ll. (1915] I K.B. 644, 646, 650.
. (2) [1956) I W.L.R. 376.
24J.
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s. M. KAI.AL v. s. J. BHATT (Hidayatullah, J.)
539
horses and the other-a boy travelling in the cart was to deliver
parcels. The driver left the cart unattended and the boy drove it
to deliver the parcels and caused the accident. The master was
held responsible. The driver ought to have known that if he left
the cart the boy would drive it in the fulfilment of the work of the
master. When the driver left the cart in the charge of the boy he
acted negligently in the course of his master's business. No doubt,
'the effective cause' was the negligence of the servant which made
the master responsible but that is not the whole of the matter.
In Ricketts'(!) and Enge/hart's(2) cases each servant was acting
on the master's business at the time. If the two servants in the
Enf{e/hart' s case(2) had gone for a picnic or the boy had borrowed the
cart to give a joy ride to his friends, the master would not have been
liable although the effective cause would still have been the elder
servant's negligence. The difference lies in this that in the two
cases the negligent act took place in the execution of the master's
business and in the examples suggested by us, no question of master's
business or the scope of the servant's or agent's employment arises,
because the acts are clearly outside that scope. Going for a picnic or
lending the cart so that the co-servant's friends may go for an outing is not in the course of the master's employment. Beard's case(3)
when compared with Ricketts' case(') brings· out the difference.
In Britt v. Go/moye and Nevil/(4) the master himself lent the car to
the servant for the latter's private work and the master was not held
responsible for the negligence of the servant in causing injury because
neither was the journey on the master's account nor was the master
in control at the time. Sir John Salmond (13th Edn. p. 124) has
summed up the law thus :
" .... a master is not responsible for the negligence or
other wrongful act of his servant simply because it is committed
at a time when the servant is engaged on his master's business.
It must be committed in the course of that business, so as to
form a part of it, and not be merely coincident in time with
it."
The scope of employment of a servant need not of course be
viewed narrowly, but the essential element that the wrong must be
committed by the servant during the course of the employment,
i.e. in doing the master's business ought always to be present. In
Century Insurance Co. v. Northern Ireland Road Transport Board,(')
the driver of a petrol lorry while transferring petrol from the lorry
to an underground tank, struck a match to light a cigarette and threw
it on the floor, and thereby caused a fire and explosion which did
great damage. The masters were held liable because the negligence
was in the discharge of the duty by the servant. Although the act
(1) L.R. (1915] l K.B. 644.
(2) [1897] 1 Q.B. 240 •
(3) [19JO] 2 Q.B. 530.
(4) (1927-28) 44 T.L.R, 294.
(5) [1942] A.C. 509.
540
SUPREME COURT REPORTS
[l 966] 3 S.C.R.
of lighting the cigarette was something the driver did for himself
and was by itself quite harmless, it could not be regarded in the
abstract and was a negligent method of conducting the master's
work. Similarly, in Smith v. Martin(') a school authority was held
liable when a teacher, during school hours sent a girl aged 14
wearing a print pinafore to poke the fire and to draw out the
damper in a grate in the teacher's common room and the child
was burnt.
It was held that the teacher's duty was to provide
education in the widest sense and included expecting obedience from
the pupils and this was an act .of negligence in the discharge of such
duty.
We know of no further extension of the doctrine of a master's
liability for the act of his servants during the course of his employment which would cover this case.
It cannot possibly be stated
today that the master is responsible for the acts of his servant
done, not in the course of employment, but outside it.
In the
present case, the third defendant was not doing the master's work
nor was the second defendant acting within the scope of his employment when he lent the taxi. The third defendant had borrowed
the taxi for a work of his own and the second defendant in lending
it was not acting in the master's business. The second defendant
was not present in the taxi so that he could be said to be in control
on behalf of his employer wheq the taxi was driven.
The law with regard to agents is the same. As was observed by
Lord Atkinson in Samson v. Aitchison(2) it is a matter of indifference
whether a person be styled a servant or agent since it is the retention
of control which makes the owner or the principal responsible.
Just as the tort must be committed by a servant either under the
actual control of his master or while acting in the course of his
employment, the act of the agent will only make the principal
liable if it is done within the scope of his authority. By a process
of ratiocination, the courts have made a slight distinction by attempting to find a 'right of control' as the basis of the master's liability
and have distinguished it from a 'right to control' in cases of simple
agency to bring the two case' togcthec.
We fi:id it simpler to st1tc
the law that an agent will make the pnnc1pal responsible "' long
as the agent does the act within the scCJpe of his authority or does
so under the actual control of the principal. We do not subscribe
to the extension of the doctrine that the act of the servant or the
agent must be for the master's benefit. This extension was made by
Willes J. in Barwick
v. English Joint Stock Bank('). The word
'benefit' is vague and it is better to adhere to the words 'course of
employment' or the 'scope of authority'. There is much institutional
criticism ofsuchcxtension. Similarly, we arc doubtful whether
the cxtenoion of the principle by the introduction of the doctrine
----- ---·-- ---·
(0 (1911] 2 K.B 775, 784.
(c) (1912] A.C. 884
(31 11867] I R 2 lo>. 259
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s. M. KALAL v. s. J. BHATTA (HidlI)latul/ah, l.)
541
of implied authority, which was relied upon in the school master's
case referred to above, was quite correct. If the dictum is accepted,
not only the master would be liable for what he may be supposed
to have 'impliedly authorised' 'the servant to do (however illegal
but also for all the servant's negligence not in doing his duty but
in doing something on his own account when he should be properly
acting for the master. The true rule in such cases is the one stated
by Cockburn C. J. in Storey v. Ashton(') thus :
" .... that the master is only responsible so long as the
servant can be said to the doing the act, in the doing of which
he is guilty of negligence, in the course of his employment as
servant."
or as Lush J. put it,
"The question in all such cases as the present is whether
the servant was doing that which the master employed him to
do."
There has been in recent years another extension of the responsibility of the principal for the act of an agent. In Ormrod and
another v. Crosville Motor Services Ltd., and another(2) the owner
was attending the Monte Carlo motor car rally. He asked a friend
to drive the car from Birkenhead to Monte Carlo. The friend was
carrying a snit case belonging to the owner. Later they were to go
a holiday together in the car. While the motor car was being
driven it collided with a motor omnibus and the owner of the car
was held responsible for the damage. Singleton, L. J. observed :
"It has been said more than once that a driver of a motor
car must be doing something for the owner of the car in order
to become an agent of the owner. The mere fact of consent
by the owner to the use of a chattel is not proof of agency,
but the purpose for which this car was being taken down the
road on the morning of the accident was either that it should
be used by the owner, the third party, or that it should be used
for the joint purposes of the male plaintiff and the third party
when it reached Monte Carlo."
Lord Denning (then Lord Justice) observed :
"It has often been supposed that the owner of a vehicle
is only liable for the negligence of the driver if that driver is
his servant acting in the course of his employment. This is
not correct.