Decided on December 19,1967



- (1.) THESE Revision Petitions arise from the order passed by the Sub Magistrate, Kozhikode in C. C. Nos. 505/66,482/66 and 488/1966, and confirmed in appeal by the District Magistrate, Kozhikode in Criminal Appeal Nos. 118,119 and 120 of 1966 respectively, in cases of over-loading in buses belonging to the Cooperative Society for ex-servicemen, panniyankara. The first accused in these cases is the conductor in the respective buses and the second accused in all these cases is the Secretary of the Society who is a Government officer whose services were lent to the society.
(2.) THE conviction of the second accused is challenged before me in these cases. THE point taken is that the 2nd accused as Secretary, is not responsible for the alleged overloading and even if overloading is a fact he had not authorised the conductor to have the overloading. In other words, the contention is that vicarious liability on the basis of which the 2nd accused has been made liable, has not been established in these cases. THE courts below seem to have followed the decision of this court in Ahamed v. State of Kerala (1964 KLT. 686) where the learned single Judge has held that in cases where the owner is seen to have been benefitted financially by the unauthorised act of the driver or the conductor he should be made liable. I am afraid the ruling has been misconstrued by the courts below. THE question, broadly speaking, is one of relative responsibility of master and servant. A master is normally liable for all the wrongs of the servant if committed in the course of employment. But if the act complained of falls outside the scope of employment, that is to say, an act not authorised by the master, no liability can be fastened on him. THE test of liability in such cases is whether the wrong committed by the servant is of the class of acts which are expressly authorised by the employer or is incidental to such act, or in other words, whether the wrong is an improper mode of doing an act which is authorised, or is incidental to such an act. THE Madhya Pradesh High court has held in Mannasingh v. State (AIR. 1960 MP. 151) Gwalior Bench): "if the conductor and the bus driver conspire together and overload a bus, the owner cannot be punished unless, of course, it is proved that the overloading was done at the instance or with the approval of the owner. " So also, Justice Horwill of the Madras High Court would observe in In Re. Devaraja Mudaliar (AIR. 1938 Mad. 998): "the wording of R-15a and the general plan of the M. V. Act show that the burden is on the prosecution to show that an accused knew that the lorry was overloaded. Such knowledge could be proved by adducing evidence that, for example, the lorry had just left the owner's premises or that all the goods on the lorry had come from there. " That was a case like the present one, of overloading at the instance of the driver and the conductor, without the knowledge of the owner. THE learned judge held that unless the owner was fixed with knowledge of the overloading, no liability could be fastened on him therefor. Knowledge or acquiescence in the act can be presumed in cases where the lorry was already overloaded when it left the garage or that the goods of the lorry came from the premises of the owner, Similarly, in the present case, unless proof is forthcoming that with the knowledge of the 2nd accused the buses were overloaded, no penal responsibility can be cast on him. In the 1964 KLT. case relied on by the courts below the lorry was taken along a route prohibited for lorries. The owner was hauled up for this unauthorised act of his servant and there also the learned judge has held that no mens rea was proved against the accused. The following observation of the learned judge is important. The learned judge observed: "comnig to the second objection, the learned magistrate was of the view that mens rea is not a necessary ingredient in a charge under the Motor Vehicles Act and also that the Lorry will not be taken alone a particular route without the express or implied consent of the owner both the proposition of law enunciated by the learned Magistrate and the inference drawn, are wrong. In the first place there is nothing in the Act to indicate that every offence committed by a driver may be presumed to have been done at the instance or with the knowledge of the owner. " So also in the present case, the 2nd accused who is the secretary of the society and who is expected to be in the office every time cannot be pinned with knowledge of whatever the conductor or the driver does on their way in the course of plying the buses. Unless there is evidence to show that overloading was permitted or authorised by him he cannot be made liable. The learned judge who decided the 1964 KLT. case (cited supra), however, has laid down a test by which knowledge could be imputed to the owner, of the unauthorised act of the servant The test is that if the owner is seen to have been benefitted by the said unauthorised act the necessary presumption can be drawn that the act was authorised by him. The learned judge observed: "to my mind the easiest way to determine whether the owner permitted or allowed the driver to use the vehicle against the conditions of the permit is to find out whether the owner was benefitted financially or otherwise by the unauthorised plying of the goods vehicle by the driver. "
(3.) I do not think this is an unfailing or sound test to fasten knowledge on the master of the unauthorised acts of the servant. In a case of overloading, the accounts maintained in the office might show that the society was benefitted; but from that how could it be presumed that the overloading was authorised by the master or that he was privy to the said unauthorised act? The prosecution, in such cases, must further show that the collections were checked up by the secretary and he was satisfied that the excess collection came from overloading and in such a case if no steps were taken by him to stop it, some sort of a knowledge could be imputed to him. In the present case, there is no such knowledge imputable to the Secretary. In the circumstances, the conviction and sentence passed on the secretary must be vacated. In the result, the conviction and sentence passed on the second accused in all these three cases are set aside. Fine if realised, will be refunded. In do not see any ground to interfere with the conviction and sentence passed on the first accused; it is hence confirmed. The revision petitions would stand allowed to the extent indicated and dismissed in other, respects.;

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