S.P.GOYAL, J. - (1.) Kanwar Pal son of the appellant died of the injuries received by him on Nov. 29-11-1976 while travelling in Truck No. HYB 5137 driven by Mahavir respondent 2. In the claim petition filed against the owners of the truck, driver and the Insurance Company, the appellants were awarded Rs. 5,000/- as compensation and Mahavir alone was held responsible for its payment. The owner of the truck was exonerated on the ground that as the deceased was carried as a passenger unauthorisedly in contravention of Rule 4.60, Punjab Motor Vehicles Rules, 1940, he could not be fastened with vicarious liability for the tortuous act committed by the rash and negligent driving of the truck by his employee. Reliance for this view was placed by the Tribunal on the Division Bench decision of this Court in Jiwan Dass Roshan Lal v. Karnail Singh, 1980 Acc CJ 445. When the matter came up in appeal before my learned brother Sodhi, J. he thought that the decision in Jiwan Dass Roshan Lal's case (supra) required reconsideration in view of the decision of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., 1977 Acc CJ 343 and referred the case to the larger Bench. This is how we are seized of this matter.
(2.) In Pushpabai Purshottam Udeshi's case (supra) Purshottam Tulsidas met with his death in a motor car accident when he was travelling in the car which was driven by Madhavjibhai, Manager of the opponent company, Messrs Ranjit Ginning and Pressing Co. Private Limited, in a rash and negligent manner. The heirs of the deceased claimed compensation from the owner as well as the Insurance Company. One of the pleas raised in defence was that the deceased was travelling in the said vehicle on his own responsibility, for his own purpose and absolutely gratis and not on behalf of or at the instance of the owner or the driver of the vehicle and, therefore, the respondents could not be made vicariously liable for any negligence on the part of the driver. The High Court found that the car was going on the business of the Company and so was Madhavjibhai but further held that there being no pleading or the material on the record to establish that Purshottam Tulsidas was travelling in the vehicle either for some business of the owner or under any ostensible authority from them, the accident could not be said to have taken place in the course of the employment of Madhavjibhai or under the authority of the company. Relying on the statement of law expressed by Lord Justice Denning in Young v. Edward Box and Co. Ltd. (1951) 1 TLR 789, the Supreme Court reversed the judgement of the High Court observing thus :- "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 transpasser 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 that the right to give leave to Purshottam 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 leave to Purshottam. Under both the tests the respondents would be liable." After discussing the case law, Kailasam, J. who spoke for the Bench in Pushpabai Purshottam Udeshi's case (AIR 1977 SC 1735) summed up the law concerning the vicarious liability of the master for the acts of the servant as under :- "Before we conclude we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term "in the course of the employment" as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhati, AIR 1966 SC 1697 where this Court accepted the law laid down by Lord Denning in Ormrod v. Croaville Motor Services Ltd. ((1953) (2) All ER 753) (supra) that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes. This extension has been accepted by this Court. The law as laid down by Lord Denning in Young v. Edward Box and Co. Ltd. (1951) 1 TLR 789) already referred to i.e. the first question is to see whether the servant is liable and if the answer is yes, the second question is to see whether the employer must shoulder the servant's liability, has been uniformly accepted as stated in Salmond Law of Torts 15th Ed. p. 606 in Crown Proceeding Act 1947 and approved by the House of Lords in Stavelay Iron and Chemical Co. Ltd. v. Jones (1956 AC 627) ICI Ltd. v. Shatwell (1965 AC 656). The scope of the course of employment has been extended in Navarro v. Moregrand Ltd., (1951 (2) TLR 674) where the plaintiff who wanted to acquire the tenancy of a certain flat applied to the second defendant, a person with ostensible authority to conduct the business of letting the particular flat for the first defendant, the landlord. The second defendant demanded from the plaintiff a payment of 225 if he wanted the flat and the plaintiff paid the amount. The plaintiff sought to recover the sum from the landlord under the Landlord and Tenant (Rent Control) Act 1949. The Court of Appeal held that the mere fact that the second defendant was making an illegal request did not constitute notice to the plaintiff that he was exceeding his authority and that, though the second defendant was not acting within his actual or ostensible authority in asking for the premium as the landlord had entrusted him with the letting of the flat, and as it was in the very course of conducting that business that he committed the wrong complained of; he was acting in the course of his employment. Lord Denning took the view that though the second defendant was acting illegally in asking for and receiving a premium and had no actual or ostensible authority to do an illegal act, nevertheless he was plainly acting in the course of his employment, because his employers, the landlords, had entrusted him with the full business of letting the property, and it was in the very course of conducting that business that he did the wrong of which complaint is made. This decision has extended the scope of acting in the course of employment to include an illegal act of asking for and receiving a premium though the receiving a premium was not authorised. We do not feel called upon to consider whether this extended meaning should be accepted by this Court. It appears Lord Goddard, Chief Justice, had gone further in Barker v. Levinson (1950 (2) All ER 825) and stated that the master is responsible for a criminal act of the servant if the act is done within the general scope of the servant's employment. Lord Justice Denning would not go to this extent and felt relieved to find that in the authorised Law Reports (1951) 1 KB 342, the passage quoted above was struck out. We respectfully agree with the view of Lord Denning that the passage attributed to Lord Chief Justice Goddard went a bit too far." The ambit of the vicarious liability of the owner for the acts of the servant committed in the course of the employment was further enlarged by the Supreme Court in State Bank of India v. Mrs. Shyama Devi, 1979 Acc CJ 22 and the law laid down by the Privy Council in United Africa Co. Ltd. v. Saka Owoade 1955 AC 130 that a master is liable for his servant's fraud perpetrated in the course of master's business, whether the fraud was for the master's benefit or not, if it was committed by the servant in the course of his employment approved. There is no difference in the liability of a master for wrongs whether for fraud or any other committed by a servant in the course of his employment, and it is a question of fact in each case whether it was committed in the course of the employment. In the case before the Privy Council the appellant company had expressly committed to servants of the respondent a transport contractor, at his request goods for carriage by road, and the servants stole the goods. From the evidence it was established that the conversion took place in the course of their employment. The respondent on these facts was held liable to the appellant for the value of the goods. From the principle enunciated in the above noted two decisions of the Supreme Court on the question of vicarious liability of the master, it is evident that it does not depend on the lawful or unlawful nature of the acts of the servant and the master would be liable for the alleged act of the servant which had taken place in the course of his employment even though the servant may have acted in contravention of some of the provisions of the statute or the Rules made thereunder. Relying on Pushpabai Purshottam Udeshi's case (AIR 1977 SC 1735) (supra), the Full Bench of the Madhya Pradesh High Court in Narayanlal v. Rukhmanibai, 1979 0 ACJ 261 took a similar view and overruled the previous Division Bench decision of that court holding thus :- "Now, a statutory rule providing that no person should be carried in a goods vehicle other than a bona fide employee of the owner or hirer of the vehicle deals with the conduct of the driver within the sphere of employment. The sphere of employment of appellant 2 is to drive the vehicle in execution of the master's business from Udaigarh to Indore. That sphere is not in any manner limited by the prohibition contained in the statutory rule in question. For all these reasons it must be held that the proposition enunciated in Bhaiyalal v. Rajrani, AIR 1960 MP 147 does not lay down correct law and, in our opinion, the answer to the question referred, to us is that the act of a servant employed to drive a vehicle, in giving lift to a person in disregard of a statutory rule or prohibition while driving the vehicle in execution of the owner's business is an act for which the owner is vicariously liable." The view expressed in Jiwan Dass Roshan Lal's case (AIR 1980 Punj and Har 167) (supra) that acting in direct contravention of a statutory provision which is made an offence by an employee cannot be easily conceived as in the normal course of employment because no employer can be deemed or assumed to authorise the contravention of law or the commission of an offence, therefore, cannot be sustained and has to be overruled. Moreover, though the contravention of the Rules framed under the Act is punishable with fine but such a contravention cannot be termed a criminal offence. Under a large number of statutes the contravention of the Rules or the provisions of the statute are punishable with fine but such a contravention has never strictly been taken to be a criminal act or offence. Again, suppose a driver of the vehicle disobeys the driving regulations contained in the Seventh Schedule and thereby causes an accident resulting in the death of some person lawfully travelling in the truck, can in such a case it be said that the owner of the vehicle would not be liable vicariously because the accident was caused by disobeying the traffic regulation which is punishable under S.12 of the Act. The answer obviously has to be in the negative.
(3.) Now, we may notice the decisions relied upon by the learned counsel for the respondents. In Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 1966 Acc CJ 89, the Supreme Court referred to the English case, Britt v. Galmoye and Nevill (1928 (44) TLR 294) in para 27 and pointed out that the owner of the car will not be liable for the accident caused by his employee if it was caused outside master's employment. What happened there was that the owner lent the van to his driver after day's work was over to take his friends to a theatre and the driver by his negligent driving injured the plaintiff. On these facts it was held that the journey was not on the master's business and, therefore, he was not liable for the servant's act. The rule laid down in this case obviously is of no help to the respondents. In Krishna Ramayya Gouda v. C. P. C. Motor Co., AIR 1983 Kar 176, the Bench relying on the observations quoted Pushpabai Purshottam Udeshi (AIR 1977 SC 1735) held that the owner was not vicariously liable because the deceased was carried in the truck in direct contravention of R.161. The Supreme Court in Pushpabai Parshottam Udeshi's case only disapproved the observation of Lord Goddard, Chief Justice, in Barkar v. Levinson (1950 (60) TLR (Pt. 2) 717) to the effect that the master is responsible for the criminal act of the servant if the act is done within the general scope of the servant's employment. The disapproval of the said observation cannot be interpreted to mean that the master would not be liable for the civil consequences of the act of his employee done in the course of his employment because in doing so, he has contravened some rule or the provision of the Act. Causing the death by rash and negligent driving by an employee of the master is also a criminal act punishable under the law of crimes. Even though the act of the employee amounts to a criminal act still the master is liable for the civil consequences of the act of his employee. With due respect to the learned Judges, we feel that the observations of the Supreme Court in Pushpabai Parshottam Udeshi's case (supra) were not correctly interpreted in Krishna Ramayya Goude's case (supra) and are, therefore, unable to subscribe to the rule laid down therein. In United India Insurance Co. Ltd. v. Abdul Munaf, 1984 0 ACJ 653, the Bombay High Court on appreciation of the evidence took the view that the driver was expressly prohibited from taking the passengers in the vehicle and as such it was held that the conveyance of the passengers by the driver was not during the course of his employment. With due respect to the learned Judges we are unable to accept the proposition that if the driver had been expressly prohibited not to take passengers in the truck, the owner would be absolved of his liability. The express prohibition by the master cannot have better sanction than the provisions of the rule framed under the Act which prohibited the carrying of passengers in a truck. The determining factor as already stated above so far as the liability of the owner is concerned is whether the act was committed by the driver in the course of his employment or not. If the driver was acting in the course of his employment then the owner would be liable even though acted against the express instructions of the owner or in violation of the Rules framed under the Statute.;