ivil 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 10466
Rameshwar Nath for the appellants UR Lalit and AG Ratnaparkhi for respondent No 1
Naunit Lal and Miss Lalita Kohli for respondent No 2
The Judgment of the Court was delivered by KAILASAM J
This is an appeal by certificate under Article 133 1a 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 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 Ms 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 375 Fire Accident and General Insurance Co Ltd The deceased was aged 58 years at the time of  his death and according to the petitioners was earning annually about Rs 9000
They claimed a compensation of rupees 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 men tioned by the applicants they denied that the vehicle was driven in a rash and negligent manner and pleaded that the vehicle was at the time of accident in perfectly sound condition
It Was submitted that the husband of the appli cant 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 compensa tion
The opposite parties pleaded that the incident was as a result of inevitable accident and 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 Madhavjib hai Mathuradas Ved the driver of the vehicle
It also found that the first respondent the owner of 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 3120915 as general damages in addition to Rs 2000 as special damages for funeral and post funeral expenses
The owner first opponent preferred an appeal to the High Court impleading the claimants and the insurance company 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 Madhavjib hai in taking Purshottam as a passenger as the said act was neither in the course of his employment nor under any au thority 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 Madhavjib hai
Holding that so far as the owners are concerned Pur shottam was no better than a trespasser the High Court held that the owners were not vicariously liable
On an applica tion by the claimants the High Court granted a certificate and thus this appeal has come before this Court
The questions 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 Manager of the company and 2 whether the incident took place during the course of the employment of the driver
In the event the claimants succeed on these two points the amount of compensation to which they are entitled would have to be determined
376 The High Court relying on three decisions in Sitgram Motilal Kalal vs Santanuprasad Jaishankar Bhatt1 Canadian Pacific Railway Company vs Leonard Lockhall2 and Conway vs George Wimpey  Co Ltd3 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
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 his employment
We feel that the question as to whether the car was being driven rashly 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 PW 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 from Nagpur to Pandurna
The tree was on the right hand side of the road four 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 posi tion went back about a foot
The steering wheel and the engine of the 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 sug gested 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 Tribu nal 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 occupants maxim res ipsa loquitur  applies See Ellor vs Selfridge The Tribunal proceeded to discuss the evidence of PW 1 and found on the evidence that it cannothelp 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 inevitable 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 1 2 AIR 1943 PC 63
3 377 not led any evidence to establish their plea
The burden rests on the opposite party to prove the inevitable acci dent
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 must 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 consider whether the claimants have made out a case of rash and negligent driving
As found by the Tribunal 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 considered whether under the circumstances the Tribunal was justified in applying the doctrine
The normal rule is that it is for the plaintiff to prove negligence but 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 acci dent but cannot prove how it happened to establish negli gence on the part of the defendant This hardship is sought to be avoided by applying the principle of res ipsa loqui tur
The general purport of the words res ipsa loquitur is that the accident speaks for itself or tell s 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 some 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 is 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 is 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 defendant 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 he 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 the defendant and that 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 378 have been satisfied
There can be no dispute that the car was under the management of the company s manager and that from the facts disclosed by PW 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 PW 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 the doctrine is applicable and it is for the opponents to prove that the incident did not take  place due to their negligence
This they have not even attempted to do
In the circumstances 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 hold ing that the incident did not take place 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 the car as a passenger by Madhavjibhai and in the circumstances the owner cannot be held liable 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 claim ants 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 to take Purshottam as a passenger in the vehicle
Before dealing with the right of Purshottam as a passenger we will consid er the question whether the 379 accident took place during the course of the employment of Madhavjibhai 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 Pandhurna for purpose of deliver ing an amount of Rs 20000 to the Ginning
and Pressing factory at Pandhurna
The Tribunal found on the plead ings that Madhavjibhai was the employee of the company and during the course of employment by driving the motor car he negligently caused the death of Purshottam
The High Court also confirmed the findings and found that Madhavjibhai the Manager of the owner 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 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 employment or authority
The position was stated by Lord Justice Denning in Young vs Edward Box and Co Ltd1
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 was that the plain tiff 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 that the plaintiff was entitled to rely on that authority and in that 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 employment 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 the foreman
Lord Justice Denning stated the position thus   the first question is to see whether  the servant was liable
If the answer is Yes the second question is to see whether the employer must shoulder the serv ant s liability
So far as the driver is concerned his liability depends on whether the plaintiff was on the lorry with his con sent or not
X X X X X 1 at 793
380 The next question is how far the employers are liable 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 theft servant s negli gence in driving
They must also be responsi ble for his conduct in giving the man a lift
If the servant has been forbidden or is unau thorised 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 an answer to the claim
X X 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 answerableor 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 passen ger 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 author ity 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 plain tiff a lift it was sufficient to make the defendants li able
Applying the test laid down there can be no difficul ty 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 lift to Purshottam
Under both the tests the respond ents 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 case referred to is Sitaram Motilal Kalal vs Santanu prasad Jaishankar Bhatt1
The owner of a vehicle entrust ed 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 acting 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 author ized to coach the cleaner so that the cleaner  1 19661 3 SCR 527 381 might become a driver and drive the taxi and that it ap peared more probable that the second defendant wanted some one to assist him in driving the taxi for part of the time and was training the third defendant to share the task 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 proved that the act was impliedly authorized by the owner or to come within any of the extensions of the doc trine 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 it 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 authorised 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 vs Crosville Motor Serv ices 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 ease which is referred to by the High Court is Canadian Pacific Railway Company vs Lockhart2
In that case one S was employed as a carpenter by the railway compa ny
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 against 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 1 2 382 the other hand it supports the contention of the counsel for the appellants that when the Manager was driving the car for the purposes of the company it was in the course of his employment
The third case that is referred to by the High Court is Conway vs George Wimpey  Co Ltd 1
The defendants a firm of contractors were engaged in building work at an aerodrome and they provided lorries to convey their employ ees to the various places of their work on the site
In 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 the vehicle did so at his own risk
Further the driver of the lorry had received clear oral instructions prohibiting him from taking other persons
The plaintiff who was employed as a labourer by another firm Of contrac tors at the aerodrome while on his way to work was permit ted 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 wrong ful mode of performing an act of the class which the driver in the present case was employed to perform but was the performance of an 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 Appeal2 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 posi tion 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 Purshottam 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 proceed 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 vs Pilkington1 In that case the plaintiff at the request of 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 unconscious by an accident
The plaintiff fell out of the cart and was injured through the negligence of the servant in charge of the cart in causing the horse to start
In an action against the defendent for damages for the injuries 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 1 2 3 383 to the plaintiff
Justice Bankes while agreeing with Justice Bray who 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 au thority to invite the plaintiff into the cart for the pur pose 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 vs Midland Coun ties Ry
Co  he felt he could not consistent ly with that decision hold that in the circumstances the driver of the cart had any implied authority to invite the plaintiff to get into the car
The facts in Houghton vs 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 plain tiff into the cart
The next case that was cited by the learned counsel for the respondents was Twine vs Bean s Express Limited1
The defendants provided for the use of a bank a commercial 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 allow unauthorized travellers in the van and that in no event would the defendants be responsi ble for damage happening to them
One T who was not author ized to ride in the van got a rift in the van with the consent of the driver
Owing to the negligence of the driver the accident occurred and T was killed
The conten tion that the accident arose while the driver was engaged on a duly authorized journey was negatived and it was held that defendants owed no duty to T to take care
This case was taken up on appeal which confirmed the view of the trial court holding that the driver in giving the lift to T was clearly not acting within the Scope of his employment and his employers were consequently not liable
The facts are totally different
The learned counsel for the respondents was not able to produce any authority which would support his contention that on the facts of the case found the company should not be held liable
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 vs Santanuprasad Jaishankar Bhat supra where this Court accepted the law laid down by Lord Denning in Ormrod and Another rs
Crosville Motor Services Ltd and Another 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 vs Edward Box and Co Ltd already referred to ie the first question is to see wheth er the servant is liable 1 155 year 1945 56
10 36SCI77 384 and if the answer is yes the second question is to see whether the em1oyer must shoulder the servant s liability has been uniformally accepted as stated in Salmond Law of Torts 15th Ed p 60 6 in Crown Proceedings Act 1947 and approved by the House of Lords in Staveley Iron  Chemical Co Ltd vs Jones1 and ICI Ltd vs Shatwell2
The scope of the course of employment has been extended in Navarro vs Moregrand Ltd  Anr3 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 fiat for the first defendant the landlord
The second defendant demand ed from the plaintiff a payment of Pound 225 if he wanted the flat and the plaintiff paid the amount
The plaintiff sought to recover the sum from the landlord under the Land lord and Tenant Rent Control Act 1949
The Court of Appeal held that the mere fact that the second defendent 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 of the premium was not authorized
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 vs Levinson4 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 authorized Law Reports  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
On a consideration of the cases we confirm the law as laid down by this Court in Sitararn Motilal Kalal vs Santa nuprasad Jaishankar Bhatt suvra and find that in this case the driver was acting in the course of his employment
and as such the owner is liable
We therefore set aside the finding of the High Court that the act was not committed in the course of employment or under the authority of the master and allow the appeal
2 1965 AC 656
3 4 66 The Times LR Pt 2 717
385 The only point that remains is the determination of the quantum of compensation to which the appellants are entitled to
The High Court did not go into this question but the Tribunal after taking into consideration the various facts fixed the compensation at Rs 3320915 with costs and directed that the insurance company shall indemnify the owner to the extent of Rs 15000
The Tribunal fixed special damages for funeral and post funeral expenses in cluding transport charges at Rs 2000
This item is not disputed
The second item is a sum of Rs 3120915 which according to the Tribunal would have been the amount which the deceased would have earned by continuing to work for a period of 5 years
The Tribunal accepted the documents produced by the claimants regarding the income of the de ceased and fixed it at Rs 931683 per annum
Out of this amount the Tribunal rightly excluded a sum of Rs 1875 which is the bonus the deceased would have got as it cannot be taken into account and fixed the net amount of earning at Rs 744183 per year and Rs 3720915 for 5 years
After deducting Rs 6000 which the deceased might have spent on himself the Tribunal arrived at a figure of Rs 3120915 under this head
The learned counsel for the respondents referring to item No 27 pointed out that the pay of the deceased was only Rs 425 per month and that the Tribunal was in error in including the dearness allowance conveyance allowance and other expenses and that the income of the deceased should have been taken as only Rs 425 per month
The learned counsel for the appellants accepts this figure
Taking Rs 425 being the monthly income the annual income totals up to Rs 5100 and for 5 years to Rs 25500 
Adding to this Rs 2000 which was given as special dam ages the total amount will come to Rs 27500 
We accept  this calculation as correct and restore the award passed by the Claims Tribunal but restrict it to an amount of Rs 27500 
As the Union Fire Accident  General Insurance Co Ltd Paris carrying on business at Nagpur has been nationalised though the second respondent before the Tribunal was repre sented by a counsel we directed notice to the nationalised insurance company so
that they would also be heard
The nationalised insurance company has taken notice and appeared through Mr Naunit Lal advocate
The insurance company had nothing further to add except as to the quantum of liability of the insurance company so far as injuries to the passengers are concerned
Mr Naunit Lal submitted that the scope of the statutory insurance does not cover the injury suffered by the passengers and as the owner has specifically insured under the insurance policy the risk to passengers to the extent of Rs 15000 only the liability of the insurance company should be limited to Rs 15000
On behalf of the owner it was submitted that the insurance cover under the Act extended to the injury to the passengers also and sought to support his contention by referring to section 951bi which provides against any liability to the owner which may be incurred by him in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place
386 As section 95 of the Motor Vehicles Act 1935 as amended by Act 56 of 1969 is based on the English Act it is useful to refer to that
Neither the Road Traffic Act 1960 or the earlier 1930 Act required users of
motor vehicles to be insured in respect of liability for death or bodily injury to passengers in the vehicle being used except a vehicle in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment
In fact sub section 2034 of the 1960 Act provided that the policy shall not be required to cover liability in respect of death of or bodily injury to persons being carried in or upon or entering or getting on to or alighting from the vehicle at the time of the occurrence of the event out of which the claims arise
The provisions of the English Act being explicit the risk to passengers is not covered by the insurance policy
The provisions under the English Road Traffic Act 1960 were introduced by the amendment of section 95 of the Indian Motor Vehicles Act
The law as regards general exclusion of passengers is stated in Hals bury s Laws of England Third Edition Vol 22 at p 368 para 755 as follows  Subject to certain exceptions a policy is not required to cover liability in respect of the death of or bodily injury to a person being carried in or upon or entering or getting into or alighting from the vehicle at the time of the occurrence of the event out of which the claim arises It is unnecessary to refer to the subsequent development of the English law and as the subsequent changes have not been adopted in the Indian statute
Suffice it to say that the Motor Vehicle Passenger Insurance Act 1971 made insur ance cover for passenger liability compulsory by repealing paragraph a and the proviso of sub section 2034
But this Act was repealed by Road Traffic Act 1972 though under section 145 of 1972
Act the coming into force of the provi sions of Act 1971 covering passenger liability was delayed under December 1 1972
vide Bingham s Motor Claims Cases 7th Ed p 704
Section 95a and 95bi of the Motor Vehicles Act adopted the provisions of the English Road Traffic Act 1960 and excluded the liability of the insurance company regarding the risk to the passengers
Section 95 provides that a policy of insurance must be a policy which insures the persons against 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 the use of the vehicle in a public place
The plea that the words third party are wide enough to cover all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers made clear by the proviso to sub section which provides that a policy shall not be required ii except where the vehicle is a vehi cle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being 387 carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises
 Therefore it is not required that a policy of  insurance should cover risk to the passengers who are not carried for hire or reward
As 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 plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act
The insurer can always take policies covering risks which are not covered by the requirements of section 95
In this case the insurer had insured with the insurance company the risk to
the passengers
By an endorsement to
the policy the insurance company had insured the liability regarding the accidents to passengers in the following terms In consideration of the payment of an additional premium it is hereby understood and agreed that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger    The scale of compensation is fixed at Rs 15000
The insurance company is ready and willing to pay compensation to the extent of Rs 15000 according to this endorsement but the learned counsel for the insured submitted that the liability of the insurance  company is unlimited with regard to risk to the passengers
The counsel relied on Section II of the Policy which relates to liability to third parties
The clause relied on is extracted in full Section II Liability to Third Parties
The Company will indemnify the in sured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimant s costs and expenses which the insured shall become  legally liable to pay in respect of a death of or bodily injury to any person but except so far as is necessary to meet the requirements of Section 95 of the Motor Vehi cles Act 1939 the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured
 It was submitted that the wording of clause 1 is wide enough to cover all risks including injuries to passengers
The clause provides that the Company will indemnify the insured against all sums including claimant s costs and expenses which the insured shall become legally liable
This accord ing to the learned counsel would include legal liability to pay for risk to passengers
The legal liability is re stricted to 388 clause 1 a which states that the indemnity is in relation to the legal liability to pay in respect of death of or bodily injury to any person bur except so far as is neces sary to meet the requirements of section 95 of the Motor Vehicles Act
The Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured
Clause 1 and 1 a is not very clearly worded but the words except so far as is necessary to meet the requirements of Section 95 of the  would indicate that the liability is restricted to the liability arising out of the statutory requirements under section 95
The second part of clause 1a refers to the non liability for injuries arising in the course of employment of such person
The meaning of this sub clause becomes clear when we look to the other clauses of the insurance policy
The policy also provides for insurance of risks which are not covered under section 95 of the Act by stipulating payment of extra premium
These clauses would themselves indicate that what was in tended to be covered under clause 1 and 1 a is the risk required to be covered under section 95 of the Motor Vehi cles Act
On a construction of the insurance policy we accept the plea of the insurance company that the policy had insured the owner only to the extent of Rs 15000 regarding the injury to the passenger
In the result we hold that the liability of the insurance company is restricted to Rs 15000
There shah be a decree in favour of the claimants appellants to the extent of Rs 27500 against  the respond ents out of which the liability of the insurance company will be restricted to Rs 15000
The appeal is allowed with the costs of the appellant which will be paid by the respondents in equal share
PHP Appeal allowed


Summary:
Purshottam Udeshi was travelling in a car which was driven by Manager of the first respondent company
The car was insured with the second respondent
The car dashed against a tree while proceeding from Nagpur to Pandurna
Purshottam who was aged 58 years at that time died in the accident
His annual income was about Rs 9000 
The widow and children of Purshottam filed a claim for compensation for a sum of Rs 1 lac under section 110 of the  before the Claims Tribunal
The respondents denied that the vehicle was driven in a rash or negligent manner and contended tbat the vehicle at the time of accident was perfectly in sound condition
It was also contended that Purshottam was travelling in the said vehicle on his own 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 Manager
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
Tribunal awarded Rs 31209 as general damages on the basis of 5 years  earning less the amount which the deceased might have spent on himself and Rs 2000 as special damages for funeral and post funeral expenses
The Tribunal took into account the pay DA conveyance allowance etc
for the purpose of determining income of the deceased
Both the respond ents
filed appeals in the
High Court
The High 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 Manager in taking Purshottam as a passen ger as the said act was neither in the course of his employ ment nor under any authority whatsoever that no evidence was led to show that the respondent No 1 was aware that Purshottam was being taken in the car as a passenger by their Manager
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 liable
In an appeal by certificate the appellants claimants con tended 1 That the accident was due to the rash and negligent driving of the Manager of re spondent No 1
2 The accident took place during the course of the employment of the driver
Allowing the appeal HELD 1 The car was being driven rashly and negligent ly
Although no eye witness was examined PWI the brother of the deceased who went to the spot soon after the accident was examined
He deposed that the car dashed 373 against a tree
The tree was on the right hand side of the road 4 ft
away from the right hand side of the main met alled road
The road was 15 ft wide and was a metalled road
On other side of the road there were fields at lower level
The tree against which the car dashed was uprooted about 9 to 10 from the ground
The car dashed so vio lently that it was broken in the front side
The vehicle struck so violently that the machine of the car went back about a foot from its original position
The steering wheel of 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
The witness was not cross examined on these facts
The maxim of Res ipsa 1oquitur clearly applies in the present case
In view of the proved facts the burden was on the respondents to prove the inevitable accident
376 B H Eller vs Selfridge  referred to
The normal rule is that it is for the plaintiff to prove negligence but 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 acci dent but cannot prove how it happened to establish negli gence on the part of the defendant
This hardship is sought to be avoided by applying the principle of res ipsa 1oqui tur
It means the accident speaks for itself or tells its own story
The car could not have 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 think it necessary to remand the matter to the High Court to consider the question of rash and negligent driving since the evidence was convincing
377 D E 378 A E 2 It is an admitted fact that the driver of the car the Manager of respondent No 1 was proceeding from Nagpur to Pandhurna for purpose of delivering an amount of Rs 20000 
He was driving the car in the course of the employment of respondent No 1
It is now firmly estab lished that the master s liability is based on the ground that the
act is done in the scope or sourse of his employ ment or authority
379 A G Young vs Edward Box and Co Ltd at 793 approved
Sitaram Motilal Kalal vs Santanuprasad Jaishankar Bhatt 19663 SCR 527 Conway vs George Wimpey  Co Ltd and  distinguished
Ormrod and Another vs Crosville Motor Services Ltd 19532 All ER 753 and Canadian Pacific Railway Co vs Lockhart  referred to
3 The Manager permitted Purshottam to have a ride in the car
Taking into account the high position of the driver who was the Manager of the company it is reasonable to presume in the absence of any evidence to the contrary the Manager had authority to carry Purshottam or acting in the course of his employment
There is nothing to support the conclusion of the High Court that the driver was not acting in the course of his employment
382 D F Cox vs Midland Counties Ry
Co  and Honghton vs Pilkington distinguished
Twine vs Bean s Express Ltd 62 TLRp
155 year 1945 46 distinguished
Recent trend in law is to make the master liable for acts which do not strictly fall within the term in the course of employment as ordinarily understood
383 F 5
The High Court did not go into the question of quantum of compensation
The Tribunal however ought not to have taken DA Conveyance Allowance etc
 into account for the purposes of determining the income of the deceased
Thus the income of 5 years would stand reduced from Rs 31000to Rs 25500 over and above special damage of Rs 2000 385 A C D 374 6
As far as respondent No 2 Insurance Co is con cerned it contended that since the Company had specifically limited its liability in respect of injury to passengers to Rs 15000 it cannot be made liable for anything in excess of Rs 15000 
The respondent No 1 contended that the insurance cover under the Act extended to the injury to the passengers also and relied on Section 951 bi 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 95 of the as amended by Act 56 of 1969 is based on the Road Traffic Act of 1960 or the earlier Act of 1930 in England
Section 95a and 95bi of the Act adopts the provisions of the English Road Traffic Act 1960 and excludes the liability of the Insurance Co regarding the
risk to the passengers
Section 95 provides that a policy of insurance must be a policy which insures the persons against 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 95b 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 however always 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 15000 
Clause 1 of the section 2 to the Insurance Policy which 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 95 of the  would indicate that the liability is restricted to the liability aris ing out of the statutory requirements under section 95
The policy read with the other clauses makes it clear that the respondent No 2 would be liable to the extent of Rs 15000 
385 G H 386 A F A D