The master of a servant is the person who has the control of the manner in which the work is to be done.

( 1 ) A question, much debated in the English Courts and of lesser but by no means infrequent recurrence in this country, has come up for consideration in this appeal. It is important and difficult arid, on it, judicial opinion is widely divergent. The law on the point has been stated or sought to be stated at different times by eminent judges and jurists but the apparent clarity at one stage melted away and faded into indistinctness before later examination and the statement and re-statement of the law again involved the mind in confusion and obscurity. Tests have varied and what appeared to be true, conclusive and exhaustive at one stage was rejected as faulty, unconvincing and insufficient on later occasions. In the latest authoritative pronouncements of the Supreme Court here and of the House of Lords in England we have some certainty which may suffice for our present purpose but still the need that was felt in an earlier decision of the House of Lords of a restatement of the law on the point, at least in one of its branches, has not altogether disappeared and, even with regard to the other part, the position cannot be said to be absolutely clear in that, even though the test or tests may be said to be somewhat settled, immense difficulties are felt in the matter of their application.

( 2 ) THE point is one concerning the relationship of master and servant and pertaining to that branch of the law which deals with the question as to who, A or B, would be liable for a tort, committed by A's servant, sent to B for doing a particular work in the latter's behalf, in the course of execution or performance of that work.

( 3 ) THE point arises in the following way:

( 4 ) THE appellant Company (defendant No. 2) was the owner of a motor launch Uma. It was chartered by respondent No. 2 Company which was defendant No. 1 in the trial Court. The terms of the charter party (Ext. A) dated 14-8-1948, were as follows:"1. That we (respondent No. 2) shall pay you (appellant) the monthly rent of Rs. 3,000/- plus the crews' wages, amounting to Rs. 516/- per month, by the 5th of each month in advance at your office at Calcutta. 2. We shall pay for the fuel diesel oil, lubricants and all other necessary stores that may be required for running the vessel. 3. We shall maintain the vessel in good working order and condition as it is now. 3-A In the event of any breakdown we will repair that debiting the cost to your account and we will also deduct the proportionate rent for those days the vessel remains out of commission. 4. We shall operate the vessel in the navigable waters as permitted by the certificate of survey. 5. If the vessel is damaged due to our instruction while with us, we undertake to repair the same at our cost. 6. We shall charter the vessel for at least two months and thereafter may terminate this arrangement on giving one month's notice. 7. If we keep vessel on charter for a period of twelve months, you have agreed to give us rebate of Rs. 50/- per month with retrospective effect from 15-8-1948. 8. We reserve the right to dismiss, penalize or change any crew when we think necessary on the spot. But intimations will be given to you for approval. "

( 5 ) RESPONDENT No. 1 (who was the plaintiff in the Court below) was a merchant, carrying on wholesale business at Berhampore. He used to send various merchandise to Calcutta for sale.

( 6 ) ON September 12, 1948, the said respondent sent several bags of Mahsur (Bhusimal) to his Artdras at Calcutta by four country boats. In the course of the journey, while the boats were passing downstream along the river Bhagirathi, off Pilkhana Ghat, near Saktipur, the motor lanuch Uma, working under the charter aforesaid and carrying two heavy barges on either side and coming up-stream by the river, dashed against one of the above country boats, laden with a consignment of 173 bags of Mashur (Bhusimal), and, as a result of the collision, the said country boat with the entire mer