Liability of master for the misdeeds of the servant.

This appeal arises out of a suit for damages for the injuries sustained by the plaintiff when he was travelling in the defendant’s bus, consequent on the negligent driving of the bus. On 4th July, 1948, the plaintiff was travelling in the bus of which the defendant was the Managing Director of the Rasipuram Union Motor Service, Ltd., Rasipuram, who were the owners. The accident in this case is stated to have happened after the bus left Namagiripet, at a place 12 miles from that place. The bus in which the plaintiff was travelling dashed against another bus with the result that his left hand little finger, according to the plaintiff, had been disfigured, and he had received other minor injuries on his body. His case was that he was prevented from doing any work for four months and he claimed Rs. 1000 as and for damages.

The defence was that at the time when the accident happened, it was not the driver of the bus that drove the bus but it was the conductor that drove the same and the accident not having occurred by the rash and negligent driving on the part of the driver but by the conductor, it could not be said that the accident happened in the course of the employment as the conductor’s duties were not to drive the bus but to look after other work and the driving not being within the scope of his employment, it is urged that the master, in this case the defendant is not 1 able.

The trial Court accepted the defendant’s contention, following the decision of the Privy Council in Canadian Ry. Co. v. Lockhart1and Oma Parshad v. Secretary of State2. In the latter case it was observed:

“Where, however, the servant, merely avails himself of the opportunity afforded by his employment to commit the tort solely for his own purposes, the master is not liable.”

The trial Court therefore held that the defendant could not be made responsible for what had happened though on account of the act of the servant, but the same not being the result of the act of the servant within the scope of his employment, as the conductor was not charged with the duty or employed by the defendant for the purpose of driving the bus.

In appeal the learned District Judge found that in any event the defendant as the master was responsible. He also found that the plaintiff has established that he is entitled to damages and has fixed the amount of damages at Rs. 500 and granted a decree.

In second appeal on behalf of the defendant appellant reliance is placed on the decision in Beard v. London General Omnibus Company3of the Court of Appeal. In that case at the end of a journey the conductor of an omnibus belonging to the defendants, in the absence of the driver, and apparently for the purpose of turning the omibus in the right direction for the next journey, drove it through some by-streets at a considerable pace, and while so doing negligently ran into and injured the plaintiff. At the trial the plaintiff gave no evidence that the conductor was authorised by the defendants to drive the omnibus in the absence of the driver. At the close of the plaintiff’s case judgment was entered for the defendants. A.L. Smith and Romer, L. JJ., took the view that the plaintiff had not discharged himself from the burden cast upon him of showing that the injury was due to the negligence of a servant of the defendants acting within the scope of his employment and that the defendants were entitled to judgment. Vaughan Williams, L.J., observed that in general/if, in the absence of the driver of an omnibus, an accident occurs while the conductor is driving, it would be for the proprietor to show that the act was unauthorised, but that the facts of the particular case negatived the giving of authority, and that the defendants were entitled to retain the judgment.

In a later decision of the Court of Appeal in Ricketts v. Thos. Tilling, Ltd.4, the decision now cited, Beard v. London General Omnibus Company3 , was distinguished. In that case the facts were that at the end of a journey the