The owner of a truck is vicariously liable for the death of a passenger carried in contravention of Rule 4.60, Punjab Motor Vehicles Rules, 1940, as the act of the driver in carrying the passenger in contravention of the rule is held to be in the course of employment.

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/s. Karnail Singh, 1980 Acc CJ 445 : (AIR 1980 Punj and Har 167). 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/s. Ranjit Ginning and Pressing Co. 1977 Acc CJ 343 : (AIR 1977 SC 1735) 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/s. 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 t