An employer is not vicariously liable for the tortious act of an employee if the act is outside the scope of the employee's employment.

S.S.SANDHAWALIA, J.

1. Whether the unauthorised carrying of a passenger in a goods truck by its driver in contravention of R.4.60 of the Punjab Motor Vehicles Rules, 1940, can nevertheless be deemed to be in the course of the employment of the owner of the truck so as to saddle the latter with vicarious tortious liability, is the somewhat significant question which falls for consideration in this set of two connected appeals under Clause 10 of the Letters Patent.

2. Though the question aforesaid is plainly legal, the matrixes of the facts giving rise thereto do call for some detailed notice. The unfortunate victim of the fatal accident was one Pritam Singh, deceased, and the case set up by Hansa Singh, his father, and his other legal representatives was that on the 15th of Feb., 1969. at about 5-30 p.m., the deceased was waiting to catch a bus at Sehoran Bus Stop. M/s. Jiwan Dass Roshan Lal Madan, appellants goods truck No. HNH 2351 loaded with stones and rashly and negligently driven by Karnail Singh driver, is alleged to have first knocked down a cyclist and then swerving sharply ran over Pritam Singh who was allegedly standing on the kutcha portion of the road. Pritam Singh, deceased, received mortal injuries and was later removed to hospital where he succumbed thereto. A report was lodged with the police station regarding the accident and the case against the driver, Karnail Singh, was also registered. The petitioner-respondents preferred a petition for recovery of rupees one lac as compensation against the appellant-owners of the truck, along with the insurers of the truck, Oriental Fire and General Insurance Company Limited, as also the driver, Karnail Singh. As regards the quantum of compensation, it was averred on behalf of the petitioners that the deceased Pritam Singh was the sole proprietor of Pritam Automobile, Railway Road, Nangal, and had a monthly income of Rs. 800/- only. His age at the material time was claimed to be 231/2 years.

3. In contesting the claim, the positive plea set up by the driver, Karnail Singh, and also the appellant-owners of the truck was that the truck driven by Karnail Singh accompanied by Tara Singh (A.W. 6) was carrying stones from Manimajra towards Nangal and when it was near Sector 17 in Chandigarh, Pritam Singh, deceased, who was known to Tara Singh, gave him a signal to stop and entertainingly sought a lift and apparently on the intercession of Tara Singh this was allowed and he sat on the left side of Tara Singh on the front seat. Whilst the truck was being safely driven at the slow speed of 20 miles, near Sehoran Bus Stop a cyclist suddenly swerved in front of the truck and while taking evasive action to save him the truck collided with a tree resulting in serious injuries to Karnail Singh, driver, Tara Singh (A.W. 6) and Pritam Singh deceased. The three injured were taken out of the truck with great difficulty and later removed to hospital where, as already noticed, Pritam Singh succumbed to his injuries. A somewhat similar stance was also taken by the insurers with the added defence that the policy of insurance issued in respect of this truck did not cover the liability of the passenger and was not required to be so covered under S.95 of the Motor Vehicles Act.

4. On the pleadings of the parties, the following issues were framed :-

1. Whether the occurrence of this case took place due to the negligence and carelessness of the driver of the truck, if so, to what effect ?

2. To what compensation the claimant is entitled to receive ?

3. Whether the Oriental Fire and General Insurance Company is not bound to pay the claim since the deceased was travelling in a public carrier ?

4. Whether the petitioners are not competent to bring the claim application ? Issue No. 1 was decided in favour of the petitioner-respondents whilst on issue No. 3 the finding was that the deceased was in fact travelling in the truck as a passenger and, therefore, the insurance company was not Liable to