( 1 ) THE following question has been referred to this Bench for opinion:--

"whether the act of a driver of a vehicle in giving lift to a person, in disregard of any statutory rule or prohibition, while driving the vehicle in execution of the owner's business, can be held to be the performance by the servant of an act for which the owner of the vehicle cannot be held vicariously liable?"

( 2 ) THE facts giving rise to the aforesaid question have been set out in the order of reference. It has been found that appellant No. 2 was employed by appellant no. 1 as a driver of his vehicle for the purpose of transporting goods from udaigarh to Indore, that the accident took place while the vehicle was being so driven by appellant No. 2, that appellant No. 2 was not prohibited by appellant no. 1, from giving lift to anyone in the truck when the goods were to be transported from Udaigarh to Indore, and that the deceased who was the owner of the goods which were being transported from Udaigarh to Indore, was riding in the truck at the material time with the consent of the driver, appellant No. 2. It was also found that the accident took place as a result of negligent driving of the vehicle by appellant No. 2. Appellant No. 1, the owner of the vehicle, however denied his liability for the aforesaid negligent act of his servant on the short ground that the servant had in disregard of Rule 105 framed under the motor Vehicles Act, 1939 providing that no person should be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle. Relying on a decision reported in Bhaiyalal v. Rajrani (AIR 1960 Madh Pra 147), it was urged that as there was a prohibition existing in consequence of a statutory rule and as the servant had acted in disregard of the statutory rule, the owner could not be held vicariously liable for the act of the servant. The division Bench doubted the correctness of the proposition enunciated in bhaiyalal v. Rajrani (supra) and has, in consequence, made this reference. It is in these circumstances that the question has come up before us for consideration.

( 3 ) BEFORE we proceed to consider the question referred to us, it would be useful to have a brief look at the historical origin of the doctrine of vicarious liability. We cannot do better than reproduce the following passage in the judgment delivered by Scarman LJ reported in Rose v. Plenty (1976 Acc CJ 387 ). "let me begin with a statement of the general principle of vicarious liability, as I understand it in its application to compensation for accidental damage. In words which have frequently been quoted both in the Courts and in the Universities. Salmond on Torts (16th Edn. 1973, p. 462) refers to the basis of vicarious liability for accidental damage as being one of public policy. That view is supported by quotations (dated no doubt, but still full of lift) of a dictum of Lord brougham (Duncan v. Findlater (1839) 6 C1 and Fin 894 at 910) and of another, one hundred years or more earlier of Sir John Holt (Hern v. Nichols (1701) 1 Salk 289 ). That it is socially convenient and rough justice (I. C. I. Ltd. V. Shatwell (1964) 2 All ER 999 at 1012) to make an employer liable for the torts of his servant in the cases to which the principle applies, was recognised in Limpus v. London General omnibus Co. (1862-1 H and C 52ft ). See the judgment of Wiles, J. (1 H and C 539 ). I think it important to realise that the principle of vicarious liability is one of public policy. It is not a principle which derives from a critical or refined consideration of other concepts in the common law e. g. the concept of trespass or indeed the concept of agency. " therefore, the concept of trespass or the concept of agency in determining the master's liability for the acts of his servants is, in our opinion, not relevant The only relevant considerations, before the master is held liable for the act of his servant, are whether the servant is liable and