The owner of a vehicle is liable for the negligence of the driver even if the driver is not regularly employed by him, as long as the driver was driving the vehicle on behalf of the owner or under his instructions.

G.L. OZA, J.

1. The Appellants have filed this appeal against an order passed by the Motor Accidents Claims Tribunal, Indore, (hereinafter called the Tribunal), rejecting the claim petition filed by them.

2. The facts giving rise to this appeal are that the Appellants along with one Gulab, the father of the deceased Kanhaiya, submitted an application before the Tribunal for award of compensation under Section 110-A of the Motor Vehicles Act, 1939. It was alleged in this application that the Station Wagon bearing number MPF-439, owned by Respondent No. 1, was being driven by Respondent No. 2 on 24th August 1965 on Agra-Bombay Road, near Rajgarh Kothi, Indore. The vehicle was being driven towards Bombay when it knocked down a cyclist named Kanhaiya, who died on the spot. The incident is alleged to have taken place in the evening. It was alleged that at that time the vehicle was being driven at a high speed and negligently and it was because of this that the incident took place resulting in the death of the deceased. It was also alleged that the deceased was earning Rs. 150/- p.m. On this basis, the widow of the deceased along with his father and minor children filed a claim petition claiming Rs. 50,000/- as compensation from the Respondents.

3. Respondent No. 1 denied that the Respondent No. 2 was his regularly employed driver. The allegations about negligence were denied because of want of knowledge. In his reply, Respondent No. 2 contended that he was an employee of M/s Sanghi Brothers and the vehicle had come to their workshop for repairs. According to him, he had taken out the vehicle for trial. At that time, it was raining heavily and when he came on the cross-roads near Rajgarh Kothi the cyclist suddenly took a turn and, therefore, collided against the vehicle. Respondent No.3? Insurance Company raised a plea that as the vehicle was being taken on reliability trial, under the terms of the policy the Company is not liable.

4. As regards compensation, the Tribunal held that the Appellants were entitled to Rs. 15000/- and allowed the application as against the Respondent No. 2. But the Tribunal rejected the application as against the other Respondents on the ground that the Respondent No. 2 was not the driver of Respondent No. 1 and so the Respondent No. 1 could not be held liable for the negligence of Respondent No. 2. It was also held that the reliability trial was exempted in the exemption clause of the insurance policy. The Tribunal also found that there was nothing to show that the Respondent No. 2 held an effective driving licence. Consequently the Respondent No. 3, Insurance Company, was held not to be liable. It is against this that the present appeal has been filed.

5. Respondent No. 2 has also filed cross-objections.

6. Mr. A.M. Mathur, learned Counsel for the Appellants, contended that the conclusion of the Tribunal that the Respondent No. 1 could not be held liable as Respondent No. 2 was not a driver in his service, cannot be justified. According to the learned Counsel, in view of the pronouncements of the Supreme Court in New Asiatic Insc. Co. v. Pessumal A.I.R. 1964 S.C. 1736 and Sitaram v. Santanuprasad 1966 A.C.J. 89. the conclusion arrived at by the Tribunal is not justified. He also contended that: the principle of vicarious liability, as it now stands, cannot be based on the theory that the master should be in a position to control the acts of his servant. Learned Counsel also referred to certain passages from 'Clerk & Lindsell on Torts'. As regards the reliability test being one of the conditions of exemption in the insurance policy, learned Counsel contended that the only exemption could be what is contained in Section 96(2) of the Motor Vehicles Act, and the clause that could be considered clearly indicates that such a trial, as is alleged in the present case, cannot be said to be exempted. He contended that the question whether Respondent No. 2 was not a licensed driver, was not raised and so there is