VICARIOUS LIABILITY IN INDIA

VICARIOUS LIABILITY IN INDIA

Author: abhyudaya raj mishra,
 BBA LLB HONS 1st sem,
Himachal Pradesh national law University, shimla.

VICARIOUS LIABILITY IN INDIA

    Aim and objective of the project

    1. To discuss (in brief) the concept of vicarious liability and its
    principle.
    2. To study the subject matter of Test of Control and its position in
    India.
    3. Discuss and analyze various case law related to test of control for
    establishing vicarious liability     

    RESEARCH QUESTIONS

             
     In India, The Test of Control is generally not used, even in
    cases when it can be?
     Test of control is not an essential ingredient to hold the
    master’s vicarious liability?
     Test of control is confined within a limited tortuous act?

    Research methodology


    The research is primarily based on doctrinal form research. This assignment has been done with using secondary source of information which are as follows
    1-Books
     2-Articles
    3-Websites
                             

     Introduction


    At common law the crown could not do be sued in TORT either for wrong actually authorized by it or committed by its servants, in the course of their employment.

    Moreover, no action could lie against the head of the department or other superior officials for the acts of their subordinates for relationship between them was not of master and servant but of fellow servants. The individual wrongdoer was personally liable and he couldn’t take the defense of order of crown, or state necessity.
            
    Vicarious liability is defined as when one person is liable for the act done by another person. When an agent commits a tort in the course of performance of his duty as an agent, the liability of the principle arises for such a wrongful act in those cases plaintiff can either sue master or agent.
    The common examples of such a liability are:
    (1) Liability of the principal for the tort of his agent;
    (2) Liability of partners of each other’s tort;
    (3) Liability of the master for the tort of his servant.
    So Vicarious Liability deals with cases where one person is liable for the
    acts of others. In the field of Torts, it is considered to be an exception to
    the general rule that a person is liable for his own acts only
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     Vicarious liability by relation


    In Vicarious liability, in order to make A liable or the tortuous act of B,
    then it is necessary that there should be a certain kind of relationship
    between A and B, and the tortious act should be a certain way
    connected with that relationship.

    1-PRINCIPAL AND AGENT


    VICARIOUS LIABILITY IN INDIA


    Where one person authorizes another to commit a tort, the liability will not one who has committed but also who has authorized to commit that tort would be fall under the category of principal and agent relationship.

    There is Latin maxim that explains this premises QUI FACIT PER ALUIM [1]that means the act of an agent is the act of principal.
    STATE BANK OF INDIA VS SHYAMA DEVI [2]
     In this case husband of plaintiff gave some money to his friend who was an employee of the state bank of India for being deposited in the bank. No proper receipt for the deposits was obtained. The bank employee misappropriated the amount.it was held by the supreme court that when employee committed the fraud was not acting in the scope of the employment but in his private capacity as the depositor’s friend, therefore the defendant bank couldn’t hold liable for the same

     2-PARTNER


    The relationship as between partners is that of principal and agent. The rules of law of agency apply in the case of their liability also. For the tort committed by any partner in the ordinary course of the business of the firm, all the other partners are liable therefor to the same extent as the guilty partner.
    The liability of each partner is joint and several.

     HAMLYN V HOUSTON AND CO.[3]
    In this case one of the two partners of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make breach of contract with his employer by divulging secrets relating to his employer’s business. It was held that both the partners of the firm were liable for this wrongful act committed by only one of them.

     3- MASTER AND SERVANT


    VICARIOUS LIABILITY IN INDIA


    If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant is also liable.
    The wrongful act of servant is deemed to be the act of master as well.

    “the doctrine of liability of the master for the act of his servant is based on the maxim RESPONDENT SUPERIOR [4]which means ‘let the principal be liable’ and it puts master in the same position as if he had done the act himself.

    For the liability of the master to arise, the following two essentials are to be present
    1. Tort was committed by the SERVANT.
    2. The servant committed the tort in the COURSE OF EMPLOYEMENT.

      WHO IS A SERVANT



    A servant is person employed by another to do work under directions and control of his master. As a general rule, master is liable for the tort of his servant but he is not liable for the tort of independent contractor therefore, it becomes essential to differentiate between the two.

    LIABILITY OF EMPLOYER FOR THE ACT OF AN INDEPENDENT        CONTRACTOR  

    As a general rule, master is liable for the tort of his servant but he is not liable for the tort of independent contractor employed by him.

    In MORGAN V. INCORPORATED CENTRAL COUNCIL, [5]the plaintiff, while he was on a lawful visit to defendant’s premise fell down from and open lift safe and got injured. The defendant has entrusted the job of keeping the lift safe and in proper order to maintain to certain independent contractor. It was held that for this act of negligence on the part of independent contractors in not keeping the lift inn safe condition the defendants couldn’t held liable.

    NEGLIGENCE OF SERVANT


    if a servant is not careful in the performance of his duties and his conduct causes any loss to a third party, the master shall be liable for the same.
    Sometimes a servant may do some act, while performing the duties assigned to him by the master, for his own comfort in those cases only master would be held liable for the negligent acts that were committed in course of employment only.

    ACTS OUTSIDE THE COURSE OF EMPLOYEMENT


    When a servant does any act, which is not in the course of master’s business, the same is deemed to be outside the course of employment. An act may be in course of employment even though that is not strictly in the performance of the duties of workman.
    Such acts don’t come under the ambit of vicarious liability and master wouldn’t held liable for NEGLIGENCE.

     HOSPITAL CASES

    VICARIOUS LIABILITY IN INDIA


    In HILLYER VS ST. BARTHOLOMEV [6]the hospital authorities were held not to be vicariously liable for negligence of the professional staff involving professional care and skill, because they lacked the power of control over them. That position no more holds good and now the hospital authorities are liable for the professional negligence of their staff including radiographer, residents house surgeon and nurses.

    In CASSIDY V MINISTRY OF HEALTH, [7]the hospital authorities were held liable when due to negligence of the house surgeon and other staff, during post operation treatment, the plaintiff’s hand was rendered useless.

     LIABILITY OF VEHICLE OWNER

    VICARIOUS LIABILITY IN INDIA


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    There are many cases of accidents caused by mechanics, repairers or owner of workshop during test drive of the vehicles entrusted to them by the owner of vehicles for repairs.


    In B. GOVINDARAJULU V.MLA GOVINDAARAJA MUDALIAR [8]after a motor lorry was entrusted by its owner for repair, while an employee of the repair workshop drove it there was an accident. It was held by the MADRAS HIGH COURT that for this accident owner of the lorry was not liable vicariously, because the owner of the workshop was an independent contractor and not the servant of the owner of lorry.

    CONCLUSION


    Vicarious Liability deals with cases where one person is liable for the
    acts of others. In the field of Torts, it is considered to be an exception to
    the general rule that a person is liable for his own acts only. It is based
    on the principle of qui facit per se per alium facit per se, which means,
    “He who does an act through another is deemed in law to do it
    himself”. So, in a case of vicarious liability both the person at whose
    behest the act is done as well as the person who does the act are
    liable. Thus, Employers are vicariously liable for the torts of their
    employees that are committed during the course of employment. So, a
    master is liable for the acts of his servant if the act is done in the
    course of employment.

    The servant and independent contractor are under contract of service
    and contract for service respectively. The traditional view to distinguish
    between the two was the control test exclusively. But in modern
    scenario this is not sufficient test as there is no single test. The
    significant outcome can be achieved only by balancing different factors
    with the help of different tests like:

    Bibliography


    BOOKS REFERRED
     LAW OF TORTS by R.K. Bangia
     Michael A. Jones, Textbook on Torts
     THE LAW OF TORTS by Ramaswamy Iyer
    ∙ THE LAW OF TORTS by Ratanalal and Dhirajlal

    WEBSITES REFERRED


    ∙ www.lawteacher.net/Tort-law
    ∙ www.legalservicesindia.com/article/vicarious-liability-in-india-1634-1.html

    [1] NUR MOHAMMAD KHAN V. EMPEROR ALLAHABAD HIGHCOURT 1923
    [2] AIR.1978 S.C.1263
    [3] (1903)1 K.B.81: 51 W.R. 99;
    [4] LATIN WORD MEANING let the master answer.
    [5] (1936) 1 ALL E.R. 4
    04.
    [6] (1909) 2 K.B. 820.
    [7] Cassidy v. ministry of health, (1951) 1 all E.R. 574
    [8] AIR 1966 MAD 332

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