Generally, a person is liable for his own wrongful acts and one does not incur any liability for the acts done by others. In certain cases, however, vicarious liability, that is the liability of one person for the act done by another person, may arise. In order that the liability of A for the act done by B can arise, it is necessary that there should be a certain kind of relationship between A and B, and the wrongful act should be, in a certain way, connected with that relationship.
The common examples of vicarious liability are :
(1) Liability of the principal for the tort of his agent.
(2) Liability of partners of each other's act.
(3) Liability of the master for the act of his servant.
1.PRINCIPAL AND AGENT
When an agent commits a tort in the course of performance of his duty as an agent, the liability of the principal arises for such a wrongful act. The agent is liable because he has done the wrongful act. The principal is liable vicariously because of the principal agent relationship between the two. Both can be made liable for the same wrongful act. They are considered to be joint tortfeasors and their liability is joint and several. In such a case, the plaintiff has a choice either to sue the principal, or the agent, or both of them.
Where one person authorises another to commit a tort, the liability for that will be not only of that person who has committed it but also of that who authorised it. It is based on the general principle "Qui facit per alium facit per se" which means that the act of an agent is the act of the principal. For any act authorised by the principal and done by the agent both of them are liable. Their liability is joint .and several.
The relationship as between partners is that of principal and agent. The rules of the law of agency apply in case of liability of partners also. For the tort committed by any partner in the ordinary course of the business of the firm, all the other partners are liable to the same extent as the guilty partner. The liability of each partner is joint and several.
When the wrongful act is done by one partner in the ordinary course of business of the firm, all the other partners are vicariously liable for the same.
3. MASTER AND SERVANT
If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant, of course, is also liable. The wrongful act of the servant is deemed to be the act of the master as well.
The doctrine of liability of the master for act of his servant is based on the maxim respondent superior, which means 'let the principal be liable' and it puts the master in the same position as if he had done the act himself. It also derives validity from the maxim qai facit per alium facit per se, which means “he who does an act through another is deemed in law to do it himself'.”
Since for the wrong done by the servant, the master can also be made liable vicariously, the plaintiff has a choice to bring an action against either or both of them. Their liability is joint and several as they are considered to be joint tortfeasors. The liability arises even though the servant acted against the express instructions, and for no benefit of his master. Sometimes, the employer forbids his servant from doing certain acts. It does not necessarily follow that an act done in defiance of the prohibition is outside the scope of employment. If prohibition were to be a defense, every employer would escape the liability by issuing orders to his servants forbidding them for committing any tort.
For the liability of the master to arise, the following two essentials are to be present:
(1) The tort was committed by the 'servant'.
(2) The servant committed the tort in the 'course of his employment'.
A servant is a person employed by another to do work under the 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 an independent contractor. It, therefore, becomes essential to distinguish between the two.
Though generally, a servant is under the control of his master regarding the manner of his doing the work, there are various cases in which the master does not or cannot control the way in which the work is to be done. For example, the captain of a ship or a surgeon in a hospital may be servants even though they are not to be directed regarding the way they are to do their work. The trend of modern authorities is to bring into the category of
"servants" even those persons who are not subject to any such control, thus, enormously increasing the ambit of the branch of vicarious liability.
A master, like a principal, is liable for every tort which he actually authorizes. The liability of a master is not limited only to the acts which he expressly authorizes to be done but he is liable for such torts also which are committed by his servant in the course of employment. An act is deemed to be done in the course of employment, if it is either : (1) a wrongful act authorized by the master or (2) a wrongful and unauthorized mode of doing some act authorized by the master. So, a master can be made liable as much for unauthorized acts as for the acts he has authorized. However, for an unauthorized act, the liability arises if that is within the course of employment, i.e., it is a wrongful mode of doing that what has been authorized.
Generally, it is very difficult to know whether the act done by the servant is an unauthorized act and thus outside the course of employment or his conduct is merely an unauthorized mode of doing an authorized act and thus falling within the course of employment. No single rule has been possible to determine the same.
If a servant is not careful in the performance of his duties and his conduct causes any loss to a third party, the master would 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 convenience or comfort. The question which in such case arises is how far the act is to be considered to be within the course of employment.
Exceptions when an employer is held liable for the acts of a contractor
In the following exceptional cases, an employer can be made liable for the wrongs of the independent contractor :
(i) If an employer authorizes the doing of an illegal act, or subsequently ratifies the same, he can be made liable for such an act. The real reason for such a liability is that the employer himself is a party to the wrongful act, along with the independent contractor and, therefore, he is liable as a joint tortfeasor.
(ii) An employer is liable for the act of an independent contractor in cases of strict liability.
(iii) The liability of the employer also arises for the danger caused, on or near the highway.
VICARIOUS LIABILITY OF THE STATE.
Unlike the Crown Proceedings Act,1947 (England), we do not have any statutory provision mentioning the liability of the State in India. The position of State liability as stated in Article 300 of the Constitution of India is as under:
(1) The Government of India may sue and be sued by the name of Union of India and the Government of a State may sue or be sued by the name of the State and may subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of power conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sue or be sued if this Constitution had been enacted.
(2) If, at the commencement of this Constitution—
(a) any legal proceedings are pending to which Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a parry, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.
Article 300, thus, provides that the Union of India and the States are juristic persons for the purpose of suit or proceedings. Although the Union of India and State Governments can sue and be sued but the circumstances under which that can be done have not been mentioned. According to Article 300, the Union of India and the State Government can sue or be sued in the like cases as the Dominion of India and the corresponding Indian States might have sue or be sued if the Constitution had not been enacted. The position prevailing before the commencement of the Constitution, therefore, remains unchanged though the Parliament and the State Legislature have been empowered to pass laws to change the position.
The liability of the Union of India and States arises only for those acts which falls outside the purview of Sovereign Functions of the Union or States.
Every act of the police official may not be in exercise of Sovereign unction. In State of Punjab v. Lal Chand Sabharwal some detenus arrested in connection with 'save Hindi' agitation who were lodged at a Chandi Mandir Police Station were taken out at midnight for being carried in a bus to an unknown destination. Due to the negligence of the constable driver, the bus met with an accident and the plaintiff suffered severe injuries. It was held that the purpose of carrying the detenus, being to disperse them, rather than producing them before a magistrate, could not be considered to be a sovereign act and, as such, the driver and the State were held liable.
The Government is not liable for the torts committed by its servants in exercise of sovereign powers. Government is liable for the torts which have been committed in exercise of non-sovereign powers. Sovereign powers means powers which can be lawfully exercised only by a sovereign or by a person to whom such powers have been delegated. There are no well defined tests to know what are sovereign powers. Functions like maintenance of defence force, various departments of the Government for maintenance of law and order and proper administration of the country and the machinery for the administration of justice can be included in sovereign functions. Functions relating to trade, business and commerce and the welfare activities are amongst the nonsovereign functions. Broadly speaking, such functions, in which private individual can be engaged in, are not sovereign functions.
Negligence of military servants
Although the maintenance of the army is a sovereign function but this does not necessarily mean that the State will be immune from liability for any tortious act committed by the army personnel. Here also, a distinction has to be drawn between acts which could be done by the Government in the exercise of sovereign powers and acts which could have been equally done by a private individual. There is no hard and fast rule to distinguish sovereign and non sovereign functions.
Tort committed while performing duty in discharge of obligations imposed by law has been considered to be defence in India.
The exemption of the State from liability to pay damages for the tortious act of the servants, where a Government servant in carrying out or purporting to carry out duties imposed by the law has been justified on the ground that in such cases, the Government servant purports to carry out duties imposed by the letter of the law and is controlled by the law and not by the Government.
The Supreme Court in the case of Kasturi Lal Vs State of U.P. has stated that if the act of the Govt. servant was one which could be considered to be in delegation of sovereign powers, the State would be exempt from liability, otherwise not. In that case Shri Ralia Ram, one of the partners of a firm of jewellers, Kasturi Lal Ralia Ram Jain at Amritsar happened to go to Meerut, reaching there on the midnight of 20th September 1947 by Frontier Mail, he had gone to Meerut in order to sell gold and silver etc. in the Meerut market. While he was passing through one of the markets with his belongings, he was taken into custody by three police constables on the suspicion of possessing stolen property and then he was taken to the police station. On search it was found that he had been carrying 103 tolas of gold and over 2 maunds of silver. He was kept in police lock up and his belongings were also kept in the custody of the police under the provisions of Criminal Procedure Code. Next day he was released on bail and sometime thereafter the silver was returned to him. The gold had been kept in the police Malkhana under the charge of the Head Constable Mohd. Amir. The Head Constable misappropriated the gold and fled to Pakistan in October, 1947. The plaintiff brought an action against the State of U.P. claiming either the return of the gold or in the alternative compensation amounting to over Rs. 11,000/ in lieu thereof.
The State of U.P. was held to be not liable on the grounds that (1) the police officials were acting in discharge of statutory powers and (2) the power of the police officials in keeping the property in the police Malkhana was a sovereign power.
But the law as stated in Kasturi Lal changed through a number of decisions of the Supreme Court. In many cases, the Supreme Court has granted
compensation as an ancillary relief while exercising its writ jurisdiction under Article 32 of the Constitution. The Supreme Court has not only itself granted compensation as an interim measure but has also expressly stated that the same s granted without prejudice to the rights of the petitioners to claim just compensation from the State by a subsequent regular suit. This approach by the Supreme Court is a welcome measure which was long overdue to do away with the outdated law which was being applied for historical reasons, and perhaps, owing to the wrong interpretation of the law on the subject.
In Kasturi Lal, the Supreme Court had expressed dissatisfaction-at the prevailing position, when Gajendragadkar, C.J. stated :
"Our only point in mentioning the Act is to indicate that the doctrine of immunity, which has been borrowed in India in dealing with the question of the immunity of the State in regard to claims made against it for tortious acts committed by its servant, was really based on the Common Law principle which has now been substantially modified by the Crown Proceedings Act. In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State. We think, it is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the Legislature."
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