VICARIOUS LIABILITY

By- Divesh Gupta, BBA.LLB

Vivekananda Institute of Professional Studies

INTRODUCTION

The doctrine of vicarious liability lies at the heart of all common law systems of tort law. The general rule of vicarious liability is that the person who causes damage must pay the compensation to the victim. If there is some relationship between the defendant and third party, then the law can extend liability to that third party involved. In some situations, it is observed that A is held liable for the damages done to C by B, however, A has been free from negligence or another fault. In such a case A is held viciously for damages to C which arises due to some relation between A and B (the most common relation observed if of employee and the employer).

The essentials which are needed to prove vicarious liability are:

  • A relationship (master-servant, principal-agent, etc.)
  • The wrong should be done in a course of employment.

Unquestioningly, no one can be made liable for any act or breach of duty unless it is traceable to himself or his servant of servants in the course of his or her employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work, his or her servant commits some casual act of wrong or negligence, the employer is not answerable.”

Liability arising between relationships are as follows:

  1. PRINCIPAL AND AGENT

When a person has got the authority to perform a certain act, but he authorizes it to someone else working under him, that is called the principal-agent relationship. When the principal authorizes an agent to perform some tortious act, the liability for that will be not only of that agent who has committed it but also the one who has authorized it. It is based on the principle “Qui facit per alium facit per se” which means an act done by an agent, is the act of the principal. The liability of principal and agent is joint and several.

2. PARTNERS

The tort done by one partner under tort law will result in making the other partners also liable in the same manner as the principal is held liable for the wrongful act done by his agent. The rules of the law of agency apply in cases of their liability also. Therefore, all the partners are found guilty of the wrong done by one of them.

3. MASTER AND SERVANT 

The relationship between master and servant is also similar to that of principal and agent. Where for every wrong deed of the agent the principal is liable like for the wrongful act of the servant the master is to be held liable. Therefore, for every wrongful act on the servant the, it is presumed that have done that by himself. The doctrine of liability of a master for the act done by his servant is based on the maxim ‘Respondeat Superior’ that refers to let the principal be liable and it puts the master in the same position as him. It also drives validity from the maxim ‘Qui Facit Alium Per Se’i.e. he who does an act through another is deemed to be done it by himself.

APPLICABILITY OF VICARIOUS LIABILITY?

Reason for application of vicarious liability is:

  • The masters being at the superior stage; it is considered that they can pay the damages.
  • It decreases the chances of an accident as an employer has a financial interest and therefore he will have more interest in promoting the protection and safety of workers.
  • As employers bear profit from their employees he will also be liable to bear his mistaken expenses.

RELATED SECTIONS

Section 34 of Indian Penal CodeActs did by several persons in furtherance of common intention. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

    • Object and scope– Under Section 34 a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The essence of liability under Section 34, is a conscious meeting of the minds of persons participating in a criminal action to bring about a particular result. The question of whether there was any common intention or not depends upon inference to be drawn from proved facts and circumstances of each case. The totality of circumstances must be taken into consideration in concluding whether the accused had a common intention to commit an offence with which they could be convicted, Sudip Kumar Sen v. the State of W.B., (2016) 3 SCC 26.
    • Ingredients– The essence of Section 34 is the simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them, Surendra Chauhan v. the State of M.P., (2000) 4 SCC 110: 2000 SCC (Cri) 772.
    • Common intention– Where participation of the accused in the crime is proved but a common intention is absent, then Section 34 cannot be invoked. It has to be inferred from the facts and circumstances of each case, Jai Bhagwan v. The State of Haryana, (1999) 3 SCC 102: 1999 SCC (Cri) 388.
    • Proof or inference of common intention– Precedents cannot be used to establish common intention. The common intention has to be found out from the facts of each case. The mere similarity of facts of one case cannot be used to determine the existence of common intention in another case, Ezajhussain Sabdarhussain v. the State of Gujarat, (2019) 14 SCC 339.
    • Inference of vicarious liability– To invoke the principle of joint liability in the commission of criminal activities as laid down in Section 34, the prosecution should show that the criminal act in question was done by one of the accused persons in furtherance of the common intention of all. The common intention may be through a pre-arranged plan, or it may be generated just before the incident. Common intention denotes action in concert and a prior meeting of minds. The acts may be different and may vary in their character, but they are all actuated by the same common intention. The question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in concluding whether accused persons had the common intention to commit the offence, Virender v. the State of Haryana, (2020) 2 SCC 700.

CASE LAWS

  • State Bank of India v. Shyama Devi, A.I.R. 1978 S.C. 1263

In this case, the plaintiff’s husband gave some amounts and cheques to the defendant who was an employee at the bank. The money & cheques were given to be deposited in the bank account of the plaintiff; no proper receipt of such transaction was provided. The defendant misappropriated the amount. It was held that even though the defendant was the employee at the bank, but when the money was given to him, he was not performing under the performance of his duty, and thus the bank can’t be held liable

  • Govindarajulu v. M.L.A. Govindaraja Mudaliar, A.I.R. 1966 Mad.332

In this case, the owner handed his motor lorry for repairs to the defendant’s workshop. After it was done, an employee of the repair workshop took a test drive, and while he was at it an accident occurred. The High Court of Madras held that the owner can’t be held vicariously liable, as the owner of the workshop was an independent contractor and not the servant of the lorry owner, and therefore the lorry owner can’t be held liable for the act committed by him.

  • Maganbhai v. Ishwarbhai, A.I.R. 1984 Guj. 69

In this case, the trustee of the temple called an electric contractor, to divert illegally the supply of electricity to the temple which was given to the villagers for agricultural work, for a period of one month. The work was accordingly done in a hazardous way and without informing the electricity board. In one of the fortnight, the lines collapsed, as a result of which one of the villagers who was working on the field got injured. It was held that the trustee, who got the hazardous job, as well as the owner of the field from whose matter and with whose knowledge such connection was taken, were liable.  

  • Union of India v. Harbans Singh, A.I.R. 1959 Punjab 39

In this case the meals were carried from Delhi for distributing it to the military personnel who were on duty. The truck that was carrying meals belonged to the military department and as such was being driven by a military driver. On the way, there was an accident which resulted in the death of a person. It was held that the act was in the exercise of Sovereign power, and therefore the State could not be held liable for the same.

  • Basava v. State of Mysore, A.I.R. 1977 S.C. 1749

In this case, some ornaments and cast of appellant had been lost. Police, after finding some of them, kept them in safe police custody under the orders of the magistrate. To keep it safe they were kept in the trunk from which they were found missing. The Supreme Court held that there is no proof that the ornaments were even after full security and due care and therefore the appellant was granted Rs. 10,000/- which was equivalent to the property lost.

CONCLUSION

Vicarious liability is introduced to punish the actual person responsible for the crime, so if a master or a principal gives the order then along with the servant or the agent respectively they should be equally responsible. Because if the mastermind behind the act is not punished them it can’t be stated that justice is truly served. However, vicarious liability is applicable in limited cases such as Govindarajulu vs. M.L.A. Govindaraja Mudaliar, A.I.R. 1966 Mad.332 in which the employer is not punished, this is a case of the independent contractor so the wrongful act was assigned by the employer hence he should not be held liable. Thus, the person committing the act should in course of action and the employer must have superiority over him to apply the principles of vicarious liability. 

 

 

REFERENCES

  1. Iglobal
  2. lawtimesjournal
  3. SCC Online

 

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