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Tort and Vicarious liability

   










  





ACTIONABLE WRONGS AND COMEPNSATION


TOPIC VACARIOUS  LIABILITY 









                                                                                                                                                                Name : Srihari

                                                                                                                              Roll No :BBALLB0087





   CONTENTS 

    Introduction 

     Definition of vicarious Liability

     Relationship between Master and servant 

                   1)Exception applied in master and servant relationship 

                   2)Two maxim applied in this case 

    Test determine master and servant relationship 

                  1)Traditional Method. 

                  2)Modern method 

                  3)Multiple Test 

                  4)Hire and Fire Test

  Course of Employment 

  Hypothetical situation of Vicarious Liability 

  Vicarious Liability of state

  Judicial Act 

  Law of commission in India  

  











  INTRODUCTION 

  Tort is considered as civil wrong breach of contract. Civil wrongs it include negligence’s

  defamation , etc. Under tort vicarious liability is one component which it falls. Vicarious 

  liability  arise when the one person is held liable for the unlawful act of third party. In 

  the vicarious liability one person will be held liable for other act which committed by 

  person.


  DEFINITION OF VICARIOUS LIABILTIY

  Vicarious Liability is defined as liability that arises an action done by other person act will

  hold liability  of the person who has committed any wrong. For example Driver and Owner 

  was been travelling to Bank for some purpose. Mean while Driver who dropped the car 

  midway seeing his person who belongs to relationship got out suddenly even not remem

  bering that owner is left in car after some time driver realized that owner is left in the 

  car. When he came to location where he left car traffic problem which was created due

  negligence’s of driver he took  car and traffic problem got over.  He we can say that owner 

  is liable for the action committed by the driver even though owner has not committed 

  any wrong.  This is considered as master and servant relationship which paper is been 

  discussed below. 

 

  Relationship applied in Vicarious Liability

  Master and Servant   

  In the case of master and servant relationship there is certain amount of Relationship

  between  master and servant of between them. As I stated in the above case in definition

  of vicarious liability with example there owner will be liable due to vicarious liability .


even though he did not committed any wrong but he is liable for wrongful act by negligence

of driver. 

Exception 

If a buys a helicopter and appointed person who knows how to drive helicopter there he 

cannot order in between stating that go that way or this direction. There he cannot 

 establish because even though he is been appointed by a  but he will have some limit 

 because he is only person who know to drive helicopter not owner. 

 Maxim applied 

 Qui Facit per alium facit per se:

 For example in the case of Haynes v/s  Harwood , the defendant who owned a cart for trading purpose 

 had left cart to driver and driver placed the cart unattained even though chain was broken when he 

 attached with cart. When child throw the stone horse got disturb was going towards in crowd of 

 children’s but by luck police who stopped cart but had a injury. 

 Here owner  himself will be liable because whenever the person get done by some thing other person

 the person is considered doing act himself. 

 

Respondant superior: 

For example in a bank BM(Branch Manager) has given some work to DBM(Deputy Branch Manger) 

while he has not done the work assigned By BM(Branch Manager)  and took leave for thirty days. 

He got shocked and got upset.

Here in this case BM(Branch Manager) is liable when we apply the principle because here superior 

is considered BM will be liable for the act done by subordinate(Deputy Branch Manager).


Test Determining relationship between the Master and Servant 

Traditional Method

As per this test the person should be instructed only what should be done and doing the act and 

if such power exist as per test, if it arises master and servant relationship arises. For example 

A owner of company they select every year students from colleges for Accounts department B selected 

for appointing to Accounts department by company when B joints he started facing difficulty, A started

helping B because he was expertise in Subject he not only instructs how to do the Job and How will we

do it, relationship between master and servant can establish.


Modern View

If we talk about Modern View Method as one of second test in the case of Jacob Mathew 

v/s state of Punjab doctor were been held liable for the death of deceases but instead 

management did not held liable because doctor is having required knowledge of skills that 

why he is working in hospital , owner cannot instruct doctor how to treat patients and which

medicine is required for treatments. 


Multiple Test 

The test which is applied here is people who are in a contract of service is considered as employees 

and people who are in contract for services is considered as independent contractors.  For example 

A and B are graduated in bballb course and got degree certificate. A is been selected for job had made 

contract in ABC company. A has signed contract stating that 3 months he will be doing his job in this

company and B has also selected in same company by stating in contract that in case if any job 

from different company calls me I would resign my job and shift to other company till that I would be 

doing the job in ABC company and within I month he was called from different company and resigned.

Here A is considered as an employee because he signed a contract in way that he would serve the 

company for longer period and B is an independent contractor because he signed the contract that 

he would be there for shorter period of time considered as independent. 

 

Hire and Fire Test 

To apply the rule to check whether person employed can fired from his job or not. For example REBEL

company is one Fastest growing company in world. From their organization A and B are to employees

. A do not to do work properly , does not comes to office on time but if company goes down at rate 

from which target they do not achieve every year A comes with new idea , company started innating 

his idea and received higher profit. B is regularly on time do his work on time. Owner of company when

he check list of employees who should be dismissed or fired who does not do work, not come at proper 

time. Owner saw A name in  list. Eventually he does not do work properly and does not come to office 

regularly, But he will check that A should be fired or not when company rate goes down his idea made 

the company reached at higher rate. 


Course of Employment 

In the event if the employee causes event to any other party , it is necessary to ascertain that 

employee can file against the course of action. For example if truck driver is coming normal speed

due to gear failure and it crashed into a car  having two people by luck they went down when they 

saw Truck was coming towards them. Here one passengers can file suit against the Driver and also 

Company. Under the Respondeat Superior , employee will be held liable because he was a employer.


Hypothetical situation of Vicarious Liability  

 A driver is running a bus with a cleaner. A placed bus near small area where there were small shops 

 and there he rested for a while in bed where it was tied between the tree. Cleaner thought he would

 like to drive the bus and try. He started driving bus but at last it went to an accident due to 

 Negligence’s of cleaner.

 Here A driver and owner would held because due to following reasons below:

  1. Driver should have been more careful of taking the key back from bus before resting because if 

Key was not there how would cleaner drive even though if he thought.  


  1. Here owner of Bus would held liable with support of Vicarious Liability.



Cleaner also would be held due to following reason below:


  1. Negligence’s would be held liable at cleaner.


  1. Under Motor vehicle act cleaner can be held liable for occurring no licenses for Bus. 




    Vicarious Liability of state 

   Case refereed to explain is  state of Rajasthan v/s Vidiyawati 

    In the case of state of Rajasthan v/s Vidiyawati judgement came to against of state that due 

    Vicarious Liability of state for act of government services. But there was some exceptions made 

    In case how would state would not be held liable for following reasons like article 300, 199, etc

  Exceptions

  Under  constitution of India,1949 Article 133 states that appeal can take support from supreme court 

  from any judgement order or final order in a civil proceedings of a high court.

  Article 300 states government of India  can sue or can be sued by the name of union of India also

  Government of state can sue or can be sued by the name state of India which should be subjected 

  to any provision by the act of parliament or as legislature of act enforced by virtue of power

  conferred by constitution sued in respective affair like cases of domain.

   Article 294 Property and assets belongs to his majesty for purpose of the Government of Dominion 

   of India and property and assets belongs to his majesty for purpose of the government of Governors

   Province shall vest respectively according to state. 


   Article 295 All property and assets  which is vested in any Indian state specified in Part B First 

   Schedule vest in union property and if such property would be held immediately before such 

  commencement will therefore purpose of union of relating any matter enumerated in the union

list. 

Court said that liability of state coming to case of Rajasthan , Rajasthan was union corresponding to

State and state has failed to show that. Supreme court stated that constitution has established welfare 

Of state and Function was limited making orders or law. The court stated that state would be held 

Liable for tortious act committed by the servant of state. 


Act of State  

 If there is a person under the statutory authority causes damage to person , then that person cannot 

 Bring action to it. For example in the case of Rangananulu v/s Mullackal Devaswam appellant who 

was worshipping at temple daily in morning. One day he went wearing chappal inside the temple 

broke the idol due to his negligence’s with absences of his mind. Even though Doctor statement 

was favour of appellant that he was not sleeping well at night laughing unnecessary without any reason.

Even though he did not had an intention to broke the idol. But he was liable under  (TRANCNCORE 

DEVASWORM BOARD ACT) under this he was held liable. Here statue can be refereed Travancore devas

worm act because law which was already made which is equal to all. Judgement came in favour of 

respondent that even though he was insane but he should be spending some money for purification 

of ceremony. Because they cannot neglect statue go favour to it. 


Act in Relation in Defences 

Contributary and comparative of Negligence’s

If the injured person is  injured due to own Negligence’s , he is held to be liable. For example A was 

Walking every morning. And he saw that there was taring happing in road  and there was board stating

that do not cross. Eventually A went on taring happing on road and got injured. His dress got dirty.

Here A is responsible for injured person is injured due to Negligence’s.

Comparative Negligence’s  In the case of Gloucester Gramma school the management was suffering 

From financial loss but they were not compensated because there teacher who joined and got resigned 

. Starting a new school near by Gloucester Gramma school he had right to enjoy his own property. But 

 Students started joining new school but Gloucester Gramma school had financial loss. So here same 

as case injured party who is Gloucester Gramma school not physical but financial loss because 

it was infringement of legal right injured party cannot claim any compensation. 


Causation and Foreseeability 

Taking an example to understand Driver of A was driving the car to a place were driver hit two people 

who were walking  in zebra crossing road. There A would be held liable vicarious liability because 

driver had been seen 20 minutes before that two person were waking in zebra crossing. But if 

driver hits with other car and driver climbs on car and started hitting on car with a rod and if one 

saw this comes  interferer  and by anger if driver threw this to this person. There A would not be 

held because with employee action which lead to wrong has no action with owner because employee

should be cautioned what he was doing. 


Damages

Pu nitive damages here mean Intends not to give compensate to injured to party but punishers wrong

doers who engages in wrong activity or unhealthy competition. For example A had given money to B 

to build for construction of complex but A give money which B did not know that it was a fake note. 

When B started his construction for building. There B stop the work half way because the money which 

He had fake note from that only he waited to give salary workers. 

Here in the example B will not get compensation even though he has financial loss but A who is punisher

will be held liable for unlawful act engaged in wrong activity. 


Judicial Act 

Vicarious Liability lies upon the person who has not committed any wrong but liable for the act of other 

Person who is having relationship like Teacher and student , Doctor and patient , Husband and Wife  

Commercial tort is judicial instrument which state can be held for vicarious liability for act of 

Servant . For example in state of Rajasthan v/s vidyawathi due to vicarious liability of state held 

For act of servant.     


Law commission in India

Law of commission is executive body. It is establish through an order by government of India. It core 

Legal object is for maximizing the justices and security to society. 

Development of Law of commission in India 

In decades reforming law was considered to be a long process. In early society custom and Law was 

been prevailing to the society . In this period there was no consistence’s of law to check weather. So 

brings awareness commission bring out Law which entitle to brings to provide justices. 


Pre-Independences  

 The first Law commission of pre-dependences was set up in 1834 under the charted Act 1833. With 

 Fifty year Indian statue which enriched in various Legislation with prevailed in English Law but it is 

 according to Indian constitution. 

 There are four law commission in India during the British Raj by the British Government.

 

First Independences Law of Commission 

Indian Penal code(2nd may 1835), Lex loci (Rule and authority of English Law in India)(31st October 1840)

Second independences Law of Commission 

Civil Procedure Code and Limitation Act(1859),Penal code(1860),Code of criminal Procedure(1861). 

Third independences Law of Commission 

Code of succession and inheritances for other , other than Hindu and Muslim(1865), Draft contact Law(1866), Draft Negotiable contract Law(1867).

Fourth independences Law of Commission 

Code of Negotiable Agreement(1881), Code trust law (1882 ), Code of transfer and easement(1882), 

  

  

 

  

     

    























  

 









 


 



  


 


  

  







   

  

  


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