In layman’s terms, vicarious means’ serving instead of someone or something else, and the term liability is defined in the Oxford dictionary as the state of being legally responsible for something. The term “vicarious liability” means the first party is partially being held liable for the wrongdoings of the third party. For example, a manager (first-party) is being held liable for the disrespect shown by an employee (third party) towards the owner of the company during a meeting. This kind of liability is generally referred to as employer-employee liability in the realm of corporate liability. The thinker Salmond defines this in terms of the master-slave relationship which was present in his age and held that all acts of a servant, either expressly or impliedly ordered by the master, made the master himself responsible for such acts.
VICARIOUS LIABILITY UNDER THE LAW OF TORT IN INDIA
Generally, a person is liable for his or her lawful acts. However, in certain cases, vicarious liability arises when the parties are connected by a relationship of sorts. The most common instances of these liabilities can be seen when the principal is liable for the torts of his agent, the partners’ liability for each other’s torts, and the master-servant relationship. To understand this relationship that creates the concept of vicarious liability, we will examine it in detail.
- Agent and Principle
Qui Facit Per Album Facit Per Se is a legal maximum, which means the act of the agent is also the act of the principal. In such a case, the liability is joint between the principal and agent and is also severe. This principle was made clear in the case of State Bank of India V. Shyama Devi (1978), where the husband of the plaintiff gave a cheque and money to his friend, who is also the defendant and was a worker at the State Bank of India, to be deposited. The money was misappropriated, and the plaintiff never obtained a proper receipt for the same. So the Supreme Court of India held that the defendant was not in a principal-agent relationship while doing the act, but rather was acting as a private player and committed the act. Therefore, the plaintiff could not make the bank liable for the agent’s fault.
The same was also explained in the case of Trilok Singh V. Kailash Bharti (1978). In this case, the brother of the motor vehicle took it when the owner was out and got into an accident. The court stated that since the brothers were not in any kind of agreement or relationship as principal and agent, the owner could not be held liable for the same.
The relationship between partners is also the same as that between the principal and the agent. In this scenario, if one partner is held liable for a wrongful act, then all the other partners are also held equally responsible for the act and are liable to the same extent. Partners of a firm are equal in all aspects, and when a case of vicarious liability arises, all of them have to bear the burden equally.
- The master and the servant
The master is liable for any wrongful act committed by the servant since their relationship is based particularly on the maximum “respondent superior,” which means letting the principal be liable. Any expressly or impliedly given order by the master to the servant also makes the master liable since Qui facit per alium facit per se is liable, which means that he who does an act through another conducts the act himself and can be held liable for the same.
But who is a servant? A servant is a person who is employed by another to work at his discretion and act according to his will, and this person is referred to as the master. The servant is under the full and direct control and supervision of the employer, i.e., the master in his case.
Exceptions to the same are Rajasthan State Road Transport Corpn. V. K.N. Kothari, where the servant is not under the control of the master. In this case, the Rajasthan State Road Transport Corpn. Was held liable even though the driver continued to be on the payroll of the original owner.
- Employer and independent contractor
An independent contractor is not the same as a servant since he/she is liable for the wrongs committed by him under torts, but the master is not liable for the torts committed by the one he has employed. Therefore, the procedure for dealing with cases related to independent contractors and servants varies.
- Liability of vehicle owners
In the case of B. Govindrajulu V. M.L.A. Govindaraja Mudaliar, the Madras High Court held that the owner of the lorry was not vicariously liable because he was not a servant but only an independent contractor. The Punjab and Haryana High Court in one of the important cases had held that the owner of the workshop was an independent contractor; therefore, the owner of the truck was not in a master and servant relationship with him; therefore, he was not liable. The concept of the principal-agent relationship and the liability of the former was explained by the Bombay High Court in the case of Ramu Tularam V. Amichnad.
- Vicarious Liability of India
Article 300 of the Indian Constitution defines the position of state liability in India. It states that the Union of India- Bharat and the various state government of India are both the holders of the power to sue, and they can also be sued just like any private individual in their legal capacity.
The various forms of vicarious liability present in India showcase the need for more than just judicial interpretation. It is now time that the government makes a clear distinction on vicarious liability as well as provides laws to deal with such issues.
Author’s Name: Charu Kohli (Vivekananda Institute of Professional Studies, Delhi)