MUKHTIAR BEGUM Versus KARACHI TRANSPORT CORPORATION

1. SYED HAIDER ALI PIRZADA, J.‑‑‑ These two High Court Appeals have been preferred against the judgments dated 27‑4‑1987 of a learned Single Judge of this Court dismissing the suits riled by the appellants. The facts leading to the filing of the above appeals are common and therefore they are being disposed of by a common judgment.

2. The facts are that Bus No.830‑519 belonged to the first respondent and the same was under repair at their Landhi Depot. The repairs were completed sometime in the afternoon of 27‑12‑1983 and at about 3‑30 p.m. second respondent Mitho Khan, Assistant Yard Master of the Depot; took the bus for road test after its repairs when the accident occurred. It is stated in the plaints that second respondent was driving the bus at the relevant time and while returning from Thatta where it had gone for road test, dashed against an oil tanker due to the negligent driving of the driver and due to this clash three persons namely Zaheeruddin, Zafar Hussain and Ghous Bux died, while the other occupants who were also occupying the bus; sustained serious injuries. Suit No.112 of 1985 was filed by the heirs of Zaheeruddin while Suit No. 113 of 1985 was filed by the heirs of Zafar Hussain.

3. Zaheeruddin, at the time of his death, was 55 years of age and has been described in the plaint as a pious man of simple habits and possessing good health. The case of the appellants, as set out in the plaint, is that at the time of his death, he was serving with the first respondent and drawing Rs.2,100 per month with prospects of further increase in the salary. Among the heirs left by the deceased are three unmarried daughters named Khadija, Fatima and Zahida and the son who filed the suit/appeal. Other sons of the deceased are grown up and are self‑earning and as such have not claimed anything.

4. Zafar Hussain died in accident on 27‑12‑1983 leaving behind Mst. Mukhtiar Begum as widow, minor daughter Misbah aged about 4 years and two minor sons Naveed Zafar and Whaeed Zafar aged 2‑1/2 years and 7 months respectively.

5. The second respondent who was driving the bus at the relevant time, did not contest suits. The first respondent contested the suits. The first respondent contended in their written statement that the bus was driven by the second respondent unauthorisedly without the permission of competent authority. The first respondent pleaded in their written statement that neither the said bus was allotted to him to drive nor he was asked to driver the vehicle during the course of his employment, as such the second respondent himself personally is responsible for the wrongful act committed by him at his own accord.

6. On the pleadings of the parties, the following issues were framed:‑

(1) Whether the suit is time barred?

(2) Whether defendant 2 was driver and permitted by the competent authority to drive the bus ?

(3) Whether defendant 2 himself was responsible for the death of Zafar Hussain by his own wrongful act by rash and negligent driving?

(4) Whether the plaintiffs are entitled to claim compensation from the defendants ? If so, to what extent ?

(5) What should be the decree ?

7. The appellant in H.CA. No.104/87 examined two witnesses in support of the case while the first respondent examined Mohammad Masood, who was the District Manager of the first respondent at Malir Depot. In Appeal No. 105/87, the appellant examined himself and one Mohammad Aslam in support of the case while the first respondent examined Muhammad Masood.

8. The learned Single Judge, on assessment of the evidence on record, came to the conclusion that the appellants failed to prove that at the relevant time the second respondent was either authorised or permitted by the first respondent to drive the bus. In that view of the matter, issue No. 2 was decided in the negative. On issue No. 3, he found that the accident occurred due to the criminal negligence of the second respondent. He further held that death of Zaheeruddin and Zafar Hussain had occurred due to rash and negligent driving of the second respondent. In that view of the matter, issue No.3 was answered in the affirmative.

9. On issue No.4, he came to the conclusion that Zaheerudddin at the time of his death, was drawing or earning Rs. 2,100 per month and he was spending Rs.1,900 on the appellants. He held that the appellant was entitled to Rs.2,28,000 from the second respondent. The suit was dismissed against the first respondent. In the other connected appeal, the suit was decreed for Rs.5,00,000 against the second respondent only. In that view of the matter, the suit was decreed against the second respondent only and was dismissed against the first respondent.

10. The appellants being aggrieved, have filed the above High Court Appeals.

11. We have heard Mr. Mohammad Maqsood, learned counsel appearing for the appellants in support of above appeals and Mr. Naraindas C. Motiani, learned counsel appearing for the first respondent. We have perused the impugned judgments, the pleadings of the parties and the evidence led by the parties in support of their contentions.

12. It is an admitted position that Bus No. 830‑519 was driven by the second respondent and was taken to Thatta and while returning, it dashed against a parked oil tanker due to rash and negligent driving of the second respondent resulting in the deaths of Zafar Hussain, Zaheeruddin and Ghous Bux. The case of the appellants, as set out in the plaints is that the said bus was taken out on road test to Thatta. The First respondent pleaded in their written statement that the bus was driven by the second respondent unauthorisedly without the permission of competent authority. It was contended that neither the said bus was allotted to him to drive nor he was asked to drive the vehicle during the course of employment, as such the second respondent himself is personally responsible for the wrongful act committed by him on his own accord.

13. Mr. Maqsood vehemently urged that the first respondent was vicariously responsible for second respondent, Mitho Khan's negligent driving on the occasion in question. For the appellants, it was said that Mitho Khan was driving the said bus in the course of employment and, therefore, the first respondent was liable. On the other hand, Mr. Naraindas submitted that the second respondent was driving the said bus unauthorisedly without the permission of competent authority

14. We have considered the contentions very carefully. The contention of the learned counsel raises the question as to the principle which governs the liability of the master for the tortious acts of his servants. So far as this question in concerned, it may be said that ordinarily the master is not liable for the tortious acts of his servants. This general rule is, however, subject to certain exceptions. The master would be liable for the wrongful acts of his servants at least in two cases. The first class of cases arc those where the torious act itself is committed under the authority of the master. In such cases, there is no difficulty about fastening liability of the master. The master, having himself authorised to commit the tortious act, becomes in a way privy to the wrongful A act itself. In such a case the servant will be treated as the agent of the master for committing the act, and the master would, therefore, be equally liable with the servant for the damages suffered by the party as a result of the tort committed by the servant. Difficulty, however, may arise in cases where the master has not authorised the servant to commit the tortious act. In such cases, the question as to whether the master is liable for the tortious acts of the servant would depend on the facts of each case. If the tortious act committed by a person constitutes merely a mode of doing the authorised act, that is, aril act which falls within the scope of employment of a servant, the master would be liable for the damages suffered by the victim as a result of such an act. This would be so in cases where the tortious act is so connected with the scope of employment of the servant as to have a casual relation with the same or to be an incidental result of it. The occasion for the tortious act in such cases is provided by the authorised act with the result that one becomes ancillary to the other.

15. The leading case on the torts in English law in which the above principle was laid down, is that of Ricketts v. Thos Tilling Ltd. (1915)1 K.B. 644. In this case the driver of an omnibus had permitted the conductor of the omnibus belonging to the defendant to drive the bus. While the bus was being driven by the conductor, it met with an accident. In this situation, the master of the driver was held liable on the ground that the driver's act in entrusting the driving of the bus to the conductor, was in itself a negligent mode of the performance of his duty as a driver. In this case, Buckley, L.J. referred to the case of Engelhart v. Farrant ((1897) 1 OR 240) and quoted with approval the following observations of Lord Esher M.R. in the said:

16. "Now, for what is the defendant liable? He is liable for the negligence of Mears"‑‑that was the driver‑‑ "if that negligence was `an effective cause' of the subsequent damage to the plaintiff."

17. The learned Judge also referred to the case of Beard v. London General Omnibus Co. ((1900) 2 Q.B. 539) where the principle laid down was that the master would be liable for the tortious act of his servant even if it was shown that the said act was the result of negligence of the servant acting within the scope of his employment. In the said case, Buckley, L.J. also distinguished the case of Gwilliam v. Twist ((1895) 2 Q.B. 84) in which the facts were that a police constable had told a driver not to drive thinking that the driver was drunk. In this situation, the driver had authorised a bystander to drive. When the bystander was driving the vehicle, it met with an accident. The master, however, was not held liable for the tortious act of the servant in this case because the question at issue in the said case was the competence or the right of the servant to delegate his authority to drive the omnibus to the stranger. The question as to what would have happened if it was a case where the driver had acted negligently in the discharge of the duty was not raised in Gwilliam's case. The principle laid down by Buckley, L.J. in his judgment was approved by Phillimore, L,T. and Pikford, L.J. in the same case.

18. In Goh Choon Seng v. Lee Kim So ((1925) A.C. 550), their Lordships of Judicial Committee held that an employer is responsible for damage caused by the negligent act of his servant in carrying out work which he is employed to do, even if the act incidentally involves a trespass which the employer has not authorised.

19. In Britt v. Galmoye and Nevill ((1928) 44 TLR 24) the master himself lent the car to the servant for the latter's private work and the master was not held responsible for the negligence of the servant in causing injury because neither was the journey on master's account nor was the master in control at the time. The same principle is enunciated in paragraphs 237 to 240, pages 135 to 137 of Clerk and Lindsell on "Tort", 14th edition.

20. In Smith v. Martin and Kingston‑upon‑Hall Corp. ((1911) 2 K.B. 775) a school authority was held at page 784 when a teacher during school hours sent a girl aged about 14 years wearing a print pinafore to poke the fire and to draw out the damper in a grate in the teacher's common room and the child was burnt. It was held that the teacher's duty was to provide education in the widest sense and included expecting obedience from the pupils and this was an act of negligence in the discharge of duty.

21. In Century Insurance C. v. Northern Ireland Road Transport Board ((1942) A.C. 509 = (1942)

1. AER 491), the driver of a petrol lorry while transferring petrol from the lorry to the underground tank, struck a match to light a cigarette and threw it on the floor and thereby caused a fire and explosion which did great damage. The masters were held liable because the negligence was in the discharge of the duty by the servant. Although the act of lighting the cigarette was something the driver did for himself and was by itself quite harmless, it could not be regarded in the abstract and was a negligent method of conducting the master's work.

22. The principle laid down in Rickett's case was followed in the case of Marsh v. Moores ((1949) 2 K.B. 208). In this case, one John Morres, the driver of a company had allowed a girl Patricia Moores, his cousin to have a driving lesson from him in the car which John Moores was authorised to drive the company's car. While Patricia Moores was driving the vehicle, it met with an accident. The principle of law applicable to such cases is laid down by Lynskey, J. at page 215 in the following words:‑

23. "John Moores was a servant of the company and as such was entrusted by the company with the control, management and driving of the vehicle in question on August 30, 1948. It is well settled law that a master is liable even for acts which he was not authorized provided that they are so connected with the acts which he has authorized that they may rightly be regarded as modes, although improper modes, of doing them. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it but is an independent act, the master is not responsible for, in such a case the servant is not acting in the course of his employment but has gone outside it (see Booth v. Mister (1835) 7 C & P 66); Beard v. London General Omnibus Co. ((1900) 2 Q.B. 530); Canadian Pacific Ry. v. Lockhart ((1942) A.C. 591, 599).

24. In the course of the argument we were referred to Ricketts v. Thomas Tilling Ld. ((1915) 1 K.B. 644, 649, 651). That case was an example of the application of these principles."

25. In Limpus v. London General Omnibus Co. ((1862) 1 H & C 526 = 32 L.J. Ex. 34), the defendant company was held liable for an accident caused by the act of one of its drivers in driving across the road so as to obstruct a rival omnibus. It was held to be no defence that the company had issued specific instructions to its drivers not to race with or obstruct other vehicles.

26. In Canadian Pacific Railway Co. v. Lockhart ((1949) 2 AER 464 = (1942) A.C. 591 = AIR 1943 P.C. 63), the employers were held liable where their servant in disobedience to orders not to use uninsured motor cars drove his own uninsured car whilst on a journey for the purpose of work he has employed to do.

27. In Carmarthenshire County Council versus Lewis ((1955) A.C. 549), a four‑year old boy attending a nursery school under the management of the appellant Council as education authority strayed from the premises, who was driving a lorry, struck a telegraph post in avoiding him and was killed. The respondent sued the Council for damages, alleging that the death was caused by their negligence or that of the teacher who had left the child temporarily unauthorised. The House of Lords held that the appellant Council were liable to the respondent for damages, since the unexplained fact that in the temporary absence of the teacher (who, on the evidence, was not negligent) it was possible for so young a child to wander from the school premises on to the highway, through a gate which was ‑either open or very easy for him to open, disclosed negligence on their part.

28. In the Trust Company Limited v.T.H.I. Desiva ((1956)1 WLR 376), the appellant, an insurance company in Ceylon, transacted some of its business through canvassers who were paid a commission but received no salary; it was employed "field officers" or "Geld organizers" who were paid a small salary and an overriding commission on business introduced through them, and whose duty it was to supervise and control the canvassers. It was left to the canvasser or field officer to select the doctor who would examine proponents in respect of proposals for life insurance. The respondent, a doctor selected by a canvasser to examine proponents for him, went for that purpose in a motor car belonging to a field officer, but subject to a hire‑purchase agreement with the appellant company. Travelling in the car were the respondent doctor, the canvasser and the field officer. As a result of an accident due to the negligent driving of the canvasser, the doctor was injured and he claimed damages from the appellant company. Their Lordships of Privy Council held that the field officer was a servant of the appellant company and that in making the journey in the car which had been supplied to him for the purpose of carrying out his duties he was acting in the course of and for the purposes of his employment. He was in control of the car though not actually driving and was liable for the negligence of the canvasser since the latter was a person over whom he had a right to exercise control. The field officer was exercising control over the car as a servant of the appellant company and on its behalf and any consequential liability attaching to him was a liability of the company.

29. In Crook v. Derbyshire Stone, Ltd. and another ((1956) 2 AER 447), Berti Thorpe, a lorry driver was employed` by the first defendants. The first defendants were engaged in fulfilling a contract with builders for the supply of stone from their quarries which were in the neighbourhood of Matlock, to a building site at Long Bridge, near Bermingham. Thorpe was permitted by the first defendants to stop during long journeys to obtain refreshment. One morning, having drawn up the lorry on the side of road, he proceeded to walk across the road to reach a cafe. While crossing the road, he was involved, partly through his negligence, in a collision with the plaintiff, who was driving a motor‑cycle. The plaintiff, who was injured in the accident, claimed damages against the first defendant on the ground that at the time of the incident, Thorpe was acting in the course of his employment. It was held that Thorpe's employer was not liable to the plaintiff for the consequences of Thorpe's negligence because, although Thorpe was employed at the time of the accident and was permitted to obtain refreshment, yet the obtaining of refreshment was not something that he was employed to do and, therefore, he was not discharging his duty to his employer when the accident occurred.

30. In Rose v. Plenty and another ((1976)1 AER 97) a milkman was employed by his employer, a dairy company, to go round on a milk float delivering milk to employer's customers, collecting empty bottles and obtaining payment for the milk. The employers expressly prohibited the milkman from employing children in the performance of his duties and from lifts on the milk float. Contrary to those prohibitions, the milkman invited the plaintiff, a boy aged thirteen, to assist him with the milk round in return for payment. The plaintiff rode on the milk float and helped to deliver milk and return empty bottles to the float. While riding on the milk float, the plaintiff was injured when the milkman drove the float negligently. The plaintiff brought an action for damages for negligence against the milkman and the employers. He obtained judgment against the milkman, but his claim against the employers was dismissed on the ground that the milkman had been acting outside the scope of his employment in employing the plaintiff and carrying him on the float contrary to the employer's instructions. The plaintiff appealed against the dismissal of his claim against the employers. Lord Denning M.R. held that "in the present case it seems to me that the cause of Mr.Plenty's employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy, Leslie Rose, to do part of that business, viz. the employer's business. It seems to me that although prohibited, it was conduct which was within the course of the employment and on this ground I think the Judge was in error". It was further held that this case falls within those in which the prohibition affects only the conduct within the sphere of the employment and did not take the conduct outside the sphere altogether.

31. Scarman, L.J. held that in the present case, it is clear that the first defendant, the servant of the dairy company, by the negligent driving of the milk float, caused injury to the plaintiff. There was therefore a tort committed by the servant. The plaintiff who was injured by the defiant and disobedient act was entitled to recover against the employer. In that view of the matter, the appeal was allowed.

32. In Keppel Bus Company Limited v. Sa'ad Bin Ahmad (1974 Law Notes 554), the respondent was a passenger in a bus belonging to the appellants. They employed as conductor of the bus. In the course of his journey, the respondent was assaulted by the conductor. He brought an action claiming damages against the conductor and also the appellants both as vicariously liable for the wrong committed by their servant. Their Lordships of Judicial Committee held that they conclude that there was no evidence which would justify the ascription of the act of the conductor to any authority, express or implied. vested in him by his employer; there is, accordingly, no legal ground for holding that the facts of this case justify a departure from the ordinary rule of culpa tenet suos auetores. Their Lordships, allowed the appeal, set aside the judgments of Courts below.

33. In a case reported in PLD 1951 Sindh 24, the driver of a truck was borbidden by master to allow anyone else to drive the truck in the course of the employment, but the driver allowed another to drive, and the truck ran into a camel cart killing the camel and injuring driver of the cart besides damaging the latter. The principle of liability laid down in Rickett's case was followed. It was held that the master was liable for the negligence of his servant inasmuch as though the driver was guilty of a breach of duty to the master, the accident occurred within the scope of his employment. The driver owed a duty to users of the road and to his master.

34. In Nusrat Jehan Begum v. Karachi Municipal Corporation and 2 others (PLD 1980 Kar. 146) a learned Single Judge deduced the following principles at page 155:‑

35. "(i) That if owner or his licensee or his employee leaves a vehicle with some mechanical defect in it on a public highway and if the vehicle starts moving by the intervention of a stranger causing injury to persons or property, the owner incurs tortious liability.

(ii) That if an owner or his licensee or his employee leaves a vehicle on a public highway with a very steep gradient unattended and if the vehicle starts downwards for an unexplained reason causing injury to persons or property the owner incurs tortious liability though the vehicle was not in the actual control of the owner.

(iii) That a vehicle parked unattended though tampered with by a stranger is deemed to be in control of the owner by virtue of his right to have control over it.

(iv) An unauthorised act on the part of an employee to allow a third person to drive a vehicle against the instructions of the employer does not render such an authorised act, an act outside the employment as to furnish a defence to the employer against his tortious liability.

(v) The occupier of the property abutting to a public highway owes a duty to the persons driving vehicles to prevent straying of a child of tender age on to the highway as to render the use of the same unsafe.

(vi) That rules relating to the tortious liability of an occupier of the property adjoining to a highway in respect of straying animals of (Mansuntar Nature) onto the highway cannot be applied to a case of straying of a child of tender age from the premises on to a highway.

(vii) If a driver of a vehicle is killed or injured which trying to save a child of tender age who found his way on a public highway from the premises adjoining to the highway because of the negligence on the part of the occupier of such premises, the legal heirs of the driver or the driver, as the case may be, can successfully sue the occupier of such premises under the law of tort.

(viii) When a child of tender age like 3 or 4 years, etc. found his way on to a higway from the premises adjoining to the highway, the burden of proof that there was no negligence on the part of the occupier of the premises is on the occupier and not upon the aggrieved party."

36. It was held that the acts of negligence arose out of negligence of the employment of Karachi Municipal Corporation employees and were also within the scope and authority of the said employees and were directly connected with the accident resulting into the death of deceased.

37. Sir John Salmond (13th Edition, page 124) has summarised up the law thus:

38. " ....a master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business. It must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it:'

39. The facts established in the instant case may now be examined in the light of the principles enunciated above. In the present case, it is admitted that Mitho Khan was employed as Assistant Yard Master by the respondent. P.W. B Mumtaz in Suit No.113 of 1985 has stated that he was employed as conductor by the respondent. He has stated that drivers are promoted to a rank of Yard Master. He has further stated that they had taken out the bus for a road test. He has further stated that when a bus is repaired, after the repair, it is taken out for road test, before putting on regular service. At this stage, it is necessary to reproduce the replies of this witness which are as fol!ows:‑‑

40. "I was going to home after depositing the cash. I found that the bus in question was at the gate and was about to go on the road test. The staff who was to take it on road test requested me to accompany them because if the bus had failed on the road test, it would be necessary to push it, to start. I agreed to accompany them. It is not correct that among the occupants of the bus, there were some union people or any outsider who was not a member of the staff."

41. It is also necessary to reproduce questions and answers:‑‑

42. Q. I put it to you that this bus was taken out not for any test but for a picnic?.

43. A. No, it is not correct.

44. Q. It is not correct to say that the bus was taken out of the depot without obtaining permission from any officer?

45. A. As far as I know, no bus can go out without a gate pass.

46. P.W. 2 Mohammad Alam in Suit No.112 of 1985 was employed as driver by the respondent. He has stated that driver of a bus may reach upto Assistant Yard Master after his promotion. It is advantageous to reproduce cross‑examination of this witness which is as follows:‑‑

47. "Q. I put it to you that no duty slip was prepared for taking this bus out of the depot?

48. A. It is incorrect that the bus left the depot after the duty slip was duly prepared in the usual manner.

49. Among the persons who were travelling in this bus some of the occupants were on duty and some were not on duty. All the occupants in the bus were employees of the K'YC and were taken on the bus to push the vehicle on the road if it develop any trouble on the road on account of unsatisfactory care. It is incorrect to suggest that any one who were not employees in the KTC were also in the bus at the time of the accident. It is not correct that the bus was not on trial run and was in our private use for a trip to Thatta, Makli and other shrines. At the time of accident, the staff of the workshop was in the bus for checking. I cannot give the names of the mechanics who were in the bus at that time. As far as I know the limit for test run of the vehicle is not only upto Pipri but even upto Thatta."

50. The uncontroverted evidence is that Mitho Khan was driving the bus. It is admitted that Mitho Khan was working as driver and was promoted as Yard Master. Both the P.Ws. Mumtaz and Muhammad Aslam stated that the; bus was taken for a test run when it met with an accident and P.W. Mohammad Aslam denied a suggestion that, the test run was confined upto Pipri and stated that a test run could stretch upto as far as Thatta.

51. It is established that no vehicle can get out of depot unless a proper gate pass is issued permitting its exit. This circumstance coupled with the evidence of P.Ws. Aslam and Mumtaz suggests that proper gate pass was issued on the basis of which the bus was allowed to go out of the depot and that no staff member or a group of them can unauthorisedly take a vehicle from the depot.

52. Mr. Maqsood contended that the learned Single Judge was in error in holding that the respondent was not liable for the unauthorised act of Mitho Khan. He submitted that on the facts and circumstances of the case, the maxim res ipsa loquitur applied and the burden was on the respondent to show that bus was taken out from the depot without the gate slip or permission and that it was not taken out for road test but picnic. The respondent did neither examine Mitho Khan who was the most competent person to speak about the incident and discharge the burden nor did it adduce any evidence in support of the pleas taken in its written statement. He further submitted that the presumption that the person driving was acting for and on behalf of the owner and the vehicle was taken out from the depot with the permission and for road test. The said presumption was not rebutted by the respondent's failure to lead evidence.

53. In Halsbury's Laws of England, 4th edition, Volume 34 at pages 48 and 49, paras 57 and 58, the law relating to res ipsa loquitur is summarized thus:

54. "Under the doctrine res ipsa loquitur a plaintiff establishes a prima facie case of negligence where (1).‑it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident, and (2) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff's safety. There must be reasonable evidence of negligence. However, where the thing which causes the accident shown to be under the management of the defendant or his employees, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.

55. The maxim res ipsa loquitur applies only where the causes of the accident are unknown but the inference of negligence is clear from the nature of the accident. If the causes are sufficiently known the case ceases to be one where the facts speak for themselves and the Court has to determine whether or not, from the known facts, negligence is to be inferred."

56. It has been found that Mitho Khan was driving the vehicle at the time of the accident. The presumption which under the law arises that he was driving the vehicle for and on behalf of the respondent and the bus was on the road test has not been rebutted by any evidence laid by the respondent. The gate‑keeper and foreman have not been examined to state that the bus was in working condition and did not require road test and the same was taken out unauthorisedly without the permission of gate‑keeper.

57. The present case, therefore, falls clearly within the principles laid down in Reckett's case and there can be no manner of doubt that the bus was taken out with permission for road test and that the respondent must be held liable for damages caused to the appellants because the damages were as a result of the negligent performance of his duty by the Assistant Yard Master. Even supposing for a moment that the respondent had issued instruction to the drivers not to take out the vehicles without proper gate passes and for road test upto Pipri, the respondent would still be liable on the principle enunciated in Rickett's case.

58. So, the plea taken by the respondent is unsound in law. It is vicariously liable for the tortious act committed by Mitho Khan. We reverse the finding on issue No.2 and answer in the affirmative and against the respondents. In that view of the matter, we would hold that both the respondents and Mitho Khan are jointly as well as severally responsible for the payment of the decretal amount.

59. In the result, the appeals are allowed with costs.

60. H.B.T./M‑1615/K Appeals allowed.