Bharat Sangh v. Abdul Rehman and Ors.

IN THE HON’BLE
HIGH COURT OF JAMMU AND KASHMIR

In the matter of
Bharat Sangh (Union of India)
(Appellant)
V.
Abdul Rehman And Ors.
(Respondent)

ON SUBMISSION TO THE HIGH COURT

MEMORANDUM FOR THE RESPONDENT

COUNSEL FOR THE RESPONDENT

(Tanmay Jain)
Roll. No. 163 Semester: III

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 2

TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 4

STATEMENT OF FACTS 5

ISSUES RAISED 6

SUMMARY OF PLEADINGS 7

WRITTEN SUBMISSION 8

PRAYER FOR RELIEF 12

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 3

LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Art. Article

Co. Company

Govt. Government

HC High Court

Hon’ble Honourable

HL House of Lords

ILR Indian Law Reports

No. Number

S. Section

v. Versus

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 4

INDEX OF AUTHORITIES

JUDICIAL DECISIONS

 Cassidy v. Ministry of Health, (1951) 2 KB 343

 Sitaram Motilal Kalal v. Santanuprasad, AIR 1966 SC 1697
 Kasturi Lal Ralia Ram Jain v. State of U. P., AIR 1965 SC 1039
 Union of India v. Miss Savita Sharma, AIR 1979 J & K 6

BOOKS
 Law of Torts, Ratanlal and Dhirajlal, 27th Edition

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 5

STATEMENT OF FACTS

The case out of which this appeal has arisen relates to an accident which took place near
Gupt-Ganga, Srinagar, on 3rd March, 1977.

Respondent No. 1 was driving a truck, bearing registration No: JKA 4347. The said truck had
a head on collision with vehicle No. JKB 3465, coming from the opposite direction, and
being driven bv Daulat Singh respondent No. 3. Respondent No. 2 is the owner of truck No.
4347. As a result of the accident, respondent No. 1 received some injuries and the truck was
extensively damaged.

According to the claimants, the accident was caused due to rash and negligent driving of
respondent No. 3. The case of respondent No. 3 and the appellant, before the Motor
Accidents Tribunal, on the other hand, was that the accident had occurred due to the
negligence of respondent No. 1 and not due to the negligence of respondent No. 3.

It was, however, not disputed that respondent No. 3, a driver of the B. S. F. was an employee
of the Union of India, the appellant.

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 6

ISSUE RAISED

Was the accident which resulted in causing damage and injuries to the applicant's vehicle and
to him respectively caused by rash and negligent driving of non-applicant No. 1, if yes how
much compensation the applicant is entitled to and from whom and in what proportion?

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 7

SUMMARY OF ARGUMENTS

Was the accident which resulted in causing damage and injuries to the applicant's
vehicle and to him respectively caused by rash and negligent driving of non-applicant
No. 1.

It was neither pleaded nor even urged on behalf of Union of India, that the act of respondent
No. 3 in driving the water tank of the BSF was referable to any delegation of sovereign
powers. In fairness it must be recorded that the learned counsel conceded that the act during
the course of which the accident took place was not at all referable to the delegation of any
sovereign powers. The learned Tribunal in my opinion was therefore right in holding that the
Union of India, the principal of Respondent No. 3 was vicariously liable for the tortious act
committed by respondent No. 3 and as such the fastening of the liability, on the Union of
India, for the payment of compensation, was absolutely correct.

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 8

WRITTEN PLEADINGS

ISSUE –The accident which resulted in causing damage and injuries to the
applicant's vehicle and to him respectively caused by rash and negligent driving of non-
applicant No. 1 and is entitled to give compensation to the Applicant.

The importance, to the element of 'control', in such cases is not justified. For a long time, no
doubt, the test for determining the relationship of master and servant was that of 'control only'
but this 'control' test was the product of a primitive society, where the employer had the
competence to instruct the workman as to the methods to be followed in the performance of
his work. In the recent years, the advancement of science and technology, the 'control' test to
determine the relationship of 'master and servant' has fallen into disrepute and the old test of
'control' cannot be strictly applied in each and every case. Right of control remains an
important factor in those cases where it can be applied but it is not the only matter to be
taken into account to determine the existence of the relationship of master and servant.
The test of 'hire' and 'fire' has of late assumed more importance. The right of 'hire' and 'fire'
under the BSF Act in relation to the personnel of the BSF, undoubtedly vests in the Union of
India. If it was only the 'control' test which was to be applied in every case, then the house
surgeons and medical assistants of State owned hospitals cannot be regarded as servants of
the State and consequently the State cannot be held liable for the torts committed by these
doctors. Same would be the position with the Engineers employed by the Municipal
Corporation because no instructions can be given by the Health Authorities to the surgeons as
to the manner in which the operation should be performed nor can the municipal corporations
control the methodology employed by its engineers in carrying out their duties. Nonetheless,
it is well settled that the Health Authorities or the Municipal Corporation, as the case may be,
is liable for the tortious acts of its employees committed during the course of their
employment.

In Cassidy v. Ministry of Health1, where the plaintiff's hand was rendered useless by the
negligent post-operational treatment given by the house surgeon and others, it was held that
though the authorities had no control over the method of working of its employees, yet, this

1
(1951) 2 KB 343

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 9

lack of control did not absolve them of their vicarious liability for the torts committed by its
employees.

Dennins, L. J. observed :

"..... .Whenever hospital authorities accept a patient for treatment, they must use reasonable
care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by
themselves; they have no ears to listen through the stethoscope, and no hands to hold the
surgeon’s knife. They must do it by the staff they employ; and if their staff is negligent in
giving the treatment, they are just as liable for the negligence as is anyone else who employs
other to do his duties for him ....."

Therefore, it follows that a master is responsible not merely for what he authorises his servant
to do but also for the way in which the servant does it. Thus, the nature of employment
determined the extent of the applicability of the test of 'control'.

In view of what has been said above, that the relationship of master and servant exists
between Respondent No. 3, a driver of the BSF and the appellant. Union of India and the
argument to the contrary has no merit.

In Sitaram Motilal Kalal v. Santanuprasad2, the court observed;

"A master is vicariously liable for the acts of his servant acting in the course of his
employment. For the master's liability to arise, the act must be a wrongful act authorised by
the master or a wrongful and unauthorised mode of doing some act authorised by the master.
The driver of a car taking the car on the master's business makes him vicariously liable if he
commits an accident. But it is equally well settled that if the servant, at the time of the
accident, is not acting within the course of his employment but is doing something for
himself the master is not liable. There is a presumption that a vehicle is driven on the master's
business and by his authorised agent or servant but the presumption can be met."

The question under what circumstances is the Union of India liable for the tortious act of its
servants has also been debated a number of times before the Supreme Court and other courts
in the country. In Kasturi Lal Ralia Ram Jain v. State of U. P.3, their Lordships observed:

2
AIR 1966 SC 1697, (at p. 1704)
3
AIR 1965 SC 1039, (at p. 1046)

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 10

There is a material distinction between acts committed by the servants employed by the State
where such acts are referable to the exercise of sovereign powers delegated to public
servants, and acts committed by public servants which are not referable to the delegation of
any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a
claim for damages, the question to ask is: was the tortious act committed by the public
servant in discharge of statutory functions which are referable to, and ultimately based on,
the delegation of the sovereign powers of the State to such public servant ? If the answer is in
the affirmative the action for damages for loss caused by such tortious act will not lie. On the
other hand, if the tortious act has been committed by a public servant in discharge of duties
assigned to him not by virtue of the delegation of any sovereign power, an action for damages
would lie. The act of the public servant committed by him during the course of the
employment is. in this category of cases, an act of a servant who might have been employed
by a private individual for the same purpose....."

Thus, so far as the liability of the State for the tort committed by its servant is concerned, it
stands concluded by the Supreme Court that if the act of the employee of the State, in
discharge of his statutory functions is not referable to any delegation of sovereign powers, the
State would be liable for the tortious act committed by him in the same manner in which an
ordinary master is liable for the tortious act of his servant, committed during the course of his
employment.

In Union of India v. Miss Savita Sharma4, repelling the argument it was observed by Mir
J., speaking for the court-

"Mr. Salaria next vehemently argued that the Union of India, appellant No. 1 was not
responsible and could not be asked to give compensation to the respondent because the driver
of the military vehicle appellant No. 2, was performing statutory duty in exercise of the
sovereign powers delegated to him by the competent authority, lie contended that the vehicle
was being driven by appellant No. 2 to the Railway station to bring therefrom Jawans of the
army to the Unit Headquarters, He argued that this was a statutory duty being performed by
appellant No. 2 and neither the driver nor the Union of India could be held liable to pay
damages or compensation as the act of the driver during which the accident took place was
being performed by him in exercise of the sovereign power." ......... "Even if it be conceded
that the driver of the truck Pillai, was driving the motor vehicle in question to Railway

4
AIR 1979 J & K 6, (at Page 8 )

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 11

Station to bring the Jawans to Unit Headquarters, it could not be said that the statutory duty
he was performing was referable to the exercise of the delegated sovereign powers."

The council would like to deal with the note appearing in the Mordern Law Review (1953),
relied upon by Appellant. That note does not suggest or support the case. There is nothing in
that note to show that the author opined that relationship of master and servant does not exist
between the Crown and the police personnel, who are governed by a statutes. As a matter of
fact, the author of the note, has advocated that so long as the Crown's vicarious liability for its
servant exists, it would be in the public interest that the claim of the Crown for the loss of
service of its employees, caused due to negligence of others, should also be admitted in order
to "cast no doubt on _the scope of the former's liability". The author at no stage disputed the
vicarious liability of the Crown for the tortious acts of its statutory servants, committed
during the course of latters employment. The note, therefore, runs counter to all that has been
urged and the reliance on the said note is absolutely misplaced.

While deciding issue No. 2 also in favour of respondents 1 and 2, the Tribunal held that an
amount of Rs. 15,000/- was payable, as compensation, to respondents 1 and 2 by the
appellant, the employer of respondent No. 3. Atleast this amount should be held as
compensation.

Memorandum on Behalf of the Respondent

 Bharat Sangh v. Abdul Rehman and Ors. 12

PRAYER FOR RELIEF

Therefore in the lights of the facts stated, authorities cited, arguments advanced, the petitioner
humbly requests the Hon’ble Court to adjudge and declare that:-

1. The appeal be dismissed.

2. Compensation to be granted to the Respondent.

And, pass any order or decree in the favour of the respondent as the Court may deem
fit in the lights of Justice, Equity & Good Conscience. All of which is most humbly
prayed.

COUNSEL ON BEHALF OF RESPONDENT OCTOBER 5, 2017

TANMAY JAIN

Memorandum on Behalf of the Respondent