Vicarious Liability: Legal Representation & Master-Servant Relationship

  1. Introduction
    1. Kind of Liability
  2. Legal Representation
    1. actio personlis moritur cum persona
    2. Article 300
    3. Rajasthan vs. Vidyawati
  3. Master and Servant
    1. actio personlis moritur cum persona
    2. Emperor v. Mohd bashir

Introduction-

Vicarious liability means the liability for wrongful act done by another. The modern as well as ancient law accepted this principle of vicarious liability. This principle of vicarious liability is however more know to Civil law than to criminal law. In criminal law this kind of liability is not usually, therefore no person is liable for the criminal act of another.

In civil law this kind of liability is well established it is recognised generally in too kind of cases

  1. Master and servant
  2. The representative of a dead person are in certain cases liable for the act of deceased.

Liability means and implies responsibility for an act or omission.

Liability is either civil or criminal

Two essential pre – condition of criminal liability are:

  • Commission of an act
  • Guilty mind i.e. means rea.

In civil cases motive is less relevant

In more primitive system, the impulse to extend vicariously the incidence of liability receives free scope in a manner altogether alien to modern notions of justice. It is in barbarous time considered a very natural thing to make every man answerable for those who are kind of him in the mosaic legislation it is deemed for necessary to lay down the express rule that father shall not be put to death for children nether shall children be put to death for the father every man shall be put to death for his own Sin.

Wherever any unlawful assembly or riot takes place the owner occupier of land upon which such unlawful assembly is held for such riot is committed and any person having for claiming an interest in search land still be punishable with fine not exceeding one thousand rupees if he or his agent or manager knowing that such office is being or had been committed or having reason to believe that it is likely to be Committed do not give the earliest notice there of in his or their power to the principal officer at the nearest police station and do not in the case of his or their having reason to believe that it was about to be commit use all lawful means in his for their power to prevent it and in the event of its taking place do not use all lawful means in his for their power to this disperse or suppress the riot or unlawful assembly.

Legal representation.

A second form of Vicarious liability like it is that imposed upon the decrease wrong- doer legal representatives criminal liability of course cannot extend to a person legal representative the liability arising out of a breach of contract on the other hand can and is enforced against the legal representative of the parties to the contract. As regards liability Organisation in torts or delicts there is a basic difficulty in extending the application of this principle of vicarious liability the maxim of the law is actio personlis moritur cum persona (a personal actions dies with the person).

Hence it is not possible to sue the legal representative of the decreased for the wrongs done by him however there has been a gradual change in the position on the point the principle of vicarious liability is sought to be extend because of the fact that it’s recognition is necessary as a deterrent to wrong doing as incentive to wrong – doing would be afforded if the law declares that the death of the wrongdoer would means the extinction of liability in respect of the wrong a person who has not long to live may launch defamatory attack upon his Enemies if he can do so with impunity from the point of view of the injured party there is no reason why a right of action which was acute to him should be extinguished by the adventitious and accidental circumstance of the death of the wrongdoer thus the law is justified in fixing vicarious liability on legal representative for the wrong of the deceased wrong doer.

The doctrine of vicarious liability has also been extended to state under Article 300 of the Constitution of India is suit can be filled by or against the state. The state has however been held vicariously liable for any wrong committed by its servant in the course of employment. This rule has been firmly laid down by the supreme court in State of Rajasthan v. Vidyawati the fact of case in that age temporary employee of state of Rajasthan will driving a government jeep car from workshop after repairs knocked down a pedestrian by rash and negligent driving this pedestrian understand multiple injuries as a result of which he died. He’s widow sued the state of Rajasthan for damages the Supreme Court head that the state liable and awarded damages.

Sinha C. J made  important observation in  Vidyawati case he’s lordship said that the common law immunity rule based on the principle that ‘ the king can do no wrong’ has no application and validity in this country. There should be no difficulty in holding that the state be as much liable tort and in respect of a tortious act. Committed by its servant and functioning as much as any other employer in India ever since the time of east India company the sovereign  been liable to be sued tort in contract, and the common law immunity never operated in India now that we have by our constitution established in republican form of government and one of the objective is to established  in socialist state there is no justification in principles on in public interest that the state should not be held vicariously  for the tortious acts committed by its servants.

Master and Servant

The doctrine of liabilities of the masters for the cat of his servant it of modern growth it is based on the maxim responded superior let the principal be liable this maxim on ground of policy and general convenice  puts the master in the same position as is he had done the strong himself the master responsibility for his servant at has also its origin in the maxim qui facit per alieum facit per se ( he who does an act through another is deemed in law to do it himself) the master is answerable forever research wrong of the servant at ease committed in the course of the service through no express command or privacy of the master be proved.

The wrongful act need not be for the master benefits. Although the particular act which gives the cause of action may not be authorised, still if the act is done in the course of employment which is authorised the master is liable when a servant does an act which he is authorised by his employer to do under certain circumstances and certain condition and he does them under circumstance or in a manner which are an authorised and improper in such cases the employer is liable for the wrongful act for Tots committed in any master beyond the scope of the employed the master is only liable if he has expressly authorised or subsequently ratified them in UP Government versus Ram Milan where the driver of a vehicle was authorised by the master to drive it.

The Mechanic was only to repair the defect in the said vehicle and the driver allowed The Mechanic to drive the vehicle which carried passengers in it will he himself set by his said and an accident occurred it was held that master was liable because the entrustment by the driver to The Mechanic to drive was an improper mode of performance of his own duty as driver and therefore and an authorised mode of action within the scope of his employment.

A master is liable for the criminal act of his servant provided it is done by the servant in the course of his employment there is no distinct in this respect between the effect of a tortious and a criminal act as if a person who owns a restaurant leaves it entry management to another person who letter runs a gambling house in The premises of the restaurant he can be held criminally liable for the act of the manager similarly in Emperor v. Mohd bashir The Bombay High Court considered 21 where the property of a hotel was charged for keeping it once during our beyond those permitted to him under licence the hotel was being run by the manager the question was whether the master was maker vicariously liable for the act of the manager the Court held that the property was liable for the offence for where there is an absolute Pro habitants under statute there is vicarious liability even without any mens Rea.

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