INTERNAL ASSIGNMENT

MADHUSUDAN LAW UNIVERSITY, CUTTACK

BEFORE
THE HON’BLE HIGH COURT OF ODISHA, ODISHA

IN THE MATTER OF

SHAN ………………. APPELLANT

VS

BISWA & SHYAM …..……..….… RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

COUNSEL FOR THE APPELLANT

SUBMITTED BY
NAME: - PRITIPURNA NAYAK
SEMESTER: - 3RD SEM ,BALLB
ROLL NO: - 3510121064

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 TABLE OF CONTENTS

S.L NO DESCRIPTIONS PAGE NO

1 ABBREVIATIONS

2 INDEX OF AUTHORITY

STATEMENT OF
3 JURISDICTION

4 STATEMENT OF FACT

5 STATEMENT OF ISSUES

6 SUMMARY OF ARGUMENT

7 ARGUMENT ADVANCED

8 PRAYER

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 LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

SCC SUPREME COURT CASES

SC SUPREME COURT

OP OTHER PARTY

ACJ ACCIDENT CLAIMS JOURNAL

SEC SECTION

U/S UNDER SECTION

VS /V VERSUS

HC HIGH COURT

SCW SUPREME COURT WEEKLY

ANR ANOTHER

ORS OTHERS

DTD DATED

INDEX OF AUTHORITY

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BOOKS REFFERED:-
1. THE LAW OF TORTS OF M.N. SHUKLA
2. THE LAW OF TORTS OF DR. J.N. PANDEY
3. THE LAW OF TORTS OF R.K BANGIA

CASES REFFERED :-
1. Short v. J.W. Henderson Ltd reported in (1946) 62 TLR 427
2. Maharashtra state v. Kanchan mala Vijay Sing as reported in AIR 1995 SC 2499
3. Pshpabai Purshottam Udeshi v. Ranjeet Ginning & Pressing Co as reported in AIR 1977
SC 442
4. Krishna Bus service Ltd v. Mangali as reported in AIR 1976 SC 700
5. Baldeo Raj v. Deowati reported in 1986 ACJ 906
6. Bhaiya Lal v. Rajvani as reported in AIR 1960 MP147
7. Bayley v. Manchestar Shiffed Linconlnshire Rly as reported in 1872 LR CP 415
8. Indian Insurance Co Association pool ,Bombay v. Radhabai as reported in the AIR
1979MP 164
9. N.S.JaynandaN V. State of Kerla as reported in the AIR 198379Ker 46
10.

INTERNET SOURCES:-

1. INDIAN KANOON.ORG
2. MANUPATRA
3. SSC ONLINE

STATEMENT OF JURISDICTION

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The appellant humbly submits the grounds of jurisdiction as follows:-

The appellant & respondents are residents of this Humble High Court & the accident has
occurred within the jurisdiction of lower court and the same is within the jurisdiction of Hon’ble
High Court of Orissa as such the learned trial court has territorial jurisdiction within the preview
of this Hon’ble High court to entertain the matter.

STATEMENT OF FACTS

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1. Shan and Kritika are husband and wife & live with their children in Bhubaneswar.
2. Biswa is a resident of Cuttack and owns a paint factory which is situated in Dhenkanal.
3. Shyam is the driver employed by Biswa who resides in Cuttack
4. Kritika was going on a trip to Puri with her children in a honda city , which was gifted
by her husband Shan
5. Kritika was driving on that trip
6. Shyam was carrying a barrel full of paint in the truck to his master’s (Biswa) factory at
Dhenkanal.
7. The door of the truck was not closed, neither the barrel fastened to anything.
8. Due to that negligence barrel was making blasting sounds.
9. Due to the nuisance created by Kritika’s children she didn’t notice about the truck
coming close.
10. Shyam took a sharp turn to left without reducing speed.
11. the barrel fell down and paint fell over the car
12. . To avoid collision Kritika tried to apply the brakes but the car didn’t stop immediately
and the car collied with a tree.
13. The car got damaged by the paint as well as by the collision.
14. Then Shan filed a case in the court for damages of 5 lakhs against Biswa & shyam.

STATEMENT OF ISSUES

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ISSUE-1

Whether the master is liable for the tort committed by his servant while acting in the course of
his employment or not?

ISUUE-2

Whether the master is liable for the negligence committed by his servant or not?

ISSUE -3

Whether the master is liable for the wrong committed by his servant for the natural consequence
of the act done with ordinary care in execution of his master’s specific order ?

ISSUE- 4

Whether the appellant is liable to get compensation as sought for ?

SUMMARY OF ARGUMENT

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ISSUE 1
Whether the master is liable for the tort committed by his servant while acting in the course of
his employment or not?
 The master Biswa is vicariously liable for the acts of his servant Shyam acting in the
course of employment. The test is whether the act was done in the owner’s business or
that it was proved to have been impliedly authorized by the owner.

ISSUE – 2
Whether the master is liable for the negligence committed by his servant or not?
 Here the servant is the driver Shyam was carrying paint barrels in the truck in negligent
manner without closing the door & without fastening the paint barrels in the truck for
which it was making blasting sound by dashing with each other. The barrel fell down and
paint fell over the car. The above facts reveals Shyam being an driver (servant) was
carrying barrel full of paint to the destination Dhenkal i.e. the factory of his master in
negligent manner .If a driver acting in the course of his employment drives his car rashly
or negligently so as to cause injury to another the master is vicariously liable in damages
for the drivers tort. The basis of liability is that the act of driving was authorized through
the mood of performing which was improper. When the accident is said to have been
committed for want of the care of the driver acting under the directions & instructions of
the employer .The company would be liable for the negligent act of the employee

ISSUE –3
Whether the master is liable for the wrong committed by his servant for the natural consequence
of the act done with ordinary care in execution of his master’s specific order?
 In the Instant case the opposite party no 2 driver Shyam has negligently opened the door
on one hand & had not tied the loaded paint barrels in the truck. Besides the driver
without reducing the speed of the truck suddenly turned the vehicle which ultimately
tempted Kritika to turn the her vehicle to avoid collision with the truck of the opposite
party No 2, namely Shyam & dashed with the tree & the untied barrel paints fell on the
Honda city of the appellant & appellant sustained damage in his car. So the master is
liable for the wrong committed by his servant which may be the natural consequence of
something done with ordinary care in execution of his master’s specific order.

Issue 4
Whether the appellant is liable to get compensation as sought for?

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 In the above noted case due to the negligence of Shyam the appellants Honda city car
sustained damage which caused financial burden to the appellant as Shyam opposite no
2 was authorise to perform the work of his maser Op no 1. So Op no 1 is liable to
compensate the damage.

ARGUMENT ADVANCED

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Before answering the issues projected above it is necessary to pay focus on the relevant aspects
of vicarious liability such as what is vicarious liability, the principles of vicarious liability, mode
of vicarious liability, liability arising out of special relationship, master & servant relationship
etc.
As a general rule a man is liable only for his own act but there are certain circumstances in which
a person is liable for the wrong committed by others. This is called vicarious liability i.e. liability
incurred for others. The phrase “vicarious liability” means the liability of a person for the tort of
another.
The principles on which vicarious liability is based are -:
(i) Qui facit per alium facit per se-; The maxim means he who acts through another is
deemed in law as doing himself .The master’s responsibility for the servants act had
also its origin in this principle
(ii) Respondent superior -: This maxim means that the superior must be liable .The
master is liable for all such acts of his servants which he does in the course of his
employment as the master is capable of meeting the liability
(iii) Modern view -: The above principles complete every aspects of vicarious liability &
therefore jurists 7 courts have evolved a new basis of liability of the master for the
torts committed by his servants. According to the modern view the doctrine of
vicarious liability is practically based on the principle of social security.
Modes of vicarious liability-: The liability of other’s wrongful act / tort /omission may arise in
any of the following three ways
(a) Liability by rectification -: Where the defendant has authorized or ratified the
particular wrongful act or omission.
(b) Liability arising out of special relationship: - Where the defendant stands to the
wrong-doer in a relation which makes the former answerable for wrongs
committed by the other.
(c) Liability for abetment -: A person who abets for the commission of wrong to
another is liable for the tort committed.

Liability arising out of special relationship arises if the parties are related to each other as
follows:-
(i) Master & Servant
(ii) Owner & Independent contractor
(iii) Principal & Agent
(iv) Company & Director
(v) Firms & Partner
(vi) Guardian & ward or Father & Child
(vii) Husband & Wife

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The issue involve with us for adjudication is related to Master & Servant special relation as Shan
has claimed damage against Shyam the driver who acts under his master Biswa for the tort
committed by Shyam
The doctrine of liability of the master for the act of his servant is based on the maxim
“Respondent superior” which means let the principal be liable & it puts the master in the same
position as if he had done the act himself. The doctrine of liability of the master is also based on
the maxim Qui facit per alium facit per se i.e. he who acts through another is deemed in law as
doing himself.
Thus for holding a master liable for the torts committed by his servant the following two
conditions must be proved
(1) There must be the relation of master & servant between the defendant & the person
committing the torts
(2) Tortious act must have been committed by the servant in the course of his employment
Let us know who is a servant & who is a Master:-
Servant: - A servant may be defined as any person ,employed by another to do work for him ( the
employer) on the condition that he ( the person employed )is to work under the ‘control’ &
‘direction’ of the employer.
Master -: A master is a person who has the authority to give orders & get the work done by his
servants

In the case of Short v. J.W. Henderson Ltd reported in (1946) 62 TLR 427 four principles have
been laid down to determine the relation between the master servant relations as follows
(i) The power of master to select his servant
(ii) The power to pay wages or other remuneration
(iii) Master’s right to control in the method of doing the work by his servant
(iv) Master’s right to suspend & dismiss his servant.
The general rule is that master is liable for the tortious act committed by his servants but he is
not liable for the acts committed by an independent contractor.
The term ‘agent’ is used for a person employed to do a work for another. Thus the agents implies
both servants & independent contractor as both of them act under the master. So it is important to
know the distinction between the term servant & independent contractor.
A servant is an agent who works under the supervision & the direction of the employer. He is
bound by the direction of the master from time to time to carry out his order

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An independent contractor is a person engaged to do certain act but he is to exercise his own
direction as to mode & manner of doing the act & he is his own master. He is bound by contract
& not to his employer’s order.
Thus the nature & extent of control in engaging agent by the master to do the work determines
whether the agent is a servant or independent contractor.
Keeping the above facts in mind let me to discuss the issue projected for determination

ISSUE 1
Whether the master is liable for the tort committed by his servant while acting in the course of
his employment or not?
In this case Biswa (master) is a resident of Cuttack and owns a paint factory which is situated in
Dhenkanal. Shyam (servant) is the driver employed by Biswa who resides in Cuttack. Shyam
was carrying a barrel full of paint in the truck to his master’s factory at Dhenkanal. The door of
the truck was not closed while the vehicle was going on the road. The driver had also not
fastened the loaded paint barrels to anything. Barrel was making blasting sounds. Shyam took a
sharp turn of his truck to left without reducing speed when the Honda city of Kritika
encountered. The barrel fell down and paint fell over the car. The above facts reveals Biswa
being an agent /driver (servant) was carrying barrel full of paint to the destination Dhenkanal i.e.
the factory of his master. From the above factual aspects it is clear that the incident of accident
has happened in the course of engagement. For better appreciation of this issue I will pay focus
on the term ‘in the course of employment’
The term‘ in the course of employment’ is explained in the case decided in Maharashtra state v.
Kanchan mala Vijay Sing as reported in AIR 1995 SC 2499 where in the Hon’ ble court has
held that the clerk was allowed to drive a jeep in a special circumstances but at the time of
accident another person was allowed to drive the vehicle for the necessity of the work of the
state with the permission of the clerk.The clerk did the unauthorized work in the unauthorized
work in the course of employment as such Govt. is liable for the act as it was engaged for the
duty of the state.
The term ‘ in the course of employment’ is explained in the case decided in Pshpabai
Purshottam Udeshi v. Ranjeet Ginning & Pressing Co as reported in AIR 1977 SC 442 where
in the Hon’ble court has held that The master is vicariously liable for the acts of his servant
acting in the course of employment . The test is whether the act was done in the owner’s business
or that it was proved to have been impliedly authorized by the owner.
Here the driver Shaym was carrying paint barrels in the truck in negligent manner without
closing the door & without fastening the paint barrels in anywhere in the truck for which it was
making blasting sound by dashing with each other.
The accident has happened due to the negligent act of Shyam causing damage to the vehicle of
the petitioner while the opposite party No 2 namely Shyam was acting as a servant under his

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master Biswa, the opposite party No 1. So the opposite party No 1 is liable for the act of the tort
committed by his servant. In this connection the dictum decided in the case of Krishna Bus
service Ltd v. Mangali as reported in AIR 1976 SC 700 where in the Hon’ble court has held
that “the accident is said to have been committed for want of the care of the driver acting under
the directions & instructions of the employer .The company would be liable for the negligent act
of the employee”
Under the above circumstances it is crystal clear that the master is liable for the tort committed
by his servant while acting in the course of his employment.

ISSUE – 2
Whether the master is liable for the negligence committed by his servant or not?
Here the driver Shyam was carrying paint barrels in the truck in negligent manner without
closing the door & without fastening the paint barrels in anywhere in the truck for which it was
making blasting sound by dashing with each other. The barrel fell down and paint fell over the
car. The above facts reveals Shyam being a driver (servant) was carrying barrel full of paint to
the destination Dhenkal i.e. the factory of his master in negligent manner .Let us examine the
position of law regarding fixing liability on the master for the negligent act of the servant
In this connection the dictum decided in the case of Baldeo Raj v. Deowati reported in 1986
ACJ 906 it has been held that breach of duty by driver was the direct cause of the accident& for
such negligence of the driver his master is held vicariously liable.
In this connection the dictum decided in an another case of Bhaiya Lal v. Rajvani as reported
in AIR 1960 MP147 it has been held that if a driver acting in the course of his employment
drives his car rashly or negligently so as to cause injury to another the master is vicariously liable
in damages for the drivers tort. The basis of liability is that the act of driving was authorized
though the mood of performing which was improper.
In this connection the dictum decided in an another case of Bayley v. Manchestar Shiffed
Linconlnshire Rly as reported in 1872 LR CP 415 it has been held that when a master
authorizes his servant to do a particular class of acts , he is liable for the servants error of
judgement or improper acts in executing that work.
From the above discussion it is crystal clear that the master is liable for the negligence
committed by his servant.

ISSUE -3
Whether the master is liable for the wrong committed by his servant for the natural consequence
of the act done with ordinary care in execution of his master’s specific order?

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For the better appreciation of this issue I may travel through the decision of the court at first
point of time.In the case of Indian Insurance Co Association pool,Bombay v. Radhabai as
reported in the AIR 1979MP 164 it has been held that The owner of the vehicle is vicariously
liable for the negligence of his driver in permitting unauthorized person to drive the vehicle
driver
In the case of N.S.JaynandaN V. State of Kerla as reported in the AIR 198379Ker 46 it has
been held that it was the duty of the police jeep driver to give way to the motor cycle coming
along in the main road on it’s right side . He was negligent in not taking care for the same. He
was the servant of the state. Hence state is vicariously responsible in damages to the plaintiff
In the Instant case the opposite party driver no 2 Shyam has negligently opened the door on one
hand & had not tied the loaded paint barrels in the truck. Besides the driver without reducing the
speed of the truck suddenly turned the vehicle which ultimately tempted Kritika to turn the her
vehicle to avoid collision with the truck of the opposite party No 2, namely Shyam &dashed with
the tree & the untied barrel paints fell on the Honda city of the petitioner & petitioner sustained
damage in his car. So the master biswa is liable for the wrong committed by his servant Shyam
which may be the natural consequence of something done with ordinary care in execution of his
master’s specific order.
Issue 4
Whether the appellant is liable to get compensation as sought for?
In this case the appellant is entitled to get compensation because the damage caused to the
appellant’s car was due to the negligence of respondent’s servant .the Honda city car gifted by
the appellant to her wife approximately cost rs 13 lakh in India ., in that car appellant’s wife was
going to Puri and at the same time Shyam was carrying barrel full of paint in the truck to his
masters factory. The door of truck was not closed properly neither the barrel fastened to anything
. Shyam without reducing the speed took sharp left turn which led kritika to give a break to
avoid collision .in the mean time the car hit the tree and paint which was in the barrel fell down
on the car . the car got damaged for the paint and collision which was the result of negligence of
the driver.so here the appellant Shan should get compensation .

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 PRAYER
It is therefore prayed that the Hon’ble Court shall be pleased to set aside the order of the learned
court below & direct the Opposite parties to pay sum of Rs 500000 /- (five lakh)as
compensation for the damage caused to the appellant & in case of delay in payment the opposite
parties be directed to pay 10% interest from the date of award of compensation or any other
order may kindly be passed in favour of the appellant & against the respondent. And for the act
of kindness, the petitioner shall as in duty bound remain ever pray.

SD/-
COUNSEL ON BEHALF OF THE APPELLANT

DATE:-

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