Useful Notes on “Vicarious Liability” (Under Indian Law)

This is popularly known as “Vicarious Liability”. In the Law of Torts, the master is liable for the acts done by his servant under this principle, because of his superiority in money, position, influence, etc.

Examples:

1. Liability of the principal for the tort of his agent.

2. Liability of the partners for each other’s tort.

3. Liability of the master for the tort of his servant.

This principle applies in tortious acts, because of the maxim “Respondent Superior”, who has economical stability to meet and pay the damages for the consequences of such acts. But as a general rule, in criminal law, this principle does not apply.

“Vicarious Liability is unknown to Criminal Law”: It is the concept of the punishment and criminal law. It is in the law. It is in the interest of public safety. The object of punishment is twofold:

i) Prevention of offences; and

ii) Protection of the society.

The person, who does a criminal act, must be punished accordingly. It is in the interest of the State. The persons, who help an accused in doing that wrong, are also punishable under the law of abetment and criminal conspiracy. Basically, the vicarious liability is not recognised by the penal law. Section 149 IPC is an exception to this basic principle.

While disposing Munivel vs. State of T.N. (AIR 2006 SC 1761), the Supreme Court held: “Section 149 of the Penal Code provides for vicarious liability, if an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed.

The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly.

Whether a member of such unlawful assembly was aware as regards likelihood of commission of another offence or not would depend upon the facts and circumstances of each case.

It is also well settled that if death had been caused in prosecution of the common object of an unlawful assembly, it would not be necessary to record a definite or specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury.”

Vicarious Liability in statutory offences:

At the time of the framing certain statutes, the Legislature imposes the strict liability upon the employer. For example, the Prevention of Food Adulteration Act, Sale of Liquor, Drugs, etc., impose such liability upon the principal.

It is the liability of the merchant to supply the unadulterated food. If the Food Inspector conducts sudden checking and finds the food articles are adulterated, the owner of the shop cannot escape from the charges by simply saying that his servant might have adulterated the food.

If he wants to show that the food is adulterated without his knowledge by his employee, the burden of proof lies upon him.

Hari Prasad Rao vs. the State (AIR 1951 SC 204)

Brief Facts:

The appellant was the licensee of two petrol bunks at Guntur. He employed two persons Ch. Venkatrayudu and Dadda Pichayya to look after them. The appellant was the resident of Chirala, and was also working as a Presidency First Class Magistrate at Chirala.

The then British Government enacted “The Motor Spirit Rationing Order, 1941”. According to it, the motor vehicle owners should obtain valid coupons for petrol from the authorities.

The Dealer of the Petrol Bunk should supply the petrol on receipt of such coupons issued by the authorised Government officials, and maintain the accounts for such coupons in a register, and endorse on the back of the coupons, and then supply the petrol.

Two cases were prosecuted against Hariprasad Rao and his employees by the State, alleging two charges in the first case that they supplied the petrol without coupons and in the second case, the third charge was that they received the coupons, but did not supply the petrol to the concerned. The charges and cases were framed under the Motor Spirit Rationing Order, 41.

The Sub-Divisional Magistrate, Guntur found the appellant and his employees in each case guilty of the charges and convicted the appellant to a fine of Rs. 30/- on the first count and Rs. 20/- on the second count and a fine of Rs. 20/- on each of the three counts, and if the appellant failed to pay the penalty and fine, one week imprisonment.

The appellant appealed to High Court, Madras. He argued that he was working as a Magistrate and entrusted the business to his employees and he was not present at the time of the offences, and sought the defence of mens rea and exemption from vicarious liability. He pleaded that in criminal cases, the accused should not be punished unless his mens rea was proved.

He also pleaded that the criminal law did not recognise the vicarious liability. The Madras High Court held that the questions of mens rea and exemption from vicarious liability were not relevant in the present case as the charges were statutory offences.

It held the appellant were liable for the offences. It also held that the question of mens rea will affect the measure of punishment but it cannot affect the conviction.

The appellant appealed to the Supreme Court. The State argued that though ordinarily a person should not be held liable for the criminal acts of another and no person can be charged with the commission of an offence unless a particular intent or knowledge is found to be present, mens rea is not of the essence of the offence with which statutory provisions impose restrictions and conditions.

Judgment:

The Supreme Court held that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the defendant should not be held guilty of an offence under the criminal law, unless he has a guilty mind.

Relying upon this rule, the Supreme Court held that where a servant sold petrol to a bogus customer in the absence of coupons in contravention of the Rationing Order and the master was not present at the time nor had he any knowledge of the supply of petrol by the servants to the bogus customer, the master cannot be held to be vicariously liable for the act of the servant.

Hence the conviction and the sentence imposed on the appellant on the 1st charge in both the cases were quashed. The Supreme Court upheld conviction and sentence on the third charge of the second case.

Principle:

The Supreme Court observed: “Prima facie, the master is not to be made criminally responsible for the acts of his servant to which the master is not a party.

But it may be the intention of the Legislature, in order to guard against the happening of the forbidden thing, to impose a liability upon a principal even though he does not know of it, and is not a party to the forbidden act done by his servant.

Many statutes are passed with this object. Acts had done by the servant of the licensed holder of licensed premises render the licensed holder in some instances liable, even though the act was done by his servant without the knowledge of the master.

Under the Food and Drugs Acts, there are again instances well known in the circumstances, where the masteries made responsible, even though he knows nothing of the act done by his servant, he may be fined or rendered amenable to the penalty enjoined by the law. In those cases the Legislature absolutely forbids the acts and makes the principal liable without a mens rea.”

Exemption under vicarious Liability in criminal law:

As a general rule of criminal law, the master is not held liable for the criminal acts done by his agent or servant. However, he will be held responsible, if he is the abettor or conspirator or active partner of the offence.

He may be treated as having joint liability and common intention (Sec. 34) or as having constructive liability and common object (Sec. 149).

Examples:

a) A – a master instructs B-a servant to murder C. B murders. Here vicarious liability does not apply. Joint Liability should apply to both A& B, and both of them must be punished accordingly. B cannot plead exemption under vicarious liability.

b) A – a master instructs B-a driver to drive his vehicle. B drives with rash and negligent manner, and causes accident and death to C. Under the Law of Torts, A and B both of them are liable to pay the damages caused to the family of the deceased, and more particularly A is held more liable, being respondent superior.

Under the Criminal Law, A is not held responsible, but B is held liable, as he drove the car negligently. B shall have to face the prosecution for the “Rash & Negligence” under Section 304-A of I.P.C., for which A shall not be liable. Here the act committed by B comes under S. 304-A of Indian Penal Code, which excludes the principal from the vicarious liability.

Exceptions:

“Vicarious liability is unknown to Criminal law,” But this legal principle has the following exceptions:

1. Statutory Liability:

Sometimes, the statute provides strict rules to the principal, who must obey the rules very carefully.

Examples:

(a) Erecting pandals on the roads in twin cities is prohibited, and violation of such rules attracts penal provisions, by Hyderabad City Police Act. A-a house owner instructs B-servant to erect the Pandal on the road. Here A is liable for the contravention of the provisions of the Hyderabad City Police Act.

(b) Heaping Kankar, bricks, sand, etc., on public roads is an offence punishable with one month imprisonment or with fine upto Rs. 1,000/- or with both as per Hyderabad Municipal Corporation C finance, 1999. If a servant makes a heap of sand on a public road, the principal/house- owner is liable.

(c) The Environmental (Protection) Act, 1986, the Water (Prevention & Control of Pollution) Act, 1974, the Air Prevention & Control of Pollution) Act, 1981, etc., impose the strict liability upon the occupiers/prospect is not to pollute the atmosphere.

If an occupier instructs his employees to discharge unearned effluents into the surrounding canal, land and atmosphere, the polluter/ occupier is hearable.

3. Neglect of Duty:

The Factories Act, 1948 and its rules provide that the Owner of the Factory must entrust the duties on dangerous machines to a well qualified and experienced candidate, and also he should take all reasonable precautionary steps to prevent accidents and dangers.

If A-an owner of a factory, entrusts the management of a dangerous machine to an unqualified or unauthorised person, and if such unauthorised person commits any accident causing death to person or persons A is held liable. A, being the owner, is guilty of entrusting the handling of the machine to an ignorant, unauthorised person. It is neglect of duty.

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