An Analysis of Vicarious Liability in India

Introduction

“ Respondent Superior” which means ‘let the principal be liable’.

Every person is liable for the act ,they commit and not liable for the acts which are done by others but in some situations when a person is liable for the acts of another person is known as Vicarious Liability. So for this, there must be a specific relationship between both of the people and the act done must be connected with the relationship. It can be the relationship between a master and servant or principal and agent.

It is a kind of liability that arises due to the relationship between the two persons and the person has to be liable for the act done by another because of their relationship with each other. For example, Ram is the driver of Arjun and Arjun sent Ram to bring her mother from the temple. On their way, Ram hits someone but still, Arjun was held liable for the accident caused by Ram. This is because of the vicarious liability.

It is being founded on the idea of “qui facit per se per alium facit per se” which means ‘He who does an act through another is deemed in law to do it himself’.

Article 300 of theConstitution of India describes vicarious liability of the state. It states that if any public servant while in the course of his duty commits any sort of wrongful act, then the State shall be held liable for the act so committed.

Constituents of Vicarious Liability

The essentials of the Vicarious Liability are as follows:

1) There must be a relationship of a certain kind.

2) A wrongful act must be committed in relation to the relationship in a certain kind.

3) Wrongful act must be committed while in the duty.

Relations in Vicarious Liability

In this , liability can only take place when there is one party being superior over other and the superior party shall be considered liable for the wrongful act being committed during the course of employment. For example,

1) Master and Servant

2) Principal and Agent

3) Company and it’s directors

4) Partner’s in partnership firm

In case of servant, if the servant does any wrongful act during the course of his employment, the master is being held liable for the act. The act of servant is being deemed to be the act of master.

The master to be held liable for the act, two essentials are to be present:

1) Tort must be committed by the servant.

2) Tort committed by the servant in his course of employment.

For example, A waiter in the hotel hurts the customer by being rude to him, the hotel as well as the waiter is being held liable for the negligence of the waiter.

In case of hospitals, the doctors and the hospitals are held liable for the misconduct by an employee at the hospital. Nurses, doctor’s, administrative department, lab assistant and other staff members are among the one .

For example, ‘A’ had surgery at the ‘PQR’ hospital, and the doctor performed the surgery perfectly but forget to remove the forceps from A’ s stomach . Doctor is liable for the act of negligence in this situation. However, A can sue both the hospital and the doctor for the act of negligence by the doctor during the course of his employment.

In case of an independent contractor, when someone employs an independent contractor to do work on his behalf , he is not being held liable for any tort committed by the independent contractor during the course of his employment. As they do not come under the scope of employment and are not considered as employees.

Reasons for Vicarious Liability

1) A servant acts like an agent under the supervision of the employer. So, the servant works for his master, which means that the act done by servant is the act being committed on behalf of the master. And as a result, the master is being responsible for the act of the servant.

2) The master always enjoys the benefit from the act done by the servant, and accordingly he must also bear the loss from the act of the servant, but only when he is under his employment.

3) The master is financially stable than the servant and can easily bear the loss and can compensate for the loss incurred by the servant during his course of employment

.

Exceptions to the Principle

1) The master is not liable when the employer is under some statutory duty which he cannot delegate.

2) The master is not liable when a case involves the withdrawal of support from the neighbouring land.

3) The master is not liable when it comes to the case of escape of the fire.

4) The master is not liable in the situations which involves extra- hazardous acts .

5) The master is not liable for the operations on the highways.

6) The master is not liable when it comes to the escape of explosive substances.

Conclusion

Vicarious liability is being referred to the situation in which a person is held liable for the act of the other. It is an exception to the general rule that the person is liable for the acts of his own in the field of torts. In the case of vicarious liability both of the persons ,the one on whose behalf the act is being done and the one who performs the act are liable for any kind of tort.Thus, the employers are held liable for the tort committed by the employees during their course of employment. In order, to arise the liability there must be certain type of relationship between the two of them and the tort must be committed in the context of the relationship. So, the masters are liable for the tort of their servant during the course of their employment. The course of employment is necessary for the vicarious liability.



This article is written by Kiranjot Kaur of Teerthanker Mahaveer College Of Law And Legal Studies.

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