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LAW OF TORTS: VICARIOUS LIABILITY OF STATE

INTRODUCTION-


The phrase tort is derived from the Latin word 'tortum' that refers to twisted and is defined under section 2(m) of the Limitation Act, 1963 which, suggests a tort which is not exclusively a breach of contract and breach of trust. In simple words, a tort is wrong that is committed against a personal body, not against the general public. There are four elements of tort for constituting that an individual is being wronged. They're the following:


· Damage suffered under the law of torts.

· Duty of care against the claimant

· Defendant caused the breach of duty of care

· The claimant has suffered damages due to breach of duty



However, vicarious liability is one among the civil wrongs which are roofed under the law of torts. The term derives from the Latin word 'vicis,' which suggests 'one that one take the place of.' Vicarious liability arises when there is master-servant, partners of a firm, partner/guardian-children, principal-agent, and State-employees relation. Here, the person who is the employer or in an authoritative position delegate their work to their respective subordinates, and when the beneficiary is incurring damage, the master is held liable for causing any damage during employment.



What are the essentials for establishing vicarious liability?


The essentials for establishing vicarious liability are the followings:

· There is a tort committed by the agent.

· The Principal was aware of the work done by the agent.

· The work is being ratified by the Principal.



What is the meaning of vicarious liability of state?


The vicarious liability of state is a liability that arises against the state government or the central government when an administrator or public servant who is being employed under the state commits a tortious activity. The principles that apply to master-servant relationships are:


· Respondent Superior: This doctrine applies between the relationship of the employer and the employee where if the employee commits any tort during the employment or service, the employer will be directly held liable for the acts that are being done by his employee.


· Quifacit per aliumfacit per se: It is a legal maxim that means, "He who acts through another does the act himself." This maxim states that whatever service is being provided by the employee, it is assumed that the employer is himself providing the service to the customer, so the liability also arises against the employer.


Socialization of Compensation Origin of Vicarious Liability of State

In England, the position of English common law altered with the enactment of the Crown Proceeding Acts, 1947 that earlier stated: "the king can do no wrong" meaning king cannot be held responsible for the tort that is being committed by his subordinate at the time of the employment. But with the enactment of the Act, the king is often held responsible for the tort that is being committed by his employee at the time of the utilization.

With the increasing function of the state, the act is being passed, and now the crown is additionally a bit like a personal individual for the tort committed by its servant. Similarly, in America, an act is being passed for handling the liability of the state, the Federal Tort Claims Act, 1946.



Position in India


In India, there was no statute governing the vicarious liability of the state like the Crown Proceedings Act, 1947. But with the enactment of the Government of India Act 1858, the liabilities of the employees who were committing any tortious act during the time of employment can hold the Secretary of the state liable and can also be sued.

When the Constitution of India came into force on 26th Jan 1950, Article 300 of the constitution holds the state government and the central government liable for causing any tort during employment. The government can be sued in the following manner:


· When one has to sue the Government of India, they can be sued in the court of Law as the Union of India, for instance, Abc vs. Union of India, etc.

· When one has to sue a particular State Government of India, they can be sued in the court of law by the name of the state, for instance, Abc vs. the state of Punjab.

· In cases where the matter of the cases is similar then the Government of India and the State Government in similar affairs of matters can be sued in the name of Dominion of India and therefore the corresponding Provinces or the relevant Indian States may need sued or been sued if this Constitution had not been enacted.

· Lastly, for understanding the liability of the State one has to understand the grounds on which liability can be extended against the State, as the administration of today's governance was in the direct succession from the East India Company that has acted as a trade body and the distinction between the sovereign function and non-sovereign functions was made when the East India Company acquired the sovereign function of India.



Justification of Vicarious Liability of State


With the implementation of this provision in India's constitution, this tort also opened the option for suing the master indirectly by the plaintiff because the definition suggests that the vicarious liability is based on the relationship between the master and the servant, so if any damage is caused by the servant while carrying out any such activities then the master will be held responsible. Here, the servant is acting on behalf of the master because the responsibility of the master increases as he has to keep track of the activities that are being carried out.



Hence, the activity that the government takes for the benefit of the general public can be questioned and can be sued if any such action caused any damage to them. However, the distinction between the activities will be roofed within the sovereign function and the non-sovereign tasks that were made clear with the Supreme Court's justification in pre-judicial cases and post-judicial cases.



Landmark Judgments that lead to the development of the vicarious liability of State

Pre-Judicial Decisions:


1. Peninsular and Oriental Steam Navigation Company V. Secretary of State for India, (1861) 5 Bom. H.C.R.App. 1, p.1. The SC of Calcutta distinguished the sovereign and non-sovereign functions and held the Government of India liable because the East India Company had two functions, i.e., the sovereign and the commercial. And the Secretary of State can be held liable for non-sovereign functions that can be delegated to any private individual and cannot be held liable for discharging any sovereign function.

2. Nobin Chandra Dey V. Secretary of State for India, I.L.R. 1 Cal. 11: The Calcutta HC applied the Doctrine of immunity for acts done in the exercise of sovereign functions. The plaintiff filed a plea for breach of contract on the part of the government. However, there was no evidence to prove the breach of contract, and even if there was any evidence, then also the state will not be held liable, as this act falls under the sovereign functions of the state.

3. Secretary of State v. Hari Bhanji, (1882) I.L.R. 5 Mad. 273: In this case, the Madras HC held that the State immunity was confined to acts of State. In the P&O Case, the ruling didn't transcend acts of State, while giving illustrations of situations where the immunity was available. It was defined that Acts of State, are acts wiped out the exercise of sovereign power, where the act complained of is professedly done under the sanction of municipal law, and in the exercise of powers conferred by law. The mere fact that it is done by the sovereign powers and is not an act which could be done by a private individual does not oust the jurisdiction of the civil court. The Madras judgment in Hari Bhanji holds that the government might not be responsible for acts connected with public safety, albeit they're not acts of State.



Post-Judicial Decisions


1. State of Rajasthan V. Vidhyawathi AIR 1962 SC 933: In this case, the defendant took the plea of the statutory function as the driver of an I.A.S officer went with the state government-owned jeep for filling the petrol and while returning an incident took place and plaintiff's husband died. However, in this case, the SC rejected the plea on the ground that hiring a driver for I.A.S is for commercial use, and it does not account under the statutory function. Hence, the state was held liable.

2. Kasturi Lal V. State of U.P. A.I.R 1995 SC 1039: In this case,the plaintiff claimed that the investigating police officer acts negligently while dealing with his property. However, the Supreme Court rejected the claim because "the act of negligence was committed by the police officer while dealing with the Ralia Ram which they had seized in the exercise of the statutory function." hence the police officer cannot be held liable because he was acting within the scope of the statutory function.

3. State of MP V. Chironji Lal, A.I.R 1981 MP 65: In this case, the plaintiff made a plea in the court of law regarding the question of payment of damages caused by the lathi-charge of the police. However, the court rejected the claim on the ground that for maintaining law and order, the lathi-charge falls under the sovereign function of the state.

Conclusion


The limitation of the vicarious liability of state has been defined with the precedents that are being passed by the Supreme Court and also the acts of the country that are performed for the public good. With those activities, if anyone suffers through damage, then such actions will account under sovereign functions of the State or not. And not for all the costs that are being encountered by the ordinary people will not fall under the sovereign service of the State.

As per the law of the land, i.e., the Constitution of India, usually those who are at fault or caused grievous hurt were held liable, but with the introduction of the vicarious liability as tort now the employers can be held responsible and also with the vicarious liability of State, the Government of India and the State Government can be sued. They can be made accountable if found acting outside the ambit of sovereign function.


SUBMITTED BY-

Samridhi Srivastava

Lloyd Law College

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