Introduction: What is Vicarious Liability?
The concept of vicarious liability originates from the Latin maxim “Qui facit per alium facit per se”, meaning “He who acts through another, acts himself.” In simple terms, vicarious liability is the legal responsibility of one person for the wrongful acts of another.
It commonly arises in situations where one party has a special relationship with another—like employer and employee, principal and agent, or partners in a firm—and is held liable not for their own fault but for the fault of the other party acting within the scope of that relationship.
Under Indian law, vicarious liability is governed primarily by tort law and sometimes overlaps with contract law and agency principles under the Indian Contract Act, 1872.
How Does Vicarious Liability Arise?
Vicarious liability typically arises when:
- There is a special relationship (like employer-employee).
- The wrongful act is done in the course of employment or within the scope of the authority.
- The act must be connected with the duty assigned to the person.
Principal and Agent Relationship
Under Sections 182–238 of the Indian Contract Act, 1872, an agent is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done is called the principal.
Vicarious Liability of the Principal
A principal is liable for the acts of his agent if such acts are within the scope of the agent’s authority, whether express or implied.
Case Law:
- State Bank of India v. Shyama Devi (1978 AIR 1263)
The bank was not held liable for the fraudulent acts of its agent because the agent acted outside the scope of authority.
Relation of Partners
Partners are jointly and severally liable for any wrongful act or omission done by any partner:
- While acting in the ordinary course of business of the firm.
- Or with the authority of other partners.
This is codified under Section 26 of the Indian Partnership Act, 1932.
Case Law:
- Hamlyn v. Houston & Co. (1903 1 KB 81)
One partner wrongfully obtained information by bribery. The firm was held liable since it occurred in the course of business.
Relation of Master and Servant
This is the most common area where vicarious liability is applied. A master (employer) is vicariously liable for the wrongful acts of his servant (employee) if:
- The act was done in the course of employment.
- The act was authorized, or a wrongful mode of doing an authorized act.
Case Law:
- State of Rajasthan v. Vidyawati (AIR 1962 SC 933)
A government employee (driver) caused death by negligent driving. The state was held vicariously liable.
Who is a Servant?
A servant is one who works under the direct control and supervision of another, performing tasks assigned by the master.
Key features:
- Works under employer’s control.
- Receives regular salary or wages.
- Cannot delegate the work to others.
Difference Between Servant and Independent Contractor
| Feature | Servant | Independent Contractor |
|---|---|---|
| Control | Works under control of employer | Works independently |
| Payment | Salary/wages | Lump-sum payment for work |
| Delegation | Cannot delegate | May appoint others |
| Vicarious Liability | Employer liable | Employer usually not liable |
Liability for Acts of Independent Contractor
As a general rule, employers are NOT vicariously liable for the wrongful acts of independent contractors. This is because they do not control the manner of the work done.
Exceptions:
- Non-delegable duties (like ensuring safety at construction sites).
- Negligence in selection of contractor.
- Hazardous work (ultra-hazardous activities).
Case Law:
- B.K. Sharma v. UOI (1993 Lab IC 1038)
Held that the employer is not liable for acts of independent contractor unless there is negligence in supervision.
Liability When Servant is Not Under Control
Even if the master is not directly supervising the servant during a wrongful act, liability may still arise if the act is:
- Within the course of employment, and
- Not a personal frolic or an act outside the employment.
Case Law:
- Century Insurance Co. v. Northern Ireland Transport Board (1942 AC 509)
A petrol tanker driver lit a cigarette while unloading petrol and caused an explosion. The employer was held liable.
Conclusion
Vicarious liability acts as a check on power and delegation. It ensures that individuals or entities who reap the benefits of others’ work also bear the burden of legal accountability when that work goes wrong.
In Indian legal practice, this principle is crucial in tort claims, employment disputes, contractual obligations, and agency law. The courts have consistently held that justice demands that liability follows benefit and control.