' AJMAL MIAN, J.--This High Court Appeal is directed against the judgment and decree dated 29-5- 1986 passed by a learned Single Judge of this Court in Suit No,719/84 decreeing the suit against defendants Nos.1, 2, 3 and 4 jointly and severally for a sum of Rs,2,50,000 with cost and 10% interest per annum from the date of suit till recovery, with the clarification that the liability of defendant No,3, the Insurance Company is limited to the extent of Rs,20,000 only.
2. The brief facts leading to the filing of the above appeal are that respondent No,1 the plaintiff filed aforesaid suit for the recovery of damages amounting to Rs,8,32,000 against respondents Nos.2,3,4 and the present appellant who was defendant No,4 in the suit on the basis of the averments that on 29-8-1983 at about 2 p.m. While he was coming back from the Institute of Swedish Technology, Landhi, Karachi, where he was a student, in a bus, bearing No, KTC 850-880 when another bus bearing No,801-115 belonging to respondent No,2 and driven by the driver, respondent No,3, which was carrying the employees of the P.I.A. As a private carrier, dashed against respondent No,1's above bus from behind while taking turn at the intersection of Shahrah-e-Faisal and Ordnance Depot Road, Karachi. It was also averred that respondent No,3/defendant No,2 was driving the aforesaid bus rashly and negligently in utter disregard of the traffic rules and regulations and dashed against the above aforesaid stationary bus in which respondent No,1/the plaintiff was sitting on the rear seat of the bus which resulted into causing several injuries to him namely, a cut on the throat causing permanent disability of speaking, dislocation of right hand and the fracture of the right leg. It was also averred that respondent No,1 remained as an indoor patient in the Jinnah Post Graduate Medical Centre for over two months and thereafter he continued to attend hospital as an outdoor patient. It was further averred that respondent No,1 had suffered physical and mental pain, agony, and shock and that on account of physical disability, he could not pursue his studies for the aforesaid Institute.
' Respondents Nos.2 and 3 who were defendants Nos.1 and 2 respectively in the suit remained ex parte, whereas respondent No,4, who was defendant No,3 and the appellant who was defendant No,4 contested the suit. The learned Single Judge on the basis of the pleadings of the parties framed the following issues:- "(1) Whether the suit is barred by time?
(2) Whether the alleged accident took place due to the negligence of defendant No,2?
(3) Whether the plaintiff sustained injuries as alleged?
(4) To what damages, if any, the plaintiff is entitled to and from which of the defendants?
(5) Whether, defendant No,3 is liable to indemnify defendant No,1? If so, to what extent?
(6) What should the decree be?
(7) General?"
' Respondent No,1 in support of the suit examined P.W.1 Dr. Imtiaz Gazder, who treated respondent No,1; P.W.2 Salma Begum, who was duty officer in the Police Station Shahrah-e-Faisal on 29-8-1983 near the place of the accident and himself. The appellant/defendant No,4 and respondent No,4/defendant No,3 did not examine any witness. The learned Single Judge after hearing the parties passed the decree in the above terms. The appellant being aggrieved by the above judgment/decree has filed the present appeal.
3. In support of the above appeal Mr. Sayeed A. Shaikh, learned counsel for the appellant, has urged as follows:--
(i) That on the basis of the averments contained in the plaint, no decree could have been passed against the appellant as it was not disclosed as to how they were vicariously liable for the driver respondent No,3/defendant No,2.
(ii) That a joint decree could not have been passed against the appellant and respondent No,2.
4. Mr. Riazul Hassan, learned counsel for the respondent No,4, supported the submissions of Mr. Sayeed A. Shaikh and has further submitted that in terms of the judgment/decree respondent No,4/ defendant No,3 has already paid a sum of Rs,20,000 to respondent No,1 and, therefore, they have discharged their liability.
' On the other hand Mr. Imdad Hussain Kazi, learned counsel or the respondent No,1, has submitted as under:--
(i) That since the appellant had employed respondent No,2/ defendant No,1 as the private carrier, they were liable jointly and severally.
(ii) That a joint decree could have been passed against the appellant and respondent No,2.
5. Before dilating upon the above contentions of the learned counsel for the parties, it may be observed that the learned Single judge has relied upon the following 4 cases in order to conclude that master is liable for the wrong act of his servant:-
(i) Bayby v. Manchester Sheffield and Rly Co. (1873) 8.C.P.148.
(ii) Goh Choom Seng v. Lee Kim Soo (1925) A.C.550. Mekean v. Rayuor Bros. Ltd. (1924) 2 All ER 650.
(iv) London County Council v. Cattermoles (1953) 2, All ER 582.
6. It will suffice to observe that there cannot be any cavil with he above proposition of law. However, the point in issue is as to whether the above principle of law can be pressed into service against he present appellant in relation to respondent No,3, the driver.
7. Adverting to the first submission of Mr. Sayeed A. Shaikh, that on the basis of the averments contained in the plaint, no decree could have been passed against the appellant as it was not disclosed as to how they were vicariously liable for the driver respondent No,3/defendant No,2, it may be observed that he has invited our attention to the contents of the plaint wherein no allegation against the appellant has been made as to the liability. In this regard, it may be pertinent to refer to paras. 1, 2, 4, 8 and 11 of the plaint of the suit which read as follows:-- "(1) That the plaintiff was a student of Institute of Swedish Technology, Landhi, Karachi, and was studying in first year class. On 29-8-1983 at about 2.00 p.m. He was travelling by bus No, KTC-850- 880 and was sitting on rear seat in the KTC bus when another bus No,801-115 private carrier of the PIA which was being driven by defendant No,2 and owned by defendant No,1 rammed into it from behind while taking a U-turn at the intersection Shahrah-e-Faisal and Ordnance Depot Road.
(2) That the defendant No,2, was driving the said vehicle rashly and negligently as fast and terrific speed in utter disregard of the traffic rules and regulations and the safety of the other persons. The vehicle was driven at such a fast speed that it could not be controlled by defendant No,2, therefore, defendant No,2 rammed his bus into stationary bus causing irreparable future loss to the plaintiff.
(4) That private carrier No,801-115 of the PIA was insured by the defendant No,3 i.e, Insurance Company.
(8) That the defendant No,1 being the registered owner of the vehicle is vicariously liable for the said rash and negligent act of defendant No,2 who was driving the vehicle of defendant No,1 at the relevant time, as agent or servant of defendant No,1.
(11) That the defendants Nos. 1 to 4 are jointly and severally liable to pay the plaintiff the aforesaid sum of Rs,8,32,000 (Rupees eight lac thirty two thousand only) being the damages and compensation for rash and negligent act and torturous act of Defendant No,2."
8. A perusal of the above quoted paras indicates that there is no averment as to the fact which could make the appellant/defendant No,4 liable for the rash and negligent act on the part of defendant No,2, who was the employee of defendant No,1 as averred in above quoted para. 8 of the plaint. The only factum which has been averred in the plaint is that the bus in question was used as a private carrier of the appellant which was insured by defendant No,3.
' Mr. Sayeed A. Shaikh in furtherance of his above submission has referred to the following passages from Salmond on Torts, Fifteenth Edition; at pages 608, 609 and 610, and pages 138, 139 and 140 of Clerk & Lindsell on the Law of Torts, Tenth Edition:- ' Salmond on Torts: Pp. 608 & 609
(3) Sometimes an injured person will be in the position of being able to allege that the defendant is liable to him on two distinct grounds - first, as, vicariously responsible for the tort of his servant; secondly, as personally responsible for a breach of some obligation laid directly on him. So it seems that a hospital authority is not only vicariously responsible for those in its service but also under a primary obligation to take reasonable care to provide proper treatment. But these duties are distinct in their nature and origin, and serious confusion may arise from a failure to keep them separate. So a plaintiff who pleads that the defendant is vicariously liable may not be permitted to amend his claim to one based on personal responsibility.
' In order that this doctrine may apply, there are two conditions which must co-exist:
(1) The-relationship of master and servant must exist between the defendant and the person committing the wrong complained of;
(2) The servant must in committing the wrong have been acting in the course of his employment.
' We shall consider each in turn. S.172. Who is a Servant? Agents and servants ' A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done. If we use the term agent to mean any person employed to do work for another, we may say that agents are of two kinds, distinguishable as servants and independent contractors. It is for the first kind of agent only that his employer is responsible under the rule which we are now considering. When the agent is an independent contractor, his employer is not in general, answerable for the torts either of the contractor himself or of his servants. But when the agent is a servant, his employer will answer for all torts committed in the course of the employment, whether or not the employer, has obtained any benefit thereby. P.
610. Servant distinguished from independent contractor.
' What, then, is the test of this distinction between a servant and an independent contractor? The test is the existence of a right of control over the agent in respect of the manner in which his work is to be done. A servant is an agent who works under the supervision and direction of his employer; an independent contractor is one who is his own master. A servant is a person engaged to obey his employer's orders from time to time; an independent contractor is a person engaged to do certain work, but to exercise his own discretion as to the mode and time of doing it-- he is bound by his contract, but not by his employer's orders. Thus, my chaufeur is my servant; and if by negligent driving he runs over someone in the street, I am responsible. But the cabman whom I engage for a particular journey is not my servant; he is not under my orders; he has made a contract with me, not that he will obey my directions, but that he will drive me to a certain place: if an accident happens by his negligence, he is responsible and not I. So I am responsible for the domestic servants in my house, but I am not responsible for a skilled man whom I engage to do a certain job in my house--for example, to paint it, or to mend a window. (Nor, as we shall see, am I responsible to him for the safety of my premises to the same degree as I am to a servant.)."
' Clerk & Lindesell on the Law of Torts: Pp. 138, 139 & 140.
' A principal who procures work to be done for him by an independent contractor, by an agent, that is to say, over whom he reserves no power of control, is in general and subject to exceptions to be presently noted, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work. And in this respect the servants of the contractor, whilst acting as such, stand in the same position as their master, so that the employer of the contractor is not liable for the torts committed by the contractor's servants. Thus, one who hires horses to be driven by the jobmaster's servant is not responsible for the negligence of the driver provided the negligence of the driver was not in consequence of the specific orders of the hirer The true test is whether the employer intended to have a power of controlling the servant supplied by the contractor, and of regulating the manner in which he did his work. If the employer not only determines what is to be done but retains the control of the actual performance, the doer of the work is his servant or agent, if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor. Thus, where a local authority contracted with A to supply a driver and horse to draw their watering cart, and A selected and paid the driver, and the driver was not under the control or direction of the local authority otherwise than that they directed him what streets to water, they were held not liable for injuries caused by the negligence of the driver whilst engaged in driving their cart."
' He has also referred to the case of Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Limited and another, reported in 1947 Appeal Cases, page 1, in which the facts were that a harbour authority had let out a mobile crane to a firm of stevedores for loading a ship, alongwith a craneman who was employed and paid and liable to be dismissed by it, though the general hiring conditions stipulated that craneman so provided should be the servant of the hirers. In the course of the operation of the aforesaid crane, the crane driver injured a third person by negligently driving the crane. The question in issue before the House of Lords and Privy Council was whether the Harbour authority or the stevedore was liable vicariously for the above negligence on the part of the crane driver. It was held that the Harbour authority, as general permanent employer, was liable. The following observations at pages 3,5,6,13 and 14 in the above reported case have direct bearing on the controversy in issue: - P.
3.
"The respondent company had the immediate direction and control of the operations to be executed by him with the crane, e.g., to pick up and move a piece of cargo from shed to ship, but had no power to direct how he should work the crane, the manipulation of the controls being a matter for him. Pp. 5 & 6.
' The operation is simply the operation of driving, whereas the use of a crane is in quite. a different category. The mere hire of a cab does not transfer the servant who drives it, since the owner always has an interest in what is done, inasmuch as it is his business always to have cabs on the streets with drivers and passengers. Here the unloading of the ship is only the particular master's concern. The test is: Who's work was the man doing? What job was he on and who had control of that job?
Pp. 13 & 14.
' Mr. Pritchard, in his admirable argument on behalf of the appellant board, sought to make out that the true view was that Newall was a participant with the stevedores' men in the common task or enterprise of loading the ship and that for this purpose he had become temporarily the servant of the stevedores and subject to their control. But I have already pointed out that Newall was never subjected to the orders and control of the stevedores in the only relevant matter of the driving of his crane, as to which the stevedores had neither expert knowledge nor responsibility. Reference was also made to Article 6 of the appellant board's regulations which states that drivers provided by the appellant board 'shall be the servants of the applicants' that is, of the parties to whom they are hired. But this does not mean that the appellant board's drivers cease to be the servants of the appellant board when they accompany cranes, which the appellant board lets out on hire.
Servants cannot be transferred from one service to another without their consent and even where consent may be implied there will always remain a question as to the extent and effect of the transfer. Here the driver became the servant of the stevedores only to the extent and effect of his taking directions from them as to the utilization of the crane in assisting their work, not as to how he should drive it."
9. We are inclined to hold that in view of the state of pleadings as reflected in the plaint of the instant suit wherein no averment has been made as to indicate that the driver of the bus had in fact become the servant of the appellant as to make them vicariously liable for his rash and negligent act nor there is anything in the depositions of respondent No,l's witnesses as to make the appellant liable for the aforesaid rash and negligent act of the driver of the bus. We are further inclined to hold that simpliciter the factum that the bus in question was used as a private carrier for the appellant would not render them vicariously liable unless under the terms of the hire agreement relationship between the appellant and the driver of the bus or that of a master and servant or of the principal and agent was created, whereunder the appellant should have acquired the right not only to determine what was to be done by the driver but also the control over the manner of actual performance of the work by the driver. In the absence of any contrary material on record the status of respondent No,2 i.e, the bus owner was apparently of an independent contractor. The view which, we are inclined to take is in line with the ratio decidendi of the above cited House of Lords/Privy Council case and the passages from the above referred to two renowned treatises on the law of tort.
10. As regards the second submission of Mr. Sayeed A. Shaikh that a joint decree could not have been passed against the appellant and respondent No,2, it may be observed that in support of the above submission, he has referred to the following observation at page 141 from the aforesaid book namely; Clerk & Lindsell on the Law of Torts, Tenth Edition:-- "If the employer is, liable the contractor is not, and vice versa, for a man cannot at one and the same time serve two masters. He is the servant of one or the other, but not the servant of one and the other; the law does not recognise a several liability in two principals who are unconnected."
11; The above quoted observation from the above book supports Mr. Sayeed A. Shaikh's above contention.
In the instant case if the driver is held to have remained the servant of the owner of the bus, he could not have been also the servant of the appellant and, therefore, only the owner of the bus could have been vicariously liable to a third person for the negligent act of the servant and not the appellant or both jointly.
12. We are, therefore, inclined to allow the appeal to the extent that the judgment and decree against the appellant is set aside but the same is maintained against the remaining defendants in terms of the judgment. However, there will be no order as to costs.
' These are the reasons in pursuance of short order of even date.