Unni Krishna Kurup, J.:— These appeals arise from a suit filed by the first respondent for damages for injuies sustained by her in a bus accident. The appellant in A.S No. 300 of 1969 is the 1st defendant in the suit to whom the bus involved in the accident, belonged. The appellant in A.S No. 393 of 1969 is the 3rd defendant in the suit, who was the driver of the bus and an employee of the 1st defendant. The plaintiff—1st respondent has filed a memorandum of cross-objections claiming an enhancement of the damages and also praying for interest on the amount decreed from the date of the plaint.

2. We may first deal with A.S No. 300 of 1969. The facts may be briefly stated now. The 1st respondent-plaintiff was a passenger in a transport bus K.L.R 3855 on 17-12-1960, the permit of which stood in the name of the 2nd defendant. The 1st defendant was, however, the real owner of the said bus and he was conducting the bus service. The 3rd defendant, who was the driver of the bus, permitted his brother, who, according to the plaintiff, had no licence and was an inexperienced driver, to drive the bus. The bus was driven in a rash and negligent manner and, as a result of the careless and dangerous driving, swerved off from the road and dashed against a coconut tree with great force which caused the top of the tree to be broken. The 1st respondent, who was travelling in the has, had her arm fractured and also sustained other injuries as a result of the accident, and her case is that the accident was directly the result of the negligent and the dangerous driving of the bus by the 3rd defendant's brother who was unauthorisedly permitted by the 3rd defendant to drive the bus. The plea of defendants 1 and 3 was that the accident took place because a child crossed the road immediately in front of the bus and the driver, in an attempt to save the child, swerved the bus and the accident was the result of the attempt. It was also con-tended by them that the 3rd defendant himself was driving the bus, that it was proceeding only at a very low speed of 10 to 16 miles and that the accident was not caused by reason of any rash or negligent driving. The trial court found that the bus was being driven by the 3rd defendant's brother, that it was proceeding at a high speed and that the accident occurred because the driver was unable to control the vehicle. The plea of the contesting defendants that the accident was caused by reason of a child suddenly crossing the road was disbelieved by the trial court and it was also held that there was no mechanical defect so far as the bus was concerned which could have caused such an accident. The lower court was of the view that the plaintiff was entitled to Rs. 5000/- by way of general damages and Rs. 500/- for medical expenses incurred by her. Special damages to the extent of Rs. 105.15 was also allowed in favour of the plaintiff who was a teacher for the loss sustained by her by reason of her being compelled to take leave on loss of pay during the course of the medical treatment. In the result the 1st respondent was given a decree for Rs. 5605.15 against defendants 1 and 3 with future interest at 6% and costs. On behalf of the appellant (1st defendant) it was urged that the lower court had found that the 3rd defendant had unauthorisedly permitted his brother to drive the bus, that the appellant was therefore not liable for damages as the accident had been occasioned not by his employee but by stranger and that the lower court was therefore in error in granting a decree against the appellant. In support of this contention, certain passages from Winfield on Tort and the observations in Twine v. Beans Express Limited1 were relied on. We will presently refer to these observations after discussing the general law on the subject.

3. The principle of law which applies to cases of this type has been clearly enunciated in Salmond on the Law of Torts, 13th Page: 541Edn. at page 122. It is extracted below:

“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master……In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. If a servant does negligently that which he was authorised to do carefully, or if he does fraudulently that which he was authorised to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud or mistake. ‘In all those cases’, said Willes, J. delivering the Judgment of the Court of Exchequer Chamber in Barwick v. English Joint Stock Bank (1867) 2 Ex. 259, it may be said that the master has not authorised the act. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in…. There are however, cases in which it has been held that a servant who is authorised to drive a motor vehicle and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive is a mode, albeit an improper one of doing the authorised work. The master may even be responsible if the servant impliedly and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it.”

4. We may refer to a few English decisions on the subject. The leading case appears to be that of Ricketts v. The Thomai Tilling Ltd. (1915) 1 K.B 644. There, the driver of an omnibus gave permission to the conductor to drive the bus and when the bus was thus being driven by the conductor, it met with an accident and the question arose whether the master of the driver would be liable for damages. The contention raised was that the master had never authorised the driver to permit any other person to drive the bus and his action in allowing conductor to drive the bus was unauthorised. Nevertheless, it was held that the master of the driver was liable for damages as the driver's act in authorising the conductor to drive the bus was a negligent mode of the performance of the duty of the driver. The master would be liable for the tortious act of his servant if it is shown that the said act is the result of the negligence of the servant acting within-the scope of his employment. In Marsh v. Moorse (1949) 2 K.B 208 the driver permitted another person to have a driving lesson from him in the car and the car met with an accident when it was being driven by the unauthorised person. It was held that the master of the driver was liable for damages on the ground that although he had not been authorised to permit driving lessons to be given in the car, the master is liable, even for acts which he has not authorised, if the unauthorised acts are so connected with the authorised acts and that they may rightly be regarded as modes, although improper modes of doing them. That decision also laid down the principle that if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible, for, in such a case the servant is not acting in the course of his employment, but has gone outside it. There is also the decision in Beard v. London General Omnibus Co., (1900) 2 Q.B 530 where also it was held that the Master would be liable for the tortious act of his servant even if it was shown that the said act was the result of the negligence of the servant provided that the Page: 542servant was acting within the scope of his employment.

5. The above principles have been uniformly followed by the High Court in India also. The Madras High Court in R.U.M Service Ltd. Rastpuram v. Ramaswamy A.I.R 1956 Mad. 641 affirmed the principle that the master was responsible for the negligent act of the driver in permitting another person to drive a bus. In that case, a passenger, travelling in a bus, claimed damages for injuries sustained by him in an accident which was occasioned by the driver permitting the conductor to drive the bus. The driver was seated by the side of the conductor when the accident occurred and it was proved that the accident was due to the negligence on the part of the conductor who was actually driving the bus. The court held that the master could not escape the liability since the accident was due to the negligence of the driver in permitting the conductor to drive the bus. The Assam High court had occasion to consider a similar question in Sardar Nand Singh v. Abhyabala Devi A.I.R 1955 Assam 157. There, the master was held liable for the wrongful act and negligence of his servant where the accident happened during the course of the master's employment and in furtherance of his interest even though the servant had been prohibited from the act. The facts of that case were that the driver of the car permitted a person who had no driving licence to drive the vehicle and he was so negligent as not even to sit by the side of the novice. The Court held that the negligence act of the driver having been committed in the course of the employment, his master was liable for injuries sustained by an innocent person.

6. Lastly, we may also refer to the decision of Madhavan Nair, J. reported in Gopala-krishnan Embrandiri v. Krishnankutty A.I.R 1967 Kerala 19. In that case a mechanic employed to repair the motor vehicle, took it out for a trial drive in order to see whether the vehicle had been properly repaired and in the course of his driving the vehicle an accident occurred. It was held that even though the mechanic had not been authorised to drive the vehicle on a public road and even if he had been expressly forbidden from doing so, his action in driving the bus amounted to doing an authorised job in an unauthorised way and therefore what he had done was within the scope of his employment and his master was liable in damages for the accident.

7. As against this formidable array of cases, the learned counsel for the appellant sought to rely on a stray observation in Winfield on Tort (Eighth Edition) at P. 642. The passage relied on runs as follows:

“On the other hand in Twine v. Bean's Express Ltd.4 the employers had expressly forbidden the driver of one of their vans to give a lift to any unauthorised person and affixed a notice to this effect on the dashboard of the van. Nevertheless the driver gave a lift to a person who knew of the breach of instructions and was killed owing to the driver's negligence. The Court of Appeal held that he was not acting within the scope of his employment, and his employers consequently were not liable giving a lift to an unauthorised person was not merely a wrongful mode of performing the act of the class this driver was employed to perform but was the performance of an act of a class which he was not employed to perform at all. Conway v. George Wimpey & Co., Ltd. (1956) 2 K.B 266

8. The principle governing the cases of express prohibition by the master and its effect has been stated in Salmond on the Law of Torts, 13th Edn. pp. 126-27 thus:—

“Even express prohibition of the wrongful act is no defence to the master, if that act was merely a mode of doing what the servant was employed to do. Thus in Limpus v. London General Omnibus Co. (1862) 1 H.&C. 526 Page: 543the defendant company was held liable for an accident caused by the act of one of its drivers in driving across the road so as to obstruct a rival omnibus. It was held to be no defence that the company had issued specific instructions to its drivers not to race with or obstruct other vehicles:—

The driver whose conduct was in question was engaged to drive and the act which did the mischief was a negligent mode of driving for which his employers must answer, irrespective of any authority or of any prohibition.”

9. Twine v. Bean's Express Ltd. is a case where the employee acted outside the scope of his employment and it was for this reason that it was held that the employer was not liable. So far as the present case is concerned, the driver was acting within the scope of his employment when he was driving the bus along the route which he was scheduled to operate. It was during this course of employment that he performed the act in a negligent way, that is by allowing his brother to drive the bus and he is therefore clearly liable for the accident and the principle in Twine v. Bean's Express Ltd. will not apply. From the above discussion it will be clear that the act of the driver in entrusting his brother with the task of driving the vehicle was an improper mode of performance of his own duty as a driver and he was thus acting within the scope of his employment though an unauthorised mode.

10. So far as the findings of fact are concerned, there has not been any serious challenge. The learned Subordinate Judge has disbelieved the evidence tendered on the side of the defendants and has given clear and cogent reasons for doing so. There is ample evidence on the side of the plaintiff to prove that the bus was being driven by the 3rd defendant's brother at a very high speed and in a careless and rash manner. The accident was the result of the negligent driving of the bus by the unauthorised person and there is every reason to think that the explanation offered, namely, that a child suddenly crossed the road and it was in an attempt to save the child that the accident occurred, cannot be true. If the bus was being driven at a low speed of 10 to 15 miles, as spoken to by the witnesses for the defendants, it would have been easily possible to avert such an accident and, as observed by the learned Subordinate Judge, the great force with which the bus dashed against the coconut tree, as was illustrated by the fact that the top of the tree was severed, is a clear proof that the bus was being driven at a dangerous speed. We have no hesitation to accept the finding of the lower court that the accident happened due to the rash and negligent driving of the bus. It follows that the decision of the court below in making the 1st defendant liable for damages is correct and has to be upheld.

11. The contention of the appellant in A.S No. 393 of 1969 is that he should not be held liable for the accident since, on the lower court's finding, the bus was being driven by another person at the time of the accident. As has been already indicated, the accident happened because of the negligence of the appellant and he cannot therefore be absolved from liability. In the decision in A.I.R 1956 Mad. 641, referred to earlier by us, such a specific plea was taken by the driver and it was held that since the accident happened due to the negligence of the driver in permitting another person to drive the bus, the driver cannot escape liability and he cannot be heard to say that he was not responsible for the accident. There is therefore no substance in the contention of the appellant in A.S No. 393 of 1969.

12. In the memorandum of cross-objections filed by the 1st respondent, two points have been taken. The first is that the amount of damages allowed by the court below is inadequate. We are not impressed with this contention. The lower court has taken note of all the relevant factors and, on a careful consideration of the entire circumstances, come to the conclusion that the proper damages to be awarded to the plaintiff by way of general damages is Rs. 5000/-. We see no reason to hold that the general damages awarded Page: 544is inadequate. The second point taken is that the lower court was wrong in not allowing interest from the date of the plaint. This contention, we find, is valid. The plaintiff is entitled to interest at 6% from the date of the plaint and no circumstances have been brought to our notice disentitling the plaintiff to interest. We hold that the claim made in the memo of cross-objections has to be upheld regarding interest at 6% from the date of the plaint till realisation.

13. In the result, A.S Nos. 300 and 393 of 1969 are dismissed. We partially allow the memo of cross-objections and modify the decree of the court below by awarding interest at 6% on the damages decreed from the date of the plaint till realisation. In the circumstances of the case, we direct the parties to suffer their costs.