VICARIOUS LIABILITY IN NEPAL (Special Reference to the Vehicle and Transportation Management Act 2020 B.S.)
Introduction
Liability in its general sense represents the state
of a person who has violated the right or acted contrary to duty. The liability
of a person consists in those things which s/he must suffer. It is the
ultimatum of law and has its source in the will of the state. A person has a
choice in fulfilling duties and the liability arises independently of his/her choice. Liability arises from a wrong
or breach of a duty.[1] To
quote Salmond, “ Liability is the bound necessity that exist wrong doer and the
remedy of the wrong.”[2]
Similarly, Markby states that “ Liability is used to
describe the condition of a person who has a duty to perform.
What is Vicarious Liability?
Vicarious liability is the liability for the wrongful acts done by other.[3] The
normal rule is undoubtedly to the effect that a person should be punished only
for his/her misdeeds and not for that of others. In this the master is
vicariously liable for the act or omission of his/her servants of the nature
specified. However, the concept of the master and servant isn’t proper to use,
so the words ‘employer’ and ‘employee’ might be suitable. In the vicarious
liability, the employer is responsible for a public nuisance[4]
committed by his/her employee which causes damages.
Legal
relationships that can lead to imputed negligence include the relationship
between parent and child, Husband and
Wife, owner of a vehicle and driver, and employer and employee.
Ordinarily the independent negligence of one person is not imputable to another
person.
The doctrine of respondeat superior (Latin for
"let the master answer") makes the employer responsible for a lack of
care on the part of an employee in relation to those to whom the employer owes
a duty of care. The employer is charged with legal responsibility for the negligence
of the employee because the employee is held to be an agent of the employer. If
a negligent act is committed by an employee acting within the general scope of
her/his employment, the employer will be held liable for damages. For example,
if the driver of a public bus strikes another car, causing injury, the real
owner of the bus will be responsible for the damages if the driver is found to
be negligent. Because owner of the bus automatically be found liable if the
driver is negligent, respondeat superior is a form of Strict
Liability.
Vicarious Liability in criminal cases:
The principle of vicarious liability is more known
to the civil cases specially in the cases relating to the master and servant
and the representation of a dead person in certain cases by the successors.
However, there are certain exceptions under which this doctrine keeps value in
criminal cases too. The maxim qui facit per alieum facit per i.e. he
who does an act through another is deemed in law to do it himself makes sense.
But what should be kept in mind is that the employee is liable only for those
criminal acts done by the employee if s/he had ordered to do that.[5] This
has been practised from time immemorial.[6] The
common law of Britain doesn’t believe in vicarious liability in criminal cases
except in some exceptions. Same is the case with the Common Law of Nepal, it is
also found to be included, especially in the Vehicle and Transportation Management Act 2049 B.S.
The History of Motor Law in Nepal:
The motoring law of Nepal is not so old. Before 2020, due to less number
of vehicles, people used to use animals for transportation, so if a person died
during accidents, the accused was prosecuted under the section of Murder. In
2020 ;jf/L P]g @)@) was formulated. After
that /fli6«o oftfoft P]g @)@^ was practised. It
functioned for about 23 years and the Vehicle
and Transportation Management Act 2049 B.S came into forefront canceling
the former act. This act was first time amended in 2050/05/09.
The Vicarious Liability of Employer in
Vehicle and Transportation Management Act 1992
The concept of vicarious liability has been
clearly mentioned in the Vehicle and Transportation Management Act
2049. Under the Chapter 10 regarding the punishment in the act, it is
mentioned in what cases the owner of a vehicle is liable for the criminal
offences done by his/her driver.
The clause
161 along with the sub-clauses 1,2,3,4 states that the owner of the vehicle
other than the driver is not liable for any of the punishment if the driver
intentionally or unintentionally kills the person by the vehicle. But the
sub-clause 5 of the same Clause states that if the owner of the vehicle permitted
the driver to drive the vehicle without a license and if the vehicle kills any
person, the owner is imprisoned for two years.
Clause 162
explains that if the owner of the vehicle permitted the driver to drive the
vehicle without a license and if the person gets injured by the vehicle, the
owner should pay Rs.2000.
The clause
163(1) states that there are mentioned in what degrees the owner of the vehicle
is responsible for the damages caused due his/her vehicle to compensate the
victim party:
- In the case of death, Rs. 10000 for the funeral rituals and the insurance amount of the third party if s/he has no insurance.
- In the case of injury, if any
of the organs doesn’t function, then the insurance amount of that organ
should be paid and if the damaged part started working then Rs.5000 should
be given for the treatment.
The sub-clause 2 states that the CDO can take
action of the vehicle owner pay the amount as per sub-clause 1.
The
sub-clause 3 states that if a person gets injured apart from the defined situations,
the CDO can immediately charge Rs.2000 from the vehicle owner and deduct the
treatment cost if the insurance amount exceeds the treatment cost.[7]
The
sub-clause 4 states that the driver is liable to pay only 5% of the total
compensation.
The sub-clause 5 of same clause states that if
the driver is unable to pay the charge, the amount should be paid from the
charge that is fined from him/her.
The
clause 166 of the same act states that the owner of a public vehicle is liable
for paying every charges for the criminal offence done by the driver but
unintentionally. The 176(a) states that the government would be the plaintiff.
Conclusion
The vicarious liability in criminal case has found to
have violated the Anglo-American premise of criminal justice that crime
requires personal fault of the accused.[8] Though
there are exceptional cases, but the punishment should not be more than
charging fine. But in the case of the act as mentioned here, the owner is
imprisoned for two years (161(5)). This is unjust to make the owner of the
vehicle automatically liable for ht ecrimianal acts committed by driver. The
law is still unclear to interpret this fact. The owner mightn’t have any wrong
intention, but the prevailing law has reflected that in each and every criminal
acts done by the driver, the owner has the involvement. The accident might have
happened due to the carelessness or wrong intention of the driver, sometimes
there might arose some disturbance in the functioning of the parts of the
vehicle. The state hasn’t tried to become serious matter and the vehicle owners
are suffering day by day. If someone dies as hit by the vehicle driven by the
driver, nobody speaks and stops the persons who burn the vehicle down and the
owner still has to pay the amount declared by the negotiation. This violates
the notion of rule of law in a democratic.
Vicarious liability is also necessary in the case of criminal law
especially in the field of vehicle management of the state. This makes the
employer more careful in the selection and supervision of their employees. It might be a tedious job
to identify the criminals in these cases as there are more chances of happening
these types of crimes. If the problem is one of the difficulty in proving the
actual fault by the person being held vicariously liable, then any assessment
of the vicarious liability solution must take into account alternative means of
dealing with that problem. But vicarious liability shouldn’t be unlimited. A
vicarious liability might allow a defendant to avoid conviction by proving that
he/she exercised due diligence to prevent the crime. So proper and equitable
interpretation and strict implementation is necessary regarding such liability .
[3] Nomita Aggrawal,
Jurisprudence and Legal Theory, Eastern Books Publication: p 269
[5] Surendra Bhandari, Criminal
Law, Pairabi Prakashan: p 87. (R.V. Huggins ()1730 32D,Rayon,1574 92 E.R 518)
has explained that the owner is not liable for each and every acts done by
his/her employee. This is the firstly propounded principle regarding the
vicarious liability in criminal cases.
[6] The examples can be taken
from the Code Of Hammurabi where a house maker was executed for making a weaker
house which killed the son of the house owner. Similarly, Stalin in Siberia had
banished the family of those persons who had left Russia willingly or
unwillingly at that time. Nevertheless, still in some villages of Kenya and
Malaya, the state punishes the whole villagers for not giving the information
regarding the crimes.( Source: Ranjit Bhakta Pradhananga, Megh Raj Pokhrel,
General Introduction to Criminal Law, Ratna Pustak Bhandar, Bhotahiti, Ktm:
p79)
[7] ;jf/L tyf
oftfoft Joj:yf lgodfjnL @)%$ has stated in Clause 52 that the owner of a
public vehicle should maintain the insurance of each person at the time of
using his/her vehicle. The Clause 150 of the same act states that at least Rs.
50,000 should be kept as insured amount for the injured as well as the dead
persons due to that vehicle.
Comments
Post a Comment