‘Vicarious liability’ can’t be applied selectively


By Sandeep Sahu

It is hard to fault the All Odisha Bus Owners’ Association for threatening to go on a token 24-hour strike on September 29 and follow it up with an indefinite strike from October 7 if Rishav Tripathy, the arrested owner of the ill-fated Maharaja bus that skidded off a bridge near Athmallick on September 9 killing 19, is not released by then.
Soon after meeting Transport minister Ramesh Majhi and handing over a memorandum threatening to take buses off the roads on Monday, Debendra Sahu, secretary of the Association, raised a perfectly valid point. “If a government-run bus meets with an accident, will the police arrest the chairman cum managing director (CMD) of Odisha State Road Transport Corporation (OSRTC)?” he asked. Realising that his department was on a sticky wicket, the minister was quick to lob the ball on to the Home department’s court making it clear that Tripathy had not been arrested under the Motor Vehicles Act.
Assuming that the Association’s claim that everything in the case of the bus – license, road permit, fitness certificate, insurance, pollution certificate etc – were in order, there appears to be precious little rationale for Tripathy’s arrest. After all, how can the owner be held responsible if the driver of his bus flouts elementary safety precautions like driving safe and not using a mobile phone while driving? Especially since the driver of the bus, the obvious culprit in this case, has already been arrested.
The arrest of Tripathy is a classic case of what is known as ‘knee-jerk’ reaction. Lackadaisical at the best of times, our law enforcement agencies have this inexplicable tendency to move from one extreme to another when something like this happens. Had the rule banning use of a mobile phone while driving been enforced strictly, this particular accident would perhaps have never happened in the first place. Thus, in arresting the bus owner, the authorities were essentially trying to cover up their own failures. Mindful of the public outrage over the incident, the authorities were obviously keen to be seen as taking the ‘stringent action’ that they had promised in the wake of the accident.
Tripathy was presumably arrested on the principle of ‘vicarious liability’, defined as the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control”. But this principle cannot be applied selectively. If it has to be applied, it must be applied uniformly and in all such cases. Thus, if school children die or are seriously injured due to a wall collapse in the school premises – as it happened in Satyabadi recently – the concerned inspector of schools or may be even the School & Mass Education secretary should be arrested. If a patient gets killed or is injured when a part of the roof caves in or a ceiling fan falls on him, the concerned CDMO/the secretary of the Health department must be arrested.
Tripathy, in all probability, would secure a bail soon and the proposed bus strike may never really materialise. It is entirely possible that the government may decide that the ‘purpose’ had already been served (sending out a message that it had taken ‘stringent action’) and not contest his bail plea with the required vigorousness. But the lesson that the government must learn from this episode is that its action must be backed by reason and rationale and not be guided by whimsy or caprice.