P L D 1964 Dacca 410 (PLP)

HASAN, J.‑Defendant No. 2 Sufia Khatun hire‑purchased a motor bus No. E B L 162 from defendant No. 1 Abdur Rahman, son of Md. Taru, got it registered in her name, took licence and Insurance policy in her name and thereafter used the car to carry passengers from one place to another having defendant No. 4 as its driver. On 7th of February 1953, the driver in order to cross a river drove the bus with all its passengers straight from the bank down to slope on to the ferry‑boat. The bus went over the stop‑logs, dashed against the stop‑gate, torn the chain of the stop‑gate apart and jumped into the river with all its passengers in consequence of which one Golam Kader and 5 others were drowned. On 16th of September 1955, the widow and minor children of the said Golam Kader instituted a suit out of which the present appeal has arisen for damages to the tune of Rs. 16,666 against defendant No. 1 Abdur Rahman the owner, defendant No. 2 Sufia Khatun the hire‑purchaser, defendant No. 3 Pak Insurance Company Ltd., and defendant No. 4 Abdur Rahman alias Lal Mia the driver of the bus.

2. The defendants Nos. 1, 2 and 3 contested the suit. The defence of the defendant No. 1 was that though he was the original owner of the bus, he sold his right, title and interest of the bus to defendant No. 2 on hire‑purchase agreement and as such he was not liable for any damages. The defence of defendant No. 2 was that under the hire‑purchase agreement she became the full and absolute owner of the bus before the accident took place, that defendant No. 4 ‑did not cause the death of Golam Kader by wrongful act, negligence or default, that it was purely an accident beyond the control of the driver and that the Insurance Company, namely the defendant No. 3 was liable to indemnify her in the event of accident caused or arising out of the use of the motor vehicle. The defendants Nos. 1 and 2 also contended that the accident was an act of God and as such they were not liable for damages. The defence of defendant No. 3 was that it was not liable for any damages under the policy in question.

3. The learned Additional Subordinate Judge Mr. A. B. Khan after rejecting the plea of limitation, defect of parties and want of jurisdiction raised by the defendants decreed the suit in part Rs. 16,666 being decreed against defendant No. 3, the Insurance Company Ltd. and Rs. 8,000 being decreed against the other defendants. As against the aforesaid decree the defendant No. 1 has preferred the present appeal before us.

4. Mr. Pal, the learned Advocate for the appellant, has contended that in the facts and circumstances of the case the appellant cannot be made liable for the accident either in law or on facts. About the facts, Mr. Pal has argued that defendant No. 2 was in actual and absolute possession and management of the bus, that she engaged defendant No. 4 as a driver over whom she alone had absolute control, that she took Insurance policy and permit, and as such defendant No. 1 having no connection whatso ever or any control cannot be held liable. We are to see whether the contention is a sound one.

5. In law the master is liable for the negligent act of his driver if it is done in pursuance of his employment, namely, when `he has delegated to the driver the execution of a purpose of his own over which he retains some control and not where the driver is a mere bailee engaged exclusively upon his own purpose'. Similarly, the person who takes a vehicle on hire is liable for the negligent actions of the driver only in so far as he can control the actions of the driver, and not the person who let out the vehicle on hire. In this connection reference may be made to Articles 71 and 72 of the Halsbury's Laws of England, 'Third Edition, Volume

28. Charles Worth on Negligence, Third Edition, and the case of Smith and Wife v. Bailey and another ((1891) Q B D 403).

6. Having in view the above principle of law we are to see whether defendant No. 1 can be held liable for the negligence of the driver. In my considered opinion, he cannot be held liable for the reasons below. (a) defendant No. 2 took the bus on hire‑purchase agree ment, got it registered and insured in her name, (b) she used to ply the vehicle with the help of the driver (defendant No. 4) over whom defendant No. 1 had no control and connection whatsoever, (c) she was in exclusive possession of the bus after hire- purchase, and defendant No. 1 had no business in connection with the bus since the agreement, and (d) the accident happened in the facts and circumstances stated above. It has been argued by the learned Advocate for the plaintiff -respondents that under the Fatal Accidents Act the owner is responsible for such negligence and for this proposition of law he has relied on the case of Manmatha Nath Kari v. Md. Mokhlesur Rahman and another (P L D 1963 Dacca 290). It may be pointed out here that this case is clearly distinguishable and it has no bearing at all upon the facts and circumstances of the present case before us. In support of his contention the learned Advocate has further argued that defendant No. 1 having not parted with his full title to defendant No. 2 he was the actual owner on the date of the occur rence and as such he is liable.

7. It is true that defendant No. 1 was the owner of the vehicle on papers alone but in fact he had n6 control over the driver, no connection with the running of the bus as possession of the bus was with defendant No.2 controlled by the defendant No. 2 and driven by defendant No. 4, which are some of the necessary ingredients constituting control required for holding a person liable for the acts of his servant and as such in my opinion this being absent the defendant No. 1 cannot be held liable.

8. I accordingly allow the appeal, modify the decree passed by the learned Subordinate Judge, setting aside the judgment and decree passed against the defendant No. 1 alone and dismissing the suit as against him, but in the facts and circumstances of the case I direct the parties to bear their respective costs. SIKANDAR ALI, J.‑I agree that the appeal must succeed, but as the questions raised are somewhat interesting I would like to express my views thereon.

10. The only point canvassed in this appeal is whether the appellant, that is defendant No. 2, in the suit, is legally liable in compensation on account of an accident occurring after he had, pursuant to an agreement of sale under the hire‑purchase system, transferred the possession of the public service vehicle, to wit a passenger‑carrying service bus, involved in the accident, to the defendant‑respondent No. 1 and when on that basis the latter, having got her name entered in the relevant register and other documents in accordance with the rules, was plying the vehicle independently on her own with her staff.

11. The tragic facts leading up to this litigation have been set out in the judgment delivered by my learned brother and it is, therefore, not necessary for me to recapitulate the same over again to preface the few words I propose to add for the purpose of expressing my views on some aspects of the matter.

12. The suit, out of which this appeal has arisen, has been instituted under the Fatal Accidents Act (Act XIII of 1855) which provides for compensation to families for loss incurred by the death of a person caused by an actionable wrong. The relevant provision as embodied in the first part of section 1 of this Act runs as follows: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime."

13. There is no dispute, as there cannot be any, that where the injury resulting from a motor accident is actionable but not fatal, the person injured would be entitled to recover damages from the owner of the vehicle, amongst others. Under the provision cited above, therefore, the specified representatives of the deceased in the present instance are entitled to maintain an action against, and recover damages from, the owner of the vehicle involved for the injury causing the death of the victim. This, too, is not in dispute but the controversy raised is whether in the facts and circumstances of the case, briefly indicated at the very outset, defendants Nos. 1 and 2 can be regarded as joint owners, as has been done by the learned trial Court, or it is defendant No. 2 who is to be treated under the law as the sole owner, for the purpose under consideration. The term "owner" in its ordinary connotation is too familiar to require a codified definition and has not in fact been defined in the Motor Vehicles Act. That Act for its purposes, however, has excluded owners in the legal or popular sense and substituted therefore those, who could not otherwise be treated as owners, in two cases, i.e., (1) where the owner is a minor and (2) where the vehicle is the subject‑matter of a hire‑purchase agreement. It has thus been provided in section 2, clause (19) :‑

`owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire‑purchase agreement, the person in possession of the vehicle under that agreement; . . . ."

14. It is important to bear in mind that this definition had not been there in the original Act and was introduced when the Act was later redrafted and passed as Act IV of 1939 in order to meet the anomalies brought out in two judicial decisions. One of these was the case of Goolbai Motabhai Shrof and others v. Postonji Cowasji Phandari (A I R 1935 Bom. 333), wherein it was held that a mortgagee in possession of a motor car and recorded as such in the Police records was not the owner of the car and could not, therefore, be made liable in damages on account of an accident. In the other, namely, The King v. Ba Ba Sein (A I R 1938 Rang. 400), the owner of a motor bus, being a minor, was prosecuted for plying the said vehicle for hire without registration. It was, however, held that although the owner, he was not liable as he was a minor under 7 years of age. Obviously the new definition quoted above aimed at saddling these two categories of person to the exclusion of the real or legal owners with the liabilities of ownership and that appears to be based on the principle that responsibility or liability for a wrongful act committed in consequence of rashness or negligence 9n driving a motor vehicle must rest fairly and squarely on the person in actual management and control thereof with the approval of the prescribed authority and not with one who has no hand or voice in the management and control, that is, has lawfully divested himself of such power in favour of the former, even though in the eye of law the ownership of the vehicle may continue to remain with him. As has been observed in Donovan v. Laing Wharton and Down Construction Syndicate, Limited ((1893) Q B 629). "We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act." Similarly in Bain v. Central Vermont Railway Company (1921 2 A C 412), it has been observed :‑ "Payment is not everything ; it is 'a circumstance pointing to who is the employer, but the real test is control, . . . ."

15. Another authority on the point is Smith and Wife v. Bailey and another ((1891) 2 Q B 403). That was a case in which the defendant, who was the owner of a traction engine, to which his name and address were affixed, as required by the Locomotives Act, 1865, section 7, let the same for three months. Through the negligent management of the engine whilst it was being used upon a high way by the hirer, personal injuries were occasioned to the plaintiff, who was being driven in a carriage upon the highway. Therein the Court disapproved of the contrary view taken in an earlier case and held that the defendant was not liable.

16. Finally in Mersev Docka and Harbour Board v. Coggina and Griffitha, Ltd. (1947 A C 1) the House of Lords has re‑established this test of control in the sense "that the right of control means the right to control the way in which the act involving negligence was done."

17. In any event, the view taken above as to the impli cation of the aforecited definition appears to me to be made unambiguously clear by the use therein of the word `means' which, to my mind, has the effect of excluding in either of the given contingencies the real owner, i.e., the owner in the ordinary or popular sense of that term or for the matter of that every one other than those specified therein. Had it note been so and if the intention were to bring in for the purpose of liabilities under the Act the guardian of the minor or the person in whose favour the agreement of hire‑purchase stands, as the case may be, in addition to the legal or real owner, the Legislature could have easily used the word `includes' instead of the word `means'. It is hardly necessary to point out that except in the two specified cases, already referred to above, the word `owner' occurring in the various sections of the Act must be construed in the sense in which it is ordinarily understood.

18. Turning now to the present case before us, it appears that the view taken by the learned Subordinate Judge is that unless and until a hire‑purchase agreement has perfected itself into complete conveyance transferring absolute ownership, both the owners and the party in whose favour that agreement stands shall be answerable in damages for an actionable wrong connected with the vehicle forming the subject‑matter of the said agreement. This, as I have tried to make clear above, is wholly unwarranted. The learned Subordinate Judge has not found nor is there anything whatsoever to warrant a finding that defendant No. 2 is a benamdar of defendant No.

1. That does not appear to have been the case of anybody either. On the other hand, the conten ding parties appear to have actually proceeded on the footing that the transaction in question between defendants Nos. 1 and 2 is bona fide and genuine. Hence in view of the reasons indicated above defendant No. 1 cannot be made answerable in damages on account of the accident upon which the suit is founded. S. Q. Appeal allowed.