P L D 1956 Dacca 196 (PLP)

AKBAR, J.‑This is an appeal by the defendants Com panies in a suit for damages. The main question in this appeal is: Who is to blame for a collision which took place between a flotilla and a boat on the tek of Atharabeki river. The facts are as follows : A steamer named "Chunar" with the flats "Radhanpur" and "Raipur" hereinafter referred to as "flotilla" was proceeding from north to south on the Atharabeki river. A boat was coming from the opposite direction: The collision took place at about 8 or 8.30 a.m. on the 4th October 1945, on a bend known as "Pagler‑Tek". The morning was fine and clear. The tide was ebb. Accord ing to the plaintiff, that is, the owner of the boat, on 4th October 1945, the boat was being towed by "Goan" from south to north and when the boatmen sighted the flotilla, they stopped and tied the boat on the northern bank of the tek. The flotilla, which was coming from the north while turning the bend ran aground. The Serang in order to extricate the steamer put her astern and when she reversed, she dashed against the boat. The plaintiff therefore, asserts that the collision was due to the negligence of the Serang of the "Chunar" and hence he claims Rs. 12,500 as damages, The defendants Companies have denied the above allegation of the plaintiff and have stated their case in the written statement as follows : The real fact is that the Master of "Chunar" while coming down ,with the flotilla, sighted the boat as soon as he came at the head of the bend known as Paglar Tek and gave repeated short blast of whistle as warning to the boatmen and also shouted to them to refrain from towing the boat and to take the boat from the farway to the bank, but no heed was paid to it whereupon the Master stopped the engine and put it astern but on account of strong current the stern of flat "Raipur" dashed against the "Chapper" (hood of the boat) whereby the right side of the boat partly capsized while the other side struck aground to the bank" In short, their case is that the boatmen on hearing the signal should have removed the boat at a safe distance. In other words, the boatmen due to their default contributed to this collision. The evidence was, as usual, of a contradictory character as to the original cause of the mischief. But the general effect was that while the flotilla and the boat were in dangerous proximity the Serang stopped and reversed the engine, immediately after which the collision occurred. The Serang lays the blame on the boatmen and the boatmen insist that the Serang was at fault. The learned Subordinate judge who tried the suit has found that this collision was brought about by the negligence on the part of the Serang of the steamer. He has disbelieved the story of the witnesses of the defendant Company that the boat was in motion at the time of the collision or that the said collision was due to the negligence of the boatmen. He has, accordingly, awarded Rs. 8,000 as damages to the plaintiff. In the present appeal this judgment of the learned Subordinate Judge has been mainly attacked on the following grounds :‑ (1) that the conclusion of the learned Subordinate judge that this collision was due to the negligence of the Serang of the defendant Company is not supported by evidence ; and (2) that the suit as framed is not maintainable. Hence the first question for determination is: Who is to blame for this collision. At the time of occurrence the boat was in charge of boatmen P. W. 2 Jaha Bux Shaikh and under him there were eleven Mallas. The story of, Jaha Bux is that seeing the flotilla coming from the direction the boat was going, they anchored the boat about 10 minutes before the occurrence at Paglar‑Tek‑Dhankhalipar of the river. The flotilla while passing the turn dashed against the southern bank of the river. It then proceeded backward and then the rear portion of the flat dashed against the middle part of the boat. P. W. 4 Rahman Biswas who was in the ghat which is about 2 rashis from the tek, P. W. 5 Panchu Shaik who was at that time on his land which was 2 or 3 rashis from the river, P. W. 6 Sonai Shaik who was awaiting for crossing the river by ferry, P. W. 7 Chitto Ranjan Biswas, P. W. 8 Bhagyadhar Biswas, who are local men, all have supported the story of Jaha. On the other hand, the story of D. W. 4 Muhammad Eshaque, Serang of "Chunar", is that when he was approach ing the tek, he gave prolonged blasts and when he sighted the boat at a distance of about 50 to 60 cubits off in the front on the right side, he gave repeated short blasts to warn the boatmen. Inspite of this warning, the boat did not stop and hence he was forced to stop the engine. As the current pushed the steamer forward, he put the engine astern but still the flotilla proceeded onward. He, therefore, moved the flotilla a bit towards the left to save the boat and due to the force of current she swerved and the rear of the flat "Raipur" dashed against the Chapper of the boat. D. W. 1, Sadam Ali Shukani of flat "Raipur" in his examination‑in‑chief, D. W. 3 Abdus Samad Mridha who lives near the Tek D. W. 5 Shristi Dhar Rajmistri, who was fishing near the Tek, have sub stantially supported the story of the Serang. D. W. 2 Narendra Nath Das was also examined to support the Serang's story and he was also cross‑examined on the first day but as he failed to appear on the following day for further cross -examination, we have not taken his evidence into considera tion. Mr. Pakrasi, the learned Advocate for the appellants, has asked us to accept the version of the Serang and the witnesses examined by them. From the settlement map, Exh. 4. it appears that the Atharabeki river is a narrow channel and the steamer has to pass through a defined route in order to avoid hitting the char which is on the southern side of the river. Hence, in our opinion, the cardinal point for consideration would be the position of the boat at the time of collision. In other words, was the boat within the route of the steamer? On this point the evidence of the witnesses is as follows. D. W. 4 (Serang) has stated that there are jhamtas on both sides of the river to indicate the steamer route and the jhamtas oil the Dhankhali. side, that is, on the northern side, was 6/7 cubits from the bank and the jhamta on the Gangni side was about 100 cubits off, Further according to him the boat was in front of them a little to the right. D. W. 3 Abdus Samad Mridha has stated "The boat in question came within the steamer route when the steamer was passing and so there was the accident on account of boatmen's negligence." D. W. 5, Srishti Dhar Rajmistri, has also stated that the boat was within 20 or 25 cubits of the steamer in her front. D. W. 1, Sadam Ali Shukani has, however, stated in his cross‑examination: The jhapta to indicate waterline for steamer route was 7/8 cubits, to the right of the flotilla at the Tek area. The boat was off the Jhapta towards bank. There was jhapta in the left of the flotilla also and between the two she was passing. Although the boat was outside the steamer route area marked by said jhaptas still we took additional precaution by stopping the engine to avoid any probable incident. The space between the two jhaptas might be 200/250 cubits wide. The jhapta in the right of the flotilla was about 17/18 cubits from the bank and other jhapta was how far from the other bank I cannot say even by guess." This witness is the Shukani of the flat "Raipur" which dashed against the boat and hence, in our opinion, he was in the best position to see where the boat actually was at the time of the collision. No reason has been assigned why this witness should be disbelieved. Admittedly he is the most material witness in this case and, therefore, we accept his story. It is very clear from his evidence that the boat was not within the steamer route at the time of collision. In the circumstances, we think the learned Subordinate Judge had ample justification to disbelieve the version of the Serang and of the other witnesses of the defendant regarding the circumstances in which the collision took place. The learned Advocate for the appellants has drawn our attention to paragraph 6 of the plaint to show that the plaintiff's story was that 'on the night of 3rd October 1945, they had anchored the boat at the village Kusala and on 4th October 1945, when they saw the steamer, they stopped it and tied it to the west of the turning point. P W. 2 Jaha Bux Shaikh has, however, stated before the Court that on seeing the steamer he had anchored the boat. The learned Advocate has contended that in view of this discrepancy in the evidence and the story as given in the plaint no reliance should be placed on the version as given by the witnesses for the plaintiff. In our opinion, this discrepancy is not material and as such it does not make us doubt their story regarding the manner in which the collision took place. Furthermore on the very day of the occurrence Jaha Bux reported the collision to the Terakhada Police Station. The copy of the general diary, Exh. 1, shows that his story regarding the manner in which the collision took place is substantially the same as before the lower Court. We do not think he had any time to concoct a new story in order to put the blame on the Serang. In this connection we would like to observe that from the evidence of D. W. 6 Uma Kanta Chakraborty, it appears that Nripendra Babu, an Inspector of the Company, visited the place just after the occurrence but no satisfactory explanation has been given why the said Inspector was not examined in this case. It is stated, that this Nripendra Babu is no longer in the service of the Steamer Company. But even then he could have been examined as a witness in this case. As stated above, no doubt there is a clear conflict of testimony as to the manner in which the collision took place. After weighing the evidence we are however satisfied that the learned Subordinate judge rightly accepted the version of the plaintiff and his witnesses. Therefore, we are unable to say that the learned Subordinate judge was not justified in preferring the version of the plaintiff to that of the defen dants. The next question is : Whether the fault of the flotilla should be regarded in law as the sole cause of collision or did this collision take place due to subsequent and severable negligence on the part of the boatmen ? In other words, whether the boatmen did something to precipitate or partially cause the collision ? The test to be applied in such cases has never been more accurately stated than in the judgment of Viscount Birkenhead, Lord Chancellor, in the case of Commissioner for Executing Office of Lord High Admiral of United Kingdom v. Owners of S. S. Volute ((1922) 1 A C 129 (136)). At page 136 Lord Chancellor observed as follows: "In all cases of damage by collision on land or sea, there are three ways in which the question of contributory negli gence may' arise: 'A' is suing for damage thereby received. He was negligent, but his negligence had brought about a state of things in which there would have been no damage if 'B' had not been subsequently and severably negligent. ' A' recovers in full: see among other cases Spaight v. A Tedcastle ((1881) 6 A C 217) and the Margaret ((1884) 9 A C 873). At the other end of the chain, 'A's negligence makes collision so threatening that though by the appropriate measure 'B' could avoid it, 'B' has not really time to think and by mistake takes the wrong measure. 'B' is not held to be guilty of any negligence and 'A' wholly fails : They Bywell Castle ((1879) 4 P D 219), Stoomvaart Maatschappy Nederland v'. Peninsular and Oriental Steam Navigation Co. ((1880) 5 A C 876). "In between these two termini come the cases where the negligence is deemed contributory, and the plaintiff in common law recovers nothing, while in Admiralty damages are divided in some proportion or other." Then again at page 144 the Lord Chancellor observed: "Upon the whole I think that the question of contributory negligence must be dealt with somewhat broadly and upon commonsense principles as a jury would probably deal with it. And while no doubt, where a clear line can be drawn, the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the party secondly negligent, while not held free from blame under the Bywell Castle rule, might, on the other hand, invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution." Now from the facts proved in this case, can it be said that the boatmen were subsequently and severably negligent. The learned Advocate for the appellants has contended that the steamer route lay by the right side of the river and, therefore, the boatmen after hearing the short blasts should have gone over to the left and if they had done so, they would have been able to avoid the collision. From the evidence it appears that when the boat was sighted, it was about 30 or 40 cubits from the flotilla and hence obviously it was practically impos sible for the boat to cross over to the left side of the river, that is, towards the southern bank. Next, the learned Advocate has urged that if the boatmen had pulled the boat 3 or, 4 cubits towards the northern batik, they could have avoided the collision. We have already found that the boat was outside the steamer route. We have also accepted the plaintiff's version that at the time of collision, it was tied to the bank. In the circumstances it would be difficult to say that the boat had in any way contributed to the collision by their negligence. We think that there was nothing which the boatmen could have done to avoid this collision or that the position in which she was she could do anything to escape the collision. We are, therefore, of opinion that the learned Subordinate judge was fully justified in coming to the con clusion that the flotilla was solely to blame for this collision. Mr. Pakrasi has next contended that the suit as framed is not maintainable. He has pointed out that the plaintiff should not have described two different and separate limited Companies as defendant No.

1. No doubt these two different Companies, namely, River Steam Navigation Co., Ltd., and India General Navigation and Railway Co., Ltd., should have been numbered separately. During the hearing of this appeal the plaintiff respondent filed an application for amendment of the cause title so that these two different Companies may be numbered as defendants Nos. 1 and 1 (a), respectively. They also asked for correction of address of India General Naviga tion and Railway Co., Ltd., in the said petition. As this amendment was more or less of a formal nature, we allowed it. Hence this contention of Mr. Pakrasi can no longer be sustained. Mr. Pakrasi has next argued that the learned Subordinate judge was wrong in awarding damages as against both the defendants Nos. 1 and

2. In other words, according to him, the decree should not have been passed both against the principal and the agents. Now defendant No. 2 Messrs. Kiliburn & Co. is the Managing Agent of River Steam Navigation Co., Ltd., and India General Navigation and Railway Co., Ltd., from paragraph 19 of the plaint it is clear that the plaintiff claimed damages only against the defendant No.

1. After the amendment it would mean that he claimed damages only against the defendants Nos. 1 and 1 (a). Hence the learned Subordinate judge obviously committed an error in awarding damages also as against the defendant No. 2, the Managing Agents. However, as argument has been advanced on the question whether both the principal and agent may be held liable in a case of this nature, we deal with the same. Mr. Pakrasi has contended that the agent cannot be made liable in this case Mr. B. C. Das for the respondent has, however, contended that under section 233 of the Contract Act this agent can also be made liable along with the principal for damages. Section 230 of the Contract Act lays down: "In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them." Further, the said section provides that such a contract can be presumed only in three cases mentioned therein. Mr. Das has been candid enough to say that he has not been able to prove that there was such a contract between the principal and the agent or that such a contract could be presumed under section 230 of the Contract Act. Now section 233 lays down : "In cases where the agent is personally liable, a person dealing with him may hold either him or his principal, or both of them liable." Now before a person can hold both the principal and agent jointly liable, he must first prove that the agent is personally liable under section 230 of the Contract Act. As already stated, Mr. Das has failed to show that there was any such contract between the principal and the agent. He has also conceded that the presumptions laid down in section 230 cannot apply to the agent in this suit. Therefore, in our opinion, section 233 of the Contract Act does not help him at all. In any event this section in tort does not arise from breach of contract. This action is solely in tort and the case mainly turns upon liability in negligence. Hence these sections of the Contract Act have no application to the present case. The next question is : Can both principal Company and the managing agent be made liable for tort committed by a servant of the Company ? Mr. Das has failed to assign any reason whatsoever why the plaintiff should get damages as against the Managing Agent. The general rule is that the master is answerable for every such wrong of the servant or agent as is committed in the course of service. In this case we have found that the Serang of the steamer "Chunar", which belongs to India General Navigation and Railway Co., Ltd., was responsible for this collision. Therefore, in our opinion, the principal, that is, the Company employing the Serang, should be solely made liable for damages in this case. Mr. Pakrasi has further argued that the defendant No. 1, River Steam Navigation Co., Ltd., is in no way liable for any damage in this case. The plaintiff has made River Steam Navigation Co., Ltd., defendant No. 1 because they are the owner of the flats "Raipur" and "Radhaupur". Now, can it be said that the defendant No. 1 was a joint tort feasors. In other words, was the owner of the flat or their servant respon sible in any way for this collision. One way of answering this question is: "Is the cause of action against them the same 'or' will the same evidence support an action against each." In our opinion, there is not an iota of evidence that the Shukani of the flats was in any way responsible for this collision. The only evidence against this Company is that the flats which the steamer "Chunar" was pulling at the time of the collision, belonged to them. There is, however, noth ing to show that the owner of the flats or its servant had any share in the commission of the tort. In the circumstances, we hold that only the defendant No. 1 (a), that is, India General Navigation and Railway Co., Ltd., should be held responsible for this collision. Lastly, comes the question of damages. Mr. Pakrasi has pointed out that the learned Subordinate Judge has made Mistake In calculating damages. He has taken the price of tile boat as Rs. 11,

000. He has held that the defendant is entitled to claim the following deductions, namely, Rs. 1,000 being the price of Patatan and Saranjam which the plaintiff has recovered and one‑third of Rs. 1.0,000 as this was an old boat. He has further allowed Rs. 300 to the plaintiff for the loss of trip money. According to the above calculations he should have decreed the suit for Rs. 6,966‑10‑8 instead of Rs. 8,

000. Mr. Pakrasi has not been able to show the assessment of price of the boat as Rs. 11,000 is perverse or based on insufficient evidence. Further we think that the learned Subordinate Judge has rightly allowed the deductions mentioned above. But, in our opinion, he should not have allowed any damage for the loss of trip money. On the ground of remoteness we disallow this amount of Rs.

300. We, therefore, modify the decree of the Court below as follows; The plaintiff will be entitled to a decree for Rs. 6,666-10‑8 only as against the defendant No. 1 (a), India General Naviga tion and Railway Co., Ltd., with proportionate costs through out. The suit, however, shall stand dismissed as against the defendants Nos. 1, 2 and 3 without any costs. The decree should be drawn up in the light of the amendment of the plaint as ordered. In the result, the appeal of the defendant No. 1 (a) is dismissed with the modification stated above with cost.; whereas the appeal of the defendants Nos. 1 2 and 3 are allowed. but without any order as to costs. AMIN AHMED, J.‑I agree. K. B. A./M. S. Appeal of Defendant No. 7 (a) Dismissed with modification. Appeal o f Defendants Nos. 1, 2 and 3 allowed.