P (PLP)

Issue No. 1.‑The accident was caused by the' negligence of defendant No. 2 and defendant No. 3, Issue No. 2.‑The headlights were not in proper working condition in that only one was lit and that too was dim. Issue No. 3.‑The truck was driven, at the speed which was excessive regard being had to the; lights of the truck. Issue No. 4.‑The camel cart was the property of plaintiff No.

1. Issue No. 5.‑The camel cart was driven on the middle of the road and had no light. Issue No. 6.‑The defendant No. 2 had no licence. Issue No. 7:‑The plaintiffs are entitled' to damage's. The damages due are as stated below. Issue No. 8.‑All defendants are liable: Issue No. 9.‑This has already been decided by my learned brother Mohammad Bachal. Issue No. 10.‑This has already been decided by my learned brother Mohammad Bachal. Issue No.11 ‑Defendants do pay the costs of plaintiffs: Issues Nos. 1., 2,.3, 5 and 6.‑Defendant No. 2 is an Assistant fuelling Superintendent of the Burrmah Shell; defendant No.

1. At the material time he was employed at Korangi, and for the purpose of transporting him and other employees between Korangi and their quarters at Keamari, defendant No. 1 provided a truck. The driver in charge of the truck was defendant No.

3. A Station Order, dated 10th June 1946, issued by the Superintendent of Korangi, Station, Gurcharanshingh, provided that no person, except the driver or Gurcharansingh was to drive such trucks, and this order had been signed by defendant No. 2 in token of his having read and understood the order. Defendant No. 2 who throughout gave his evidence with praiseworthy candour and honesty admits that he signed this order. He also states that it was constantly broken not merely by himself but other Assistant Superintendents, but admits that he cannot say that this procedure was ever noticed by any superior officer. He admits that he had no licence. He states that he had had experience in driving motor vehicles partly first for two months about an hour or two every week in respect of armoured cars, and that later in 1944, for six months as part of his training at the O. T. S. at Bangalore, he drove military trucks Thereafter his only experience consisted in driving cars occasionally for friends. Defendant No. 2 stated that he was driving this lorry at a speed of about 25 mils per hour, though it had only one dim headlight and on the left was only a parking light. He said that the lights of the truck did not show more than eight feet ahead and also that he first saw the cart eight feet ahead. It is true, that he said that the speed was such that he could have pulled up within the truck's length, and stated that he applied the brakes instantaneously ; but the time lag between seeing the cart eight feet away and applying the brakes would cause the accident. It is clear that the truck dashed violently into the cart since the cart was smashed up and the camel killed. This account leaves no doubt that defendant No. 2 was guilty of negligence in not observing the fundamental rule, that a driver of a motor vehicle must always be prepared to stop within his range of vision. Defendant No. 2 has stated that the cart was in the centre of the road, and must have been proceeding at an ordinary pace. The camel cart, he claims, had no light on this dark night, and it is admitted that the police, who investigated, found no lantern on the scene. But it is ordinary knowledge that camel carts are to be expected without lights, and in any case, as stated above, the cardinal rule is that a driver must be able to stop within the range of his lights. Issue No. 4‑There is no evidence to contradict the evidence of the plaintiffs that the camel cart belonged to plaintiffs No.

1. Issue No. 8‑This arises under three heads: (a) Is defendant No. 1 liable for defendant No. 2's negli gence ? (b) Was defendant No. 3 negligent viavis the plaintiff in respect of the accident ? (c) If so, is defendant No. 1. liable for such negligence of defendant No. 3 ? As to (a), it is clear that defendant No. 2 was acting outside his employment: he was forbidden by the Station Order, nor is there anything to show that breaches of the order were counten anced by his superiors: nor was there any necessity. The question in all such cases as the present is "Whether the servant was doing that which the master employed him to do ?" (Lush, J. Storey v. Ashton, 1.869 I V Q. B. 476). As to (b) the driver was a poor witness, and I think he must have known that he should not have allowed the Assistant Superintendent to drive. Admittedly he was in a difficult position, but the Assistant Superintendent, though superior in rank, was not entitled to order him not to drive, and this, the driver must have known. I consider that a driver owes it to the public using the roads to see that he does not allow an inexperienced person to drive the vehicle under his charge prima facie a man who, since 1944 had driven only occasionally and, having no licence, only sub rosa, is inexperienced. Here the cause of the accident was the speed of 25 miles an hour induced by the unfrequented road, but rendered rash and dangerously excessive by the darkness of the night and the dimness of the vehicle's lights. Though speeding may be attributable to temperament as well as to inex perience (for an expert, falsely relying on his skill, may be inclined to drive too fast as much as a man who is too inexperienced to realise the dangers of his speed) and though there is no evidence that a skilled driver on suddenly seeing the cart could have avoided or mitigated the collision by a skilful manoeuvre, the probability is in favour of this: for a person' driving regularly obtains through constant practice the speed of reflex action. I consider therefore that the presumption is that the inexperience of defendant No. 2 besides the mere rashness of the speed was an affective cause of the accident. Hence defendant No. 3 is liable in that he allowed such a person to drive. There is a second ground of liability of defendant No. 3 which is beyond doubt, and to which I drew the attention of the parties when the case was re‑argued later on my consulting the authorities. The speed at which defendant No. 3 was driving was obviously too fast, and the driver in not restraining defendant No. 2 was guilty of breach of duty to other users of the road. As to (c), in the original arguments only Stanes Motors, Ltd. v. Vincent Peter, A. I. R. 1936 Mad. 247 and Gwilliam v. Twist, 1895 Q. B. 84, were cited. In the first case, it was conceded by the defendant's advocate and held without reference to authority that the defendant , was liable in a case where his driver entrusted the driving of a car on the defendant's purposes to a fitter (also a servant of the defendant) who was not authorised to drive and who had no experience as a driver. In Gwilliam's case, it was held that a servant employed for a particular purpose has no authority to delegate the performance of his duty to another person (the case of necessity being excluded). Beard v. London General Omnibus Company, 1900, 2 Q. B. 530 was decided on similar lines. In both cases the defendant's driver was not driving : in the first a stranger, in the second, a conductor by negligent driving caused the accident. In the first case the driver had authorised the stranger, but not negligently : for a policeman had ordered him to stop driving. In the second case, the driver was absent, and it did not appear that he had authorised the conductor to drive. In both cases the defendant was sued on the master and that the driver had no power to grant such authority. On the other hand in Rickett's case 1915, I .R. B. 644, the driver allowed the conductor to drive, and was seated by him when due to the inexperience and incompetence of the conductor the accident occurred. At the trial the Judge relying on Beard's case withdrew the case from the jury. In the Court of Appeal, Buckley, L. J. in the leading Judgment stated: "It is a question for the jury whether the effective cause of the accident was that the driver committed a breach of his duty (which was either .to prevent another person from driving or, if he allowed him to drive, to see that he drove properly), or whether the driver had dis charged that duty'", and later, it was a question for the jury whether the accident arose from a breach by the driver of the duty which he owed to his master as driver." Similarly Pickford, L. J. spoke of the "duty be has towards his masters to see that the omnibus is carefully driven." I do not understand the learned Judges to mean, that it is solely a breach of duty owed to the master without a breach of duty to the injured person that will render tow master liable. They were concerned to point out that the driver though acting in breach of his duty was acting within the scope of his employment. His duty was of course, owed both to lasers of the road and to his master. I agree with the principle of dais decision which is in accor dance with Stanes Motors, Ltd. and consider that it applies to the facts of this case as found above. Issue No. 7.‑Plaintiff No. 1 has led his own evidence to show that he paid Rs. 800 for the camel which he purchased in the market a year before the accident. It was a young camel. There is no evidence to contradict this and I am not prepared to say that the camel had depreciated in value during the year between the purchases and the accident. It may equally have appreciated through further training. As regards the cart, he says that he bought it second‑hand from one Elias for Rs. 1,200 two years before the accident. Here again there is no contradiction. The plaintiff said that camel carts last for ten or twelve years and I therefore think that its value must have depreciated during the two years interval and would deduct Rs.

100. The plaintiff No. 1 is therefore entitled to Rs. 800 for the camel and Rs. 1,100 for the cart which was so badly damaged as not to have any salvage value. As regards plaintiff No. 2, he was in hospital from 19th February to 26th May 1947 with a contused wound on the fore head and a lacerated wound on the leg, and was thus kept in hospital 99 days. He has not stated in his evidence that he was in hospital for more than three months, nine days, but I think that I should presume that on his discharge from the hospital he did not do his ordinary work for another six weeks and therefore find that he was incapable of earning his wages for five months. It is also true, that there is a discrepancy between plaintiff No. 1 who states that he paid Rs. 60 per month and Re. 1 as daily bhatta, while the plaintiff No. 2 states that he was paid Rs. 100 month and that this was paid monthly apart from certain advances. Why the driver did not claim for physical suffering is not clear, and it may be suspected that he had been compensated without prejudice. On the evidence I think that Rs. 90 a month must be accepted as his pay on the basis of his statement. Plaintiff No. 2 is therefore entitled to Rs.

450. Issue No. 11.‑There will therefore be a decree against each defendant that he do pay plaintiff No. 1 Rs. 1,900 and plaintiff No. 2 Rs. 450 with interest at 6% from the date of suit until payment, and costs. A. H. Suit decreed.