1. This is an appeal by the plaintiff and it arises out or a judgment and decree passed by the learned District Judge in Appeal No. 144 of 1950 which arose out of a Judgment and decree passed in suit No. 185 of 1949 which was filed in the Court of the Joint Civil Judge, junior Division, at Chalisgaon.
2. The facts of the case which have led up to the present litigation may shortly be stated. The plaintiff and the defendant are brothers. In 1931 when they were members of jointand undivided Hindu family, they started a motor bus service between Chalisgaon and Pilkhed. A partition took place between the two brothers in 1937 and as the result of it each brother, i.e., the plaintiff and the defendant, got two motor buses as his share.
After the partition, the plaintiff and the defendant each began to run his buses on alternate days. On 1-1-1941 the two brothers formed a Union and the name which was given to the Union was the Chalisgaon-Malegaon Motor Union. The affairs of the Union, however, did not run smoothly. Disputes arose very soon, with the result that the plaintiff filed Regular Civil Suit No. 71 of 1942, in which he asked for taking accounts of the Union.
The suit ended in a compromise, and the compromise which was arrived at was that the plaintiff was to run his buses continuously for a period of 67 days commencing from 1-4-1942, i.e,, he was to run his buses till 7-6-1942 and that thereafter the plaintiff and the defendant each were to run their buses for two days at a time alternatively. It was agreed between the parties, as a result or the compromise, that the defendant Was to begin running his buses from 8-6-1942.
According to the compromise, therefore, the defendant was to run his buses on the 8th and 9th June 1942; the plaintiff was to ply his buses on the 10th and 11th June 1942. The defendant was to ply his buses on the 12th and 13th June 1942 and so on.
3. For a period of five years or so thereafter, the matters went on smoothly. The plaintiff and the defendant were running their buses alternately for two days each at a time. On 19-6-1947, however, the trouble arose, and the trouble arose in this way.
The defendant's bus No. BYP, 210 was plying. It happened to be checked on that day (19-6-1947) by an Inspector of the Motor Vehicles Department, it was found by the inspector that the defendant's bus was carrying an overload, in so far as two passengers were carried in excess of the prescribed limit of passengers, and it was also found that some passengers were travelling without tickets. The matter was reported by the Inspector to the Regional Transport authority.
The said authority thereupon suspended the service of the Union from 15-4-1948 to 14-5-1948. An appeal was filed against that order to the Provincial Transport Authority. In appeal, the order of the Regional Transport Authority was set aside end the defendant was only warned.
The plaintiff contends in the present casethat during the above mentioned period of suspension of one month, he lost his 16 days uponwhich, he would have made the trips of his buses.According to him, on each one of those 16 days,he would have made a net profit of Rs. 30/-. Hiscontention in the suit, therefore is that on account of loss of trips of his buses during theperiod of 16 days, he suffered a loss of Rs, 480/-.
The trouble between the parties did not end there. The mishap recurred in the case of the same bus of the defendant on another occasion, and that was on 16-5-1948. On that day also, his bus was checked by two officers of the Motor Vehicles Department and it was found on that occasion also that two passengers were carried in excess of the prescribed limit. There were certain passengers travelling without tickets; the bus was running late by an hour and a half, and two passengers were occupying seats next to the seat of the driver.
These irregularities were reported to the autho-rity concerned, and the Authority passed, an order directing suspension of the defendant's bus for three months with effect from 25-5-1048. An appeal was made against that order by the plaintiff and the defendant. In that appeal, the plaintiff engaged the services of Counsel Mr. Pardiwala. The Provincial Transport authority allowed the appeal and set aside the order of suspension on 31-7-1948.
The plaintiff contends that during the period between 16-5-1948 and 25-5-1948 he had lost 4 days on which his buses would have made trips, that on each one of those four days, his buses would have plied six times, that in all, therefore, he would have made 24 trips, that on each trip he would have made a profit of Rs. 15/- and that in that manner, he sustained a loss of Rs. 360/--
The plaintiff also contends that during the proceedings consequent upon the appeal which he and the defendant had filed against the order of suspension, of the bus service, he had also paid Rs. 80/- to pleader Mr. Rahalkar besides paying Rs. 500/- to Counsel Mr. Pardiwala. In this manner, the plaintiff contends that he sustained a net loss of Rs. 480/- plus Rs. 380/- plus Rs. 500/- plus Rs. 80/- in all aggregating to Rs. 1420/-. To this he added some small items, making the total of his loss amount to Rs. 1430-13-0. He claimed that amount from the defendant in suit No. 185 of 1949.
The learned trial Judge ordered the suit to be dismissed, and on appeal to the District Court the learned District Judge ordered the appeal to be dismissed. The plaintiff has come to this court in second appeal.
4. The suit was resisted by the defendant, principally upon two contentions:
(1) As the plaintiff himself was the managing partner of the Union during both the periods of suspension of the bus service, it was the duty of the plaintiff to see that the buses were run properly, that is to say, run in conformity with the rules and regulations prescribed in that behalf, and
(2) The specific acts viz., the acts of taking excess passengers, taking passengers without tickets, running the bus late and permitting passengers to sit next to the seat of the driver, were all done by the driver of the Union, who was, a third person, and that therefore the defendant was not liable for any loss which might have been caused to the plaintiff by the above-mentioned acts.
5. The- learned trial Judge who decided the suit, accepted both these contentions of the defendant. He held that since the plaintiff himself was the managing partner of the partnership business of the Union, which business was to ply buses between Chalisgaon & Pilkhed, he could not claim damages from the defendant for the various acts above-mentioned. He also accepted the defendant's contention that as the various acts were committed by the driver of the motor bus, the plaintiff was not entitled to claim damages from the defendant.
6. In appeal, the learned Advocate Mr. Desai, appearing for the plaintiff-appellant, has pressed two contentions before me (1) the plaintiff was no doubt the managing partner of the Union; but that was only so far as the dealings of the Union with Government were concerned and so far as certain other external affairs were concerned. He was not the managing partner so far as the actual plying of the buses on the respective days allotted to the plaintiff and the defendant was concerned.
In other words, so far as the plying of the buses on the days allotted to the plaintiff wasconcerned, the plaintiff was the manager in that behalf, and so far as the plying of the buses on the days allotted to the defendant was concerned, the defendant was the manager in that connection.
That being so, says Mr. Desai, for the various irregularities which were detected by the Inspector in respect of the defendant's bus on 19-6-1947 and 16-5-1948, the defendant would be liable to the plaintiff, as the plaintiff suffered a loss by reason of the said acts. (2) The driver who was in charge of the bus on the abovementioned days, viz., 19-6-1947 and 16-5-1948, was a driver engaged by the defendant, controlled by the defendant and paid by the defendant.
Therefore, the defendant, who was the master of the driver, would be responsible for the acts committed by the driver either through negligence or by exceeding his authority.
7. The first point which thus falls to be determined in this appeal is whether the plaintiff was really the manager of the business of the plying of the motor buses on the days allotted to the defendant. Mr. Divekar for the defendant says that the plaintiff was the manager even on those days, and this position is stoutly disputed by Mr. Desai.
It would therefore, he necessary, in order to resolve this dispute conclusively to turn to two important documents in this case. The first Important document is the partnership deed, Ex. 41 dated 20-5-1941 and the second important document is the deed of compromise, Ex. 31, dated 1-4-1942, by which suit No. 71 of 1942, which was filed by the present plaintiff against the defendant, was compromised.
If we turn to the original deed of partnership Ex. 41, it stated that the business of the partnership was to ply the buses of the partnership from Challsgaon to Pilkhed and from Pilkhed to Chalisgaon. It also provided that the income which would be received by the plying of the buses was to be regarded as the income of the partnership.
According to this document of partnership, each partner, viz, the plaintiff and the defendant, put into the partnership as his capital his two buses. The defendant put his buses Nos. BYP 210 and BYP 211 as his capital Into the partnership. The value of the two buses together was Rs. 1500/-. Similarly, the plaintiff also put his two buses as his capital into the partnership and those buses were Nos. BYP 231 and BYP 569, and the value of the said two buses was Rs. 2250/- in all.
It would thus be seen that the capital of the plaintiff put into the partnership was more than the capital of the defendant by RS. 750/-. The deed of partnership provided that the income of the partnership was to be shared in proportion to the capital put in by each partner into (the partnership business. Then the deed provided that the permits and registrations of thebuses were to be taken out in the name of theUnion.
Then certain other provisions Were madein the partnership deed with which we are not'materially concerned in the present case. But Clause7 and Clause 13 are the clauses to which I would referin particular. Clause 7 provided:
'The arrangement regarding the arrival anddeparture of the buses according to the rulesOf the Union and all other work is to be done bythe managing partner'.
Clause 13 read as follows:
'The managing partner is to be chosen everyyear.'
This position which regulated the affairs of the partnership was substantially modified by the compromise which ended the litigation concerning the plaintiff's suit No. 71 of 1952. The important modifications which were effected, by, the compromise Ex. 31 were these:
From 2nd April 1942 till 7th June 1942, that is to say, for a continuous stretch of 67 days, the plaintiff was to ply his buses only on the route. Thereafter the plaintiff and the defendant were to ply their buses by turns, and the turns of each consisted of days, and the permits were to be taken alternatively.
This meant that on the 8th and 9th June the defendant was to ply his buses, on the 10th and 11th June the plaintiff was to ply his buses, on the 12th and 13th June the defendant was again to ply his buses and so on. The income accruing from the running of the buses on the particular days was to be taken by the person who was to ply the buses on those days.
Now, this was a substantial modification effected in the terms of the original deed of partnership. I have already pointed out above that according to the original deed of partnership, the income which was to accrue from the plying of the buses of the plaintiff and the defendant was to be pooled together. It was to be treated as the income of the Union and was to be divided between the partners in proportion to the capital invested by each partner in the partnership.
That position was given a go-bye and in the compromise it was agreed that the income which resulted from the plying of the plaintiff's buses was to be enjoyed exclusively by the plaintiff and the Income which resulted from the plying of the defendant's buses was to be enjoyed by the defendant himself only.
8. The next change which was effected by the compromise was that from the year 1942 onwards, the tax was to be paid by the plaintiff for the plaintiff's buses and by the defendant] for the defendant's buses. This would really show that although nominally it was the partnership viz,, the Union which was running the buses, the buses themselves were treated as not belonging to the Union, but to the partners.
If the buses were continued to be treated as belonging to the Union, the tax for the buses would have gone on being paid by the Union. But that position was no longer acceptable to the parties after the compromise Ex. 31 and each party agreed that he would pay the tax for the buses plied fay him. In other words, after the compromise, the buses which were plied on the respective days allotted to each partner were not; treated as the property of the Union, but were treated as the property of the party concerned. This would have a substantial bearing on the question whether the management of the running of the buses on the particular days allotted to the plaintiff and the defendant was done by the party to whom the buses belonged or by the partnership.
9. Thus then the change in the position which was brought into existence by virtue of the compromise Ex. 31 was that each partner i.e., the plaintiff and the defendant,' was to use his own buses upon the respective days allotted to him; that each partner i.e., the plaintiff and the defendant was to enjoy exclusively the income accruing from the running of the buses on these particular days; that is to say, the plaintiff was to enjoy the income of the plying of his buses on the two days allotted to him and the defendant was to enjoy the income accrying from the plying of his buses on the two days allotted to him and so on.
The taxes, for the plaintiff's buses were to be paid by the plaintiff and those for the defendant's buses were to be paid by the defendant. The drivers, conductors and other servants who were employed on the plaintiff's buses were to be appointed, controlled and paid by the plaintiff and those who were employed on the defendant's buses were to be paid, controlled and appointed by the defendant.
In view of those important modifications which were brought into existence as a result of the compromise Ex. 31, it would be impossible to hold that the management of the actual running of the buses on the respective days allotted to the plaintiff and the defendant was done by the Union.
In my view, since the buses of the defendant were manned by the servants appointed, controlled and paid by the defendant and since the income winch accrued from the running of those buses was to be enjoyed exclusively by the defendant, the running of his buses was managed by the defendant himself and the running of the buses by the plaintiff's servants on the particular- days allotted to him was managed by the plaintiff himself.
10. It is no doubt true that both the courts below have found against the plaintiff on this point. But their finding appears to me to be grossly incompatible with the evidence of the plaintiff and the defendant in this case, indeed so grossly incompatible as to warrant interference by this Court in second appeal.
But even if it were to be assumed that the question whether a particular party was in management of the plying of the buses on the particular days allotted to him or not is a question of fact, even so I think that in this case the learned Judges of the two courts below have been so grossly in error on an Important point that 1 would be justified in interfering with their decision in second appeal.
Even if we take it that it was the duty of the plaintiff to see that the buses were started from the starting point, that it was his duty to see that the buses were running according to the schedule, and that it was also his duty to see that the buses were not over-loaded & that no passenger travelled without ticket, even so It would be impossible for the plaintiff, to look to the conformity with the rules on these points, once the buses had started from the starting point.
I have already pointed out more than once that the defendant's buses 'were managed by the 'defendant's servants employed by the defendant. For instance, the driver of the bus No. BYP 210 who was concerned with the driving of the said bus on 19-6-1947 and 16-5-1948, was appointed by the defendant; conditions of his service were controlled by the defendant; payment of his remuneration was made by the defendant; he was liable to be dismissed from service by the defendant. The plaintiff had no control in any manner whatsoever over the conditions of service of that driver.
That being so, if the driver and the conductor, who was also appointed and controlled by the defendant of bus No. BYP 210 took into their heads to permit passengers without tickets to board the bus after it had started from the starting point or to take passengers in excess of the prescribed limit or to permit the passengers to sit on the seats next to the driver's, surely thosewere acts which were in law beyond the scope and authority of the management of the plaintiff, even if it be assumed for a moment that the plaintiff was the manager even so far as the plying of the buses on the days allotted to the defendant was concerned.
I have considered the Judgments of both the Courts below and I think that neither of the learned Judges of the courts below has applied, his mind to this question, viz., whether it was within the scope and authority of the plaintiff, assuming that he was the manager so far as the business of plying the buses was concerned, if the driver of the bus took more passengers than the prescribed limit or permitted passengers to travel without tickets or allowed passengers to sit upon the seats next to the driver's seat.
In this case I have no difficulty in holding that I am entitled to interfere in second appeal as I have come to the conclusion, as the result of a close scrutiny of the contents of the two important documents Exs. 41 and 31, that the plaintiff was the manager so far as the plying of the buses on the days allotted to him was concerned and that the defendant was the manager so far as the plying of the buses on the days allotted to him was concerned.
There is no substance in the view-point taken by the two courts below that the plaintiff cannot hold the defendant liable for the above, mentioned irregularities committed by the driver Of the bus No. BYP 210 on 19-6-1947 and 16-5-1948. In my view, the defendant would be liable as contended by the plaintiff, for the above-mentioned irregularities committed by the driver of the defendant.
11. So far as the contention of Mr. Divekar, which contention was obviously accepted by the lower Courts, viz., that since the bus was driven by the defendant's driver on the days mentioned above, via., 19-6-1947 and 16-5-1948, the plaintiff could not hold the defendant answerable for the above-mentioned acts or irregularities, is concerned, we have only to turn to the position in law as made clear by Halsbury in his 'Laws of England' 2nd Edn., Vol. 22, page 221, Halsbury says:
'Where the act which the servant is expressly authorised to do is lawful, the master is nevertheless responsible for the manner in which the servant executes his authority. If, therefore, the servant does the act in such a manner as to occasion injury to a third person, the master cannot escape liability on the ground that he did not actually authorise the particular manner in which the act was done, or even on the ground that the servant was acting on his own behalf and not on that of his master.'
12. It is thus not open to the defendant to say that he had not authorised his driver on 10-6-1947 and 16-5-1948 to take passengers without tickets or to take any passengers in excess of the prescribed limit or to permit passengers to sit on the seats nest to the driver's seat.
No matter what, the manner was in which the defendant's driver drove the bus in the course of his employment as the defendant's servant, the defendant would be answerable for the irregularities committed by the driver in the course of driving the defendant's bus.
Mr. Divekar for the defendant has invited my attention to. Sub-section (f) of Section 13 of the Indian Partnership Act, 1932 and Sub-section (f) says that 'a partner shall indemnify the firm for any loss caused to it by his wilful neglect in the conduct of the business of the firm'.
Dealing with this section, the learned District Judge has observed in the course of his judgment as follows:
'The section itself lays down that the partner guilty of wilful neglect shall indemnify the firm and not the other partner or partners of the firm. Apart from this a partner shall indemnify the firm only for loss caused to it by his wilful neglect.'
While making the latter part of his observations, the learned District Judge has obviously overlooked the correct position in law as pointed out by Halsbury in volume 22 at page 221. Moreover, the learned District Judge has overlooked the fact that Clauses (e) and (f) of Section 13 of the Indian Partnership Act do not come into operation at all in this case.
The plaintiff's case is not founded upon the basis that this was a case of a loss caused to the firm which the defendant could have avoided. The basis of the plaintiff's case is entirely different. His basis is that the defendant was actually the manager, so far as the plying of his buses on the respective days allotted to him was concerned, that the driver was in the service of the defendant, that the irregularities were committed by the said driver in the course of his employment and that the defendant, as the master of the driver, was liable to the plaintiff for the loss sustained by the plaintiff as a result of the suspension order, which was levied in respect of the plying of the buses,
13. In the conclusion, therefore, I hold that so far as the plying of the buses on the days allotted to the defendant was concerned, the defendant was in management of the said business. I also hold that the defendant, as the master of his driver, would be responsible for the irregularities committed by the driver while he was driving the bus of the defendant on 19-6-1947 and 16-5-1948. I hold accordingly that the plaintiff would be entitled to claim damages from the defendant.
14. So far as the quantum of damages is concerned, Mr. Divekar says that there is no proof to show that for each trip of the plaintiff's bus the plaintiff would have made a profit of Rs. 15/-. No doubt, there is the evidence of the plaintiff to that effect. But Mr. Divekar says that it is Interested evidence.
I have, therefore, chosen to rely on the figure given by the defendant himself in that behalf. The defendant has said that for each trip of the plaintiff's bus the plaintiff would have made a net profit of Rs 12/-. At this rate for the 32 trips which the plaintiff's buses would have made in the first 16 days, the plaintiff would have earned a net profit of Rs. 384/-. For the 24 trips which the plaintiff's buses would have made in the next four days, the plaintiff would have made a net profit of Rs. 288/-.
To these amounts must be added the amounts Of Rs. 500/- and Rs. 80/-. There is a receipt passed by Mr. Pardiwala showing that Mr. Pardiwala was paid Rs. 500/- by the plaintiff for his appearance in the appeal which was filed by the plaintiff against the order of the Regional Transport Authority.
There is the evidence of Mr. Rahalkar to show that Mr. Rahalkar was paid Rs. 80/- by the plaintiff for appearing oh behalf of the plaintiff in the said appeal before the R.T.A. If we total up Rs. 384, Rs. 288/- Rs. 500/- and Rs. 80/- we come to the figure of Rs. 1,252/- I would accordingly pass a decree in favour of the plaintiff for Rs. 1252/.
15. I direct that the defendant shall pay Rs. 1252/- to the plaintiff together with interest at 4 percent, per annum from the date of the decree in the trial Court since that was the date from which the damages should have been determined by the trial Court.
16. So far as the question of costs is concerned I direct that the plaintiff shall get his costs throughout.
17. Order accordingly.