John Beaumont, Kt., C.J.
1. This is an appeal from a decision of Mr. Justice Rangnekar. The plaintiff's case is that on July 25, 1930, when he was a boy about thirteen years of age, he was knocked down by a motor car, and severely injured. He claims that the motor car in question was owned by the defendant, that it was driven by one Bhikhalal, who was a servant of the defendant, and that it was driven negligently. The burden of proving all those facts is upon the plaintiff. It is not disputed in this appeal that the accident took place, that the car which caused the accident belonged to the defendant, that it was driven by Bhikhalal, and that it was driven negligently. But the defendant denies that Bhikhalal was his servant. His case is that this car was one of several cars which he used to let out for hire as taxis, that the practice was for the driver of the car merely to pay so much a day for it, and that the driver was not the servant of the defendant, but was in the position of a bailee. That was the general practice, but he says in the case of this particular car that on the day of the accident he had lent it to a man named Kakoo, who was one of the persons who used to hire his taxis, but Kakoo had taken it out that day for his own purpose, and had left it outside a tea shop, from which it was removed by Bhikhalal. Defendant says he knows nothing about Bhikhalal. The learned Judge disbelieved most of the defendant's evidence, but that does not establish the plaintiff's case. The plaintiff has to prove that at the time of the accident the driver of the car was a servant of the defendant, and the fact that the defendant sets up a false case as to his relationship with Bhikhalal, (matter within the defendant's knowledge and which he ought to prove under Section 106 of the Indian Evidence Act) cannot, in my opinion, relieve the plaintiff of the burden of proving his case.
40. The way the plaintiff puts his case is this. He says, on proof that at the time of the accident the car which knocked him down belonged to the defendant, a presumption arises that the person who drove the car was a servant of the defendant, and that it is for the defendant to displace that presumption. It seems to me that the short point in this case is whether that proposition is right. It is a proposition of very considerable importance, having regard to the very large number of motor cars now in use and the frequency with which accidents occur, and are likely to continue to occur. There are four English cases which seem to me to establish the accuracy of that proposition. The first one is Joyce v. Capel (1838) 8 C& P. 370. In that case damage had been caused to the plaintiff's lug-boat by the defendants' barge, and it was held by Lord Denman C.J. that proof that the barge belonged to the defendant was prima facie evidence that the person who was steering the barge was the defendants' servant. The learned Chief Justice says (p. 371):
If the barge was on hire that will be for the defendants to show. The barge being the barge of the defendants, there is prima facie evidence that the bargeman was their servant till they explain it.
2. Then the next case is Hibbs v. Ross (1866) L.R. 1 Q.B. 534. In that case a ship was laid up in a public dock under the care of a ship-keeper. The plaintiff being lawfully on board suffered injury from the negligence of the person in charge of the ship, and brought an action against the defendant. It was proved that the defendant was the owner of the ship, and it was held by the Court of Queen's Bench that that fact was prima facie evidence for the jury from which they might draw the inference that the persons in charge of the ship were employed by the defendant. Then there is a case unreported, but referred to in the case of Barnard v. Sully (1931) 47 T.L.R. 557 to which I will refer in a moment. The unreported case is Redmond v. Griever, which was decided in 1926 by a divisional Court consisting of Mr. Justice Salter and Mr. Justice Talbot. That case seems to have decided the exact point which we have to consider. It was a case of an accident caused by a motor car, and the Court held that proof of the ownership of the vehicle which caused the accident furnished prima facie evidence that the vehicle was at the material time being driven by the defendant, his agent or servant. That case was followed by the Court of Appeal in Barnard v. Sully.' Why cases which deal with a matter of such general importance were not thought fit to be reported in the official law reports I do not know; in England, however, that matter rests in the discretion of the Law Reporter, and not of the Court. The case of Barnard v. Sully was again a case of a motor car which had caused an accident by which the plaintiff's property had been damaged, and the plaintiff brought a suit in the County Court. The County Court Judge withdrew the case from the jury on the ground that there was no evidence that the motor car was being driven by the defendant or his servant or agent. In the Court of Appeal it was held that proof of the ownership of the car afforded prima facie evidence that the driver at the time of the accident was the agent or servant of the owner, and that the case ought not to have been withdrawn from the jury. Those cases clearly establish the principle that in an action of this sort, proof by the plaintiff that the car which caused the accident belonged at the time to the defendant, affords prima facie evidence that the driver of the car was the defendant's servant. The defendant, of course, can displace that presumption, and in this case he endeavoured to do so. He set up a story which the Court disbelieved, and I see no reason for thinking that the Court was wrong in disbelieving it. That leaves the case where it was before the defendant called his evidence, and it does not displace the presumption on which the plaintiff relies. The evidence called on behalf of the plaintiff affords a certain amount of support to the contention that the driver was a servant of the defendant, because the plaintiff's first witness Mohanlal, who was an eye-witness of the accident, says that he knows the car which caused the accident, he had used it many times as a taxi, and it had been driven by the man Bhikhalal who was driving it at the time of the accident. That seems to show that Bhikhalal had been connected with this car before the date of the accident, and tends to displace the defendant's story that Bhikhalal was a complete stranger to him. But Mohanlal's evidence does not, of course, establish the relationship which existed between Bhikhalal and the owner of the car; he would not know whether the driver of the car was a servant or a bailee. Ultimately this case must depend on whether we accept the principle established by the cases to which I have referred, and I have no hesitation in accepting it. It seems to me only common sense to hold that if an accident is caused by a car belonging to the defendant, the defendant must prove that at the time of the accident the car was not under his control. I may say that I do not myself attach any importance to the letter, exhibit B, on which the learned Judge relied, as an admission by Bhikhalal as to his being the defendant's servant, and which was admitted in evidence under Section 19 of the Indian Evidence Act. I think that the letter is not admissible under that section, because it does not show in terms that Bhikhalal had any relationship whatever with the defendant, and such relationship as he had must, on the terms of the letter, have come to an end before he wrote the letter, because he says that he had gone away after the accident to Surat. In the face of that I do not think it can be said that, even if the letter amounted to an admission that he was a servant of the defendant at the time of the accident, that relationship continued. However, in my view the plaintiff is entitled to succeed on the ground which I have mentioned.
3. With regard to the damages, the plaintiff claimed Rs. 75,000, a sum which 'was clearly excessive. The learned Judge awarded Rs. 8,000. The evidence was that the actual medical expenses of the plaintiff, which he proved, amounted to Rs. 1,000, but the doctor said that he had advised massage, which would have been extra. However there is no proof that anything definite was spent on massage. There was a conflict of medical evidence when the boy was examined five years after the accident, as to whether any permanent injury had been left or not. I think one is entitled to rely on the plaintiff's doctor, who says that the boy still limps, although the defendant's doctor says he ought not to limp. The boy may, to some extent, after having been laid up for such a long time with this accident, be unable to make the fullest use of his injured limb, not because of any physical injury, but because of nervous disability. At any rate we have got the evidence of the plaintiff's doctor that the boy still limps. I do not think the learned Judge was justified in acting on his own opinion as to the condition of the boy after seeing him walk in Court. Judges are bound to act on evidence, and are not experts on anything except law. But I think the learned Judge was entitled to take into account the fact that this boy spent about six months away from school, three months actually in hospital, and that he lost the benefit during his boyhood of being able to run about and play games with other boys, and the enjoyment of normal health. In the circumstances I do not think the sum which the learned Judge awarded can be said to be excessive or that we ought to interfere. I think, therefore, the appeal fails, and must be dismissed with costs.
4. I agree. On a consideration of the evidence the Court has to determine whether Bhikhalal was driving the car at the time of accident as a servant or agent of the defendant. The burden of proving that is on the plaintiff. According to the authorities discussed by the learned Chief Justice in his judgment, which are also referred to by the learned trial Judge in his judgment, it appears to be the law in England that on proof of ownership there arises a presumption in the case of a ship, or a motor car, in the event of an accident, that the same was under the control and being driven by a servant or agent of the owner. On that presumption, the failure of the defendant to establish that he had let out the car, would not deprive the plaintiff of his right to get the relief prayed for. In the present case even if the letter of August 25 were rejected from evidence, I think, there is sufficient evidence to find, as a fact, that Bhikhalal was a servant of the defendant. For this purpose the admission of the defendant in his written statement that he plied the cars, including the car in question, as taxis is very material. That admission must mean that when the cars were being plied as taxis he was the owner and got the benefit of the trade. It is not suggested in the written statement that Bhikhalal had rented the car from the defendant at the time and was thus in complete and independent control of the car. The suggestion for the first time made in the witness-box, that the defendant was giving cars to different persons to be plied as taxis has been rightly rejected by the learned trial Judge. He has disbelieved the defendant's evidence. On the admission contained in the written statement the defendant has admitted that he was plying the car in question as a taxi. By that evidence, coupled with the evidence of Mohanlal, plaintiff has discharged the burden which lay on him. As the defendant's evidence is disbelieved the finding on this question of fact must be in favour of the plaintiff.
5. On the other points I agree with the judgment just delivered by the learned Chief Justice and have nothing more to add.
6. The appeal must, therefore, be dismissed with costs.