B.J. Wadia J.
1. The plaintiffs are the Widow, sons and daughters respectively of one Motabhai Nanabhai Shroff who died of the injuries received by him in a motor accident on June 8, 1932, in Balaram Street, Bombay, and have brought this suit as the representatives of the deceased under the Fatal Accidents Act, XIII of 1855, to recover the sum of Rs. 15,000 as damages from the defendant who they allege was at all material times the owner of an Essex car bearing No. X-4939. Plaintiffs say that the defendant plied the said car for hire in Bombay for taking persons working in local mills to the mills every morning and bringing them back home every evening, and that for such purpose the defendant had employed one Kaikhushru Jam-shedji. On the morning of June 7, 1932, at about 6-45 a.m. the car was being driven by Kaikhushru, and one Nariman Cowasji Mistry was seated by his side. Nariman had at the time only a temporary license to drive motor cars. The car started from Tardeo. Kaikhushru and Nariman first picked up one Behramji Pirojsha, and subsequently the car stopped near the house of Sorabji Pestonji Digaria. Sorabji got into the car; at that time Kaikhushru had got out, as some one shouted to speak to him. Nariman who had also got out of the car, but was standing near it, got into the driver's seat, and tried to reverse the car. In reversing it, the car mounted up a footpath, and dashed against the wall of a building on the opposite side of the house in which Sorabji was living. The deceased Motabhai Shroff was at that time walking on the footpath, and was jammed in between the car and the wall, and received multiple injuries as a result of which he was taken to the hospital where he expired the next day.
2. Defendant denies that he was the owner of the car at any time or that Kaikhushru was in his employ for the purpose of driving it. It is his case that Kaikhushru was the owner, and he was a mortgagee of the car from Kaikhushru to whom he had advanced a sum of Rs. 1,000 at the end of April, 1932. He further contends that even if Kaikhushru be deemed to have been in his employ, the leaving of the car by Kaikhushru with Nariman and instructing him to reverse it as alleged by the plaintiffs, were not in the course of Kaikhushru's employment as the defendant's servant. Under the circumstances defendant denies all liability to the plaintiffs.
3. Defendant's counsel contended that in the absence of any representation being taken by the plaintiffs to the estate of Motabhai Shroff this suit was not maintainable. He argued that a suit under Act XIII of 1855 in the case of Parsis could only be brought by an executor or administrator of the deceased, and the word 'representative' which occurs in the Act was inapplicable to Parsis, but was used only with reference to Hindus and Muhammadans. The same argument was advanced in Johnson v. The Madras Railway Company I.L.R(1905) Mad. 479, in relation to Europeans and also 'Eurasians', as they were then called, but it was overruled, and that case has been followed in the most recent judgment in Esther Virginia Penheiro v. Maurice Minney I.L.R (1934) Cal. 480, in which it was held that the word 'representative' in the Fatal Accidents Act had not the same meaning as the expression ' legal representative.' as defined in the Code of Civil Procedure. In the absence of an executor or administrator, the persons, for whose benefit a right of action is given by the Act, are to be deemed representatives of the deceased for the purpose of bringing a suit under the Act. The word 'representative', therefore, does not mean only executors or administrators, but includes all or any of the persons for whose benefit a suit can be brought under the Act, and the present plaintiffs are persons contemplated by the Act as being the persons by whom and for whose benefit an action can be brought. The cause of action in such a case is the loss resulting to the plaintiffs from the death of the deceased, and loss means the loss of pecuniary benefit which the plaintiffs would have got from the deceased if the latter had not died, e.g., his pecuniary savings from his income, his contributions to the family for maintenance and education, arid the assistance that he would have continued to give for the maintenance of the family, all which are estimable in terms of money. The age of the deceased, his expectation of life, the condition of his health, and his habits are also matters to be considered. The action is one which is purely compensatory, and the plaintiffs are entitled to sue for compensation in respect of their reasonable expectation of the value of the services of the deceased which have been lost to them for ever. My attention was also drawn to the case of Lakhmichand v. Ratanbai (1926) 29 Bom. L.R. 78, in which no objection was taken to the frame of the suit brought by and in the name of the representatives of the deceased. I, therefore, hold that the plaint substantially complies with the, requirements of the statute as far as the cause of action is concerned, though it is necessary in such cases, as was pointed out in the Calcutta case which I have referred to before, that the plaint in a suit under the Indian Fatal Accidents Act should not only give full particulars of the person or persons for whom or on whose behalf the action is brought, but also particulars of the nature of the .loss for which damages are claimed. In my opinion the suit as framed is maintainable.
4. The next question is, whether the defendant was the owner of the Essex car bearing No. X-4939 as alleged by the plaintiffs. The plaintiffs say that the defendant was the owner of the car. The defendant alleges that he was only a mortgagee, and Kaikhushru was the owner. The question is not free from difficulty, and the writing on which the defendant relies does not help the Court much in solving it. That writing purports to be dated May 2, 1932. It is stated in that writing that this car was sold to the defendant for the sum of Rs. 1,000 paid by him to Kaikhushru, and was transferred in the police records in his name. It goes on to state that the borrower of the money, namely, Kaikhushru, will repay the amount by monthly instalments of Rs. 100 or within twelve months from the date of the writing, that he is to remain in possession of the car and to ply it for hire, that he declares that the car belongs to him, and that on the repayment of Rs. 1,000 by him it will be re-transferred in the police records in his name absolutely. The defendant on his part agrees to retransfer the car to the name of Kaikhushru if the sum of Rs. 1,000 with interest is paid off as stipulated. I may mention here that this document was not referred to in the correspondence before suit, and it has been attacked by counsel for the plaintiffs as being a bogus writing got up for the purposes of the suit. There is no doubt that there is some alteration in the date, namely, May 2, 1932. What that alteration was is not clear, but the stamp paper was issued to Kaikhushru's mother on April 27, 1932, and the car was actually transferred to the name of the defendant in the police records on May 3, 1932. It seems, therefore, that this document was executed some time between April 27 and May 3, 1932. The exact date is not clear by reason of the alteration, but it was executed before the date of the accident. I have already stated that it is difficult to ascertain exactly the position of the defendant under this writing. It is stated that the car was sold to him and was transferred in his name, and that is why the plaintiffs allege that he was the owner of the car. The writing, however, clearly states that the money is advanced to Kaikhushru on the security of the car and is to be repaid on fulfilment of the condition mentioned therein, namely, the repayment of Rs. 1,000 within ten months or a year. On the face of it, the transaction appears to be an ostensible sale, i.e. it is executed in the form of a sale with a condition attached to it. It cannot, therefore, be said that the ownership is completely vested in the defendant. It could only be vested in the defendant if Kaikhushru committed default, and the defendant foreclosed, by which he would ultimately become the full owner of the car. It was argued that the car was hypothecated to the defendant. It was also argued that the defendant was only a limited owner of the car, and as such there was a bailment by him for a specific purpose in favour of Kaikhushru. As I have said before, the question is not entirely free from difficulty, but taking the document as it is, in connection with the evidence of the defendant as to the payment of the amount and the manner in which it was to be paid, I am inclined to hold that the defendant was not the owner of the car, but was a mortgagee with limited rights of ownership. The mere fact that the words used in the writing are that the car was sold to the defendant does not make it an out-and-out sale, and I believe the defendant when he said that the car was transferred to his name in order that it might not be sold away by Kaikhushru without his knowledge and consent. The document is to be construed as a whole, having regard to the intention of the parties and its wording, and, in my opinion, it does not constitute the defendant the owner of the car. No doubt, in the correspondence before suit the defendant refers to the car as his own, but that is not conclusive. He said he wrote the letter himself in Gujarati, and got it translated into English by a friend. But even if it is to be considered as an admission, it cannot amount to an estoppel, unless the plaintiffs show that they acted on it to their prejudice, which they have not.
5. The important question, however, for consideration is not what is the position of the defendant in relation to the car, but what was the relationship of defendant to Kaikhushru. Was Kaikhushru in the employ of the defendant, and was the tort committed in the course of the employment of Kaikhushru by the defendant, as alleged by the plaintiffs In other words, was the relationship-between the two that of master and servant? The relationship of master and servant is a question of fact. A servant is a person who voluntarily agrees, whether for wages or not, to subject himself at all times during the period of his strike to the lawful orders and' directions of another in respect of the work to be done by him. It is that other person who is entitled in law to give orders and to have them obeyed. The relationship, therefore, exists only between persons of whom the one has the control of the work done by the other, and it does not depend merely on the mode of payment for service, or for the time for which services are engaged, or the nature of those services or on the power of dismissal, though these are certainly matters which the Court may take into consideration in assessing the relationship. The test, therefore, is the right of control which a person has in the manner in which the other does the work, and the master is liable when the act committed by the servant is expressly authorized by the master or if the wrong done is incidental to such act. To put it shortly, the wrong must be an improper mode of doing an authorized act or incidental to it. Kaikhushru has not been called by either side for some reason or the other. The defendant in his evidence said that Kaikhushru was never in his employ, that he was not accountable to the defendant for his earnings and the manner in which he plied the car, and that he never consulted the defendant and never took any orders from the defendant, nor was any salary paid to him. The mere knowledge of the defendant that the car was to be plied for hire by Kaikhushru does not of itself make Kaikhushru his servant, The plaintiffs were aware of this difficulty, for they have sought to get over it by alleging in the plaint that the defendant expressly authorized Kaikhushru to allow Nariman to sit in the car in order that he may learn how to drive. This authority has not been proved, and defendant has denied it. In order further to get over the difficulty plaintiffs have alleged that certain customers were engaged by the defendant, and were taken day after day in the car from their place of residence to the mills. Two of them, Behramji Pirojsha and Sorabji Pestonji, of the Century Mill, have been called, and they clearly denied that they ever knew the defendant. They said that they made their arrangements with Kaikhushru, and paid him per month for the hire of the car.
6. Counsel for the plaintiffs relies upon the correspondence which passed between the parties before the suit and especially on the letter written by the defendant on June 19, 1932. In that letter the defendant said that the car was driven at the time of the accident by an unauthorized person who was riot in his employ. That is a reference to Nariman Cowasji Mistry, and counsel argued that there was, therefore, an implied admission that though Nariman was not, Kaikhushru was, in the employ of the defendant. It is significant that in the first letter addressed by Messrs. Wadia, Ghandy & Co. to the defendant Kaikhushra's name is not even referred to, and throughout the correspondence his name is omitted. If his name had been mentioned in the letter of June 17, any omission to refer to him in the reply might have been construed as a part of an admission that he was employed by the defendant. But no reference is made by either party to Kaikhushru in the correspondence at all, and I cannot, therefore, hold that it has been established to my satisfaction either expressly or by implication that the defendant stood to Kaikhushru in the relationship of master and servant.
7. In that view of the case it is needless to go into the question of liability. If Kaikhushru was in the employ of the defendant, it might have been arguable whether the defendant was liable to the plaintiffs in so far as a servant of the defendant allowed Nariman who was admitted an incompetent and unlicensed driver to handle the car, even temporarily. But I do not wish to go into that question, because, as I have already held, the relationship of master and servant has not been established, nor need I discuss the evidence in relation to any instructions alleged to have been given by Kaikhushru to Nariman beyond stating that the defendant denied all knowledge about Nariman and his having been taken up by Kaikhushru in the car for the purpose of teaching him how to drive by his authority or with his consent.
8. I have decided this case according to the strict rights of the parties. The sympathy of the Court has been throughout with the plaintiffs, as it is really hard in these times for a widow and sons and daughters to be deprived of the services of the principal bread-winner of the family. The Court requested the parties to come to a settlement amongst themselves, but the defendant stated that he was a poor man and was not in a position to pay any compensation at all to the plaintiffs.
9. In the result the suit must be dismissed. At the suggestion of the Court the defendant not wish to press for costs. There will be no order as to the costs of the suit.