1. This is a suit by the plaintiff for damages for in--jury done to her car in a collision due to the negligence of the driver of the defendant's car.
2. The defendant pleads contributory negligence, and also that the collision was due to the negligence of the plaintiff's driver, and accordingly supplements his written statement by a counter-claim for damages.
3. The accident occurred on January 13, 1922, at 9-30 p. M. The plaintiff's car is an Overland car and her husband was being driven in it to Mahim. Mr. Roberts was seated on the rear of the car and the driver wan in the front seat driving. The accident occurred opposite the Church-Gate Street Station. Mr. Roberts did not actually see how the accident occurred, but he saw the defendant's car sixty or seventy yards ahead driven at great speed. He looked down to arrange some parcels of provisions, which were rolling about at the bottom of the car, and the next thing that he knew was that the defendant's car had crashed into his. The driver, however, did see how the accident occurred and he says that he was driving at a moderate pace of twelve to fifteen miles per hour along the right side of the road, i. e,, along the went side of the Queen's Road, when the defendant's car approached him in the opposite direction, He says the defendant's car was driven very fast at a speed of twenty-five to thirty miles per hour and that it was driven in a very irregular manner zigzagging across the road. When the defendant's car came nearer, he says it swerved to the west on to him, and then he did the only thing possible, by swerving his own car to the east, but not in time to avoid the collision. The defendant's driver on the other hand admits that he was driving at fifteen to twenty miles per hour, but he says that he was driving on his proper side of the road, i. e., the east side of the Queen's Road. He says the plaintiff's car approached him from the south at a rate of twenty to twenty-five miles an hour, and that the plaintiffs car swerved suddenly to east. He stopped his car, but it was not in time to avoid the collision and that the plaintiff's car hit his. [ His lordship here discussed the evidence on the question whether the accident was due to the negligence of the driver of the plaintiff or of the defendant and concluded :]
4. There is no evidence to support the plea of contributory negligence. It is suggested that the plaintiff's driver swerving to the right contributed to the accident, but I do not think it did. The plaintiff's driver could do nothing else when the defendant's car swerved on to his right but to turn. He could not turn to the left, because, if he had, the cars would certainly have met, and therefore the only chance of escape was turning to the right and he therefore took the only course possible. I think that the accident was solely due to the negligence of the defendant's driver.
5. It is suggested that the defendant is not responsible for the negligence of the driver on the ground that the driver was not then acting in the course of his employment. Now the facts are that the defendant had employed his driver to drive him to Bori Bunder Station. The defendant left his driver there at 8-30 :P. M. with instructions to take the car back to the Wellington Mews, The driver instead of taking the car to the Wellington Mews went to his own house somewhere in Princess Street, had his evening meal there, and at the time of the accident was driving from his home in Princess Street to the Wellington Mews. It is suggested that because the driver had disobeyed his master's instructions to go straight from Bori Bunder to the Wellington Mews, the defendant is not liable. The following two oases were cited in support: Sanderson v. Collins  1 K.B. 628 and Stony v. Askton (1869) L.R. 4 Q.B. 476
6. The facts in this case are distinguishable from Sanderson v. Collins, in that there the coachman had taken the carriage out for his own purposes, whereas here the driver had taken the car out on defendant's instructions and had been left in charge of the car by the defendant. In Storey v. Ashton the accident occurred after the driver's employment in his master's business had terminated for although he had nearly returned home he drove off after business hours on an errand of a third person. Here the defendant's servant, no doubt, deviated from the instructions of the defendant in going home for his meals, but at the time of the accident he was carrying out the defendant's instructions and was driving to the Wellington Mews in order to garage his car. It is quite clear, therefore, that at the time of the accident the defendant's servant was acting in the course of his employment, and was not on a frolic of his own.
7. The only other point remaining is the question of damages claimed for the injury to the car. This is proved by Hyland's bill which amounts to Rs. 2,050-2-3 and for loss of use of the car during the two months it was under repairs. The damages for loss of use the plaintiff estimates on the footing of what might have been the earnings of a taxi-cab, which she used as a private car, during that period. She estimates this amount at Rs. 25 per day, but there are no regular accounts to corroborate this figure. She also says that she could have hired a car at the time as a substitute for Rs. 20 a day including chauffeur's wages and petrol. Chauffeur's wages and petrol would not enter into the account because these were expenses which would be incurred in any case. I think the fair amount to allow for the loss of the use of the car is a sum of Rs. 10 a day for the sixty-one days.
8. There will be a decree for the plaintiffs for the sum of Rs. 2,660-2-3 with costs and interest on judgment at six per cent.