1. The original plaintiffs in Special Civil Suit No. 51/72 having failed before the trial Court who dismissed their suit, have preferred this appeal against the judgment passed by Second Joint Civil Judge, Senior Division, Nagpur on 31-7-1975.
2. The appellants filed a suit in forma pauperis to claim damages from the defendants. The application to sue in forma pauperis was allowed and the proceedings were registered as Special Civil Suit No. 51/72. It was the case of the appellants/plaintiffs that appellant No. 1 Gaurabai is the window of Dhondo Datar, while appellant No. 2 - Sushila is the daughter of deceased Dhono Datar. It was on 1-3-1970, between 9P.M. and 9.30 P. M. the deceased Dhondo Datar was standing near a Pan Thela in front of Popular Book Depot opposite Patwardhan High School, sitabuldi, Nagpur. At that time, one Ambassador Car bearing No. BYJ-8037 belonging to defendant No. 2- present respondent No. 1, came from the side of Variety Square in full speed. It was going towards Nagpur Mahavidyalaya. It was going being driven by original defendant No. 1 - Balram Swami. The driver of the car was driving the vehicle in a rash and negligent manner, and while overtaking a cycle rickshaw, the driver lost the control and suddenly dashed against Dhondo Datar on the right side of the road. The said Dhondo Datar fell on the spot because of the impact of the car. Hospital, but died within a couple of hours thereafter.
3. The people present near the Panshop and the neighbouring house of shri Gadgil attempted to stop the car, but the driver immediately reversed the car towards Variety Talkies and field away. The eye-witnesses present immediately rushed to the nearby Sitabuldi Police Station and reported the incident. The information was given by one Jayant KUlkarni (P. W. 2) wherein he gave the description of the car, the make of the car, its colour and also stated that the number of the car was 'BYJ-8037'. He was not sure of the third letter on the car number plate.
4. It is further the case of the plaintiffs that on enquiries by the police authorities, the car BYJ-8037 was traced out at Bombay Garage and was found to be owned by respondent No. 1-Jagdish Prasad. The said car was seized by the police and a seizure and its Panchanama were executed vide Exhibits 74 and 75 in the presence of Panchas. It shows that there were many blood marks on the front right side of the car as well as the dents noticed on the lower plate of the bonnet and right side headlight glass. Blood clots ere scattered all over the front portion of the car.
5. On the allegation that the original defendant No. 1-Balram Swami was the driver in the employment of defendant No. 2 and that the said car while being rashly and negligently driven by respondent No. 1 dashed against Dhondo Dater, the plaintiffs claim damages the owner-defendant No. 2. The original defendant No. 3-presently respondent No. 2 is the Insurance Company with whom the said car was insured at the material time.
6. It appears that the plaintiff did not initially have the name and address of the driver of the vehicle. The plaintiffs issued a notice (Ex. P-77) to the car owner Jagdish Prasad on 9-9-1970. In the said notice, a specific averment was made on behalf of the plaintiffs that Dhondo Datar met with a fatal accident due to rash and negligent driving of the car belonging to Jagdish Prasad bearing NO. BYJ-8037 and driven by his driver. The date and time and location of the place of accident was also specifically mentioned. In the reply sent on behalf on car owner Jagdish Prasad vide Ex. P-78, it was admitted that Jagdish Prasad is the owner of car No. BYJ-8037. However, the car owner denied any knowledge of any fatal accident on 1-3-1970 at Sitabuldi as alleged. He also denies the fact that the fatal accident was caused due to the rash and negligent driving on the part of his driver.
7. As already stated, after collecting information form the police investigation agency, the plaintiffs learnt the name of the driver to be Balram Swami s/o Krishna Swami Pillay. Accordingly he was joined as original defendant No. 1, while Jagdish Prasad, car owner was joined as defendant No. 2 and the Insurance Company is defendant No. 3, In the plaint pleadings again in para 5, the plaintiffs specifically alleged that defendant NO. 1-Balram Swami was driving the car BYJ-8037 belonging to defendant No. 2 and it was because of his rash and negligent driving the Dhondo Datar met an unfortunate death. In his written statement the car owner denies the knowledge of a fatal accident, but what is more important is that he denies that the death occurred due to rash and negligent driving of the driver-defendant No. 1. His relevant pleadings in this regard need to be reproduced verbatim. In para 4 of the written statement, the car owner states:
'It is also denied that the car was driven most negligently and rashly and it is due to the wrongful act, gross negligence, rash driving and default on the part of the defendant No. 1 who was driving the car No. BYJ-8037 and belonging to defendant No. 2 that the In the same para, he further states:
'It is denied that this defendant's vehicle was in any way involved in the accident referred herein or that Dhondo s/o gangadhar Datar died due to the dash of the vehicle No. BYJ-8037'.
8. In para 8 it is stated as follows:
'It is also denied that the life of the deceased has been abruptly shortened due to rash and negligent driving of the car No. BYJ-8037 by the defendant No. 1.'
9. In para 9 of the written statement, the car owner states:
'It is alleged that on or about 4-3-1970, the police made enquiries with this defendant and also the driver the defendant No. 1. The defendant No. 1 driver denied any accident to the vehicle.'
10. In the same paragraph, it is further stated:
11. The perusal of the written statement on behalf of the car-owner respondent No. 1, clearly shows that the car owner had never denied the fact that defendant No. 1 was a driver engaged by him and under his employment to run the car BYJ-8037 at the material time. All that is pleaded on his behalf is that the death of Dhondo Datar was not due to the rash and negligent act on the part of the driver-defendant No 1.
12. It is unfortunate that even though the notice of the claim was issued earlier vide ex. P-77 yet in the reply the car owner does not say as to who was the person entrusted with the car on the material day. He has kept silence on this aspect from the very beginning. The perusal of the pleadings in his written statement, however, clearly show that he has admitted the fact that defendant No. 1 was the driver in his employment and that the only denial is regarding the rash and negligent act on his part. Thus, it it is established on record that BYJ-8037 Ambassador car was in fact involved in the accident and further if it is proved that the said car was driven in a rash and negligent manner at the material time which resulted in the fatal accident sustained by late Dhondo Datar, then certainly the car owner Jagdish Prasad would be vicariously liable.
13. It is pertinent to note at this stage that in the plaint the driver of the vehicle-defendant No. 1 was described as 'Balram Swami s/o Krishna Swami Pillay aged about 25 years'. The record further shows that summons of the suit on the defendant No. 1 as described therein was not served. But on the other hand, it was served on one Balram Swami s/o Gopal Swami Pillay. The Vakalatnama filed on behalf of defendant No. 1 on record also shows the name of Balram Swami s/o Gopal Swami Pillay. In his written statement, the defendant No. 1-driver who appeared before the trial Court as Balram Swami s/o Gopal Swami Pillay, has pleaded in para 5 that his name is Balram Swami s/o Gopal Swami Pillay, aged 49 years and that he is working in the Nagpur Corporation Fire Bridge Department since 1962. He has specifically pleaded that he was never in the employment of Jagdish Prasad Gajadharlal and that he has never driven the vehicle BYJ-8037. Since the defendant No. 1 as described by the plaintiffs has not been served and produced before the trial Court, the one who appeared was obviously another person aged 49 years and not the one mentioned in the plaint as aged 25 years, the trial Court has rightly rejected the plaintiffs' claim against the original defendant No. 1. Thus, the plaintiffs' claim survives against the car owner Jagdish Prasad on the basis of his vicarious liability and the Insurance Company on the basis of the statutory liability.
14. The trial Court upon reading of evidence and documents, came to the conclusion that the plaintiffs failed to prove that defendant No. 1 was diving vehicle in question at the material point and that the death was due to the rash and negligent driving of defendant No. 1. It also held that the plaintiffs have failed to prove that defendant No. 1 was in the employment of defendant No. 2 at the material time and on these findings, he dismissed the claim of the plaintiffs against the defendant No. 1-Driver as well as the car owner-defendant No. 2. Consequently, the suit against the Insurance Company-original defendant No. 3 was also dismissed.
15. It must be observed here that from the evidence on record, the Trial Court definitely found that the death of Dhondo Datar was a direct result of the rash and negligent driving of the vehicle BYJ-8037. At the end of para 16, the trial Court has given a finding that there is absolutely no doubt that this car BYJ-8037 was involved in the said accident. However, as already stated above, the trial Court concluded that since it is not shown that defendant No. 1 was in the employment of defendant No. 2, he dismissed the suit against all the defendants.
16. Shri K. A. Ghatpande, Advocate, appearing for the appellants/plaintiffs urged that the trial Court committed an error in holding that even respondent No. 1-Jagdish Prasad the owner of the said car was not vicariously liable to pay compensation to the plaintiffs. He criticised the reasoning of the trial Court that the Car of the defendant No. 2 might have been taken away from Bombay Garage and hence he cannot be held liable vicariously. According to Shri Ghatpande, having come to the conclusion that the car belonging to Jagdish Prasad, respondent No. 1, was directly involved in the accident and that the death of Dhondo Datar was due to the rash and negligent driving of the said vehicle, the vicarious responsibility of the car owner cannot be brushed saside. He also pointed out the various pleadings on behalf of the car owner that he has impliedly admitted that defendant No. 1 as originally described in the plaint was the driver at the material time and further that the car owner has not entered the witness-box. In so far as the quainter of damages is concerned, Shri ghatpande left the said matter to the discretion of this Court upon assessment of the evidence.
17. The respondent No. 1-Car owner, has been duly served, but is not represented. The respondent No. 2 Insurance Company is represented by Shri R. K. Thakur. Shri Thakur supported the impugned judgment and argued that in as much as the plaintiff has come up with a specific case that it was defendant No. 1 who was driving the vehicle at the material time and it was the rash and negligent act of defendant No. 1 which resulted in the fatal accident, then having failed to prove the same, no vicarious liability upon the car owner can be saddled. He also pointed out that the plaintiff ought to have asked the defendant No. 2-Jagdish Prasad to disclose the name of the driver in his employment at the material time. That has not been done. Hence Shri Thakur argued that no adverse inference can be drawn against the car owner Jagdish Prasad in this regard.
18. With the assistance of the counsel of both the parties, I have gone through the plaint pleadings and those in the written statement of all the three original defendants. I have also perused the evidence, oral and documentary, on record as well as the impugned judgment.
19. As already observed above, the defendant No. 1-the driver of the car involved in the accident as described in the plaint was not served. I have also perused the summonses from the original record and I find that the said person could not be traced at the given address. On one summons Balram s/o Gopal Swami has endorsed that he is not the person named in the summons and refused to accept it. However, subsequently after process under O. 5, R. 20 were issued, Balram Swami s/o gopal Swami Pillay put in his appearance and filed his written statement stating that he is not the person as described in the plaint. The trial Court in its judgment in paragraphs 11 and 12 has rightly concluded that a wrong person has come before the Curt; that he is not involved in the accident in question and that he is entitled to clear discharge from the suit with costs. Even the counsel for the appellants did not raise any controversy about the same and has in fact preferred appeal against the car owner-jagdish Prasad as respondent No. 1 and the United India Fire and General Insurance Company Ltd. as respondent No. 2.
20. In so far as the plaint allegations are concerned that Dhondo Datar met his death by the accident with vehicle No. BYJ-8037, the evidence adduced on behalf of the plaintiffs is very cogent. Eyewitnesses Jayant Kulkarni (Ex. 71), Moreshwar Athawale (Ex. 72) and Kunjbihari Sharma (Ex. 82) have all consistently stated that they were near the Pan Thela opposite the Patwardhan High School: that the car BYJ-8037. Came from Variety Square and that it was being driven rashly and negligently and further that it went to the extreme right side of the road near the Pan Shop and dashed against Dhondo Datar. The perusal of their evidence further shows that here is hardly any cross-examination on behalf of the car owner or the Insurance Company. The substantive part of their version regarding the rash and negligent driving of vehicle No. BYJ-8037 hitting Dhondo Datar and resulting in his death has gone unchallenged. The trial Court has also held and rightly that dhondo Datar died as a result of the accident sustained by him due to the rash and negligent driving of the vehicle BYJ-8037.
21. The vehicle has been duly identified by Jayant Kulkarni and the report which was lodged by him within a few minutes after the accident which is at Ex. 85 clearly shows that he had given the number of car as BY 8037. In the said report he also stated that he could not exactly see the third letter after 'BY'. However, he had given the description of the car, the make of the car, the colour f the car and on the basis of the said information P.S.I. Qavi (PW 8 traced out the car involved in the accident. He seized it in the presence of the panchas vide Ex. 74 and also drew up the panchanama and the description of the car vide Ex. 75. The panch Vilas Gadgil (PW 4) has proved the sid panchanama. He has also stated that there were bloodstains found on the body of the car and the left side head light. Even Qavi P.S.I. (PW 8) has stated that when the car was seized, there were bloodstains on the head light, glass and the reflector of that car suggesting that it has met with an accident. Both these witnesses and in particular Vilas Gadgil (PW 4) have not at all been cross-examined on this material part of the evidence. Thus, he substantive case of the plaintiffs that Dhondo Datar met with an accident because of the rash and negligent driving of the car BYJ-8037 has been properly proved and established and the trial Court's finding to that effect is also correct.
22. The only dispute that arises is whether the defendant No. 2 is vicariously liable for the damages to be paid to the victim's relatives. Initially as noted earlier, when the claim notice was issued on behalf of the plaintiff, they had not knowledge of the name of the driver. The notice was addressed to the car owner and the car owner admitted his ownership in his reply notice. He, however, did not disclose any name of the driver, but contended that the car had not met with any accident on the relevant date, nor was it due to the rash and negligent driving of his driver. The name of the driver-original defendant No. 1. In the plaint pleadings, the plaintiffs specifically averred that the car owned by defendant No. 2 was driven at the material time by defendant No. 1 and that it was rash and negligent driving of the said vehicle by defendant No. 1 which resulted in the death of Dhondo Datar. This, the car owner-original defendant No. 2 has not specifically denied. I have already extracted above the relevant pleadings from the written statement of the original defendant No. 2 and to my mind, it is clear that the pleadings admit that defendant No. 1 as described in the plaint, was the person under the employment of defendant NO. 2 and was driving at the material time. The only denial on the part of the car owner is that the death of dhondo Datar was not due to the rash and negligent driving of defendant No. 1..
23. It is to be noted that in cases of this type, there is a heavy burden on the car owner who has personal knowledge about his vehicle and its use as well as of its entrustment form time to time. It was quite possible for the car owner to establish that defendant No. 1 was not in his employment and if at all he was driving at the materia time, he was so doing without the consent of the car owner. It was also possible for him to contend, if true, that the vehicle was at the material true, that the vehicle was at the material time given to some motor workshop for repairs and that it may have been driven without his consent by any of the mechanic at the workshop. In such cases, if proved, the car owner could have escaped the vicarious liability in respect of the accident claim. However, he has not entered the witness-box nor has he pleaded that it was somebody else driving the vehicle without his knowledge or consent. It is thus safe to infer from his pleadings alone that defendant No. 1 was the driver of the said vehicle in course of his employment with defendant No. 2. Further, it is established from direct evidence that it was this vehicle of defendant No. 2 which was involved in accident and caused the death because of the rash and negligent driving.
24. The reasoning of the trial Court para 19 to say that somebody else may have taken away the car from the garage and met with an accident, and therefore pleaded by the car owner nor any evidence has been adduced in that regard. The ownership of the car is factually admitted in the reply notice as well as in the pleadings in the written statement by the car owner. Further, the evidence clearly shows that it was the defendant No. 2's car which was involved in the accident and that the death was due to rash and negligent driving of the said vehicle. Lastly, from the pleadings in the plaint as well as in the written statement of defendant No. 2, it is more than obvious that defendant No 1 was driving the said vehicle and that both the original defendant No. 1 as described in the plaint and the defendant No. 2 car owner, are jointly and severally liable for the claim regarding the accident. In my opinion, the plaintiffs have come with a specific case that defendant No. 1 was driving, that he was in the employment of defendant No. 2 and that defendant No. 2 was the owner of the vehicle in question and all these pleas have been duly proved. It does not mater whether the car owner was asked to disclose the name of the driver before filing of the suit. Because in the plaint pleadings, the name of the driver was disclosed and the car owner not only did not depose the same, but has also admitted the said fact.
25. Having observed above that both the original defendants Nos. 1 and 2 were jointly and severally liable for the accident claim, I need not consider the liability of defendant No. 1 who has been discharged by the trial Court. In fact, in view of the summonses not being served on the correct defendant No. 1 the trial Court could have proceeded exparte after publishing the notice in the newspapers;but that has not been done. The original defendant No. 1 is also not made the respondent in the appeal. As such, we need not concern ourselves with the liability of defendant No. 2.
26. However, it is well established that the master is bound by the acts of the servant, even if the act is unauthorised or prohibited, provided the act was within the scope of the service or employment. The principle is that, when a servant does any act which he is authorised by his employment to do under such circumstances and conditions and does it in it manner which is unauthorised and impossible Moreover joint wrong-doers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of be loss, or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any one of them. A master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment. Where, therefore, the driver of a vehicle is primarily responsible for a running down accident a suit for damages against the owner of the vehicle is maintainable even to the absence of the driver. I am supported in my view by the decision of the Division Bench of the Punjab High Court in Vanguard F. & G. I. Co. v. Sarla Devi .
27. In view of the discussion above, the finding of the trial Court holding that the car owner Jagdish Prasad is not vicariously liable for the accident claim is erroneous and will have to be set aside.
28. Initially, the counsel for the respondent No. 2 Insurance Company contended that the car BYJ-8037 was belonging to Murlidhar Tulsiyan and that it was transferred to Jagdish Prasad subsequent to the accident, and therefore, no liability could be fastened against Jagdish Prasad. However, the counsel was pointed Civil Application No. 3633 of 1981 filed by the Insurance Company in this appeal. The application is under O. 41, R. 27 of the Civil P. C. for admitting on record a copy of the Insurance Policy with respect to vehicle BYJ-8037. It is the document of the Insurance Company and a bare perusal of the same would show that initially the car did belong to Murlidhar Tulsiyan, but it was transferred to Jagdish Prasad Gajadharlal with effect from 4-9-1969 and the Insurance Policy was assigned in his favor and was valid till 7-8-1970. The car owner was thus holding the Insurance Policy validly on the dte of the accident which is 1-3-1970. Even the written statement filed on behalf of the Insurance Company vide Ex. 38 shows in paragraph 8 that it is an admitted fact that car No. BYJ-8037 is insured with the defendant No. 3. The awareness of low legal literacy of poor people. In the instant case, we has seen the pleadings in respect of the driver, the car owner as well as of the Insurance Policy and I find that from the pleadings itself, it can be spelt out that defendant No. 2 was the owner of the car vehicle at the material time; that it was insured with respondent No. 2 at the material time and that defendant No. 1 was in the employment of defendant No. 2 and was responsible for the accident in question, at the material time.
29. It is well settled is laid down by the Supreme Court in Pushpabai v. Ranjit : 3SCR372 , that normally it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is ought to be avoided by applying the principle of reships loquitur. The general purpose of the words res ipsa loquitur is that the accident 'speaks for itself' or fells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.
30. In the instant case, from the description given by the eye-witnesses in respect of the accident and which is unchallenged in their cross-examination, goes to show that the car in question had proceeded in speed to the right extremity of the road dashing the unaware Dhondo Datar near the Pan thela beyond the tar surface of the road and that the vehicle had broken head glass and blood scattered over the front portion. All these factors clearly establish that the accident did take place only due to the negligence of the driver.
31. The only question which remains to be determined is the quantum of damages to which the plaintiffs are entitled. The evidence adduced in that respect, however is rather limited. Vilas Gadgil (PW 4) states in para 3 that plaintiff No. 1 Gaurabai is the window of deceased Dhondo Datar and plaintiff. No. 2 is his daughter. That the deceased was serving with Swastic Medical Stores. Sitabuldi Nagpur. That the deceased was not addicted to bad habis; there was no defect in his mental capacity. On this narration of the witness, there is absolutely no cross-examination on behalf of defendant No. 1, 2 or 3. Gaurabai the plaintiff No. 1. Has examined herself as PW 5. It is her say that her husband was sixty years old at the time of the death and was not addicted to bad habits. That he was serving with Swastic Medical Stores on a monthly salary of Rsl 120/-. Then she narrates the longevity in the paternal family of her husband and lastly she states that her daughter plaintiff No. 2 was marriageable and after the accident sometime in May, 1974 she was married and is residing with her husband at Thanne. She was required to get the financial assistance from her brother to the extent of Rs. 5,500/- for the marriage expenses. In cross-examination, she admits that her husband was not in permanent service and that she herself and her husband together were spending the amount for maintenance of the family. She further admits that she herself is serving since last 16 years and since then she was not entirely dependant on her deceased, husband. However, she again rectifies her statement and says that she and her husband were earning and contributing for family expenses. Her personal salary is Rs. 430/- per month.
32. Shripat (PW 6) is the partner of Swastic Medical Stores and he proves that the deceased Dhondo Datar was serving in his office as Salesman since 8 years till his death on a monthly salary of Rs. 120/- plus 30/- as dearness allowance. Only one question has been asked in cross-examination on behalf of the car owner and the answer is that deceased Dhondo Datar was working as Manager in his shop and therefore his name is not required to be shown in the wage rigister. There is no other evidence on behalf of the plaintiff for the claim of Rs. 20,000/- as damages on the ground of loss of probable earnings of the deceased and for Rs. 7,000/- for the expenses required for the marriage and education of plaintiff No. 2. In my opinion, the evidence is not sufficient and clear to come to the conclusion that a probable loss of Rs. 20,000/- has been caused due to the death of the deceased. The death certificate (Ex. 79) on record shows that the deceased was aged 60 years at the time of his death. His salary was about Rupees 150/- per month as stated by the partner of Swastic Medical Stores. In the plaint para 9, it is alleged that the deceased was earning a salary of Rs. 150/- per month from Swastic Medical Stores. Thus it is also established that the deceased was in fact an earning member of the family earning Rs. 150/- per month for family earning rs. 150/- per month for family expenses. Considering his age of 60 years and the average span of life for an Indian, it must be observed that it could not be said with certainly that the deceased would have continued to earn for more than five years. In that view of the case, the plaintiffs would be at best entitled to claim loss of earning because of untimely death for a period of five years at the rate of Rs. 150/- er month which comes to Rs. 9,000/-. Further in respect of the claim for the alleged expenses for the wedding of plaintiff No. 2, there is no evidence on record except the word of the plaintiff No. 1 she has also not examined her brother who is alleged to have helped her in bearing the expenses. Considering the standard of living and the wages earned by these parties, an amount of Rs. 1,000/- towards the said expenses would meet the ends of justice. The trial Court even though dismissed the suit finally had given findings on the issue whether the plaintiff is entitled to claim Rs. 20,000/- for damages for loss of probable earnings of the deceased and on the issue of expenses for the marriage and education of plaintiff No. 2. In that he concluded that concluded that the evidence of Shripat partner of Swastic Medical Stores is not reliable and he rejected the said evidence. It was rejected on the ground that the name of the deceased was not shown in the wage register. In my opinion, that finding is not correct. Even otherwise, the word of the plaintiff No. 1 has gone unchallenged and was also pleaded in the plaint. A stray statement in cross-examination of Shripat cannot render the entire testimony of the witness as unreliable. However, the trial Court held that a sum of Rupees 7,000/- should be granted to the plaintiffs towards expenses of marriage and education of plaintiff No. 2. This finding is also not correct inasmuch as there is no evidence adduced by the plaintiff except her bare say that her brother had contributed some expenses of the marriage.
33. Considering all the aspects, pleadings, evidence on record and the legal submissions, I am of the opinion that the judgment of the trial court will have to be set aside and instead the following order will have to be passed.
34. The first appeal is allowed. Judgment and decree of the trial Court is set aside. The appellants/plaintiffs are entiled to a decree of Rs. 9,000/- towards loss of earning and Rs. 1,000/- towards marriage expenses, total Rs. 10,000/-. The plaintiffs shall be entitled to interest at the rate of 6% per annum from the date of suit till realisation. Costs of the suit as well as appeal be saddled on both the respondents.
35. Appeal allowed.