(1) This is an appeal of Behari Lal against whom and two other defendants a decree for recovery of Rs. 5,000 as damages has been awarded by the Subordinate Judge, Amritsar and affirmed to appeal by the learned Additional District Judge.
(2) The facts as found by the Courts before and on which there is no dispute are briefly these: Track No. PNJ1978 belonging to the appellant Behari Lal was being driven on Amritsar-Verka road on 23rd November, 1954, when it struck Gajjan Singh walking on the payment. As a result of this accident Gajjan Singh died and his lead representatives brought a suit for recovery of Rs. 5,000 as damages by way of compensation. At the time of the accident the truck was being driven by Teja Singh defendant No. 3 who was a cleaner of the Vehicle. The driver of the vehicle Anant Ram defendant No. 2 was sitting in the front seat next to Teja Singh. The cleaner Teja Singh was obviously an inexperienced hand and the evidence which has been accepted by the Court below leaves no manner of doubt that the accident took place a result of rash and negligent driving.
(3) Mr. Satish Chand Sibal the learned counsel for the defendant appellant very rightly did not challenge the concurrent findings of the Court below that Teja Singh was driving the truck negligently. Both the Court below on the compendious single issue framed in the case 'To what amount of damages is the plaintiff entitled and against whom?' have returned the finding that the owner of the truck being liable for the tortious acts of his servants should pay damages of Rs. 5,000 to the surviving descendants of Gajjan Singh deceased.
(4) The learned counsel for the appellant submits that the trial Court should have framed proper issued which arose out of the a pleadings. It has however to be noted that the trial Judge made a note that no other issue besides the one which case actually framed was claimed for trial by the learned counsel for the parties. Moreover the substantial question raised on this appeal whether the owner is liable for the wrong delegation of the authority by the driver to Court below the negligence of the driver Anant Ram in allowing the cleaner to take wheel while he himself was present in the vehicle based on clear on cogent evidence having been taken to the common it necessary to accede to the argument of Mr. Sibal that the case should be remanded for a proper trial after necessary issues have been framed.
(5)Advertising now to the argument of Mr. Sibal on the main question in controversy it has to be observed once again that the evidence adduced on behalf of the defendant himself who had been duly authorised to drive the vehicle by the owner. It was Anant Ram who entrusted it to the care of the cleaner and driver at any rate cannot be heared to say now that the vehicle was being driven by a non-authorised person or a stranger. The principle that the master is duty to another servant is set out in Halsbury's Law of England (Simonds Edition)volume 25 at page 541 and is as under:
'The master may be responsible for the default of his servant acting in the cause of the servant's employment even though the act which caused injury was performed by a stranger or by another that the servant for whose default it is sought to formed for example where he permitted a vehicle of which he was the driver to be driven by or left in charge of a another person. In such case the master is sought to make the master liable was himself guilty of a breach of duty in allowing the act to be done and his breach of duty was in fact the effective cause of the injury.'
(6) Thus when the driver has delegated his duty to be performed by a cleaner as in this case this negligent act of the driver would make the master liable on the principle of delegation. The decision in point is that of Court of Appeal in Engelhar v, Farrant & Court., 1897--1 Q B 240 where the defendant owner had employed a man to drive a cart with instructions not to leave it and also a land who had deliver parcels to the customers of the defendant. The driver left the cart in which the lad was and went into a house. While the driver was absent the lad drove on and came into collision with the plaintiffs carriage. It was held that the negligence of the driver in so leaving the cart was effective cause of the damage an that the defendant was liable. This decision of the Court of Appeal was followed by a Division Bench of Madras High Court in Stanes Motors Ltd. v. Vincent peter, ILR 59 Mad 402: (AIR 1936 Mad 247). In that case the accident took place when the driver of the car (Bajee) was reclining in the employment of the owner though the case of the accident and had no knowledge that the fitter was driving the car until he was aroused by the stock of the impact.
The improbable story of the driver was disbelieved by the Court and it was found that the driver entrusted the driving of the care to the fitter who was not authorised by his employers to drive their care and who on this own admission has no experience as a driver. It was held that the driver acted negligently in asking the fitter to drive the case and the owner he became liable on the principle of delegation. Mr. Sibal has relied on another decision of the Court of Appeal in Ricketts v, thos, Tilling Ltd., 1915-1 KB 644. I do not see how the ruling of this decision can possibly advance the case of the appellant. The conductor of an omnibus belonging was seated beside him for the purpose of turning the omnibus in the right direction for the next journey, drove it through some by streets so negligently that seriously injured the plaintiff who was standing case was that there being evidence of negligency on the part of the driver in allowing the minibus to be negligently driven by the conductor there must be a new trial.
The question of negligence having been ruled out altogether by the trial Judge the Court of appeal directed a new trial and Bucklery L. J. after reference to 1897--1 QB 240 fully accepted the principle of that decision. Reliance is placed by Mr. Sibal on the judgment of Pick formed L. J. who made the following observation in the course of his judgment:
'I also, of course, accept the proposition that a man who is instructed and employed to drive ought to look after the driving of the motor omnibus and has no right to delegate that duty to anybody else.'
I cannot take that proposition to mean that if a driver wrongfully delegates his authority to some one else the employer can never be liable. The true principle governing such cases has been set out in 1897-1 Q B 240 which has been state as a proposition of law in Hlabury's Laws of England.
(7) Mr. Sibal has further relied on a Single Bench authority of Walmsely J. In Nalini Ranjan Sem v. corporation of Calcuttta ILR 52 Cal 983: (AIR 1926 Cal 87) where a chauffeur who was taking his lane leading to it impassable left the car in charge of the cleaner show duty was only to clean the car workshop was forbidden to drive it and went to the workshop and during his absence the cleaner drove there that the master was not liable for the act of the cleaner which lay outside the scope of the employment of latter. It has to be borne in mind that cleaner drove it in the lane which had became impact clearly fell outside the 'course of his employment 'the chauffeur not having authorised the driver himself handed over the steering wheel to the cleaner while he was himself sitting next to him and it cannot be said that the vehicle was not being run in the curses of the drivers employment. The decision of Mukerji J., in Indra Mohan Roy v. Emperor case the master was made liable for the tort of servant who has not implied authority to engage a matter of fact in that case that the car was being driven by an inexperienced driver without the knowledge of the owner.
(8) For the reasons I see no ground to interfere with judgments and decrees of the Courts below and dismissing the appeal would affirm the same. The appellant will pay the costs of the respondent in this appeal.
(9) Appeal dismissed.