1. Sri Arjundoss has preferred this appeal against the award of a sum of Rs. 2,400 as compensation by the Additional Motor Accidents Claims Tribunal, Madras, to one Sri P. Janakiram for the injuries sustained by the latter in an accident which took place at about 10 a.m. on June 27, 1965, in Telegraph Abbay Naidu Lane, Madras.
2. Sri Janakiram was walking along the said lane, east to west and a private car, Standard-10, which belongs to the second respondent herein, Mrs. Kailash Rani, and which was then driven by the appellant herein hit and injured the said Janakiram. The appellant had borrowed the car from the second respondent for about half an hour for the purpose of taking hisfamily to Mambalam for a marriage. The second respondent's husband, Roshanlal, was sitting by the side of the appellant in the front seat.
3. The first question which arises for consideration in the appeal is whether the accident was due to the rash and negligent driving by the appellant. Sri Janakiram as P.W. 3 has sworn that as some logs of wood had been stored on the pavement, he was walking along the road from east to west close to the pavement, and that the car which came behind him hit him on his left thigh. Thereupon he fell down and got jammed between the pavement and the backside tyre of the car and his left ankle got injured thereby. The car was driven rashly and negligently and the appellant went away. P.W. 3, though examined by the police, was not examined in the criminal court as the appellant pleaded ' guilty ' to the charge.
4. The appellant as R.W. 1 has given evidence to the following effect, He was driving the car at about 10 miles per hour and was going on the left side of the road. On seeing P.W. 3 walking along the road with his wife and two children on the left side of the road towards west, he sounded the horn. The lady and the children went to the right side but P.W. 3 trampled on some foecal matter which was lying on the road and consequently slipped and fell down. The appellant thereupon stopped the vehicle ; and there was contact between the car and P.W. 3 only after P.W. 3 fell down.
5. The Tribunal had chosen to reject the evidence of the appellant and has pointed out that the story that P.W. 3 trampled on some foecal matter and consequently slipped down has not been referred to in the counter-statement. In the counter-statement, the appellant had merely stated that, while he was driving the car very slowly at 10 m.p.h., he found P.W. 3 actually walking in the middle of the street carelessly, that thereupon he sounded the horn and that P.W. 3 himself went and dashed against the car and that in the spur of the moment, he slipped and fell down. It is significant that the appellant had gone away from the ' place without even rendering first aid and had not chosen to give a report to the police immediately after the occurrence. As I have already pointed out, there is no reference in the counter statement to P.W. 3's trampling on the foecal matter and slipping and falling on the ground. It is true that P.W. 3 had admitted in his evidence that his foot got soiled with the foecal matter, but he is clear that his foot got stained with the foecal matter only after he was hit by the car and fell down. The appellant's present version that P.W. 3 slipped and fell down, and that the car came into contact with P.W. 3 only after P.W. 3 fell down, had not been thought of when the counter-statement was filed.
6. It appears to me probable that, on seeing the people walking along the road, the appellant sounded the horn and that, as the parties split into two groups and attempted to escape from being run over by the car, which was coming from behind, the appellant, who had admitted of only a six months driving experience to his credit, got panicky and knocked down P.W. 3 who was attempting to climb on to the platform hearing the horn. I am not impressed with the appellant's story that P.W. 3 fell down because he had trampled on some foecal matter and that he was not responsible because of the unforeseen contingency of P.W. 3 slipping and falling down. His evidence is that he had noticed the parties even at a distance of 20 feet and it is obvious that he could have avoided the accident if he had exercised normal care and diligence. I am clear that it was his rash and negligent driving that caused the accident. His conduct in not reporting the matter to the police after the accident and his subsequent admission of guilt cannot be left out of account in assessing his responsibility for the accident.
7. The second point raised by the learned counsel relates to the quantum of compensation awarded in this case. In view of the fact that the only serious injury suffered is only a cracked fracture of laternal maluous, I am clear that the award of Rs. 1,500 as compensation for pain and sufferings is too high in this case. In my view, taking into account the minor nature of the fracture and the fact that he had been undergoing treatment for some months, a sum of Rs. 1,000 on this account will be more than ample as compensation for the injury sustained.
8. I am not inclined to interfere with the award in respect of the compensation granted under the other heads. The learned counsel for the appellant pleads that, apart from the evidence of P.W. 3 relating to his trips to Puttur, there is no other independent evidence, but then the learned counsel for the Tribunal has chosen to accept P.W. 3's evidence and I do not find anything improbable about his story. In all, a sum of Rs. 2,900 would be sufficient compensation under all the heads.
9. The third bone of contention relates to the exclusive liability of the appellant for payment of compensation to P.W. 3. The learned counsel for the appellant pleads that the owner of the car as well as the insurance company which had insured the same will be jointly and severally liable for the compensation awarded to P. W. 3. The liability of the insurance company for compensation would arise only if the owner of the car insured by them would be liable in law to pay the compensation. The main question for consideration in this case, therefore, is whether the second respondent, the owner of the car can be said to be legally liable for the negligence of the appellant.
10. The law on the subject is fairly well settled. The question is whether the appellant was the agent of the second respondent, the car owner. As observed by du Parcq. L.J. in Hewitt v. Bonvin :
'Even if the driver of the car may not be the owner's servant, the owner will nevertheless be liable for the driver's negligent driving if it is proved that, at the material time, he had authority, express or implied, to drive on the owner's behalf. Such liability depends, not on the ownership but on the delegation of a task or duty.'
11. Denning L.J. had laid down the law thus in Ormrod v. Crossville Motor Services Ltd. :
' If the vehicle is being used wholly or partly on the owner's business or for the owner's purposes, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern. '
12. Singleton L.J. had, in the same case, at page 754, observed :
' The mere fact of consent by the owner to the use of a chattel is not proof of agency, but the purpose for which the car was being taken down the road must be either that it should be used by the owner or that it should be used for the joint purposes of the owner and the driver.'
13. Applying these principles, I am satisfied that the appellant cannot, by any stretch of imagination, be described as the agent of the second respondent. In his evidence, he had, as R.W. 4, categorically stated that he had borrowed the car from the second respondent for half an hour for the purpose of taking his family to a marriage party at Mambalam. The fact that the second respondent's husband was sitting by his side in the front seat cannot materially help the appellant, as there is no evidence that the said gentleman was travelling in the car for attending to any business of the second respondent. Under these circumstances, it is impossible to say that the appellant was using the car at the time of the accident for the business of the second respondent, the owner, or for any joint purposes. I am, therefore, clear that the second respondent, the owner of the car, and the insurance company are not legally liable jointly with the appellant for the compensation awarded to P.W. 3 in this case.
14. In the result, the appeal is partly allowed but, under the circumstances, without costs. The appellant will pay a sum of Rs. 2,900 as compensation to P.W. 3, Janakiram, the victim of the accident, in a month from this date. In default, P.W. 3, Janakiram, will be entitled to recover the sum from the appellant by executing this order.