P.B. Mukharji, J.
1. This is an appeal under the Workmen's Compensation Act. The appellant is the widow of the workman called Abdul Rahaman. Abdul Rahaman, the Workman, who was a driver of a taxi cab, met with an accident on the 17th August 1957 and he died as a result of that accident. On or about the 17th August, 1957 at the time of the accident he was driving a taxi being taxi cab No. WBT 1558 owned by the opposite party Qazi Zahirirddin Mohammad Babar. It is said that while he was driving the said taxi, he lost control and in the consequence the taxi dashed against a road-side tree injuring the deceased workman seriously and leading ultimately to his death.
2. The Commissioner of Workmen's Compensation, who heard the case, decided in favour of the opposite party and came to the conclusion that the deceased was not a workman employed by the opposite party within the meaning of Workmen's Compensation Act and, as such, no compensation was payable.
3. The appeal raises a short but important point whether a taxi driver who uses the car of a owner proprietor is a workman within the meaning of the Workman's Compensation Act and whether the owner proprietor of the taxi can be said to be his employer so as to have a liability for compensation to such a driver under Section 3 of the Workmen's Compensation Act, Although the question raised is important, the facts unfortunately in this case are meagre, inadequate and insufficient to support the claim for compensation.
4. Before proceeding with the determination of the point involved the short evidence in the case on the question of the nature of employment, may be briefly summarised. There was no evidence on behalf of the claimant. The only evidence was given by witness Ahmed whose maternal uncle owned the taxi. His evidence briefly is that this driver used to take out the cab on alternate days on commission basis. The driver used to sign the garage book and take out the car. His further evidence is that according to mileage the driver got 121/2 per cent of the collections. He says in his evidence that there was no control over the driver and he could take out the taxi on hire to any place he liked and he plied wherever he liked.' At night for some time there was a man given with the driver presumably to watch and see what the driver received. It is his evidence that this watcher was paid Re. 1/-, but even then this night watcher left after 9 p. m. It is also his evidence that the taxi naturally always ran on a meter. That is all the evidence.
5. It is unfortunate that the evidence is not more adequate in this case. For instance, it is not in evidence whether the car was to be taken out at a particular time in the morning and had to be returned that day at night by any particular hour. It is not in evidence whether the car had to be returned at all during the twenty four hours or whether the taxi driver could ply the car day and night, Again it is not in evidence that although he used to come on alternate dates, whether he was free to come or not and whether the driver could absent himself for any number of days consecutively or otherwise. On the evidence it is also possible for the driver not to take any passenger at all. All that he has to do is to get 121/2 per cent of the collections for himself and to pay the balance to the owner of the taxi. What happens when he makes no collection, is not in evidence. It is not in evidence who pays for the petrol. Neither the garage register nor the receipts by the driver in respect of collections are in evidence.
6. The onus of proving his case rests upon the applicant and upon nobody else and if he leaves the case in doubt as to whether these conditions were fulfilled or not, where the known facts are equally consistent with their having been fulfilled or not, it has been said that the applicant has not discharged the onus which lies upon him. It is well settled now that the onus is upon the claimant to prove the facts which entitle him to get compensation. In this case it is undoubtedly true that the applicant has failed to discharge that onus.
7. The question here raised is a question of same importance. It is one of those cases in which the workman is entrusted with the property belonging to another to whom he pays the share of the profits or takings. The question whether in such a case a contract of service is primarily determined by the amount of control exercised over the alleged worker. That is a question of fact. The leading case on this point is Doggett v. Waterloo Taxi-Cab Co., Ltd., reported in (1910) 3 BWCC 371. There a taxi driver took out a cab owned by the respondents from their yard each day. In that case also the contract between the parties was that the driver paid over to the respondents 75 per cent of his daily takings, retaining 25 per cent, for himself less the price of petrol which he purchased from the respondents. The Court of Appeal in England held that the relationship between the parties was not one of a contract of service but one of bailment and the compensation was refused.
8. Doggett's case, (1910) 3 BWCC 371 is a leading decision on many propositions. Firstly, it is a leading case for the proposition which I have already mentioned above that the burden of proof rests upon the applicant to prove that the relationship between the parties is a contract of service. Cozens-Hardy, M. R. at pages 376-377 of the report says:
'In my opinion these various points do rot suffice, either singly or collectively, to justify a finding that the relation between the parties was a contract of service. The burden of proof rests upon the applicants; and they have not discharged that burden. I think that the relation was that of bailment, although it may possibly be contended that the parties were co-adventurers.' Secondly, it is also a leading case for the proposition that control is the test. If the owner controls, then the taxi driver under him is a workman employed under a contract of service. If there is no such control, then he is only a bailee of the employer's taxi. At page 376 of 3 Butterworths Workmen's Compensation Cases Report, Cozens-Hardy, M. R. in that case observes:
'The contract between the proprietor and the driver is for the day on which the taxi-cab is taken out, as the learned Judge finds. The driver is not bound to come the next day, and if he does come the proprietor is not bound to let him have a taxi-cab. He is not paid anything as wages. He is accountable to the proprietor for 75 per cent of the takings, his own remuneration being a sum equal to 25 per cent of the takings. This mode of remuneration tends against, and not in favour of, the view that he is a servant.'
Apparently the learned Master of the Rolls affirmed that the share of the collections as a mode of remuneration was against the view that the taxi driver was a servant. Thirdly, Doggett's case lays down the proposition at page 376 of the report that -
'The proprietor exercises no control over the driver who can go when and where he pleases.' The freedom of the taxi driver to take the taxi wherever he pieases, to adopt any route where to ply and to use the car according to his own decision is apparently unlimited. These are factors which suggest that the taxi driver is not a workman within the meaning of tha Workmen's Compensation Act. In considering the question of control the learned Master of the Rolls appears to doubt whether mere could be dismissal or discharge of a person whose contract was for the day only. Again another wholesome principle laid down by Doggett's case, (1910) 3 BWCC 371, is that the facts of each particular case should determine whether the workman was under a contract of service or whether he was only a bailee in such cases. Ho hard and fast rule and no doctrinaire attitude should be adopted in such cases, It is unwise to say and incorrect that in every case a taxi driver is' a bailee and not a servant. Equally it is unwise and incorrect to say that in every case the taxi driver is a servant and not a bailee. Every case depends on the merits and the facts and the exact and actual terms of employment. Cozens-Hardy, M. R. in Doggett's case at page 377 of the report observed:
'I think that the relation was that of bailment, although it may possibly be contended that the parties were co-adventurers. In the above observations I dealt only with the facts of this particular case. There may be cases in which the proprietor of a taxi-cab exercises such an amount of control over the driver as to justify the conclusion that the relation of master and servant exists. Rex v. Solomons, (1909) 2 KB 980, apparently furnishes an instance.'
9. This point was forcefully made clear in the observations of Kennedy, L J. in Doggett's case, (1910) 3 BWCC 371 at pages 381-82 of that report:
'Reference was made in the course of the argument to a recent case of (1909) 2 KB 980, which came before the Court of Criminal Appeal after a trial at the Central Criminal Court. The proprietors of the taxi-cab in that case were not the same as those in the present case. Evidence was given at considerable length in that case which was not given in the present case. No one asserts that the owner of a taxi-cab and its driver cannot possibly create between themselves the relation of master and servant; the question in each case as to whether they have or have not done so is a question of proof by evidence' of the particular facts; and it appears to me that it would not be right or proper to introduce into our consideration of the present appeal either the verdict of the jury in 1909-2 KB 980 (ub sup.), or the judgment of the Court of Criminal Appeal which supported that verdict.'
10. In order to be a workman under the Workmen's Compensation Act in India he has to satisfy certain conditions laid down in the definition of Section 2(n) read with the second schedule under the Act. One limitation is that he must not be a person of a casual nature. A driver can certainly be a workman under Clauses (1) of the second schedule of the Act which expressly refers to a person employed in connection with the operation of a vehicle propelled by a mechanical power or by electricity. But then all drivers are not workmen. The owner driver is not. Similarly, the driver who hires out the car and has complete freedom during the period of hire to use the car for purposes and routes as he may think best with no control from the owner, is not a workman. There has to be an employment. He is to have an employer within the definition of Section 2(e) of the Workmen's Compensation Act and also Section 3 thereof. Those rests, on the ' facts of this case, are not satisfied. Persons buy tar on a hire purchase agreement and during the hire if the hirer's driver meets with an accident, it is the higer who so liable to pay compensation as the employer and not the person or the company or the owner who gave the car on hire purchase agreement to the hirer.
11. The House of Lords in Smith v. General Motor Cab Co., Ltd., 1911 AC 188 had to consider a similar question. There the respondents let out a taxi-cab to the appellant, who was injured by an accident while he was driving the cab. On the facts of that case it was held that the relation of the respondents with the appellant WES that of a bailor and bailee of the taxi-cab and it was not a case of a contract of service, and therefore, the House of Lords came to the decision that the appellant was not entitled to a compensation. In explaining this position Lord Atkinson observes at pages 191-192 of the report of the case in 1911 AC 188 as follows:
'It may be necessary to point out that the decision of your Lordships' House on this appeal does not in any way touch the question of the liability of the cab proprietor to third parties, passengers, wayfarers, or others, for the acts of the driver. It may well be that though the relation between the taxi-cab owner and his driver inter so be that of bailor and bailee, the driver may still quoad third parties be treated as the agent of the proprietor authorised to ply for hire in the streets for reward to the latter; and the proprietor be thereby rendered liable for those acts of the driver which were within the scope of the letter's authority. The general result of the cases of Fowler v. Lock, (1872) 7 CP 272, Venables v. Smith, (1877) 2 QBD 279, King v. London Improved Cab Co., Ltd., (1889) 23 QBD 281, Smith v. Balley, (1891) 2 QB 403 (405) and Gates v. R. Bill and Son, (1902) 2 KB 38, cited in Doggett's case, (1910) 2 KB 336, is that in the case of horse-drawn cabs, where drivers were given them in charge under terms resembling those admitted to exist in the present case, the relation between the proprietor and driver was that of bailor and bailee, but that quoad third parties the drivers were, under the provisions of the Metropolitan Hackney Carriage Act, 1843 (admittedly applicable to taxi-cabs), deemed to be the servants of the proprietors.'
12. Lord Shaw who was the other member of the House of Lords in Smith's case just quoted above summarised in clear cut propositions the whole position of the taxi-cab driver at pages 192 and 193 of that report in the following manner:
'My Lords, in this case 1 have only three propositions to state, -- each in a sentence.
In my opinion quoad the cab, the contract was an ordinary contract of locatio rei. Quoad the public, the relation of the cab-driver to the cab owner was, In my opinion, one of agency; so that, for negligence in the conduct of his business, both principal and agent might naturally be responsible to the public.
Quoad the employer himself, the question whether the relation of master and servant existed between the employer and the driver is one of fact. The fact has been found in this case, that no such relation did exist. That point depends on many circumstances, -- the scope of the employment, the form of remuneration, the scope within which the person driving the cab has power to regulate his own times and seasons, or to drive or not to 'drive the cab as he wishes. These are familiar illustrations of the variety of things to be considered.'
13. We respectfully agree with the observations made in Doggett's case, 1910-2 KB 336 and in Smith's case, 1911 AC 188, as quoted above. We need only add that bailment as defined under Section 143 of the Contract Act means delivery of goods by one person to another for some purpose upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor' and the person to whom they are delivered is called the 'bailee'. An attempt was made to argue before us, as it was also done before the Commissioner, that the English Act or the English Statute is different from the Indian Staturte. The Commissioner drew attention to the fact that by a recent change in the definition of the English Act by amendment a workman is expressly now made to include a person engaged for plying on hire a vehicle or vessel, the use of which is obtained from the owner under any contract of bailment in consideration of a payment of a fixed sum or a share in the earning or otherwise. No doubt no such amendment in the law is made in India. Therefore the Commissioner came to the conclusion that the particular words in the English Statute could not govern the law here and he followed the law in England as it was before the amendment. It is necessary to point out that both the Doggett's case as well as the Smith's case proceeded on the broad principles of bailment and hire and contract of service and did not proceed upon the technicalities of the manner of the words used in the English Statute. We have here made reference to the relevant sections of the Indian Act already.
14. We are satisfied on the facts in this particularcase that the taxi driver was not a workman employed bythe owner within the meaning of the Workmen's Compensation Act here.
15. The appeal, therefore, must fail and is dismissed but there will be no order as to costs.
16. I agree.