D. Basu, J.
1. This appeal arises out of a suit for damages, brought by respondent No. 1, for the destruction of his motor car owing to the alleged negligence of the Poddar Automobiles, defendant No, 2, to whom it was given for repairs.
2. Respondent No. 1, a foreigner, who was, for the time being residing at Kalimpong, delivered his 1952 model Dodge Coronet Fluid Drive Sedan Body motor car for repairs to defendant No. 2, who had their repairing garage near Siliguri town, on October 23, 1953. White the car was thus. In the custody of the said defendant, it was burnt by fire on the midnight of 6-11-53. Respondent brought this suit on the allegation that the fire, which had reduced his ear into a mass of scrap and rendered it useless, had been caused by the negligence of the garage (defendant No. 2) and its employees. He tentatively claimed Rs. 23,000/- as damages, craving leave-to pay any additional Court-fee on any higher amount that might be eventually assessed by the Court on that account.
3. The suit was originally brought against two defendants The Poddar Automobiles (defendant No. 2), describing it as a firm, carrying on the business of automobile repairers, and defendant No. 1, describing him as the managing partner of the firm, named as defendant No. 2. Defendants Nos. 1 and 2, in their written statement, pleaded, inter alia, that the plaintiff had no cause of action against them and that the garage, known as the Poddar Automobiles, was not a firm but was owned by a Joint Stock Company, of which Messrs. Joynarain Ramchandar were the managing agents and defendant No. 1 -- happened to be a partner of the said firm of managing agents. Particulars regarding the owner company and the managing agents were not given in the written statement but were subsequently supplied after the plaintiff had sought for particulars. The plaintiff, thereupon, added defendants Nos. 3 and 4 by his petition of amendment of plaint, dated 20-5-54 without striking off defendants Nos. 1 and 2. Defendant No. 3 is the Calcutta Credit Corpn. Ltd. and defendant No. 4 is the firm Joynarain Ramchandar, the managing agents thereof.
4. Defendants Nos. 3 and 4, in their written statement, supported the plea of defendants Nos. 1 and 2 that the latter had been wrongly impleaded and that it was defendant No. 3 who was the owner of the garage and defendant No. 4 was its managing agent.
5. In the written statement of defendants Nos. 3 and 4, it was admitted that the car, described in the plaint, had been delivered to the Poddar Automobiles for repairs as alleged in the plaint and also that it had been damaged by fire but it was contended :
a) that it was not true that the fire had taken place owing to the 'negligence of the garage (defendant No. 2) or its employees and that it was entirely accidental;
b) that it was not true that the car had been totally destroyed but that it was damaged and the wreck was still lying in the garage;
c) that the car was lying at the garage at the plaintiff's own risk;
d) that the defendants were not liable In damages and that the claim was exaggerated;
e) that the plaintiff must prove that he was the owner of the car;
d) that the suit was bad for misjoinder of parties and causes of action.
6. Upon these pleadings, the following issues were framed:--
1. Is the suit maintainable in its present form?
2. Is the plaintiff owner of the motor car in question and had he got the right to bring this suit?
3. Is the suit bad for defect of parties?
4. Was the car burnt in an accidental fire and were the defendants, in any way, responsible for the said fire?
5. Did the defendants take, necessary care as required under law for the protection of the car?
6. Are the defendants liable to pay compensator) to the plaintiff for the damaged car?
7. Is the amount of compensation claimed by the plaintiff high and excessive?
8. To what relief, if any, the plaintiff is entitled?
7. The learned Subordinate Judge of Jalpaiguri, who tried the suit, found issues 1, 2, 4, 5 and 6 In the plaintiff's favour. Upon issue No. 3, he held that defendant No. 3 was in fact the owner of the Poddar Automobiles and defendant No. 4 were the managing agents of defendant No. 3. In his view, he held the suit to be not maintainable against defendants Nos. 1 and 2. Under issue No. 8, he reduced the claim to Rs. 14,500/-. The suit was, accordingly, decreed in part for that amount with proportionate costs against defendants Nos. 3 and 4 and dismissed against defendants Nos. 1 and 2.
8. Defendants Nos. 3 and 4 have preferred thisappeal, challenging the decree both on the question ofliability and the quantum of damages, and contending,inter alia, in particular, that defendant No. 4, the managing agents of a company, could not be held liable either far the damages decreed or the costs. In the appeal, defendants Nos. 1 and 2 have been impeded as respondents Nos. 2 and 3.
9. As to the title of respondent No. 1 (hereinafter referred to as 'the respondent') to the car, the contention of the defendants was renewed in this Court in view of the fact that the respondent his failed to produce any documentary evidence, relating to his alleged purchase. But, as the learned Subordinate Judge has held, the defendants are estopped from questioning the title of the plaintiff by reason of Sec. 117 of the Indian Evidence Act. It is admitted, in the written statement itself (Para. 4), that the car, described in the plaint, was received by the Poddar Automobiles (hereinafter referred to as 'the Garage'} from the respondent for repairs at the cost of the respondent. This is also admitted in Ext. A, the letter, acknowledging receipt of the car, written by the Garage, on 24-10-53, that is, immediately after the delivery of tha car by the respondent to the Garags. As the learned trial Judge has pointed out, all the subsequent correspondence of the Garage as well as the Bill for the repair charges (Ext. B, dated 20-5-54) have all along been addressed to the respondent, as the person, from whom the Garage had received the car as a repairer, whose legal position is that of a bailee, and this position was expressly acknowledged in Ex. A (4). In these circumstances, though the failure of the respondent plaintiff to produce the primary documents relating to his purchase, may place him in some difficulty in the matter of proving his claim for the damages, 83 laid in the plaint, his suit cannot be thrown out on the ground that he has no title to the disputed car. The matter is concluded by Section 117 of the Evidence Act and the finding of the learned trial Court on this point cannot be assailed.
10. On the merits, the defendants, in their written statement (para. 4), sought to cut at the root of things by contending that 'in accordance with the practice and principles of law, the car in question, when it was sent to the Garage, was kept there at owner's risk'. If this were the law, there would be no cause of action against the defendants even if it was established that the damass to the plaintiff's car by fire was due to the defendants negligence. In the same paragraph of the written statement, however, it is admitted that 'the plaintiff made over the car for repairs to the Garage'. Thus, the car was delivered to the Garage for a specify purpose,
11. By his letter (Ext. A (5)), dated 23-10-53, which he, sent to the Oarage through the driver who delivered the car to the Garage, the respondent made a list of the jobs to be done to his car. Of these, the following terms will be relevant for understanding the contention of the above defendants:
'Fit four new tyres and tubes, if possible, I should like Firestone or Dunlop 6 ply, Please fit four new tunas also...........As soon as you have finished with this, please let me know. I shall then send you the van for servicing; also the drivesr will return with the sedan.'
12. From the two letters of the Garage of the 30th October, Exts.. A (1) and A (2), it is clear that the Garage undertook to do the entire work, as ordered for by the respondent in his letter, Ext.. A (5), and also undertookto return the car to the respondent OR completion of that work. If so, the definition of bailment in Section 148 of the Contract Act is attracted, and the Garage, as a bailee, becomes liable to take as much care of the goods baile as is required by Section 151 of the Act until the purpose is accomplished and/or the goods are returned to the bailor, - in the absence, of course, of a contract to the contrary. No such contract, however, has been proved in thia case.
13. It was next suggested that the repairs, asked for by the respondent, had been done shortly after the car had been delivered to the Garage but that since the respondent asked for the supply of new tyres, to be brought from Calcutta, it was, since the completion of the repair work, lying with the Garage at the request of the respondent and at his own risk. This suggestion is based on the following averment in the written statement:
'The car was repaired but as the type of tyre required by the plaintiff and ordered by the fiarage from Calcutta did not reach Siliguri, the car could not be giver) delivery to the plaintiff,'
14. But, as we have already said, by Exts. A (1) and A (2), the Garage undertook to execute the entire job ordered for by the respondent, including the supply of pew tyres, and the Garage had written to Calcutta for obtaining tyres from the Dunlop Co. The Manager (D. wL 2) was patently lying when he said that when the car was sent to the Garage for repairs on 23-10-53, the respondent did not ask for altering the tyres and that the order for new tyres was given only towards the end of the month when the repairing had been completed. In at A (2), the Carafe wrote to the respondent that-
'Forthwith we have taken the job in hand, put we and sorry that the work cannot be completed to-day, as advised by you........... We shall inform you throughtelephone or by wire immediately, when your car is ready for delivery'.
15. Before the Garage could obtain the tyres OP inform the respondent that the car was ready for delivery, the fire took place and this was intimated to the respondent by the letter Ext. A (3). There is, therefore, no case that on receipt of a completion report from the Garage, the respondent failed to take delivery or kept the car there at his own risk from that moment onwards. Nor can it be said that the supply of the new tyres was either in fact or in law outside the contract of bailment which the defendants entered into as a repairer of the respondent's car. No such plea was, in fact, raised in the report of the fire, made by the Garage per Ext. A(3); which stated:
'....,...... .a very serious type of fire broke outin our garage on the Diwali midnight and the result that your Sedan car which was with its for repairs has also been burnt in the same fire.............Such happening is purely an accident, and regret, it is beyond our control'.
16. It is not, accordingly, open to the appellants to contend that, assuming that the respondent's car has boen damaged by the negligence of their servants while the car was in their Garage, they are not liable to answer in damages.
17. We have, therefore, to see whether the appellants and their employees did, in fact, fail in taking as much care as was required of them as a bailee underSection 151 of the Indian Contract Act. It would be useful to refer to the terms of Section 151 as well as Section 152 of the Act in this context:
'151. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances (y), take of his own goods of the same bulk, quality and value as the goods bailed.
152. The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151.'
18. The finding of the learned trial Judge that thedefendants failed in their duty to take care as required by Section 151 was challenged by Mr. Das, learned Counsel for the appellants, at the very outset, on the ground that the learned Judge has misplaced the onus upon the appellants, ignoring the law as laid down by the Privy Council in the case of Dwarkanath v. Rivers Steam Navigation Co. Ltd., 27 Cal LJ 615 (at p. 618) : AIR 1917 PC 173 (at p. 175). In that case, where Sections 151 and 152 of the Contract Act were applied as laying down 'the limits of the responsibility' of the defendant Company, their Lordships observed that the trial Judge had erred in throwing the onus upon the defendant Company, namely, that it was incumbent upon them to satisfy him 'that they had taken such care of these goods as a man of ordinary prudence would take of his own goods'. This in their Lordships' view was not a correct statement of the law. Their Lordstins further observed :
'It is true that under the Evidence Act of 1872, Section 106, when any fact is especially within the knowledge of any person, the burden of proving that fact is on him and it was therefore right that the defendant Company should call the material witnesses who were on the spot, as it seems to have done. But this provision of the law of evidence does not discharge the plaintiffs from proving the want of due diligence, or expressing it otherwise the negligence, of the servants of the defendant Company.
It may be for the Company to lay the materials before the Court; but it remains for the plaintiffs to satisfythe Court that the true inference from those materials isthat the servants of the defendant Company have notshown due care, skill, and nerve.'
19. As will be seen from the observations in a Division Bench judgment of this Court (Secy, of State v. Ramdhan, : AIR1934Cal151 ), the Bench felt great difficulty in reconciling the above decision of the Privy Council with the earlier pronouncements in England aswell as in India, where, in cases of loss or damage by a bailee, the onus to prove absence of negligence had been placed on the bailae, and which were not expressly overruled or dissented from by the Judicial Committee in Dwarkanath's case, 27 Cal LJ 615. AIR 1917 PC 173. It is, however, needless to refer to these earlier decisions (vide Mulla's Contract and Specific Relief Acts, 7th Edn., pp.. 495-97) in view of the fact that the decision of the Privy Council in Dwarkanath's casa, 27 Cai LJ 615 : AIR 1917 PC 173, has been followed and applied in this Court by the Bench decision in the casa just cited as well asby G. K. Milter, J., sitting singly, in the subsequent case of Indian Trade and Genera! Ins. Co. v. Union of India, : AIR1957Cal190 . The dictum of the Privy Council in Dwarkanath's case, 27 Cal LJ 615 : AIR 1917 PC 173, is binding upon this Court so long as it is not overruled bv the Supreme Court.
20. Nevertheless, the apprehension of the appellants that the learned trial Judge in the case before ITS Has failed to apply the decision of the Privy Council in Dwarkanath's case, 27 Cal LJ 615 : AIR 1917 PC 173, is not justified. As explained by the Division Bench in Ramdhan's case, AIR 1934 Cal 151 at p. ,154, according to the decision of the Privy Council, a plaintiff claiming damages for failure to take care on the part of a person to whom Section 151 of the Contract Act applies may succeed in discharging his onus in two ways:
(a) He may show that the defendant has failed to place before the Court ail the materials available to him, as required of him under Section 106 of the Evidence Act, and ask the Court to presume that if produced such material would have gone against the defendant;
[b) He may also show, on such materials as have been produced by the defendant, that he has not taken as much care as is required of him under Section 151 of the Contract Act.
21. It is clear from a perusal of the judgment appeal-ed from in the present case that the learned Judge has founded his decision primarily upon the latter of the foregoing propositions. In his conclusion under issues 4-G, he says,
'Upon a careful consideration of the materials placed before the Court I arrive at the conclusions that .. .. ....... ... the defendant did not take as much careof the plaintiff's car as is described in Section 151, Indian Contract Act.'
22. The question of onus and misapplication of the decision of tha Privy Council as raised by the learned Counsel for the appellants is thus without substance. What this Court is called upon to determine in this appeal is whether the above conclusion, of the learned trial Judge is substantiated by the evidence on the record.
23. We have, therefore, to see first of all what quantum of care is required of a bailee under Section 151 of the Contract Act.
24. Firstly, the words 'as a man of ordinary prudence would take of his own goods' do not mean that if the bailee's own goods are lost together with the bailed goods, kept at the same place, it necessarily shows that the bailee has taken the reasonable care required of him by law with respect to the bailed goods vide Doorman v. Jenkins, (1834) 2 Ad. and El. 256. Even a knowledge on the part of the bailor that the bailee keeps the goods in his possession in a particular manner would not estop the bailor from pleading that the bailee had failed to take the care required of him by statute. A plea of this nature, based on the maxim 'Volent non fit injuria', was rejected by the House of Lords in Brabant and Co. v. King, 1895 AC 632 at p. 641. The only cases where the bailee would be immune are laid down, in India, expressly in Section 152 of the Contract Act, namely, 'if he has taken the amount of care of it as described in Section 151'.
25. In paragraph 7 of the written statement, it was stated, in support of the defendants' case that they had taken due care, that their own goods of a high value, kept In the Garage, had been burnt along with the plaintiff's car and this is reiterated in paragraph 11 of the memorandum of appeal. Headless to say, this plea is of no avail in view of the law as stated above.
26. Secondly, as explained by the House of Lords in the leading case of (1895) AC 632 at p. 640, the duty of a bailee to take reasonable care comprises care in two directions :
(i) The duty to take all reasonable precautions to obviate the risks which may be reasonably apprehended;
(ii) The duty to take all proper measures for the protection of the goods when such risks are imminent or had actually happened.
For convenience of reference we may describe the two stages of care as 'precautionary1 and protective'.
27. In a case of fire, the above two tests were applied by this Court in the case of : AIR1934Cal151 .
28. Learned counsel for the appellants laid great emphasis upon certain observations of the Judicial Committee in Dwarkanath's case, AIR 1917 PC 173 at p. 175, which relate only to the latter stage, namely, 'what is required of a man who finds himself in a sudden emergency, however that emergency has been brought about'. In that case, the fire took place in a barge to which the barge containing the bailed goods was moored. There was no suggestion that the fire in the other barge had been, caused by the negligence of the defendant Company to take precautionary measures and the only question was whether the defendant had taken proper measures to save the goods by cutting the moorings in proper time. In their Lordships' view, the conduct of the servants of the Company in this behalf was to be judged having regard to the fact that they had to encounter a sudden emergency. These observations may be relevant in judging the conduct of the servants or the appellants before us after the fire had broken out; but we have still to find out whether they had taken reasonable precautionary measures to prevent fire. We shall discuss the evidenced relating to precautionary and protective measures under two heads.. In fact, the duty to take care under the two different heads is acknowledged in para. 7 of the written statement itself.
29. A. As regards the duty of a bailee to take precautiortary care, several broad propositions may be referred to before going into the evidence.
30. Since the standard of care is that of a reasonable or prudent man, he is required to use reasonable care to avoid dangers which are reasonably foreseeable but not to shard against fantastic possibilities' (Pardon v. Harcourt-Rivington,, 1932 All E R 81 (H L); Boitoti v. Stone, 1951 AC 850 at p. 856].
31.-34. At the same time, the standard of a reasonable man is an impersonal standard arid leaves out of account the personal equation of the man concerned (Glasgow Corpn, v. Muir, 1943 AC 448 at p. 457).
35. The degree of care required varies with the degree of risk involved in the operations in which the person is engaged. 'The more dangerous the act the greater is the care that must be taken in performing; if (Read v. Lyons and Co. Ltd, (1946) 2 All E R 471 at p. 476).
36. Analogous to the above is the principle that where a work requires special skill, the standard of careis raised, inasmuch as the person who undertakes such work must possess the skill which is required to perform that work and he must conduct himself in a skilful manner (Philips v. William, (1938) 1 All E R 566).
37. A special degree of care is thus required of doctors and other professional men, manufacturers, innkeepers, store-keepers, (1895 A C 632, ibid), carriers, motor-car drivers [Daly V. Liverpool Corpn., (1939) 2 All ER 142), and the like. There is no doubt that a person, who carries on the business of a motor repairer professes to do a job- which requires special skill and involves special risks and must take precautions 'which are not required of persons engaged in the ordinary routine of daily life' (1943 AC 448 at p. 456j. It is also to be noted that when a person undertakes such a job, the law not only requires that he should possess the requisite skill but also that he has the requisite plants and appliances and that his premises are also reasonably suitable for doing that job [Cf. 1895 AC 632 ibid.)
38. From the evidence of D.W. 2, as well as from Ext. C, the Fire officer's report, it appears that the Garage of the appellants was not a pucca structure but 'roofed by C. I. sheets and walied by wooden planks', it may be mentioned at once that Mahananda, D.W. 7, who is said to have noticed the fire first, 'saw the fire on the wooden wall on the back side of the Garage'. There is no doubt that the defendants had undertaken a greater risk than others who resort to the businass of automobiles repairs, in using a wooden structure having a big dimension of 150 ft. X 25 ft., when not only vehicles containing petrol but also combustibles like thinners and paints were kept in the, Garage [D.W. Ho. 2, Ext. C). It also transoires from the evidence of defendant No. 2 that there was a tarpaulin shed within the Garage where cars were temporarily stored. From the report of the Fire Officer in Ext. C and his deposition, upon which the defendants rely to rebut the allegation of negligence, it is evident that one of the bays in which the Garage building was partitioned By wooden was had been permitted by the defendants to be used for cooking and there were actual marks thereof. D.W. No. 8 admits that one Punjabi was allowed to occupy that bay with his family and used to cook there at least occasionally. It is also evident that there being no electric lights in the Garage, kerosene lamps were in use at night (vide D.W. 8).
39. From all this, it is patent that the risk of fire in such premises was reasonably foreseeable and that the defendants had incurred a special risk in keeping cars in such premises whether for repairs or for storing at night.
40. We have, therefore, to see next whether defendants took reasonable measures to prevent fire having due regard to the 'nature of the premises and the operations going on therein. Of course, wooden walls as such are not an, inflammable thing like petrol, but it is hardly open to question that a building with woodan walls and partition walls would catch fire more easily and would spread it more quickly than a brick-built one. The great intensity of fire which the Fire-officer noticed even at least one hour or so after the fire had started was due to the nature of the structure and its contents. If one were to extinguish a fire immediately after it has broken out in such a premises, containing petrol, paints and other inflammable substances, it is obvious that the premises must contain efficient fire-fighting apparatus. D. W. 2, the manager of the Garage, asserted in his deposition that
'there were two fire extinguishers and 6 or 7 bucket) and one well for fighting accidental fire'.
41. The Fire Officer, D.W. 1, had stated that when his party arrived on the spot, her saw some 5 or 7 persons using fire-buckets and two used fire-extinguishers lying on the ground. He did not see the use of those fire-extinguishers. The learned trial Judge, in the first instance, doubted whether there were actually any fire-extinguishers or buckets since there was no documentary evidenced as to their existence in the Garage. Secondly, the learned Judge, has observed that even assuming that these things originally belonged to the previous garage of the defers dants and from there they had been shifted to the present garage as D.W. 3 asserts, the size of the previous garage was one-third the size of the gutted Garage and what might have been sufficient for the previous garage could not be held to be sufficiant for the present one. Without dilating on this point further, we may say that two tire-extinguishers and 6 buckets (as D. W. 2 says on cross-examination) are clearly insufficient to put out fire in a premises like the one in question, Apart from that, it appears from the deposition of A. K. Bose, the engineer of the Garage (D.W. 3) that he had never used the lire-extinguishers, nor had he instructed anybody belonging to the Garage as to how to use them. One Nanda, rot an employee of the Garage, but a contractor who is said to have been sleeping in the Garage (D.W. 6}, comes forward as one of the two persons who are alleged to have used the fire-extinguishers. The other man Kallka has not been examined and there is no proper explanation for his non-examination (vide D.W. 3). Be that as it may, D.W. 3 does not say that there was anybody else in the Garage who knew or had been instructed how to use fire-extinguishers. D.W. 6 also does not say that it was the duly of himself or the other man to use the fire-extinguishers; he did it simply because Chaturansnda, the Durwan asked him. D.W. 3 clearly says that Nanda had no duty at the Garage.
42. By marely keeping two fire-extinguishers, therefore, defendants cannot be said to have discharged their duty to take reasonable care to avert fire, which we have said, was a reasonably forsesable danger in the present Base. In this context we are tempted to quote the words of Lord Morris in River Stesm Navigation Co. v. Choutmull, 36 Ind App 1 (PC) at p. 5.
'. . . . .when the fire did take place there was an utter absence of any power of extinguishing it, excapt by the primitive mode of throwing buckets of water upon it. There were two pumps, and they were both useless -- the pump in the fore part of the vessel was useless because the captain was alone there, end he could not work the pump himself, and the men could not get there. Why had he not the men at his disposal? What is the USB of having a pump if you have nobady to work it?'
43. As regards the well referred to by D.W. 2, it would not be relevant in the present context, if the buckets were hard buckets. Chaturananda, the, Durwan, who is said to have been in charge of the Garage at the time of the fire, first said that the buckels contained water as wed as sand, without specifying how many contained sand and how many contained water. Later he says that before leaving the premises for informing D.W. 2, he asked everybody to extinguish the fire by water. The next man who comes, Ekram All, repeats the compound of sand-and-water buckets. D. W. 6 Nand Kishore, first speaks of 6 sand buckets, but later says that both sand and water were used.
44. Thereafter came Mahananda, who may be said to be the 'hero of the day'. He is described to the Attendance Register of the Garage as a Durwan, but is stated to have the duty of a nightwatchman, keeping watch for half of the night under a two shift partnership with another man Kalika, who is described as the nightwatchmen in the Register. The fire is alleged to have taken place during the shift of Mahananda and it is he who is said to have detected the breakout of the fire and taken all the initial steps. He, however, throws cold water on all what had been said by the preceding witnesses on the matter of the buckets. In his examination-in-chief, he says that there were 6 sand buckets. If that be so, all the buckets in the Garage contained sand, and, yet, on cross-examination he says that he did not use any of the sand buckets, hut just threw one bucketful of water by a bucket which was 'very small'. Wherefrom he got that bucket, he does not say.
45. On behalf of the respondent, the very existence of any well within the Garage premises was questioned. We need not, however, pursue this point in the present context. Even assuming that the defendants' case on this point to be true, the existence of two fire-extinguishers without any trained personnel to use them, and the existence of 6 buckets of sand or water cannot be said to be a reasonably adequate precautionary measure to, avert fire in the premises in question having regard to its nature, dimension and contents.
46. In this context, It may be mentioned that, according to D. W. 2, though there was a telephone systam in the locality, no telephone was secured for the Garags or the manager's residence so that there was no means of informing the Fire Brigade or the authorities of the Garage itself, in case of a fire.
47. We are of the opinion that the appellants have failed in their duty to take the care required of them under Sec. 151 of the Contract Act in providing themselves with the proper premises and apparatus for averting fire in the Garage where the respondent's car was kest for repairs.
48. Appellants' case, however, is that the fire was accidental and that it took place owing to cause beyond their control. Of course, if it were established that the appellants had taken as much care 33 is required by Section 151, it was not incumbent upon them to show, further, the exact cause of the fire. A bailee is not an in surer of the bailed goods and he would not be liable if the loss occurs notwithstanding his taking reasonable care. But once it is shown that he has failed to take such tare, the onus of showing that the thing happened because of factors beyond his control (e. g., vis major), and that no amount of care could have averted it, would be upon him, in the present case, of course, the respondent had made frantic suggestions from time to time as to how the fire could have possibly started, as a person who had incurred heavy loss would have done, but he was under no duly to point out how the fire broke out. His onus, even according to the decision in Dwarkanath'3 case, (AIR 1917 PC 173], ends once he establishes that the bailee hap, failed to take such reasonable precautionary measures as a prudent man would have taken, to avert the fire. As pointed out by Varadachariar J. in Pornappa v. Parakkalall, (1937) 2 Had U 329 (at p. 333) (AIR 1937 Mad 411at p. 413), this position had been sufficiently clarified by Sir Walter Philimore himself, only two years before delivering the Board's decision in Dwarkanath's case, AIR 1917 PC 173 as a party to the judgment of the Court of Appeal in the case of Joseph Travers and Sons Ltd. v. Cooper, (1915) 1 KB 73).
49. There is no evidence in the present case that She fire was due to such a cause that it would have brokenout even if the defendants had taken reasonable precautions to avert it.
50. B. Let us now turn to the question of themeasures actually taken by the defendants to save theplaintiffs car after the fire had broken out.
51. In the trial Court, the rendezvous of the defendants was mostly devoted to this part of the question on the merits and the evidence an this point is fairly big. But from this mass of oral evidence, full of discrepancies, certain board facts may be discerned, even taking the defendants' evidence at its best.
52. (i) The first thing to be seen is what steps were taken for removing the Respondent's car as soon as the fire was detected. On this point, the primary evidence is that of Mahananda because he was the first man on the scene. His story is that after the Head Durwan Chaturananda had been roused from his sleep, the latter asked Mahananda and Sanatan to push out the Respondent's car from one of the room where it had been kept under lock and that they were later helped by Chaturananda and Ekram too, but ail in vain because the tyres were flat and the car would not, accordingly, move.
53. On behalf of the respondent, it has been suggested that the entire story of attempting to push his car is false inasmuch as it was not possible to open the doors of the rooms since the keys were in the possession of A. K. Bose who took them home. Of course, Bose (D. W.. 3) says that he used to keep the keys in a keyboard to be used by the Head Durwan. But this evidence is hardly acceptable in view of the fact that admittedly he had no instructions from the authorities to leave the keys in the custody of the Durwan, from whom no security had been taken. The Manager (D.W. 2) emphatically says that Bose was in charge of the Garage' as well as toe keys. It was practically meaningless to lock the rooms containing properties of high value if the keys were available to a man of straw, who himself says (D. W. 4) that he had to close the doors 'in the presented of Bose Babu'. The further statement of Bose that since the lire he has made no enquiry or search about the keys also snows that he is not speaking the truth.
54. The story regarding the use of the keys as given by the other witnesses is also incredible. If it was Chaturananda, the Head Durwan, who was in charge of the keys, one would Expect him to be the only person who knew the particular key for each of the 14 rooms and who would himself open the doors if the rooms were to be opened promptly after coming to know of the fire. Cut fie says that he asked Ekram, the Painter, to do this most important job, and Ekram's evidence is enough to demolish the defendants' case on this point. He says:
'I can't say which key was of which padlock, 1 opened all the doors within 15 minutes as there was difficulty on my part to fit the right key in the key padlock.............. I cannot say why Chaturananda did netopen, the doors or why he left the matter to me'.
55. After this statement, it is not possible to resist the suggestion on behalf of the respondent that the doors were not opened at all, or, if at all, not within any reasan able time after the detection of the fire. As the learned trial Judge points out, this is corroborated by the; very fact that none of the appellant's cars worth about a lakh of rupees could be brought out of the rooms. The story of any attempt to pull out the respondent's car must therefore be rejected.
56. (ii) As to the attempts to extinguish the fire, it has to be discussed under two stages: (a) the pre-fire brigade stage and (b) the fire-brigade stage.
57. We would take up that fire-brigade stage first because, in our opinion, anything done by the fire brigada could not possibly save the respondent's car which must have been turned into a wreck by the time the fire brigade arrived. According to the Fire Officer, on arrival he found 'the entire garage ablaze, and the central portion of the shed had collapsed'. The time-lag between the breakout of the fire and the arrival of the fire brigade was the subject of a sharp controversy in the Court below. But even without any attempt to arrive at any mathematical precision on that point, this much is clear that according to Chaturananda, who went to inform that Manager, who in his turn, Informed the Fire Brigade, the attempt to move the respondent's car had to be abandoned before he left the Garage, because it was surrounded by flames. This is also the statement of the other witnesses who are said to have joined in pushing the respondent's car. According to the Manager, there was ns telephone at the Garage or at his own house. He had to walk over to a neighboring office, ask the Durwat to open the gate and then to telephone from there and the Fire Brigade on receiving his information had to cover a distance of 3 miles (D. W. 1) from the Fire Station to the Garage, after receiving his message. The distance between the Garagm and the Manager's residence is 11/2 miles (D. W.. 2) and Chaturananda had to cross this distance on foot and then to rouse the Manager, who was at sleep. That the telephone message was not prompt enough would be obvious if we take the statement of Chaturananda that he arrived at the fire station before the Fire Brigade could start. Considering the intensity and magnitude of the fire as was observed by the Fire Officer on his arrival, little is left for imagination that the Fire Brigade could not arrive in time to save the respondent's car. The very fact that the Garage did not obtain a telephone installation so that they could contact the Fire Brigade immediately on the happening of any such eventuality also leads to the conclusion that they took no reasonable steps to extinguish the fire after it had broken out, in order to save the respondent's car.
58. More important, therefore, in this case is the question as to what was done by the servants of the Garaze to extinguish the fire immediately alter it had been detected. The primary evidence on this point is that of Mahenenda (D. W. 7) who is said to have been acting as nightwatchman at the relevant time and was thus the first' man to see the fire. There is ample scoops for criticism that he was only a Darwan as stated in the Attandance Register [Ext. D) and not a nightwatchamn and that the story that he was keeping watch at the time of fire is entirely false, particularly in view of the fact that Kalika, who is shown to be the watchman in the Register, has not been examined at all. Be that as it may, even, taking the evidence, of Mahananda at its best, all that he did to quench the thirst of the Fire-god was to spill a small bucketful of water. He says there were sand buckets but does not say if anybody used them. As regards the fire extinguishers, too, he says categorically. 'I can't say if those fire extinguishers were used'. In the face of his deposition, much cannot be made of the evidence of the Fire Officer that he saw the empty fire extinguishers lying on the ground when be arrived, if he did not see their actual use. Upon the entire evidence on the record, it cannot be said that any use was made of the fire-extinguishers immediately after the fire had been detected; even if they had been applied at any later stage, we have seen that they must have been handled ineffectively by persons who had no proper training.
59. We have already held that no attempt could be made to save the respondent's car at all because the room in which the car had been kept was under loch and the keys were not there. Even if the evidence of Ekram be accepted, there was a delay of at least 15 minutes in his opening the doors as he did not know the keys and 15 minutes' time was enough to Ret the respondent's car surrounded by flames and render it immobile. We agree with the learned trial Judge that the story of the flat tyres is a lame excuse.
60. Without more, it may be safely concluded that defendants failed to take the care required of a man of ordinary prudence either in averting the risk of fire or IR protecting the respondent's car after the fire had broken out, and defendants must answer in damages for the loss caused to the plaintiff.
61. On the question of assessment of damages, had the plaintiff's evidence stood alone, he had little chance of success. As stated earlier, he has failed to produce any documentary evidence relating to his purchase and his oral evidence, read with his plaint, is not so firm as to enable ths Court to come to a definite assessment of the value of the car which has been burnt. But it is the defendants who have saved the plaintiff being thrown overboard. Relying in the main on the defendants' evidence, the learned trial Court has assessed the damans at Rs. 14,500/-, thus reducing it to nearly half of what had been claimed in the plaint. It may be noted that there is no cross-objection against the reduction made by the trial Court.
62. In the plaint, the plaintiff tentatively claimed Rs. 23,000/- as damages, though be stated that he had incurred a loss amounting to Rs. 28,/QOG-. He had aIso appended in the Schedule a list of accessories and equipment specially fitted with his car, valued at Rs. 3,415''. In his deposition he claimed this amount in addition to the varus of his car. The learned trial Judge has, however, rightly rejected this additional claim on account of the accessories, holding that a number of them were admittedly supplied with the car as its original fittings, while as regards the others, plaintiff has adduced no legal evidence.
63. The only question, therefore', for determination in this Court is the value of the car itself subject to deductions to be made on several items, which will be ex-plained presently.
64. As to the procedure to be adopted, the respondent in his deposition stated that he had allowed 25%depreciation upon, the original value of the car and its accessories in making his claim in the plaint, and the learned trial Court has allowed depreciation at that rate. In the Memorandum of Appeal it is urged that the quantum of depreciation should not be less than 50%. We have,, therefore, to ascertain the market value of a new car oft this description and the depreciation to be allowed on account of its user before the damage.
65. (a) D. W. 2 is the manager of the Garage which also deals in new cars. He stated in his examination-in-chief that the price of a car of this description, imported from the U. S. A., would be Rs. 25,0007-, including Rs. 4,000/- payable as customs duty. Since the plaintiff did not admittedly pay any customs duty on his car as it was registered in the International resister, the learned trial Judge deducted Rs. 4,0007- and arrived at the round figure of Rs. 20,0007- as the value of the plaintiif's car in its original condition after import, at the lowest computation. This computation has not been specifically challenged in the Memorandum of Appeal which is otherwise lengthy and detailed and challenges the rate at which depreciation has been allowed by the trial Court. We,. therefore, accept the valuation of the plaintiffs car, if it had been imported fresh from the manufacturers, at Rs. 20,000/-.
66. (b) The real controversy is as to the amount it depreciation to be allowed. The car was admittedly of the 1952 model. Since the respondent has not produced, any document to show the date or month of the manufacture, or ralease of the car from the factory of the manufacturers, it cannot but be assumed that the car was released in the market in the earliest part of 1952. This finds support from the fact that the car was, according to the respondent, registered by him on its transit through Greece, in. July, 1952. Respondent also statas that customs duty was charged on the' car on the basis that it was a second-hand car but that he got exemption because of international registration. Hence, the car mush have been asad for sometime before its export from the U. 5. A.
67. On this point, the learned trial Judge seems to have been in error since he computed the depreciation of the car from February, 1953, when the car arrived in India.
68. Secondly, while the exact mileage run by the-car is not known, that it was put to a heavier use than the ordinary is apparent from the fact that in nine months that intervened its arrival in India and the date within it was burnt, its clutch had gone out of order and that all the four tyres had been worn out, and were required to be replaced by the Garage. The appellant could not also contradict the suggestion that even the existing tyres were not the original ones. In his cross-examination, the respondent admitted that the region of Kalimpong where-he had been using the car is a hilly region where the wear and tear of tyres is heavier than elsewhere. Naturally the pressure on the parts of the car would also be heavier in a hilly region. Further, he had taken the car to Kalimpong by road from Calcutta on delivery and had also been to East Pakistan by Shifcar on this car.
69. The respondent had offered no material on the basis of which he had computed the depreciation at 25%. In these circumstances, we do not think the learned triar Judge was Justified in accepting the rate of depreciation as stated by the respondent. Of course, the appellants have also failed to offer any reliable material on the basis of which the depreciation could be fixed at 50% as urged in the Memorandum of Appeal. We think, in the circumstances of this case, as staled above, we may fairly put the depreciation at 40%.
70. The value of the car at the tima of the fire would thus come to Rs. 12,00/-. From this we have to make some other deduction:
(a) The first is the value of the wreck, because the car of the respondent had not been altogether reduced to a scrap as stated in the plaint.
71. It appears from the petition dated 23-7-54, filed an behalf of the defendants that sometime after the fire defendants served a notice upon the plaintiff to remove the wreck from their Garage. Subsequent to this, on 19-7-54, plaintiff prayed for the appointment of a Commissioner for inspection of his car. After hearing the objection of the defendants, the Court allowed the prayer for inspection and appointed one Sanyal, a motor export, who was acceptable to the defendants as well (vide order No. 18, dated 11-8-54), and directed him to report not only on the condition of the wreck but also its market price, part by part. , Ext. 6 is the report of that Commissioner.
72. The Commissioner reported the extent of damage part by part and also opined that the price of the undamaged parts might be Rs. 550/- and the wreck as a whole might fetch Rs. 500/-. Both parties filed objections to this report, defendants contending that the wrack might be sold at not less than Rs. 5,000/-. At the trial, it was the defendants who examined this Sanyal (D. W. 10) on their behalf. The learned trial Judge in his judgment, valued the wreck at Rs. 4007- at which the plaintiff is stated to have subsequently sold it to a Motor dealer, named Cheman Motor Garage, after taking delivery of the wreck from the' defendants.
73. Before us, it was at first contended by learned Counsel for the appellants that the value of the wreck should be assessed at a much higher figure than oven Rs. 550/-, the amount at which it had been valued by the Commissioner. This contention cannot be accepted for the following reasons: Firstly, under a contract of bailment, which essentially requires a return in special, the bailer had no obligation to take back a damaged car. If the defendants have failed to take the care required of them by Section 151 of the Contract Act, they are liable to compensate the plaintiff for the car in the condition in which it had been delivered to the defendants for repairs. Defendants should, therefore, have retained the wreck and sold it to the highest bidder, with the permission of the Court. Instead, they asked the plaintiff to take away the wreck after the fire as stated in para. 6 of the written statement and oven served a notice upon the plain tiff to take it away and also urged for its removal when plaintiff sought inspection (vide petition of the defendants dated 23-7-54) if after all this, plaintiff took away the wreck and sold it, it hardly lies in the defendants' mouth now to urge that it could have fetched a much higher value. On behalf of the appellants it was urged before us that according to the Commissioner's report, the engine black including piston, rings, crank-shaft had not been destroyed by the fire but had been only 'subject to high temperature'. The Commissioner valued this item at Rs. 2007- D.. W.'s 2 and 3 stated that the car could be repaired and sold at Rs. 4,000/- in the least If that be so, they should have retained, the car themselves and raise as much as possible or fit least to pray for a court-sale, instead of urging the plaintiff to take it away. Secondly, the Commissioner (D. W. 10), in whom the defendants had confidence, as is evident from the Court's order No. 18 dated 11-8-54 as well as from the fact that he was examined as a witness on behalf of the defendants, does not appear to have acted with any partiality towards the plaintiff.
74. We do not find any justification to deduct more than Rs. 5507- on account of the wreck.
(b) The repair bill in Ext. B amounts to 1987-. This amount should be deducted from our assessment of the value of the car when, it was made over to the defendants for repairs.
(c) Learned trial Judge also deducted Rs. 100/- on account of the fact that the tyres in the car were useless and were to be replaced, together with tubes, if any sum were to be deducted on this account that would be, of course, not less than Rs. 1,0007- since the respondent in his deposition stated that the price of each tyre, with tube, is about Rs. 250/- We do not think, however, that, any additional deduction is to be made on this item, The position with respect to the tyres is different from that of the repairing charges. While the appellants had incurred an expenditure on account of the repairs, they had not, in fact, fitted the new tyres before the fire took place. In our opinion, the heavy depreciation which we have allowed should cover the wear and tear of the existing tyres and tubes.
75. In the result, we assess the damages at Rs. 12,000/- minus Rs. 748/-, that is, at Rs.. 11,252/-.
76. The next question to be determined is whether there should be any decree against defendant No. 4, the managing agents, besides defendant No. 3, the Company, which owns the Garage. In torts, the vicarious liability for the wrongs committed by a servant of a corporation, fastens to the corporation and not to its directors or managing agents, who are fellow-servants. The position in contracts does not appear to be different. This question was not adverted to by the trial Court inasmuch as it was not specifically taken in the- written statement nor, apparently, urged before it.
77. The suit should be dismissed against defendant No, 4 (appellant No. 2), but, in the circumstances of the case, we would not allow any costs in their favour.
77a. Let the appeal be, accordingly, allowed in part. The judgment and decree of the1 Court below be modified to this extent only that the suit shall be decreed on contest against defendant No. 3 (appellant No. 1) for Rs. 11,252/- with proportionate costs throughout, and dismissed without costs against defendant No. 4 (appellant Ho. ?-). P. N. MOOKERJEE, I.:
78. I agree but I would add a few words on the question of onus under Ss. 151 and 152 of the Indian Contract Act. The law of onus is part of the law of procedure. The above two sections, however, contain the substantive law, governing the bailee's liability, and lay down the lest in that behalf. They do not deal with the question of onus. The position in this respect is materially different under the Carrier's Act, where Section 9 deals not only with the substantive part but also with the procedural part, so far as it relates to the question of onus. In the matter of the carriar's liability. If this distinction isborne in mind, no question would arise of any conflictbetween 27 Cal U 615: (AIR 1917 PC 173) and 26 ind App. 1 (P,C.) J. to : AIR1934Cal151 , this distinction wasnoticed in the following passage, occurring at p. 152of the resort-
'As regards burden of proof the three classes ofsuits have to be kept apart from each other; one, dependententirely upon Sections 151 and 152, Contract Act; another, in which Section 9, Carriers Act has to be borne in mind; and the third, - in which, not only Sections 151 and 152, Contract Act, but Section 76, Railways Act, also have to be applied.'
but, later, while dealing with Choutimill's case 26 Ind App. 1 (FC), their Lordships, if I may say 50 with respect, apparently dealt with it without reference to the above distinction and as an authority on the genera] question of onus in Telation to the bailee's liability, somewhat in conflict with Dwarkanath's case, Supra 27 Cal LJ 615 : AIR 1917 PC 173). It is true that what I have pointed cut above would only explain or explain away the so-called or assumed conflict between the above two decisions but there would still remain, -- apparently, at least,--someamount of conflict between Dwarkanath's case, 27 Cal L.J. 615: (AIR 1917 PC 173) and the other decisions, particularly, the English case of Phipps v. New Claridge's Hotel Ltd [105) 22 T. L. R. 49, noted in : AIR1934Cal151 . This conflict, however, would also largely vanish on a closer examination inasmuch as the onus to place the materials, that is, the material facts and circumstances, or, in other words, the materials, that is, the material evidence, which, undoubtedly, lies on the defendant [bailee), even on DwarKanath's case, 27 Cal LJ 615: AIR 1917 PC 173 supra, would not be, practically speaking, materially different from the onus to prove absence of negligence, as this latter being only ait inference from those materials, the defendant, when he has placed those materials before the Court, may well be said to have done all that is possible for him to do or all that is required of him in the matter, and to have discharged the onus to prove absence of negligence, If that follows from the materials, he has placed before flu Court as aforesaid. The law, then, on the point of onus, as laid down in Dwarkanath's case, AIR 1917 PC 173, may, for all practical purposes, be safely followed without and material infringement of any principle and this apart from its otherwise binding or compelling authority.
79. I am not unmindful that, theoretically speaking, there is a distinction between the onus to disprove or negative negligence or to prove absence; of negligence and the onus to place before the Court all material facts under Section 106 of the Indian Evidence Act. Such distinction, however, will have importance only in cases, which are bound to be rare, where, in spite of all relevant facia being before the Court, no inference will be possible either way and no negligence cr absence of it can be definitely found. For practical purposes, therefore, the above distinction will have very little significance.
80. To put the matter a little differently:
The the view of the ponouncment of the judicial Committee on the above point in Dwarksnath's case, AIR 1917 PC 173 seems to be this:
'The onus, which lins on 3 bailee [defendant) tonegative regligance on his part in case of loss of thebailed goods or articles, while in his custody, is discharge-ad by his placing before the Court all relevant or malerial facts under Suction 106 of the Indian Evidence Act Thereupon, the onus shifts upon the bailor [plaintiff) to show that the true inference from those facts is negligence on the part of the bailee.'
81. Possibly, in the above view, that is, upon the above pronouncement of the Judicial Committee, the lad on the above point of onus will not be the same' in England and in this country and there will be some difference between the two, however slight, --at least theoretically. That difference, however, will be more or less academic- and, indeed, more apparent than real,-- as it will not be of much significance, at least from the practical point of view. This apparent difference is also well explained of the common presumption in England, on which the bailees above initial onus rests, and which cannot be imported into this country except as a rule of justice, equity and good conscience and must be limited in its character to the rifle of onus, as contained in section 105 of the Indian Evidence Act, in view of the above Privy Council pronouncement. This limitation in the character of the' above presumption has to be recognised in Indian Law in view of the above authority, as done by Rankin C. J. in Dekhari Tea Co. Ltd. v. Assam Bengal Railway Co. Ltd., AIR 1920 Cal 758 : ILR 47 Cal 6 and the Division Bench of this Court in : AIR1934Cal151 , supra, until the Supreme Court rules otherwise, but even this limited presumption may well extend, on a careful reading of the Judicial Committee's said decision, to & presumption of knowledge on the bailee's part of all material facts and circumstances, casting upon him the duty of proving the same under Section 106 of the Indian Evidence Act, which, in essence, would place upon him the onus of disproving or negative negligence, that is, by way of inference from those facts and circumstances, except in the very rare cases, where no definite conclusion will be possible from them on the point. The difference thus, which, undoubtedly, exists in theory and as a matter of abstract principle, will be too narrow to have any practical bearing on the decision of cases, rendering further discussion wholly unnecessary.